Title 33—Navigation and Navigable Waters--Volume 3

§ 321.1 General.

This regulation prescribes, in addition to the general policies of 33 CFR part 320 and procedures of 33 CFR part 325, those special policies, practices, and procedures to be followed by the Corps of Engineers in connection with the review of applications for Department of the Army (DA) permits to authorize the construction of a dike or dam in a navigable water of the United States pursuant to section 9 of the Rivers and Harbors Act of 1899 (33 U.S.C. 401). See 33 CFR 320.2(a). Dams and dikes in navigable waters of the United States also require DA permits under section 404 of the Clean Water Act, as amended (33 U.S.C. 1344). Applicants for DA permits under this part should also refer to 33 CFR part 323 to satisfy the requirements of section 404.

§ 321.2 Definitions.

For the purpose of this regulation, the following terms are defined:

(a) The term navigable waters of the United States means those waters of the United States that are subject to the ebb and flow of the tide shoreward to the mean high water mark and/or are presently used, or have been used in the past, or may be susceptible to use to transport interstate or foreign commerce. See 33 CFR part 329 for a more complete definition of this term.

(b) The term dike or dam means, for the purposes of section 9, any impoundment structure that completely spans a navigable water of the United States and that may obstruct interstate waterborne commerce. The term does not include a weir. Weirs are regulated pursuant to section 10 of the Rivers and Harbors Act of 1899. (See 33 CFR part 322.)

§ 321.3 Special policies and procedures.

The following additional special policies and procedures shall be applicable to the evaluation of permit applications under this regulation:

(a) The Assistant Secretary of the Army (Civil Works) will decide whether DA authorization for a dam or dike in an interstate navigable water of the United States will be issued, since this authority has not been delegated to the Chief of Engineers. The conditions to be imposed in any instrument of authorization will be recommended by the district engineer when forwarding the report to the Assistant Secretary of the Army (Civil Works), through the Chief of Engineers.

(b) District engineers are authorized to decide whether DA authorization for a dam or dike in an intrastate navigable water of the United States will be issued (see 33 CFR 325.8).

(c) Processing a DA application under section 9 will not be completed until the approval of the United States Congress has been obtained if the navigable water of the United States is an interstate waterbody, or until the approval of the appropriate state legislature has been obtained if the navigable water of the United States is an intrastate waterbody (i.e., the navigable portion of the navigable water of the United States is solely within the boundaries of one state). The district engineer, upon receipt of such an application, will notify the applicant that the consent of Congress or the state legislature must be obtained before a permit can be issued.

§ 322.1 General.

This regulation prescribes, in addition to the general policies of 33 CFR part 320 and procedures of 33 CFR part 325, those special policies, practices, and procedures to be followed by the Corps of Engineers in connection with the review of applications for Department of the Army (DA) permits to authorize certain structures or work in or affecting navigable waters of the United States pursuant to section 10 of the Rivers and Harbors Act of 1899 (33 U.S.C. 403) (hereinafter referred to as section 10). See 33 CFR 320.2(b). Certain structures or work in or affecting navigable waters of the United States are also regulated under other authorities of the DA. These include discharges of dredged or fill material into waters of the United States, including the territorial seas, pursuant to section 404 of the Clean Water Act (33 U.S.C. 1344; see 33 CFR part 323) and the transportation of dredged material by vessel for purposes of dumping in ocean waters, including the territorial seas, pursuant to section 103 of the Marine Protection, Research and Sanctuaries Act of 1972, as amended (33 U.S.C. 1413; see 33 CFR part 324). A DA permit will also be required under these additional authorities if they are applicable to structures or work in or affecting navigable waters of the United States. Applicants for DA permits under this part should refer to the other cited authorities and implementing regulations for these additional permit requirements to determine whether they also are applicable to their proposed activities.

§ 322.2 Definitions.

For the purpose of this regulation, the following terms are defined:

(a) The term navigable waters of the United States and all other terms relating to the geographic scope of jurisdiction are defined at 33 CFR part 329. Generally, they are those waters of the United States that are subject to the ebb and flow of the tide shoreward to the mean high water mark, and/or are presently used, or have been used in the past, or may be susceptible to use to transport interstate or foreign commerce.

(b) The term structure shall include, without limitation, any pier, boat dock, boat ramp, wharf, dolphin, weir, boom, breakwater, bulkhead, revetment, riprap, jetty, artificial island, artificial reef, permanent mooring structure, power transmission line, permanently moored floating vessel, piling, aid to navigation, or any other obstacle or obstruction.

(c) The term work shall include, without limitation, any dredging or disposal of dredged material, excavation, filling, or other modification of a navigable water of the United States.

(d) The term letter of permission means a type of individual permit issued in accordance with the abbreviated procedures of 33 CFR 325.2(e).

(e) The term individual permit means a DA authorization that is issued following a case-by-case evaluation of a specific structure or work in accordance with the procedures of this regulation and 33 CFR part 325, and a determination that the proposed structure or work is in the public interest pursuant to 33 CFR part 320.

(f) The term general permit means a DA authorization that is issued on a nationwide or regional basis for a category or categories of activities when:

(1) Those activities are substantially similar in nature and cause only minimal individual and cumulative environmental impacts; or

(2) The general permit would result in avoiding unnecessary duplication of the regulatory control exercised by another Federal, state, or local agency provided it has been determined that the environmental consequences of the action are individually and cumulatively minimal. (See 33 CFR 325.2(e) and 33 CFR part 330.)

(g) The term artificial reef means a structure which is constructed or placed in the navigable waters of the United States or in the waters overlying the outer continental shelf for the purpose of enhancing fishery resources and commercial and recreational fishing opportunities. The term does not include activities or structures such as wing deflectors, bank stabilization, grade stabilization structures, or low flow key ways, all of which may be useful to enhance fisheries resources.

§ 322.3 Activities requiring permits.

(a) General. DA permits are required under section 10 for structures and/or work in or affecting navigable waters of the United States except as otherwise provided in § 322.4 below. Certain activities specified in 33 CFR part 330 are permitted by that regulation (”nationwide general permits”). Other activities may be authorized by district or division engineers on a regional basis (“regional general permits”). If an activity is not exempted by section 322.4 of this part or authorized by a general permit, an individual section 10 permit will be required for the proposed activity. Structures or work are in navigable waters of the United States if they are within limits defined in 33 CFR part 329. Structures or work outside these limits are subject to the provisions of law cited in paragraph (a) of this section, if these structures or work affect the course, location, or condition of the waterbody in such a manner as to impact on its navigable capacity. For purposes of a section 10 permit, a tunnel or other structure or work under or over a navigable water of the United States is considered to have an impact on the navigable capacity of the waterbody.

(b) Outer continental shelf. DA permits are required for the construction of artificial islands, installations, and other devices on the seabed, to the seaward limit of the outer continental shelf, pursuant to section 4(f) of the Outer Continental Shelf Lands Act as amended. (See 33 CFR 320.2(b).)

(c) Activities of Federal agencies. (1) Except as specifically provided in this paragraph, activities of the type described in paragraphs (a) and (b) of this section, done by or on behalf of any Federal agency are subject to the authorization procedures of these regulations. Work or structures in or affecting navigable waters of the United States that are part of the civil works activities of the Corps of Engineers, unless covered by a nationwide or regional general permit issued pursuant to these regulations, are subject to the procedures of separate regulations. Agreement for construction or engineering services performed for other agencies by the Corps of Engineers does not constitute authorization under this regulation. Division and district engineers will therefore advise Federal agencies accordingly, and cooperate to the fullest extent in expediting the processing of their applications.

(2) Congress has delegated to the Secretary of the Army in section 10 the duty to authorize or prohibit certain work or structures in navigable waters of the United States, upon recommendation of the Chief of Engineers. The general legislation by which Federal agencies are enpowered to act generally is not considered to be sufficient authorization by Congress to satisfy the purposes of section 10. If an agency asserts that it has Congressional authorization meeting the test of section 10 or would otherwise be exempt from the provisions of section 10, the legislative history and/or provisions of the Act should clearly demonstrate that Congress was approving the exact location and plans from which Congress could have considered the effect on navigable waters of the United States or that Congress intended to exempt that agency from the requirements of section 10. Very often such legislation reserves final approval of plans or construction for the Chief of Engineers. In such cases evaluation and authorization under this regulation are limited by the intent of the statutory language involved.

(3) The policy provisions set out in 33 CFR 320.4(j) relating to state or local certifications and/or authorizations, do not apply to work or structures undertaken by Federal agencies, except where compliance with non-Federal authorization is required by Federal law or Executive policy, e.g., section 313 and section 401 of the Clean Water Act.

§ 322.4 Activities not requiring permits.

(a) Activities that were commenced or completed shoreward of established Federal harbor lines before May 27, 1970 (see 33 CFR 320.4(o)) do not require section 10 permits; however, if those activities involve the discharge of dredged or fill material into waters of the United States after October 18, 1972, a section 404 permit is required. (See 33 CFR part 323.)

(b) Pursuant to section 154 of the Water Resource Development Act of 1976 (Pub. L. 94-587), Department of the Army permits are not required under section 10 to construct wharves and piers in any waterbody, located entirely within one state, that is a navigable water of the United States solely on the basis of its historical use to transport interstate commerce.

§ 322.5 Special policies.

The Secretary of the Army has delegated to the Chief of Engineers the authority to issue or deny section 10 permits. The following additional special policies and procedures shall also be applicable to the evaluation of permit applications under this regulation.

(a) General. DA permits are required for structures or work in or affecting navigable waters of the United States. However, certain structures or work specified in 33 CFR part 330 are permitted by that regulation. If a structure or work is not permitted by that regulation, an individual or regional section 10 permit will be required.

(b) Artificial Reefs. (1) When considering an application for an artificial reef, as defined in 33 CFR 322.2(g), the district engineer will review the applicant's provisions for siting, constructing, monitoring, operating, maintaining, and managing the proposed artificial reef and shall determine if those provisions are consistent with the following standards:

(i) The enhancement of fishery resources to the maximum extent practicable;

(ii) The facilitation of access and utilization by United States recreational and commercial fishermen;

(iii) The minimization of conflicts among competing uses of the navigable waters or waters overlying the outer continental shelf and of the resources in such waters;

(iv) The minimization of environmental risks and risks to personal health and property;

(v) Generally accepted principles of international law; and

(vi) the prevention of any unreasonable obstructions to navigation. If the district engineer decides that the applicant's provisions are not consistent with these standards, he shall deny the permit. If the district engineer decides that the provisions are consistent with these standards, and if he decides to issue the permit after the public interest review, he shall make the provisions part of the permit.

(2) In addition, the district engineer will consider the National Artificial Reef Plan developed pursuant to section 204 of the National Fishing Enhancement Act of 1984, and if he decides to issue the permit, will notify the Secretary of Commerce of any need to deviate from that plan.

(3) The district engineer will comply with all coordination provisions required by a written agreement between the DOD and the Federal agencies relative to artificial reefs. In addition, if the district engineer decides that further consultation beyond the normal public commenting process is required to evaluate fully the proposed artificial reef, he may initiate such consultation with any Federal agency, state or local government, or other interested party.

(4) The district engineer will issue a permit for the proposed artificial reef only if the applicant demonstrates, to the district engineer's satisfaction, that the title to the artificial reef construction material is unambiguous, that responsibility for maintenance of the reef is clearly established, and that he has the financial ability to assume liability for all damages that may arise with respect to the proposed artificial reef. A demonstration of financial responsibility might include evidence of insurance, sponsorship, or available assets.

(i) A person to whom a permit is issued in accordance with these regulations and any insurer of that person shall not be liable for damages caused by activities required to be undertaken under any terms and conditions of the permit, if the permittee is in compliance with such terms and conditions.

(ii) A person to whom a permit is issued in accordance with these regulations and any insurer of that person shall be liable, to the extent determined under applicable law, for damages to which paragraph (i) does not apply.

(iii) Any person who has transferred title to artificial reef construction materials to a person to whom a permit is issued in accordance with these regulations shall not be liable for damages arising from the use of such materials in an artificial reef, if such materials meet applicable requirements of the plan published under section 204 of the National Artificial Reef Plan, and are not otherwise defective at the time title is transferred.

(c) Non-Federal dredging for navigation. (1) The benefits which an authorized Federal navigation project are intended to produce will often require similar and related operations by non-Federal agencies (e.g., dredging access channels to docks and berthing facilities or deepening such channels to correspond to the Federal project depth). These non-Federal activities will be considered by Corps of Engineers officials in planning the construction and maintenance of Federal navigation projects and, to the maximum practical extent, will be coordinated with interested Federal, state, regional and local agencies and the general public simultaneously with the associated Federal projects. Non-Federal activities which are not so coordinated will be individually evaluated in accordance with these regulations. In evaluating the public interest in connection with applications for permits for such coordinated operations, equal treatment will be accorded to the fullest extent possible to both Federal and non-Federal operations. Permits for non-Federal dredging operations will normally contain conditions requiring the permittee to comply with the same practices or requirements utilized in connection with related Federal dredging operations with respect to such matters as turbidity, water quality, containment of material, nature and location of approved spoil disposal areas (non-Federal use of Federal contained disposal areas will be in accordance with laws authorizing such areas and regulations governing their use), extent and period of dredging, and other factors relating to protection of environmental and ecological values.

(2) A permit for the dredging of a channel, slip, or other such project for navigation may also authorize the periodic maintenance dredging of the project. Authorization procedures and limitations for maintenance dredging shall be as prescribed in 33 CFR 325.6(e). The permit will require the permittee to give advance notice to the district engineer each time maintenance dredging is to be performed. Where the maintenance dredging involves the discharge of dredged material into waters of the United States or the transportation of dredged material for the purpose of dumping it in ocean waters, the procedures in 33 CFR parts 323 and 324 respectively shall also be followed.

(d) Structures for small boats. (1) In the absence of overriding public interest, favorable consideration will generally be given to applications from riparian owners for permits for piers, boat docks, moorings, platforms and similar structures for small boats. Particular attention will be given to the location and general design of such structures to prevent possible obstructions to navigation with respect to both the public's use of the waterway and the neighboring proprietors' access to the waterway. Obstructions can result from both the existence of the structure, particularly in conjunction with other similar facilities in the immediate vicinity, and from its inability to withstand wave action or other forces which can be expected. District engineers will inform applicants of the hazards involved and encourage safety in location, design, and operation. District engineers will encourage cooperative or group use facilities in lieu of individual proprietary use facilities.

(2) Floating structures for small recreational boats or other recreational purposes in lakes controlled by the Corps of Engineers under a resource manager are normally subject to permit authorities cited in § 322.3, of this section, when those waters are regarded as navigable waters of the United States. However, such structures will not be authorized under this regulation but will be regulated under applicable regulations of the Chief of Engineers published in 36 CFR 327.19 if the land surrounding those lakes is under complete Federal ownership. District engineers will delineate those portions of the navigable waters of the United States where this provision is applicable and post notices of this designation in the vicinity of the lake resource manager's office.

(e) Aids to navigation. The placing of fixed and floating aids to navigation in a navigable water of the United States is within the purview of Section 10 of the Rivers and Harbors Act of 1899. Furthermore, these aids are of particular interest to the U.S. Coast Guard because of its control of marking, lighting and standardization of such navigation aids. A Section 10 nationwide permit has been issued for such aids provided they are approved by, and installed in accordance with the requirements of the U.S. Coast Guard (33 CFR 330.5(a)(1)). Electrical service cables to such aids are not included in the nationwide permit (an individual or regional Section 10 permit will be required).

(f) Outer continental shelf. Artificial islands, installations, and other devices located on the seabed, to the seaward limit of the outer continental shelf, are subject to the standard permit procedures of this regulation. Where the islands, installations and other devices are to be constructed on lands which are under mineral lease from the Mineral Management Service, Department of the Interior, that agency, in cooperation with other federal agencies, fully evaluates the potential effect of the leasing program on the total environment. Accordingly, the decision whether to issue a permit on lands which are under mineral lease from the Department of the Interior will be limited to an evaluation of the impact of the proposed work on navigation and national security. The public notice will so identify the criteria.

(g) Canals and other artificial waterways connected to navigable waters of the United States. A canal or similar artificial waterway is subject to the regulatory authorities discussed in § 322.3, of this part, if it constitutes a navigable water of the United States, or if it is connected to navigable waters of the United States in a manner which affects their course, location, condition, or capacity, or if at some point in its construction or operation it results in an effect on the course, location, condition, or capacity of navigable waters of the United States. In all cases the connection to navigable waters of the United States requires a permit. Where the canal itself constitutes a navigable water of the United States, evaluation of the permit application and further exercise of regulatory authority will be in accordance with the standard procedures of these regulations. For all other canals, the exercise of regulatory authority is restricted to those activities which affect the course, location, condition, or capacity of the navigable waters of the United States. The district engineer will consider, for applications for canal work, a proposed plan of the entire development and the location and description of anticipated docks, piers and other similar structures which will be placed in the canal.

(h) Facilities at the borders of the United States. (1) The construction, operation, maintenance, or connection of facilities at the borders of the United States are subject to Executive control and must be authorized by the President, Secretary of State, or other delegated official.

(2) Applications for permits for the construction, operation, maintenance, or connection at the borders of the United States of facilities for the transmission of electric energy between the United States and a foreign country, or for the exportation or importation of natural gas to or from a foreign country, must be made to the Secretary of Energy. (Executive Order 10485, September 3, 1953, 16 U.S.C. 824(a)(e), 15 U.S.C. 717(b), as amended by Executive Order 12038, February 3, 1978, and 18 CFR parts 32 and 153).

(3) Applications for the landing or operation of submarine cables must be made to the Federal Communications Commission. (Executive Order 10530, May 10, 1954, 47 U.S.C. 34 to 39, and 47 CFR 1.766).

(4) The Secretary of State is to receive applications for permits for the construction, connection, operation, or maintenance, at the borders of the United States, of pipelines, conveyor belts, and similar facilities for the exportation or importation of petroleum products, coals, minerals, or other products to or from a foreign country; facilities for the exportation or importation of water or sewage to or from a foreign country; and monorails, aerial cable cars, aerial tramways, and similar facilities for the transportation of persons and/or things, to or from a foreign country. (Executive Order 11423, August 16, 1968).

(5) A DA permit under section 10 of the Rivers and Harbors Act of 1899 is also required for all of the above facilities which affect the navigable waters of the United States, but in each case in which a permit has been issued as provided above, the district engineer, in evaluating the general public interest, may consider the basic existence and operation of the facility to have been primarily examined and permitted as provided by the Executive Orders. Furthermore, in those cases where the construction, maintenance, or operation at the above facilities involves the discharge of dredged or fill material in waters of the United States or the transportation of dredged material for the purpose of dumping it into ocean waters, appropriate DA authorizations under section 404 of the Clean Water Act or under section 103 of the Marine Protection, Research and Sanctuaries Act of 1972, as amended, are also required. (See 33 CFR parts 323 and 324.)

(i) Power transmission lines. (1) Permits under section 10 of the Rivers and Harbors Act of 1899 are required for power transmission lines crossing navigable waters of the United States unless those lines are part of a water power project subject to the regulatory authorities of the Department of Energy under the Federal Power Act of 1920. If an application is received for a permit for lines which are part of such a water power project, the applicant will be instructed to submit the application to the Department of Energy. If the lines are not part of such a water power project, the application will be processed in accordance with the procedures of these regulations.

(2) The following minimum clearances are required for aerial electric power transmission lines crossing navigable waters of the United States. These clearances are related to the clearances over the navigable channel provided by existing fixed bridges, or the clearances which would be required by the U.S. Coast Guard for new fixed bridges, in the vicinity of the proposed power line crossing. The clearances are based on the low point of the line under conditions which produce the greatest sag, taking into consideration temperature, load, wind, length or span, and type of supports as outlined in the National Electrical Safety Code.

Nominal system voltage, kV | Minimum additional clearance (feet) above clearance required for bridges

115 and below | 20

138 | 22

161 | 24

230 | 26

350 | 30

500 | 35

700 | 42

750-765 | 45

(3) Clearances for communication lines, stream gaging cables, ferry cables, and other aerial crossings are usually required to be a minimum of ten feet above clearances required for bridges. Greater clearances will be required if the public interest so indicates.

(4) Corps of Engineer regulation ER 1110-2-4401 prescribes minimum vertical clearances for power and communication lines over Corps lake projects. In instances where both this regulation and ER 1110-2-4401 apply, the greater minimum clearance is required.

(j) Seaplane operations. (1) Structures in navigable waters of the United States associated with seaplane operations require DA permits, but close coordination with the Federal Aviation Administration (FAA), Department of Transportation, is required on such applications.

(2) The FAA must be notified by an applicant whenever he proposes to establish or operate a seaplane base. The FAA will study the proposal and advise the applicant, district engineer, and other interested parties as to the effects of the proposal on the use of airspace. The district engineer will, therefore, refer any objections regarding the effect of the proposal on the use of airspace to the FAA, and give due consideration to its recommendations when evaluating the general public interest.

(3) If the seaplane base would serve air carriers licensed by the Department of Transportation, the applicant must receive an airport operating certificate from the FAA. That certificate reflects a determination and conditions relating to the installation, operation, and maintenance of adequate air navigation facilities and safety equipment. Accordingly, the district engineer may, in evaluating the general public interest, consider such matters to have been primarily evaluated by the FAA.

(4) For regulations pertaining to seaplane landings at Corps of Engineers projects, see 36 CFR 327.4.

(k) Foreign trade zones. The Foreign Trade Zones Act (48 Stat. 998-1003, 19 U.S.C. 81a to 81u, as amended) authorizes the establishment of foreign-trade zones in or adjacent to United States ports of entry under terms of a grant and regulations prescribed by the Foreign-Trade Zones Board. Pertinent regulations are published at Title 15 of the Code of Federal Regulations, part 400. The Secretary of the Army is a member of the Board, and construction of a zone is under the supervision of the district engineer. Laws governing the navigable waters of the United States remain applicable to foreign-trade zones, including the general requirements of these regulations. Evaluation by a district engineer of a permit application may give recognition to the consideration by the Board of the general economic effects of the zone on local and foreign commerce, general location of wharves and facilities, and other factors pertinent to construction, operation, and maintenance of the zone.

(l) Shipping safety fairways and anchorage areas. DA permits are required for structures located within shipping safety fairways and anchorage areas established by the U.S. Coast Guard.

(1) The Department of the Army will grant no permits for the erection of structures in areas designated as fairways, except that district engineers may permit anchors and attendant cables or chains for floating or semisubmersible drilling rigs to be placed within a fairway provided the following conditions are met:

(i) The purpose of such anchors and attendant cables or chains as used in this section is to stabilize floating production facilities or semisubmersible drilling rigs which are located outside the boundaries of the fairway.

(ii) In water depths of 600 feet or less, the installation of anchors and attendant cables or chains within fairways must be temporary and shall be allowed to remain only 120 days. This period may be extended by the district engineer provided reasonable cause for such extension can be shown and the extension is otherwise justified. In water depths greater than 600 feet, time restrictions on anchors and attendant cables or chains located within a fairway, whether temporary or permanent, shall not apply.

(iii) Drilling rigs must be at least 500 feet from any fairway boundary or whatever distance necessary to insure that minimum clearance over an anchor line within a fairway will be 125 feet.

(iv) No anchor buoys or floats or related rigging will be allowed on the surface of the water or to a depth of 125 feet from the surface, within the fairway.

(v) Drilling rigs may not be placed closer than 2 nautical miles of any other drilling rig situated along a fairway boundary, and not closer than 3 nautical miles to any drilling rig located on the opposite side of the fairway.

(vi) The permittee must notify the district engineer, Bureau of Land Management, Mineral Management Service, U.S. Coast Guard, National Oceanic and Atmospheric Administration and the U.S. Navy Hydrographic Office of the approximate dates (commencement and completion) the anchors will be in place to insure maximum notification to mariners.

(vii) Navigation aids or danger markings must be installed as required by the U.S. Coast Guard.

(2) District engineers may grant permits for the erection of structures within an area designated as an anchorage area, but the number of structures will be limited by spacing, as follows: The center of a structure to be erected shall be not less than two (2) nautical miles from the center of any existing structure. In a drilling or production complex, associated structures shall be as close together as practicable having due consideration for the safety factors involved. A complex of associated structures, when connected by walkways, shall be considered one structure for the purpose of spacing. A vessel fixed in place by moorings and used in conjunction with the associated structures of a drilling or production complex, shall be considered an attendant vessel and its extent shall include its moorings. When a drilling or production complex includes an attendant vessel and the complex extends more than five hundred (500) yards from the center or the complex, a structure to be erected shall be not closer than two (2) nautical miles from the near outer limit of the complex. An underwater completion installation in and anchorage area shall be considered a structure and shall be marked with a lighted buoy as approved by the United States Coast Guard.

[51 FR 41228, Nov. 13, 1986, as amended at 60 FR 44761, Aug. 29, 1995]

§ 323.1 General.

This regulation prescribes, in addition to the general policies of 33 CFR part 320 and procedures of 33 CFR part 325, those special policies, practices, and procedures to be followed by the Corps of Engineers in connection with the review of applications for DA permits to authorize the discharge of dredged or fill material into waters of the United States pursuant to section 404 of the Clean Water Act (CWA) (33 U.S.C. 1344) (hereinafter referred to as section 404). (See 33 CFR 320.2(g).) Certain discharges of dredged or fill material into waters of the United States are also regulated under other authorities of the Department of the Army. These include dams and dikes in navigable waters of the United States pursuant to section 9 of the Rivers and Harbors Act of 1899 (33 U.S.C. 401; see 33 CFR part 321) and certain structures or work in or affecting navigable waters of the United States pursuant to section 10 of the Rivers and Harbors Act of 1899 (33 U.S.C. 403; see 33 CFR part 322). A DA permit will also be required under these additional authorities if they are applicable to activities involving discharges of dredged or fill material into waters of the United States. Applicants for DA permits under this part should refer to the other cited authorities and implementing regulations for these additional permit requirements to determine whether they also are applicable to their proposed activities.

§ 323.2 Definitions.

For the purpose of this part, the following terms are defined:

(a) The term waters of the United States and all other terms relating to the geographic scope of jurisdiction are defined at 33 CFR part 328.

(b) The term lake means a standing body of open water that occurs in a natural depression fed by one or more streams from which a stream may flow, that occurs due to the widening or natural blockage or cutoff of a river or stream, or that occurs in an isolated natural depression that is not a part of a surface river or stream. The term also includes a standing body of open water created by artificially blocking or restricting the flow of a river, stream, or tidal area. As used in this regulation, the term does not include artificial lakes or ponds created by excavating and/or diking dry land to collect and retain water for such purposes as stock watering, irrigation, settling basins, cooling, or rice growing.

(c) The term dredged material means material that is excavated or dredged from waters of the United States.

(d)(1) Except as provided below in paragraph (d)(2), the term discharge of dredged material means any addition of dredged material into, including redeposit of dredged material other than incidential fallback within, the waters of the United States. The term includes, but is not limited to, the following:

(i) The addition of dredged material to a specified discharge site located in waters of the United States;

(ii) The runoff or overflow from a contained land or water disposal area; and

(iii) Any addition, including redeposit other than incidential fallback, of dredged material, including excavated material, into waters of the United States which is incidental to any activity, including mechanized landclearing, ditching, channelization, or other excavation.

(2) The term discharge of dredged material does not include the following:

(i) Discharges of pollutants into waters of the United States resulting from the onshore subsequent processing of dredged material that is extracted for any commercial use (other than fill). These discharges are subject to section 402 of the Clean Water Act even though the extraction and deposit of such material may require a permit from the Corps or applicable State section 404 program.

(ii) Activities that involve only the cutting or removing of vegetation above the ground (e.g., mowing, rotary cutting, and chainsawing) where the activity neither substantially disturbs the root system nor involves mechanized pushing, dragging, or other similar activities that redeposit excavated soil material.

(iii) Incidental fallback.

(3) Section 404 authorization is not required for the following:

(i) Any incidental addition, including redeposit, of dredged material associated with any activity that does not have or would not have the effect of destroying or degrading an area of waters of the United States as defined in paragraphs (d)(4) and (d)(5) of this section; however, this exception does not apply to any person preparing to undertake mechanized landclearing, ditching, channelization and other excavation activity in a water of the United States, which would result in a redeposit of dredged material, unless the person demonstrates to the satisfaction of the Corps, or EPA as appropriate, prior to commencing the activity involving the discharge, that the activity would not have the effect of destroying or degrading any area of waters of the United States, as defined in paragraphs (d)(4) and (d)(5) of this section. The person proposing to undertake mechanized landclearing, ditching, channelization or other excavation activity bears the burden of demonstrating that such activity would not destroy or degrade any area of waters of the United States.

(ii) Incidental movement of dredged material occurring during normal dredging operations, defined as dredging for navigation in navigable waters of the United States, as that term is defined in part 329 of this chapter, with proper authorization from the Congress and/or the Corps pursuant to part 322 of this Chapter; however, this exception is not applicable to dredging activities in wetlands, as that term is defined at section 328.3 of this Chapter.

(iii) Certain discharges, such as those associated with normal farming, silviculture, and ranching activities, are not prohibited by or otherwise subject to regulation under section 404. See 33 CFR 323.4 for discharges that do not required permits.

(4) For purposes of this section, an activity associated with a discharge of dredged material destroys an area of waters of the United States if it alters the area in such a way that it would no longer be a water of the United States.

Note:

Unauthorized discharges into waters of the United States do not eliminate Clean Water Act jurisdiction, even where such unauthorized discharges have the effect of destroying waters of the United States.

(5) For purposes of this section, an activity associated with a discharge of dredged material degrades an area of waters of the United States if it has more than a de minimis (i.e., inconsequential) effect on the area by causing an identifiable individual or cumulative adverse effect on any aquatic function.

(e)(1) Except as specified in paragraph (e)(3) of this section, the term fill material means material placed in waters of the United States where the material has the effect of:

(i) Replacing any portion of a water of the United States with dry land; or

(ii) Changing the bottom elevation of any portion of a water of the United States.

(2) Examples of such fill material include, but are not limited to: rock, sand, soil, clay, plastics, construction debris, wood chips, overburden from mining or other excavation activities, and materials used to create any structure or infrastructure in the waters of the United States.

(3) The term fill material does not include trash or garbage.

(f) The term discharge of fill material means the addition of fill material into waters of the United States. The term generally includes, without limitation, the following activities: Placement of fill that is necessary for the construction of any structure or infrastructure in a water of the United States; the building of any structure, infrastructure, or impoundment requiring rock, sand, dirt, or other material for its construction; site-development fills for recreational, industrial, commercial, residential, or other uses; causeways or road fills; dams and dikes; artificial islands; property protection and/or reclamation devices such as riprap, groins, seawalls, breakwaters, and revetments; beach nourishment; levees; fill for structures such as sewage treatment facilities, intake and outfall pipes associated with power plants and subaqueous utility lines; placement of fill material for construction or maintenance of any liner, berm, or other infrastructure associated with solid waste landfills; placement of overburden, slurry, or tailings or similar mining-related materials; and artificial reefs. The term does not include plowing, cultivating, seeding and harvesting for the production of food, fiber, and forest products (See § 323.4 for the definition of these terms). See § 323.3(c) concerning the regulation of the placement of pilings in waters of the United States.

(g) The term individual permit means a Department of the Army authorization that is issued following a case-by-case evaluation of a specific project involving the proposed discharge(s) in accordance with the procedures of this part and 33 CFR part 325 and a determination that the proposed discharge is in the public interest pursuant to 33 CFR part 320.

(h) The term general permit means a Department of the Army authorization that is issued on a nationwide or regional basis for a category or categories of activities when:

(1) Those activities are substantially similar in nature and cause only minimal individual and cumulative environmental impacts; or

(2) The general permit would result in avoiding unnecessary duplication of regulatory control exercised by another Federal, State, or local agency provided it has been determined that the environmental consequences of the action are individually and cumulatively minimal. (See 33 CFR 325.2(e) and 33 CFR part 330.)

[51 FR 41232, Nov. 13, 1986, as amended at 58 FR 45035, Aug. 25, 1993; 58 FR 48424, Sept. 15, 1993; 63 FR 25123, May 10, 1999; 66 FR 4574, Jan. 17, 2001; 66 FR 10367, Feb. 15, 2001; 67 FR 31142, May 9, 2002; 73 FR 79645, Dec. 30, 2008]

§ 323.3 Discharges requiring permits.

(a) General. Except as provided in § 323.4 of this part, DA permits will be required for the discharge of dredged or fill material into waters of the United States. Certain discharges specified in 33 CFR part 330 are permitted by that regulation (“nationwide permits”). Other discharges may be authorized by district or division engineers on a regional basis (“regional permits”). If a discharge of dredged or fill material is not exempted by § 323.4 of this part or permitted by 33 CFR part 330, an individual or regional section 404 permit will be required for the discharge of dredged or fill material into waters of the United States.

(b) Activities of Federal agencies. Discharges of dredged or fill material into waters of the United States done by or on behalf of any Federal agency, other than the Corps of Engineers (see 33 CFR 209.145), are subject to the authorization procedures of these regulations. Agreement for construction or engineering services performed for other agencies by the Corps of Engineers does not constitute authorization under the regulations. Division and district engineers will therefore advise Federal agencies and instrumentalities accordingly and cooperate to the fullest extent in expediting the processing of their applications.

(c) Pilings. (1) Placement of pilings in waters of the United States constitutes a discharge of fill material and requires a section 404 permit when such placement has or would have the effect of a discharge of fill material. Examples of such activities that have the effect of a discharge of fill material include, but are not limited to, the following: Projects where the pilings are so closely spaced that sedimentation rates would be increased; projects in which the pilings themselves effectively would replace the bottom of a waterbody; projects involving the placement of pilings that would reduce the reach or impair the flow or circulation of waters of the United States; and projects involving the placement of pilings which would result in the adverse alteration or elimination of aquatic functions.

(2) Placement of pilings in waters of the United States that does not have or would not have the effect of a discharge of fill material shall not require a section 404 permit. Placement of pilings for linear projects, such as bridges, elevated walkways, and powerline structures, generally does not have the effect of a discharge of fill material. Furthermore, placement of pilings in waters of the United States for piers, wharves, and an individual house on stilts generally does not have the effect of a discharge of fill material. All pilings, however, placed in the navigable waters of the United States, as that term is defined in part 329 of this chapter, require authorization under section 10 of the Rivers and Harbors Act of 1899 (see part 322 of this chapter).

[51 FR 41232, Nov. 13, 1986, as amended at 58 FR 45036, Aug. 25, 1993]

§ 323.4 Discharges not requiring permits.

(a) General. Except as specified in paragraphs (b) and (c) of this section, any discharge of dredged or fill material that may result from any of the following activities is not prohibited by or otherwise subject to regulation under section 404:

(1)(i) Normal farming, silviculture and ranching activities such as plowing, seeding, cultivating, minor drainage, and harvesting for the production of food, fiber, and forest products, or upland soil and water conservation practices, as defined in paragraph (a)(1)(iii) of this section.

(ii) To fall under this exemption, the activities specified in paragraph (a)(1)(i) of this section must be part of an established (i.e., on-going) farming, silviculture, or ranching operation and must be in accordance with definitions in § 323.4(a)(1)(iii). Activities on areas lying fallow as part of a conventional rotational cycle are part of an established operation. Activities which bring an area into farming, silviculture, or ranching use are not part of an established operation. An operation ceases to be established when the area on which it was conducted has been converted to another use or has lain idle so long that modifications to the hydrological regime are necessary to resume operations. If an activity takes place outside the waters of the United States, or if it does not involve a discharge, it does not need a section 404 permit, whether or not it is part of an established farming, silviculture, or ranching operation.

(iii)(A) Cultivating means physical methods of soil treatment employed within established farming, ranching and silviculture lands on farm, ranch, or forest crops to aid and improve their growth, quality or yield.

(B) Harvesting means physical measures employed directly upon farm, forest, or ranch crops within established agricultural and silvicultural lands to bring about their removal from farm, forest, or ranch land, but does not include the construction of farm, forest, or ranch roads.

(C)(1) Minor drainage means:

(i) The discharge of dredged or fill material incidental to connecting upland drainage facilities to waters of the United States, adequate to effect the removal of excess soil moisture from upland croplands. (Construction and maintenance of upland (dryland) facilities, such as ditching and tiling, incidental to the planting, cultivating, protecting, or harvesting of crops, involve no discharge of dredged or fill material into waters of the United States, and as such never require a section 404 permit.);

(ii) The discharge of dredged or fill material for the purpose of installing ditching or other such water control facilities incidental to planting, cultivating, protecting, or harvesting of rice, cranberries or other wetland crop species, where these activities and the discharge occur in waters of the United States which are in established use for such agricultural and silvicultural wetland crop production;

(iii) The discharge of dredged or fill material for the purpose of manipulating the water levels of, or regulating the flow or distribution of water within, existing impoundments which have been constructed in accordance with applicable requirements of CWA, and which are in established use for the production of rice, cranberries, or other wetland crop species. (The provisions of paragraphs (a)(1)(iii)(C)(1) (ii) and (iii) of this section apply to areas that are in established use exclusively for wetland crop production as well as areas in established use for conventional wetland/non-wetland crop rotation (e.g., the rotations of rice and soybeans) where such rotation results in the cyclical or intermittent temporary dewatering of such areas.)

(iv) The discharges of dredged or fill material incidental to the emergency removal of sandbars, gravel bars, or other similar blockages which are formed during flood flows or other events, where such blockages close or constrict previously existing drainageways and, if not promptly removed, would result in damage to or loss of existing crops or would impair or prevent the plowing, seeding, harvesting or cultivating of crops on land in established use for crop production. Such removal does not include enlarging or extending the dimensions of, or changing the bottom elevations of, the affected drainageway as it existed prior to the formation of the blockage. Removal must be accomplished within one year of discovery of such blockages in order to be eligible for exemption.

(2) Minor drainage in waters of the U.S. is limited to drainage within areas that are part of an established farming or silviculture operation. It does not include drainage associated with the immediate or gradual conversion of a wetland to a non-wetland (e.g., wetland species to upland species not typically adapted to life in saturated soil conditions), or conversion from one wetland use to another (for example, silviculture to farming). In addition, minor drainage does not include the construction of any canal, ditch, dike or other waterway or structure which drains or otherwise significantly modifies a stream, lake, swamp, bog or any other wetland or aquatic area constituting waters of the United States. Any discharge of dredged or fill material into the waters of the United States incidental to the construction of any such structure or waterway requires a permit.

(D) Plowing means all forms of primary tillage, including moldboard, chisel, or wide-blade plowing, discing, harrowing and similar physical means utilized on farm, forest or ranch land for the breaking up, cutting, turning over, or stirring of soil to prepare it for the planting of crops. The term does not include the redistribution of soil, rock, sand, or other surficial materials in a manner which changes any area of the waters of the United States to dry land. For example, the redistribution of surface materials by blading, grading, or other means to fill in wetland areas is not plowing. Rock crushing activities which result in the loss of natural drainage characteristics, the reduction of water storage and recharge capabilities, or the overburden of natural water filtration capacities do not constitute plowing. Plowing as described above will never involve a discharge of dredged or fill material.

(E) Seeding means the sowing of seed and placement of seedlings to produce farm, ranch, or forest crops and includes the placement of soil beds for seeds or seedlings on established farm and forest lands.

(2) Maintenance, including emergency reconstruction of recently damaged parts, of currently serviceable structures such as dikes, dams, levees, groins, riprap, breakwaters, causeways, bridge abutments or approaches, and transportation structures. Maintenance does not include any modification that changes the character, scope, or size of the original fill design. Emergency reconstruction must occur within a reasonable period of time after damage occurs in order to qualify for this exemption.

(3) Construction or maintenance of farm or stock ponds or irrigation ditches, or the maintenance (but not construction) of drainage ditches. Discharges associated with siphons, pumps, headgates, wingwalls, weirs, diversion structures, and such other facilities as are appurtenant and functionally related to irrigation ditches are included in this exemption.

(4) Construction of temporary sedimentation basins on a construction site which does not include placement of fill material into waters of the U.S. The term “construction site” refers to any site involving the erection of buildings, roads, and other discrete structures and the installation of support facilities necessary for construction and utilization of such structures. The term also includes any other land areas which involve land-disturbing excavation activities, including quarrying or other mining activities, where an increase in the runoff of sediment is controlled through the use of temporary sedimentation basins.

(5) Any activity with respect to which a State has an approved program under section 208(b)(4) of the CWA which meets the requirements of sections 208(b)(4) (B) and (C).

(6) Construction or maintenance of farm roads, forest roads, or temporary roads for moving mining equipment, where such roads are constructed and maintained in accordance with best management practices (BMPs) to assure that flow and circulation patterns and chemical and biological characteristics of waters of the United States are not impaired, that the reach of the waters of the United States is not reduced, and that any adverse effect on the aquatic environment will be otherwise minimized. These BMPs which must be applied to satisfy this provision shall include those detailed BMPs described in the State's approved program description pursuant to the requirements of 40 CFR 233.22(i), and shall also include the following baseline provisions:

(i) Permanent roads (for farming or forestry activities), temporary access roads (for mining, forestry, or farm purposes) and skid trails (for logging) in waters of the U.S. shall be held to the minimum feasible number, width, and total length consistent with the purpose of specific farming, silvicultural or mining operations, and local topographic and climatic conditions;

(ii) All roads, temporary or permanent, shall be located sufficiently far from streams or other water bodies (except for portions of such roads which must cross water bodies) to minimize discharges of dredged or fill material into waters of the U.S.;

(iii) The road fill shall be bridged, culverted, or otherwise designed to prevent the restriction of expected flood flows;

(iv) The fill shall be properly stabilized and maintained during and following construction to prevent erosion;

(v) Discharges of dredged or fill material into waters of the United States to construct a road fill shall be made in a manner that minimizes the encroachment of trucks, tractors, bulldozers, or other heavy equipment within waters of the United States (including adjacent wetlands) that lie outside the lateral boundaries of the fill itself;

(vi) In designing, constructing, and maintaining roads, vegetative disturbance in the waters of the U.S. shall be kept to a minimum;

(vii) The design, construction and maintenance of the road crossing shall not disrupt the migration or other movement of those species of aquatic life inhabiting the water body;

(viii) Borrow material shall be taken from upland sources whenever feasible;

(ix) The discharge shall not take, or jeopardize the continued existence of, a threatened or endangered species as defined under the Endangered Species Act, or adversely modify or destroy the critical habitat of such species;

(x) Discharges into breeding and nesting areas for migratory waterfowl, spawning areas, and wetlands shall be avoided if practical alternatives exist;

(xi) The discharge shall not be located in the proximity of a public water supply intake;

(xii) The discharge shall not occur in areas of concentrated shellfish production;

(xiii) The discharge shall not occur in a component of the National Wild and Scenic River System;

(xiv) The discharge of material shall consist of suitable material free from toxic pollutants in toxic amounts; and

(xv) All temporary fills shall be removed in their entirety and the area restored to its original elevation.

(b) If any discharge of dredged or fill material resulting from the activities listed in paragraphs (a) (1) through (6) of this section contains any toxic pollutant listed under section 307 of the CWA such discharge shall be subject to any applicable toxic effluent standard or prohibition, and shall require a section 404 permit.

(c) Any discharge of dredged or fill material into waters of the United States incidental to any of the activities identified in paragraphs (a) (1) through (6) of this section must have a permit if it is part of an activity whose purpose is to convert an area of the waters of the United States into a use to which it was not previously subject, where the flow or circulation of waters of the United States may be impaired or the reach of such waters reduced. Where the proposed discharge will result in significant discernible alterations to flow or circulation, the presumption is that flow or circulation may be impaired by such alteration. For example, a permit will be required for the conversion of a cypress swamp to some other use or the conversion of a wetland from silvicultural to agricultural use when there is a discharge of dredged or fill material into waters of the United States in conjunction with construction of dikes, drainage ditches or other works or structures used to effect such conversion. A conversion of a section 404 wetland to a non-wetland is a change in use of an area of waters of the United States. A discharge which elevates the bottom of waters of the United States without converting it to dry land does not thereby reduce the reach of, but may alter the flow or circulation of, waters of the United States.

(d) Federal projects which qualify under the criteria contained in section 404(r) of the CWA are exempt from section 404 permit requirements, but may be subject to other State or Federal requirements.

§ 323.5 Program transfer to States.

Section 404(h) of the CWA allows the Administrator of the Environmental Protection Agency (EPA) to transfer administration of the section 404 permit program for discharges into certain waters of the United States to qualified States. (The program cannot be transferred for 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 the high tide line, including wetlands adjacent thereto). See 40 CFR parts 233 and 124 for procedural regulations for transferring section 404 programs to States. Once a State's 404 program is approved and in effect, the Corps of Engineers will suspend processing of section 404 applications in the applicable waters and will transfer pending applications to the State agency responsible for administering the program. District engineers will assist EPA and the States in any way practicable to effect transfer and will develop appropriate procedures to ensure orderly and expeditious transfer.

§ 323.6 Special policies and procedures.

(a) The Secretary of the Army has delegated to the Chief of Engineers the authority to issue or deny section 404 permits. The district engineer will review applications for permits for the discharge of dredged or fill material into waters of the United States in accordance with guidelines promulgated by the Administrator, EPA, under authority of section 404(b)(1) of the CWA. (see 40 CFR part 230.) Subject to consideration of any economic impact on navigation and anchorage pursuant to section 404(b)(2), a permit will be denied if the discharge that would be authorized by such a permit would not comply with the 404(b)(1) guidelines. If the district engineer determines that the proposed discharge would comply with the 404(b)(1) guidelines, he will grant the permit unless issuance would be contrary to the public interest.

(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 specification, or to deny, restrict or withdraw the use for specification, of any defined area as a disposal site in accordance with section 404(c) of the Clean Water Act. However the Corps will continue to complete the administrative processing of the application while the section 404(c) procedures are underway including completion of final coordination with EPA under 33 CFR part 325.

§ 324.1 General.

This regulation prescribes in addition to the general policies of 33 CFR part 320 and procedures of 33 CFR part 325, those special policies, practices and procedures to be followed by the Corps of Engineers in connection with the review of applications for Department of the Army (DA) permits to authorize the transportation of dredged material by vessel or other vehicle for the purpose of dumping it in ocean waters at dumping sites designated under 40 CFR part 228 pursuant to section 103 of the Marine Protection, Research and Sanctuaries Act of 1972, as amended (33 U.S.C. 1413) (hereinafter referred to as section 103). See 33 CFR 320.2(h). Activities involving the transportation of dredged material for the purpose of dumping in the ocean waters also require DA permits under Section 10 of the Rivers and Harbors Act of 1899 (33 U.S.C. 403) for the dredging in navigable waters of the United States. Applicants for DA permits under this part should also refer to 33 CFR part 322 to satisfy the requirements of Section 10.

§ 324.2 Definitions.

For the purpose of this regulation, the following terms are defined:

(a) The term ocean waters means those waters of the open seas lying seaward of the base line from which the territorial sea is measured, as provided for in the Convention on the Territorial Sea and the Contiguous Zone (15 UST 1606: TIAS 5639).

(b) The term dredged material means any material excavated or dredged from navigable waters of the United States.

(c) The term transport or transportation refers to the conveyance and related handling of dredged material by a vessel or other vehicle.

§ 324.3 Activities requiring permits.

(a) General. DA permits are required for the transportation of dredged material for the purpose of dumping it in ocean waters.

(b) Activities of Federal agencies. (1) The transportation of dredged material for the purpose of disposal in ocean waters done by or on behalf of any Federal agency other than the activities of the Corps of Engineers is subject to the procedures of this regulation. Agreement for construction or engineering services performed for other agencies by the Corps of Engineers does not constitute authorization under these regulations. Division and district engineers will therefore advise Federal agencies accordingly and cooperate to the fullest extent in the expeditious processing of their applications. The activities of the Corps of Engineers that involve the transportation of dredged material for disposal in ocean waters are regulated by 33 CFR 209.145.

(2) The policy provisions set out in 33 CFR 320.4(j) relating to state or local authorizations do not apply to work or structures undertaken by Federal agencies, except where compliance with non-Federal authorization is required by Federal law or Executive policy. Federal agencies are responsible for conformance with such laws and policies. (See EO 12088, October 18, 1978.) Federal agencies are not required to obtain and provide certification of compliance with effluent limitations and water quality standards from state or interstate water pollution control agencies in connection with activities involving the transport of dredged material for dumping into ocean waters beyond the territorial sea.

§ 324.4 Special procedures.

The Secretary of the Army has delegated to the Chief of Engineers the authority to issue or deny section 103 permits. The following additional procedures shall also be applicable under this regulation.

(a) Public notice. For all applications for section 103 permits, the district engineer will issue a public notice which shall contain the information specified in 33 CFR 325.3.

(b) Evaluation. Applications for permits for the transportation of dredged material for the purpose of dumping it in ocean waters will be evaluated to determine whether the proposed dumping will unreasonably degrade or endanger human health, welfare, amenities, or the marine environment, ecological systems or economic potentialities. District engineers will apply the criteria established by the Administrator of EPA pursuant to section 102 of the Marine Protection, Research and Sanctuaries Act of 1972 in making this evaluation. (See 40 CFR parts 220-229) Where ocean dumping is determined to be necessary, the district engineer will, to the extent feasible, specify disposal sites using the recommendations of the Administrator pursuant to section 102(c) of the Act.

(c) EPA review. When the Regional Administrator, EPA, in accordance with 40 CFR 225.2(b), advises the district engineer, in writing, that the proposed dumping will comply with the criteria, the district engineer will complete his evaluation of the application under this part and 33 CFR parts 320 and 325. If, however, the Regional Administrator advises the district engineer, in writing, that the proposed dumping does not comply with the criteria, the district engineer will proceed as follows:

(1) The district engineer will determine whether there is an economically feasible alternative method or site available other than the proposed ocean disposal site. If there are other feasible alternative methods or sites available, the district engineer will evaluate them in accordance with 33 CFR parts 320, 322, 323, and 325 and this part, as appropriate.

(2) If the district engineer determines that there is no economically feasible alternative method or site available, and the proposed project is otherwise found to be not contrary to the public interest, he will so advise the Regional Administrator setting forth his reasons for such determination. If the Regional Administrator has not removed his objection within 15 days, the district engineer will submit a report of his determination to the Chief of Engineers for further coordination with the Administrator, EPA, and decision. The report forwarding the case will contain the analysis of whether there are other economically feasible methods or sites available to dispose of the dredged material.

(d) Chief of Engineers review. The Chief of Engineers shall evaluate the permit application and make a decision to deny the permit or recommend its issuance. If the decision of the Chief of Engineers is that ocean dumping at the proposed disposal site is required because of the unavailability of economically feasible alternatives, he shall so certify and request that the Secretary of the Army seek a waiver from the Administrator, EPA, of the criteria or of the critical site designation in accordance with 40 CFR 225.4.

§ 325.1 Applications for permits.

(a) General. The processing procedures of this part apply to any Department of the Army (DA) permit. Special procedures and additional information are contained in 33 CFR parts 320 through 324, 327 and part 330. This part is arranged in the basic timing sequence used by the Corps of Engineers in processing applications for DA permits.

(b) Pre-application consultation for major applications. The district staff element having responsibility for administering, processing, and enforcing federal laws and regulations relating to the Corps of Engineers regulatory program shall be available to advise potential applicants of studies or other information foreseeably required for later federal action. The district engineer will establish local procedures and policies including appropriate publicity programs which will allow potential applicants to contact the district engineer or the regulatory staff element to request pre-application consultation. Upon receipt of such request, the district engineer will assure the conduct of an orderly process which may involve other staff elements and affected agencies (Federal, state, or local) and the public. This early process should be brief but thorough so that the potential applicant may begin to assess the viability of some of the more obvious potential alternatives in the application. The district engineer will endeavor, at this stage, to provide the potential applicant with all helpful information necessary in pursuing the application, including factors which the Corps must consider in its permit decision making process. Whenever the district engineer becomes aware of planning for work which may require a DA permit and which may involve the preparation of an environmental document, they shall contact the principals involved to advise them of the requirement for the permit(s) and the attendant public interest review including the development of an environmental document. Whenever a potential applicant indicates the intent to submit an application for work which may require the preparation of an environmental document, a single point of contact shall be designated within the district's regulatory staff to effectively coordinate the regulatory process, including the National Environmental Policy Act (NEPA) procedures and all attendant reviews, meetings, hearings, and other actions, including the scoping process if appropriate, leading to a decision by the district engineer. Effort devoted to this process should be commensurate with the likelihood of a permit application actually being submitted to the Corps. The regulatory staff coordinator shall maintain an open relationship with each potential applicant or their consultants so as to assure that the potential applicant is fully aware of the substance (both quantitative and qualitative) of the data required by the district engineer for use in preparing an environmental assessment (EA) or an environmental impact statement (EIS) in accordance with 33 CFR part 333.

(c) Application form. Applicants for all individual DA permits must use the standard application form (ENG Form 4345, OMB Approval No. OMB 49-R0420). Local variations of the application form for purposes of facilitating coordination with federal, state and local agencies may be used. The appropriate form may be obtained from the district office having jurisdiction over the waters in which the activity is proposed to be located. Certain activities have been authorized by general permits and do not require submission of an application form but may require a separate notification.

(d) Content of application. (1) The application must include a complete description of the proposed activity including necessary drawings, sketches, or plans sufficient for public notice (detailed engineering plans and specifications are not required); the location, purpose and need for the proposed activity; scheduling of the activity; the names and addresses of adjoining property owners; the location and dimensions of adjacent structures; and a list of authorizations required by other federal, interstate, state, or local agencies for the work, including all approvals received or denials already made. See § 325.3 for information required to be in public notices. District and division engineers are not authorized to develop additional information forms but may request specific information on a case-by-case basis. (See § 325.1(e)).

(2) All activities which the applicant plans to undertake which are reasonably related to the same project and for which a DA permit would be required should be included in the same permit application. District engineers should reject, as incomplete, any permit application which fails to comply with this requirement. For example, a permit application for a marina will include dredging required for access as well as any fill associated with construction of the marina.

(3) If the activity would involve dredging in navigable waters of the United States, the application must include a description of the type, composition and quantity of the material to be dredged, the method of dredging, and the site and plans for disposal of the dredged material.

(4) If the activity would include the discharge of dredged or fill material into the waters of the United States or the transportation of dredged material for the purpose of disposing of it in ocean waters the application must include the source of the material; the purpose of the discharge, a description of the type, composition and quantity of the material; the method of transportation and disposal of the material; and the location of the disposal site. Certification under section 401 of the Clean Water Act is required for such discharges into waters of the United States.

(5) If the activity would include the construction of a filled area or pile or float-supported platform the project description must include the use of, and specific structures to be erected on, the fill or platform.

(6) If the activity would involve the construction of an impoundment structure, the applicant may be required to demonstrate that the structure complies with established state dam safety criteria or that the structure has been designed by qualified persons and, in appropriate cases, independently reviewed (and modified as the review would indicate) by similarly qualified persons. No specific design criteria are to be prescribed nor is an independent detailed engineering review to be made by the district engineer.

(7) For activities involving discharges of dredged or fill material into waters of the United States, the application must include a statement describing how impacts to waters of the United States are to be avoided and minimized. The application must also include either a statement describing how impacts to waters of the United States are to be compensated for or a statement explaining why compensatory mitigation should not be required for the proposed impacts. (See § 332.4(b)(1) of this chapter.)

(8) Signature on application. The application must be signed by the person who desires to undertake the proposed activity (i.e., the applicant) or by a duly authorized agent. When the applicant is represented by an agent, that information will be included in the space provided on the application or by a separate written statement. The signature of the applicant or the agent will be an affirmation that the applicant possesses or will possess the requisite property interest to undertake the activity proposed in the application, except where the lands are under the control of the Corps of Engineers, in which cases the district engineer will coordinate the transfer of the real estate and the permit action. An application may include the activity of more than one owner provided the character of the activity of each owner is similar and in the same general area and each owner submits a statement designating the same agent.

(9) If the activity would involve the construction or placement of an artificial reef, as defined in 33 CFR 322.2(g), in the navigable waters of the United States or in the waters overlying the outer continental shelf, the application must include provisions for siting, constructing, monitoring, and managing the artificial reef.

(10) Complete application. An application will be determined to be complete when sufficient information is received to issue a public notice (See 33 CFR 325.1(d) and 325.3(a).) The issuance of a public notice will not be delayed to obtain information necessary to evaluate an application.

(e) Additional information. In addition to the information indicated in paragraph (d) of this section, the applicant will be required to furnish only such additional information as the district engineer deems essential to make a public interest determination including, where applicable, a determination of compliance with the section 404(b)(1) guidelines or ocean dumping criteria. Such additional information may include environmental data and information on alternate methods and sites as may be necessary for the preparation of the required environmental documentation.

(f) Fees. Fees are required for permits under section 404 of the Clean Water Act, section 103 of the Marine Protection, Research and Sanctuaries Act of 1972, as amended, and sections 9 and 10 of the Rivers and Harbors Act of 1899. A fee of $100.00 will be charged when the planned or ultimate purpose of the project is commercial or industrial in nature and is in support of operations that charge for the production, distribution or sale of goods or services. A $10.00 fee will be charged for permit applications when the proposed work is non-commercial in nature and would provide personal benefits that have no connection with a commercial enterprise. The final decision as to the basis for a fee (commercial vs. non-commercial) shall be solely the responsibility of the district engineer. No fee will be charged if the applicant withdraws the application at any time prior to issuance of the permit or if the permit is denied. Collection of the fee will be deferred until the proposed activity has been determined to be not contrary to the public interest. Multiple fees are not to be charged if more than one law is applicable. Any modification significant enough to require publication of a public notice will also require a fee. No fee will be assessed when a permit is transferred from one property owner to another. No fees will be charged for time extensions, general permits or letters of permission. Agencies or instrumentalities of federal, state or local governments will not be required to pay any fee in connection with permits.

[51 FR 41236, Nov. 13, 1986, as amended at 73 FR 19670, Apr. 10, 2008; 90 FR 29472, July 3, 2025]

§ 325.2 Processing of applications.

(a) Standard procedures. (1) When an application for a permit is received the district engineer shall immediately assign it a number for identification, acknowledge receipt thereof, and advise the applicant of the number assigned to it. He shall review the application for completeness, and if the application is incomplete, request from the applicant within 15 days of receipt of the application any additional information necessary for further processing.

(2) Within 15 days of receipt of an application the district engineer will either determine that the application is complete (see 33 CFR 325.1(d)(9) and issue a public notice as described in § 325.3 of this part, unless specifically exempted by other provisions of this regulation or that it is incomplete and notify the applicant of the information necessary for a complete application. The district engineer will issue a supplemental, revised, or corrected public notice if in his view there is a change in the application data that would affect the public's review of the proposal.

(3) The district engineer will consider all comments received in response to the public notice in his subsequent actions on the permit application. Receipt of the comments will be acknowledged, if appropriate, and they will be made a part of the administrative record of the application. Comments received as form letters or petitions may be acknowledged as a group to the person or organization responsible for the form letter or petition. If comments relate to matters within the special expertise of another federal agency, the district engineer may seek the advice of that agency. If the district engineer determines, based on comments received, that he must have the views of the applicant on a particular issue to make a public interest determination, the applicant will be given the opportunity to furnish his views on such issue to the district engineer (see § 325.2(d)(5)). At the earliest practicable time other substantive comments will be furnished to the applicant for his information and any views he may wish to offer. A summary of the comments, the actual letters or portions thereof, or representative comment letters may be furnished to the applicant. The applicant may voluntarily elect to contact objectors in an attempt to resolve objections but will not be required to do so. District engineers will ensure that all parties are informed that the Corps alone is responsible for reaching a decision on the merits of any application. The district engineer may also offer Corps regulatory staff to be present at meetings between applicants and objectors, where appropriate, to provide information on the process, to mediate differences, or to gather information to aid in the decision process. The district engineer should not delay processing of the application unless the applicant requests a reasonable delay, normally not to exceed 30 days, to provide additional information or comments.

(4) The district engineer will follow 33 CFR part 333 for environmental procedures and documentation required by the National Environmental Policy Act of 1969, as amended. A decision on a permit application will require either an environmental assessment or an environmental impact statement unless it is included within a categorical exclusion.

(5) The district engineer will also evaluate the application to determine the need for a public hearing pursuant to 33 CFR part 327.

(6) After all above actions have been completed, the district engineer will determine in accordance with the record and applicable regulations whether or not the permit should be issued. He shall prepare a statement of findings (SOF) or, where an EIS has been prepared, a record of decision (ROD), on all permit decisions. The SOF or ROD shall include the district engineer's views on the probable effect of the proposed work on the public interest including conformity with the guidelines published for the discharge of dredged or fill material into waters of the United States (40 CFR part 230) or with the criteria for dumping of dredged material in ocean waters (40 CFR parts 220 to 229), if applicable, and the conclusions of the district engineer. The SOF or ROD shall be dated, signed, and included in the record prior to final action on the application. Where the district engineer has delegated authority to sign permits for and in his behalf, he may similarly delegate the signing of the SOF or ROD. If a district engineer makes a decision on a permit application which is contrary to state or local decisions (33 CFR 320.4(j) (2) & (4)), the district engineer will include in the decision document the significant national issues and explain how they are overriding in importance. If a permit is warranted, the district engineer will determine the special conditions, if any, and duration which should be incorporated into the permit. In accordance with the authorities specified in § 325.8 of this part, the district engineer will take final action or forward the application with all pertinent comments, records, and studies, including the final EIS or environmental assessment, through channels to the official authorized to make the final decision. The report forwarding the application for decision will be in a format prescribed by the Chief of Engineers. District and division engineers will notify the applicant and interested federal and state agencies that the application has been forwarded to higher headquarters. The district or division engineer may, at his option, disclose his recommendation to the news media and other interested parties, with the caution that it is only a recommendation and not a final decision. Such disclosure is encouraged in permit cases which have become controversial and have been the subject of stories in the media or have generated strong public interest. In those cases where the application is forwarded for decision in the format prescribed by the Chief of Engineers, the report will serve as the SOF or ROD. District engineers will generally combine the SOF, environmental assessment, and findings of no significant impact (FONSI), 404(b)(1) guideline analysis, and/or the criteria for dumping of dredged material in ocean waters into a single document.

(7) If the final decision is to deny the permit, the applicant will be advised in writing of the reason(s) for denial. If the final decision is to issue the permit and a standard individual permit form will be used, the issuing official will forward the permit to the applicant for signature accepting the conditions of the permit. The permit is not valid until signed by the issuing official. Letters of permission require only the signature of the issuing official. Final action on the permit application is the signature on the letter notifying the applicant of the denial of the permit or signature of the issuing official on the authorizing document.

(8) The district engineer will publish monthly a list of permits issued or denied during the previous month. The list will identify each action by public notice number, name of applicant, and brief description of activity involved. It will also note that relevant environmental documents and the SOF's or ROD's are available upon written request and, where applicable, upon the payment of administrative fees. This list will be distributed to all persons who may have an interest in any of the public notices listed.

(9) Copies of permits will be furnished to other agencies in appropriate cases as follows:

(i) If the activity involves the construction of artificial islands, installations or other devices on the outer continental shelf, to the Director, Defense Mapping Agency, Hydrographic Center, Washington, DC 20390 Attention, Code NS12, and to the National Ocean Service, Office of Coast Survey, N/CS261, 1315 East West Highway, Silver Spring, Maryland 20910-3282.

(ii) If the activity involves the construction of structures to enhance fish propagation (e.g., fishing reefs) along the coasts of the United States, to the Defense Mapping Agency, Hydrographic Center and National Ocean Service as in paragraph (a)(9)(i) of this section and to the Director, Office of Marine Recreational Fisheries, National Marine Fisheries Service, Washington, DC 20235.

(iii) If the activity involves the erection of an aerial transmission line, submerged cable, or submerged pipeline across a navigable water of the United States, to the National Ocean Service, Office of Coast Survey, N/CS261, 1315 East West Highway, Silver Spring, Maryland 20910-3282.

(iv) If the activity is listed in paragraphs (a)(9) (i), (ii), or (iii) of this section, or involves the transportation of dredged material for the purpose of dumping it in ocean waters, to the appropriate District Commander, U.S. Coast Guard.

(b) Procedures for particular types of permit situations—(1) Section 401 Water Quality Certification. If the district engineer determines that water quality certification for the proposed activity is necessary under the provisions of section 401 of the Clean Water Act, he shall so notify the applicant and obtain from him or the certifying agency a copy of such certification.

(i) The public notice for such activity, which will contain a statement on certification requirements (see § 325.3(a)(8)), will serve as the notification to the Administrator of the Environmental Protection Agency (EPA) pursuant to section 401(a)(2) of the Clean Water Act. If EPA determines that the proposed discharge may affect the quality of the waters of any state other than the state in which the discharge will originate, it will so notify such other state, the district engineer, and the applicant. If such notice or a request for supplemental information is not received within 30 days of issuance of the public notice, the district engineer will assume EPA has made a negative determination with respect to section 401(a)(2). If EPA determines another state's waters may be affected, such state has 60 days from receipt of EPA's notice to determine if the proposed discharge will affect the quality of its waters so as to violate any water quality requirement in such state, to notify EPA and the district engineer in writing of its objection to permit issuance, and to request a public hearing. If such occurs, the district engineer will hold a public hearing in the objecting state. Except as stated below, the hearing will be conducted in accordance with 33 CFR part 327. The issues to be considered at the public hearing will be limited to water quality impacts. EPA will submit its evaluation and recommendations at the hearing with respect to the state's objection to permit issuance. Based upon the recommendations of the objecting state, EPA, and any additional evidence presented at the hearing, the district engineer will condition the permit, if issued, in such a manner as may be necessary to insure compliance with applicable water quality requirements. If the imposition of conditions cannot, in the district engineer's opinion, insure such compliance, he will deny the permit.

(ii) No permit will be granted until required certification has been obtained or has been waived. A waiver may be explicit, or will be deemed to occur if the certifying agency fails or refuses to act on a request for certification within sixty days after receipt of such a request unless the district engineer determines a shorter or longer period is reasonable for the state to act. In determining whether or not a waiver period has commenced or waiver has occurred, the district engineer will verify that the certifying agency has received a valid request for certification. If, however, special circumstances identified by the district engineer require that action on an application be taken within a more limited period of time, the district engineer shall determine a reasonable lesser period of time, advise the certifying agency of the need for action by a particular date, and that, if certification is not received by that date, it will be considered that the requirement for certification has been waived. Similarly, if it appears that circumstances may reasonably require a period of time longer than sixty days, the district engineer, based on information provided by the certifying agency, will determine a longer reasonable period of time, not to exceed one year, at which time a waiver will be deemed to occur.

(2) Coastal Zone Management consistency. If the proposed activity is to be undertaken in a state operating under a coastal zone management program approved by the Secretary of Commerce pursuant to the Coastal Zone Management (CZM) Act (see 33 CFR 320.3(b)), the district engineer shall proceed as follows:

(i) If the applicant is a federal agency, and the application involves a federal activity in or affecting the coastal zone, the district engineer shall forward a copy of the public notice to the agency of the state responsible for reviewing the consistency of federal activities. The federal agency applicant shall be responsible for complying with the CZM Act's directive for ensuring that federal agency activities are undertaken in a manner which is consistent, to the maximum extent practicable, with approved CZM Programs. (See 15 CFR part 930.) If the state coastal zone agency objects to the proposed federal activity on the basis of its inconsistency with the state's approved CZM Program, the district engineer shall not make a final decision on the application until the disagreeing parties have had an opportunity to utilize the procedures specified by the CZM Act for resolving such disagreements.

(ii) If the applicant is not a federal agency and the application involves an activity affecting the coastal zone, the district engineer shall obtain from the applicant a certification that his proposed activity complies with and will be conducted in a manner that is consistent with the approved state CZM Program. Upon receipt of the certification, the district engineer will forward a copy of the public notice (which will include the applicant's certification statement) to the state coastal zone agency and request its concurrence or objection. If the state agency objects to the certification or issues a decision indicating that the proposed activity requires further review, the district engineer shall not issue the permit until the state concurs with the certification statement or the Secretary of Commerce determines that the proposed activity is consistent with the purposes of the CZM Act or is necessary in the interest of national security. If the state agency fails to concur or object to a certification statement within six months of the state agency's receipt of the certification statement, state agency concurrence with the certification statement shall be conclusively presumed. District engineers will seek agreements with state CZM agencies that the agency's failure to provide comments during the public notice comment period will be considered as a concurrence with the certification or waiver of the right to concur or non-concur.

(iii) If the applicant is requesting a permit for work on Indian reservation lands which are in the coastal zone, the district engineer shall treat the application in the same manner as prescribed for a Federal applicant in paragraph (b)(2)(i) of this section. However, if the applicant is requesting a permit on non-trust Indian lands, and the state CZM agency has decided to assert jurisdiction over such lands, the district engineer shall treat the application in the same manner as prescribed for a non-Federal applicant in paragraph (b)(2)(ii) of this section.

(3) Historic properties. If the proposed activity would involve any property listed or eligible for listing in the National Register of Historic Places, the district engineer will proceed in accordance with Corps National Historic Preservation Act implementing regulations.

(4) Activities associated with Federal projects. If the proposed activity would consist of the dredging of an access channel and/or berthing facility associated with an authorized federal navigation project, the activity will be included in the planning and coordination of the construction or maintenance of the federal project to the maximum extent feasible. Separate notice, hearing, and environmental documentation will not be required for activities so included and coordinated, and the public notice issued by the district engineer for these federal and associated non-federal activities will be the notice of intent to issue permits for those included non-federal dredging activities. The decision whether to issue or deny such a permit will be consistent with the decision on the federal project unless special considerations applicable to the proposed activity are identified. (See § 322.5(c).)

(5) Endangered Species. Applications will be reviewed for the potential impact on threatened or endangered species pursuant to section 7 of the Endangered Species Act as amended. The district engineer will include a statement in the public notice of his current knowledge of endangered species based on his initial review of the application (see 33 CFR 325.2(a)(2)). If the district engineer determines that the proposed activity would not affect listed species or their critical habitat, he will include a statement to this effect in the public notice. If he finds the proposed activity may affect an endangered or threatened species or their critical habitat, he will initiate formal consultation procedures with the U.S. Fish and Wildlife Service or National Marine Fisheries Service. Public notices forwarded to the U.S. Fish and Wildlife Service or National Marine Fisheries Service will serve as the request for information on whether any listed or proposed to be listed endangered or threatened species may be present in the area which would be affected by the proposed activity, pursuant to section 7(c) of the Act. References, definitions, and consultation procedures are found in 50 CFR part 402.

(c) [Reserved]

(d) Timing of processing of applications. The district engineer will be guided by the following time limits for the indicated steps in the evaluation process:

(1) The public notice will be issued within 15 days of receipt of all information required to be submitted by the applicant in accordance with paragraph 325.1.(d) of this part.

(2) The comment period on the public notice should be for a reasonable period of time within which interested parties may express their views concerning the permit. The comment period should not be more than 30 days nor less than 15 days from the date of the notice. Before designating comment periods less than 30 days, the district engineer will consider: (i) Whether the proposal is routine or noncontroversial,

(ii) Mail time and need for comments from remote areas,

(iii) Comments from similar proposals, and

(iv) The need for a site visit. After considering the length of the original comment period, paragraphs (a)(2) (i) through (iv) of this section, and other pertinent factors, the district engineer may extend the comment period up to an additional 30 days if warranted.

(3) District engineers will decide on all applications not later than 60 days after receipt of a complete application, unless (i) precluded as a matter of law or procedures required by law (see below),

(ii) The case must be referred to higher authority (see § 325.8 of this part),

(iii) The comment period is extended,

(iv) A timely submittal of information or comments is not received from the applicant,

(v) The processing is suspended at the request of the applicant, or

(vi) Information needed by the district engineer for a decision on the application cannot reasonably be obtained within the 60-day period. Once the cause for preventing the decision from being made within the normal 60-day period has been satisfied or eliminated, the 60-day clock will start running again from where it was suspended. For example, if the comment period is extended by 30 days, the district engineer will, absent other restraints, decide on the application within 90 days of receipt of a complete application. Certain laws (e.g., the Clean Water Act, the CZM Act, the National Environmental Policy Act, the National Historic Preservation Act, the Preservation of Historical and Archeological Data Act, the Endangered Species Act, the Wild and Scenic Rivers Act, and the Marine Protection, Research and Sanctuaries Act) require procedures such as state or other federal agency certifications, public hearings, environmental impact statements, consultation, special studies, and testing which may prevent district engineers from being able to decide certain applications within 60 days.

(4) Once the district engineer has sufficient information to make his public interest determination, he should decide the permit application even though other agencies which may have regulatory jurisdiction have not yet granted their authorizations, except where such authorizations are, by federal law, a prerequisite to making a decision on the DA permit application. Permits granted prior to other (non-prerequisite) authorizations by other agencies should, where appropriate, be conditioned in such manner as to give those other authorities an opportunity to undertake their review without the applicant biasing such review by making substantial resource commitments on the basis of the DA permit. In unusual cases the district engineer may decide that due to the nature or scope of a specific proposal, it would be prudent to defer taking final action until another agency has acted on its authorization. In such cases, he may advise the other agency of his position on the DA permit while deferring his final decision.

(5) The applicant will be given a reasonable time, not to exceed 30 days, to respond to requests of the district engineer. The district engineer may make such requests by certified letter and clearly inform the applicant that if he does not respond with the requested information or a justification why additional time is necessary, then his application will be considered withdrawn or a final decision will be made, whichever is appropriate. If additional time is requested, the district engineer will either grant the time, make a final decision, or consider the application as withdrawn.

(6) The time requirements in these regulations are in terms of calendar days rather than in terms of working days.

(e) Alternative procedures. Division and district engineers are authorized to use alternative procedures as follows:

(1) Letters of permission. Letters of permission are a type of permit issued through an abbreviated processing procedure which includes coordination with Federal and state fish and wildlife agencies, as required by the Fish and Wildlife Coordination Act, and a public interest evaluation, but without the publishing of an individual public notice. The letter of permission will not be used to authorize the transportation of dredged material for the purpose of dumping it in ocean waters. Letters of permission may be used:

(i) In those cases subject to section 10 of the Rivers and Harbors Act of 1899 when, in the opinion of the district engineer, the proposed work would be minor, would not have significant individual or cumulative impacts on environmental values, and should encounter no appreciable opposition.

(ii) In those cases subject to section 404 of the Clean Water Act after:

(A) The district engineer, through consultation with Federal and state fish and wildlife agencies, the Regional Administrator, Environmental Protection Agency, the state water quality certifying agency, and, if appropriate, the state Coastal Zone Management Agency, develops a list of categories of activities proposed for authorization under LOP procedures;

(B) The district engineer issues a public notice advertising the proposed list and the LOP procedures, requesting comments and offering an opportunity for public hearing; and

(C) A 401 certification has been issued or waived and, if appropriate, CZM consistency concurrence obtained or presumed either on a generic or individual basis.

(2) Regional permits. Regional permits are a type of general permit as defined in 33 CFR 322.2(f) and 33 CFR 323.2(n). They may be issued by a division or district engineer after compliance with the other procedures of this regulation. After a regional permit has been issued, individual activities falling within those categories that are authorized by such regional permits do not have to be further authorized by the procedures of this regulation. The issuing authority will determine and add appropriate conditions to protect the public interest. When the issuing authority determines on a case-by-case basis that the concerns for the aquatic environment so indicate, he may exercise discretionary authority to override the regional permit and require an individual application and review. A regional permit may be revoked by the issuing authority if it is determined that it is contrary to the public interest provided the procedures of § 325.7 of this part are followed. Following revocation, applications for future activities in areas covered by the regional permit shall be processed as applications for individual permits. No regional permit shall be issued for a period of more than five years.

(3) Joint procedures. Division and district engineers are authorized and encouraged to develop joint procedures with states and other Federal agencies with ongoing permit programs for activities also regulated by the Department of the Army. Such procedures may be substituted for the procedures in paragraphs (a)(1) through (a)(5) of this section provided that the substantive requirements of those sections are maintained. Division and district engineers are also encouraged to develop management techniques such as joint agency review meetings to expedite the decision-making process. However, in doing so, the applicant's rights to a full public interest review and independent decision by the district or division engineer must be strictly observed.

(4) Emergency procedures. Division engineers are authorized to approve special processing procedures in emergency situations. An “emergency” is a situation which would result in an unacceptable hazard to life, a significant loss of property, or an immediate, unforeseen, and significant economic hardship if corrective action requiring a permit is not undertaken within a time period less than the normal time needed to process the application under standard procedures. In emergency situations, the district engineer will explain the circumstances and recommend special procedures to the division engineer who will instruct the district engineer as to further processing of the application. Even in an emergency situation, reasonable efforts will be made to receive comments from interested Federal, state, and local agencies and the affected public. Also, notice of any special procedures authorized and their rationale is to be appropriately published as soon as practicable.

[51 FR 41236, Nov. 13, 1986, as amended at 62 FR 26230, May 13, 1997; 90 FR 31593, July 15, 2025]

§ 325.3 Public notice.

(a) General. The public notice is the primary method of advising all interested parties of the proposed activity for which a permit is sought and of soliciting comments and information necessary to evaluate the probable impact on the public interest. The notice must, therefore, include sufficient information to give a clear understanding of the nature and magnitude of the activity to generate meaningful comment. The notice should include the following items of information:

(1) Applicable statutory authority or authorities;

(2) The name and address of the applicant;

(3) The name or title, address and telephone number of the Corps employee from whom additional information concerning the application may be obtained;

(4) The location of the proposed activity;

(5) A brief description of the proposed activity, its purpose and intended use, so as to provide sufficient information concerning the nature of the activity to generate meaningful comments, including a description of the type of structures, if any, to be erected on fills or pile or float-supported platforms, and a description of the type, composition, and quantity of materials to be discharged or disposed of in the ocean;

(6) A plan and elevation drawing showing the general and specific site location and character of all proposed activities, including the size relationship of the proposed structures to the size of the impacted waterway and depth of water in the area;

(7) If the proposed activity would occur in the territorial seas or ocean waters, a description of the activity's relationship to the baseline from which the territorial sea is measured;

(8) A list of other government authorizations obtained or requested by the applicant, including required certifications relative to water quality, coastal zone management, or marine sanctuaries;

(9) If appropriate, a statement that the activity is included within a categorical exclusion for purposes of NEPA;

(10) A statement of the district engineer's current knowledge on historic properties;

(11) A statement of the district engineer's current knowledge on endangered species (see § 325.2(b)(5));

(12) A statement(s) on evaluation factors (see § 325.3(c));

(13) Any other available information which may assist interested parties in evaluating the likely impact of the proposed activity, if any, on factors affecting the public interest;

(14) The comment period based on § 325.2(d)(2);

(15) A statement that any person may request, in writing, within the comment period specified in the notice, that a public hearing be held to consider the application. Requests for public hearings shall state, with particularity, the reasons for holding a public hearing;

(16) For non-federal applications in states with an approved CZM Plan, a statement on compliance with the approved Plan; and

(17) In addition, for section 103 (ocean dumping) activities:

(i) The specific location of the proposed disposal site and its physical boundaries;

(ii) A statement as to whether the proposed disposal site has been designated for use by the Administrator, EPA, pursuant to section 102(c) of the Act;

(iii) If the proposed disposal site has not been designated by the Administrator, EPA, a description of the characteristics of the proposed disposal site and an explanation as to why no previously designated disposal site is feasible;

(iv) A brief description of known dredged material discharges at the proposed disposal site;

(v) Existence and documented effects of other authorized disposals that have been made in the disposal area (e.g., heavy metal background reading and organic carbon content);

(vi) An estimate of the length of time during which disposal would continue at the proposed site; and

(vii) Information on the characteristics and composition of the dredged material.

(b) Public notice for general permits. District engineers will publish a public notice for all proposed regional general permits and for significant modifications to, or reissuance of, existing regional permits within their area of jurisdiction. Public notices for statewide regional permits may be issued jointly by the affected Corps districts. The notice will include all applicable information necessary to provide a clear understanding of the proposal. In addition, the notice will state the availability of information at the district office which reveals the Corps' provisional determination that the proposed activities comply with the requirements for issuance of general permits. District engineers will publish a public notice for nationwide permits in accordance with 33 CFR 330.4.

(c) Evaluation factors. A paragraph describing the various evaluation factors on which decisions are based shall be included in every public notice.

(1) Except as provided in paragraph (c)(3) of this section, the following will be included:

“The decision whether to issue a permit will be based on an evaluation of the probable impact including cumulative impacts of the proposed activity on the public interest. That decision will reflect the national concern for both protection and utilization of important resources. The benefit which reasonably may be expected to accrue from the proposal must be balanced against its reasonably foreseeable detriments. All factors which may be relevant to the proposal will be considered including the cumulative effects thereof; among those are conservation, economics, aesthetics, general environmental concerns, wetlands, historic properties, fish and wildlife values, flood hazards, floodplain values, land use, navigation, shoreline erosion and accretion, recreation, water supply and conservation, water quality, energy needs, safety, food and fiber production, mineral needs, considerations of property ownership and, in general, the needs and welfare of the people.”

(2) If the activity would involve the discharge of dredged or fill material into the waters of the United States or the transportation of dredged material for the purpose of disposing of it in ocean waters, the public notice shall also indicate that the evaluation of the impact of the activity on the public interest will include application of the guidelines promulgated by the Administrator, EPA, (40 CFR part 230) or of the criteria established under authority of section 102(a) of the Marine Protection, Research and Sanctuaries Act of 1972, as amended (40 CFR parts 220 to 229), as appropriate. (See 33 CFR parts 323 and 324).

(3) In cases involving construction of artificial islands, installations and other devices on outer continental shelf lands which are under mineral lease from the Department of the Interior, the notice will contain the following statement: “The decision as to whether a permit will be issued will be based on an evaluation of the impact of the proposed work on navigation and national security.”

(d) Distribution of public notices. (1) Public notices will be distributed for posting in post offices or other appropriate public places in the vicinity of the site of the proposed work and will be sent to the applicant, to appropriate city and county officials, to adjoining property owners, to appropriate state agencies, to appropriate Indian Tribes or tribal representatives, to concerned Federal agencies, to local, regional and national shipping and other concerned business and conservation organizations, to appropriate River Basin Commissions, to appropriate state and areawide clearing houses as prescribed by OMB Circular A-95, to local news media and to any other interested party. Copies of public notices will be sent to all parties who have specifically requested copies of public notices, to the U.S. Senators and Representatives for the area where the work is to be performed, the field representative of the Secretary of the Interior, the Regional Director of the Fish and Wildlife Service, the Regional Director of the National Park Service, the Regional Administrator of the Environmental Protection Agency (EPA), the Regional Director of the National Marine Fisheries Service of the National Oceanic and Atmospheric Administration (NOAA), the head of the state agency responsible for fish and wildlife resources, the State Historic Preservation Officer, and the District Commander, U.S. Coast Guard.

(2) In addition to the general distribution of public notices cited above, notices will be sent to other addressees in appropriate cases as follows:

(i) If the activity would involve structures or dredging along the shores of the seas or Great Lakes, to the Coastal Engineering Research Center, Washington, DC 20016.

(ii) If the activity would involve construction of fixed structures or artificial islands on the outer continental shelf or in the territorial seas, to the Assistant Secretary of Defense (Manpower, Installations, and Logistics (ASD(MI&L)), Washington, DC 20310; the Director, Defense Mapping Agency (Hydrographic Center) Washington, DC 20390, Attention, Code NS12; and the National Ocean Service, Office of Coast Survey, N/CS261, 1315 East West Highway, Silver Spring, Maryland 20910-3282, and to affected military installations and activities.

(iii) If the activity involves the construction of structures to enhance fish propagation (e.g., fishing reefs) along the coasts of the United States, to the Director, Office of Marine Recreational Fisheries, National Marine Fisheries Service, Washington, DC 20235.

(iv) If the activity involves the construction of structures which may affect aircraft operations or for purposes associated with seaplane operations, to the Regional Director of the Federal Aviation Administration.

(v) If the activity would be in connection with a foreign-trade zone, to the Executive Secretary, Foreign-Trade Zones Board, Department of Commerce, Washington, DC 20230 and to the appropriate District Director of Customs as Resident Representative, Foreign-Trade Zones Board.

(3) It is presumed that all interested parties and agencies will wish to respond to public notices; therefore, a lack of response will be interpreted as meaning that there is no objection to the proposed project. A copy of the public notice with the list of the addresses to whom the notice was sent will be included in the record. If a question develops with respect to an activity for which another agency has responsibility and that other agency has not responded to the public notice, the district engineer may request its comments. Whenever a response to a public notice has been received from a member of Congress, either in behalf of a constituent or himself, the district engineer will inform the member of Congress of the final decision.

(4) District engineers will update public notice mailing lists at least once every two years.

[51 FR 41236, Nov. 13, 1986, as amended at 90 FR 29472, July 3, 2025]

§ 325.4 Conditioning of permits.

(a) District engineers will add special conditions to Department of the Army permits when such conditions are necessary to satisfy legal requirements or to otherwise satisfy the public interest requirement. Permit conditions will be directly related to the impacts of the proposal, appropriate to the scope and degree of those impacts, and reasonably enforceable.

(1) Legal requirements which may be satisfied by means of Corps permit conditions include compliance with the 404(b)(1) guidelines, the EPA ocean dumping criteria, the Endangered Species Act, and requirements imposed by conditions on state section 401 water quality certifications.

(2) Where appropriate, the district engineer may take into account the existence of controls imposed under other federal, state, or local programs which would achieve the objective of the desired condition, or the existence of an enforceable agreement between the applicant and another party concerned with the resource in question, in determining whether a proposal complies with the 404(b)(1) guidelines, ocean dumping criteria, and other applicable statutes, and is not contrary to the public interest. In such cases, the Department of the Army permit will be conditioned to state that material changes in, or a failure to implement and enforce such program or agreement, will be grounds for modifying, suspending, or revoking the permit.

(3) Such conditions may be accomplished on-site, or may be accomplished off-site for mitigation of significant losses which are specifically identifiable, reasonably likely to occur, and of importance to the human or aquatic environment.

(b) District engineers are authorized to add special conditions, exclusive of paragraph (a) of this section, at the applicant's request or to clarify the permit application.

(c) If the district engineer determines that special conditions are necessary to insure the proposal will not be contrary to the public interest, but those conditions would not be reasonably implementable or enforceable, he will deny the permit.

(d) Bonds. If the district engineer has reason to consider that the permittee might be prevented from completing work which is necessary to protect the public interest, he may require the permittee to post a bond of sufficient amount to indemnify the government against any loss as a result of corrective action it might take.

§ 325.5 Forms of permits.

(a) General discussion. (1) DA permits under this regulation will be in the form of individual permits or general permits. The basic format shall be ENG Form 1721, DA Permit (Appendix A).

(2) The general conditions included in ENG Form 1721 are normally applicable to all permits; however, some conditions may not apply to certain permits and may be deleted by the issuing officer. Special conditions applicable to the specific activity will be included in the permit as necessary to protect the public interest in accordance with § 325.4 of this part.

(b) Individual permits—(1) Standard permits. A standard permit is one which has been processed through the public interest review procedures, including public notice and receipt of comments, described throughout this part. The standard individual permit shall be issued using ENG Form 1721.

(2) Letters of permission. A letter of permission will be issued where procedures of § 325.2(e)(1) have been followed. It will be in letter form and will identify the permittee, the authorized work and location of the work, the statutory authority, any limitations on the work, a construction time limit and a requirement for a report of completed work. A copy of the relevant general conditions from ENG Form 1721 will be attached and will be incorporated by reference into the letter of permission.

(c) General permits—(1) Regional permits. Regional permits are a type of general permit. They may be issued by a division or district engineer after compliance with the other procedures of this regulation. If the public interest so requires, the issuing authority may condition the regional permit to require a case-by-case reporting and acknowledgment system. However, no separate applications or other authorization documents will be required.

(2) Nationwide permits. Nationwide permits are a type of general permit and represent DA authorizations that have been issued by the regulation (33 CFR part 330) for certain specified activities nationwide. If certain conditions are met, the specified activities can take place without the need for an individual or regional permit.

(3) Programmatic permits. Programmatic permits are a type of general permit founded on an existing state, local or other Federal agency program and designed to avoid duplication with that program.

(d) Section 9 permits. Permits for structures in interstate navigable waters of the United States under section 9 of the Rivers and Harbors Act of 1899 will be drafted at DA level.

§ 325.6 Duration of permits.

(a) General. DA permits may authorize both the work and the resulting use. Permits continue in effect until they automatically expire or are modified, suspended, or revoked.

(b) Structures. Permits for the existence of a structure or other activity of a permanent nature are usually for an indefinite duration with no expiration date cited. However, where a temporary structure is authorized, or where restoration of a waterway is contemplated, the permit will be of limited duration with a definite expiration date.

(c) Works. Permits for construction work, discharge of dredged or fill material, or other activity and any construction period for a structure with a permit of indefinite duration under paragraph (b) of this section will specify time limits for completing the work or activity. The permit may also specify a date by which the work must be started, normally within one year from the date of issuance. The date will be established by the issuing official and will provide reasonable times based on the scope and nature of the work involved. Permits issued for the transport of dredged material for the purpose of disposing of it in ocean waters will specify a completion date for the disposal not to exceed three years from the date of permit issuance.

(d) Extensions of time. An authorization or construction period will automatically expire if the permittee fails to request and receive an extension of time. Extensions of time may be granted by the district engineer. The permittee must request the extension and explain the basis of the request, which will be granted unless the district engineer determines that an extension would be contrary to the public interest. Requests for extensions will be processed in accordance with the regular procedures of § 325.2 of this part, including issuance of a public notice, except that such processing is not required where the district engineer determines that there have been no significant changes in the attendant circumstances since the authorization was issued.

(e) Maintenance dredging. If the authorized work includes periodic maintenance dredging, an expiration date for the authorization of that maintenance dredging will be included in the permit. The expiration date, which in no event is to exceed ten years from the date of issuance of the permit, will be established by the issuing official after evaluation of the proposed method of dredging and disposal of the dredged material in accordance with the requirements of 33 CFR parts 320 to 325. In such cases, the district engineer shall require notification of the maintenance dredging prior to actual performance to insure continued compliance with the requirements of this regulation and 33 CFR parts 320 to 324. If the permittee desires to continue maintenance dredging beyond the expiration date, he must request a new permit. The permittee should be advised to apply for the new permit six months prior to the time he wishes to do the maintenance work.

§ 325.7 Modification, suspension, or revocation of permits.

(a) General. The district engineer may reevaluate the circumstances and conditions of any permit, including regional permits, either on his own motion, at the request of the permittee, or a third party, or as the result of periodic progress inspections, and initiate action to modify, suspend, or revoke a permit as may be made necessary by considerations of the public interest. In the case of regional permits, this reevaluation may cover individual activities, categories of activities, or geographic areas. Among the factors to be considered are the extent of the permittee's compliance with the terms and conditions of the permit; whether or not circumstances relating to the authorized activity have changed since the permit was issued or extended, and the continuing adequacy of or need for the permit conditions; any significant objections to the authorized activity which were not earlier considered; revisions to applicable statutory and/or regulatory authorities; and the extent to which modification, suspension, or other action would adversely affect plans, investments and actions the permittee has reasonably made or taken in reliance on the permit. Significant increases in scope of a permitted activity will be processed as new applications for permits in accordance with § 325.2 of this part, and not as modifications under this section.

(b) Modification. Upon request by the permittee or, as a result of reevaluation of the circumstances and conditions of a permit, the district engineer may determine that the public interest requires a modification of the terms or conditions of the permit. In such cases, the district engineer will hold informal consultations with the permittee to ascertain whether the terms and conditions can be modified by mutual agreement. If a mutual agreement is reached on modification of the terms and conditions of the permit, the district engineer will give the permittee written notice of the modification, which will then become effective on such date as the district engineer may establish. In the event a mutual agreement cannot be reached by the district engineer and the permittee, the district engineer will proceed in accordance with paragraph (c) of this section if immediate suspension is warranted. In cases where immediate suspension is not warranted but the district engineer determines that the permit should be modified, he will notify the permittee of the proposed modification and reasons therefor, and that he may request a meeting with the district engineer and/or a public hearing. The modification will become effective on the date set by the district engineer which shall be at least ten days after receipt of the notice by the permittee unless a hearing or meeting is requested within that period. If the permittee fails or refuses to comply with the modification, the district engineer will proceed in accordance with 33 CFR part 326. The district engineer shall consult with resource agencies before modifying any permit terms or conditions, that would result in greater impacts, for a project about which that agency expressed a significant interest in the term, condition, or feature being modified prior to permit issuance.

(c) Suspension. The district engineer may suspend a permit after preparing a written determination and finding that immediate suspension would be in the public interest. The district engineer will notify the permittee in writing by the most expeditious means available that the permit has been suspended with the reasons therefor, and order the permittee to stop those activities previously authorized by the suspended permit. The permittee will also be advised that following this suspension a decision will be made to either reinstate, modify, or revoke the permit, and that he may within 10 days of receipt of notice of the suspension, request a meeting with the district engineer and/or a public hearing to present information in this matter. If a hearing is requested, the procedures prescribed in 33 CFR part 327 will be followed. After the completion of the meeting or hearing (or within a reasonable period of time after issuance of the notice to the permittee that the permit has been suspended if no hearing or meeting is requested), the district engineer will take action to reinstate, modify, or revoke the permit.

(d) Revocation. Following completion of the suspension procedures in paragraph (c) of this section, if revocation of the permit is found to be in the public interest, the authority who made the decision on the original permit may revoke it. The permittee will be advised in writing of the final decision.

(e) Regional permits. The issuing official may, by following the procedures of this section, revoke regional permits for individual activities, categories of activities, or geographic areas. Where groups of permittees are involved, such as for categories of activities or geographic areas, the informal discussions provided in paragraph (b) of this section may be waived and any written notification may be made through the general public notice procedures of this regulation. If a regional permit is revoked, any permittee may then apply for an individual permit which shall be processed in accordance with these regulations.

§ 325.8 Authority to issue or deny permits.

(a) General. Except as otherwise provided in this regulation, the Secretary of the Army, subject to such conditions as he or his authorized representative may from time to time impose, has authorized the Chief of Engineers and his authorized representatives to issue or deny permits for dams or dikes in intrastate waters of the United States pursuant to section 9 of the Rivers and Harbors Act of 1899; for construction or other work in or affecting navigable waters of the United States pursuant to section 10 of the Rivers and Harbors Act of 1899; for the discharge of dredged or fill material into waters of the United States pursuant to section 404 of the Clean Water Act; or for the transportation of dredged material for the purpose of disposing of it into ocean waters pursuant to section 103 of the Marine Protection, Research and Sanctuaries Act of 1972, as amended. The authority to issue or deny permits in interstate navigable waters of the United States pursuant to section 9 of the Rivers and Harbors Act of March 3, 1899 has not been delegated to the Chief of Engineers or his authorized representatives.

(b) District engineer's authority. District engineers are authorized to issue or deny permits in accordance with these regulations pursuant to sections 9 and 10 of the Rivers and Harbors Act of 1899; section 404 of the Clean Water Act; and section 103 of the Marine Protection, Research and Sanctuaries Act of 1972, as amended, in all cases not required to be referred to higher authority (see below). It is essential to the legality of a permit that it contain the name of the district engineer as the issuing officer. However, the permit need not be signed by the district engineer in person but may be signed for and in behalf of him by whomever he designates. In cases where permits are denied for reasons other than navigation or failure to obtain required local, state, or other federal approvals or certifications, the Statement of Findings must conclusively justify a denial decision. District engineers are authorized to deny permits without issuing a public notice or taking other procedural steps where required local, state, or other federal permits for the proposed activity have been denied or where he determines that the activity will clearly interfere with navigation except in all cases required to be referred to higher authority (see below). District engineers are also authorized to add, modify, or delete special conditions in permits in accordance with § 325.4 of this part, except for those conditions which may have been imposed by higher authority, and to modify, suspend and revoke permits according to the procedures of § 325.7 of this part. District engineers will refer the following applications to the division engineer for resolution:

(1) When a referral is required by a written agreement between the head of a Federal agency and the Secretary of the Army;

(2) When the recommended decision is contrary to the written position of the Governor of the state in which the work would be performed;

(3) When there is substantial doubt as to authority, law, regulations, or policies applicable to the proposed activity;

(4) When higher authority requests the application be forwarded for decision; or

(5) When the district engineer is precluded by law or procedures required by law from taking final action on the application (e.g. section 9 of the Rivers and Harbors Act of 1899, or territorial sea baseline changes).

(c) Division engineer's authority. Division engineers will review and evaluate all permit applications referred by district engineers. Division engineers may authorize the issuance or denial of permits pursuant to section 10 of the Rivers and Harbors Act of 1899; section 404 of the Clean Water Act; and section 103 of the Marine Protection, Research and Sanctuaries Act of 1972, as amended; and the inclusion of conditions in accordance with § 325.4 of this part in all cases not required to be referred to the Chief of Engineers. Division engineers will refer the following applications to the Chief of Engineers for resolution:

(1) When a referral is required by a written agreement between the head of a Federal agency and the Secretary of the Army;

(2) When there is substantial doubt as to authority, law, regulations, or policies applicable to the proposed activity;

(3) When higher authority requests the application be forwarded for decision; or

(4) When the division engineer is precluded by law or procedures required by law from taking final action on the application.

§ 325.9 Authority to determine jurisdiction.

District engineers are authorized to determine the area defined by the terms “navigable waters of the United States” and “waters of the United States” except:

(a) When a determination of navigability is made pursuant to 33 CFR 329.14 (division engineers have this authority); or

(b) When EPA makes a section 404 jurisdiction determination under its authority.

§ 325.10 Publicity.

The district engineer will establish and maintain a program to assure that potential applicants for permits are informed of the requirements of this regulation and of the steps required to obtain permits for activities in waters of the United States or ocean waters. Whenever the district engineer becomes aware of plans being developed by either private or public entities which might require permits for implementation, he should advise the potential applicant in writing of the statutory requirements and the provisions of this regulation. Whenever the district engineer is aware of changes in Corps of Engineers regulatory jurisdiction, he will issue appropriate public notices.

§ 326.1 Purpose.

This part prescribes enforcement policies (§ 326.2) and procedures applicable to activities performed without required Department of the Army permits (§ 326.3) and to activities not in compliance with the terms and conditions of issued Department of the Army permits (§ 326.4). Procedures for initiating legal actions are prescribed in § 326.5. Nothing contained in this part shall establish a non-discretionary duty on the part of district engineers nor shall deviation from these procedures give rise to a private right of action against a district engineer.

§ 326.2 Policy.

Enforcement, as part of the overall regulatory program of the Corps, is based on a policy of regulating the waters of the United States by discouraging activities that have not been properly authorized and by requiring corrective measures, where appropriate, to ensure those waters are not misused and to maintain the integrity of the program. There are several methods discussed in the remainder of this part which can be used either singly or in combination to implement this policy, while making the most effective use of the enforcement resources available. As EPA has independent enforcement authority under the Clean Water Act for unauthorized discharges, the district engineer should normally coordinate with EPA to determine the most effective and efficient manner by which resolution of a section 404 violation can be achieved.

§ 326.3 Unauthorized activities.

(a) Surveillance. To detect unauthorized activities requiring permits, district engineers should make the best use of all available resources. Corps employees; members of the public; and representatives of state, local, and other Federal agencies should be encouraged to report suspected violations. Additionally, district engineers should consider developing joint surveillance procedures with Federal, state, or local agencies having similar regulatory responsibilities, special expertise, or interest.

(b) Initial investigation. District engineers should take steps to investigate suspected violations in a timely manner. The scheduling of investigations will reflect the nature and location of the suspected violations, the anticipated impacts, and the most effective use of inspection resources available to the district engineer. These investigations should confirm whether a violation exists, and if so, will identify the extent of the violation and the parties responsible.

(c) Formal notifications to parties responsible for violations. Once the district engineer has determined that a violation exists, he should take appropriate steps to notify the responsible parties.

(1) If the violation involves a project that is not complete, the district engineer's notification should be in the form of a cease and desist order prohibiting any further work pending resolution of the violation in accordance with the procedures contained in this part. See paragraph (c)(4) of this section for exception to this procedure.

(2) If the violation involves a completed project, a cease and desist order should not be necessary. However, the district engineer should still notify the responsible parties of the violation.

(3) All notifications, pursuant to paragraphs (c) (1) and (2) of this section, should identify the relevant statutory authorities, indicate potential enforcement consequences, and direct the responsible parties to submit any additional information that the district engineer may need at that time to determine what course of action he should pursue in resolving the violation; further information may be requested, as needed, in the future.

(4) In situations which would, if a violation were not involved, qualify for emergency procedures pursuant to 33 CFR part 325.2(e)(4), the district engineer may decide it would not be appropriate to direct that the unauthorized work be stopped. Therefore, in such situations, the district engineer may, at his discretion, allow the work to continue, subject to appropriate limitations and conditions as he may prescribe, while the violation is being resolved in accordance with the procedures contained in this part.

(5) When an unauthorized activity requiring a permit has been undertaken by American Indians (including Alaskan natives, Eskimos, and Aleuts, but not including Native Hawaiians) on reservation lands or in pursuit of specific treaty rights, the district engineer should use appropriate means to coordinate proposed directives and orders with the Assistant Chief Counsel for Indian Affairs (DAEN-CCI).

(6) When an unauthorized activity requiring a permit has been undertaken by an official acting on behalf of a foreign government, the district engineer should use appropriate means to coordinate proposed directives and orders with the Office, Chief of Engineers, ATTN: DAEN-CCK.

(d) Initial corrective measures. (1) The district engineer should, in appropriate cases, depending upon the nature of the impacts associated with the unauthorized, completed work, solicit the views of the Environmental Protection Agency; the U.S. Fish and Wildlife Service; the National Marine Fisheries Service, and other Federal, state, and local agencies to facilitate his decision on what initial corrective measures are required. If the district engineer determines as a result of his investigation, coordination, and preliminary evaluation that initial corrective measures are required, he should issue an appropriate order to the parties responsible for the violation. In determining what initial corrective measures are required, the district engineer should consider whether serious jeopardy to life, property, or important public resources (see 33 CFR 320.4) may be reasonably anticipated to occur during the period required for the ultimate resolution of the violation. In his order, the district engineer will specify the initial corrective measures required and the time limits for completing this work. In unusual cases where initial corrective measures substantially eliminate all current and future detrimental impacts resulting from the unauthorized work, further enforcement actions should normally be unnecessary. For all other cases, the district engineer's order should normally specify that compliance with the order will not foreclose the Government's options to initiate appropriate legal action or to later require the submission of a permit application.

(2) An order requiring initial corrective measures that resolve the violation may also be issued by the district engineer in situations where the acceptance or processing of an after-the-fact permit application is prohibited or considered not appropriate pursuant to § 326.3(e)(1) (iii) through (iv) below. However, such orders will be issued only when the district engineer has reached an independent determination that such measures are necessary and appropriate.

(3) It will not be necessary to issue a Corps permit in connection with initial corrective measures undertaken at the direction of the district engineer.

(e) After-the-fact permit applications. (1) Following the completion of any required initial corrective measures, the district engineer will accept an after-the-fact permit application unless he determines that one of the exceptions listed in subparagraphs i-iv below is applicable. Applications for after-the-fact permits will be processed in accordance with the applicable procedures in 33 CFR parts 320 through 325. Situations where no permit application will be processed or where the acceptance of a permit application must be deferred are as follows:

(i) No permit application will be processed when restoration of the waters of the United States has been completed that eliminates current and future detrimental impacts to the satisfaction of the district engineer.

(ii) No permit application will be accepted in connection with a violation where the district engineer determines that legal action is appropriate (§ 326.5(a)) until such legal action has been completed.

(iii) No permit application will be accepted where a Federal, state, or local authorization or certification, required by Federal law, has already been denied.

(iv) No permit application will be accepted nor will the processing of an application be continued when the district engineer is aware of enforcement litigation that has been initiated by other Federal, state, or local regulatory agencies, unless he determines that concurrent processing of an after-the-fact permit application is clearly appropriate.

(v) No appeal of an approved jurisdictional determination (JD) associated with an unauthorized activity or after-the-fact permit application will be accepted unless and until the applicant has furnished a signed statute of limitations tolling agreement to the district engineer. A separate statute of limitations tolling agreement will be prepared for each unauthorized activity. Any person who appeals an approved JD associated with an unauthorized activity or applies for an after-the-fact permit, where the application is accepted and evaluated by the Corps, thereby agrees that the statute of limitations regarding any violation associated with that application is suspended until one year after the final Corps decision, as defined at 33 CFR 331.10. Moreover, the recipient of an approved JD associated with an unauthorized activity or an application for an after-the-fact permit must also memorialize that agreement to toll the statute of limitations, by signing an agreement to that effect, in exchange for the Corps acceptance of the after-the-fact permit application, and/or any administrative appeal. Such agreement will state that, in exchange for the Corps acceptance of any after-the-fact permit application and/or any administrative appeal associated with the unauthorized activity, the responsible party agrees that the statute of limitations will be suspended (i.e., tolled) until one year after the final Corps decision on the after-the-fact permit application or, if there is an administrative appeal, one year after the final Corps decision as defined at 33 CFR 331.10, whichever date is later.

(2) Upon completion of his review in accordance with 33 CFR parts 320 through 325, the district engineer will determine if a permit should be issued, with special conditions if appropriate, or denied. In reaching a decision to issue, he must determine that the work involved is not contrary to the public interest, and if section 404 is applicable, that the work also complies with the Environmental Protection Agency's section 404(b)(1) guidelines. If he determines that a denial is warranted, his notification of denial should prescribe any final corrective actions required. His notification should also establish a reasonable period of time for the applicant to complete such actions unless he determines that further information is required before the corrective measures can be specified. If further information is required, the final corrective measures may be specified at a later date. If an applicant refuses to undertake prescribed corrective actions ordered subsequent to permit denial or refuses to accept a conditioned permit, the district engineer may initiate legal action in accordance with § 326.5.

(f) Combining steps. The procedural steps in this section are in the normal sequence. However, these regulations do not prohibit the streamlining of the enforcement process through the combining of steps.

(g) Coordination with EPA. In all cases where the district engineer is aware that EPA is considering enforcement action, he should coordinate with EPA to attempt to avoid conflict or duplication. Such coordination applies to interim protective measures and after-the-fact permitting, as well as to appropriate legal enforcement actions.

[51 FR 41246, Nov. 13, 1986, as amended at 64 FR 11714, Mar. 9, 1999; 65 FR 16493, Mar. 28, 2000]

§ 326.4 Supervision of authorized activities.

(a) Inspections. District engineers will, at their discretion, take reasonable measures to inspect permitted activities, as required, to ensure that these activities comply with specified terms and conditions. To supplement inspections by their enforcement personnel, district engineers should encourage their other personnel; members of the public; and interested state, local, and other Federal agency representatives to report suspected violations of Corps permits. To facilitate inspections, district engineers will, in appropriate cases, require that copies of ENG Form 4336 be posted conspicuously at the sites of authorized activities and will make available to all interested persons information on the terms and conditions of issued permits. The U.S. Coast Guard will inspect permitted ocean dumping activities pursuant to section 107(c) of the Marine Protection, Research and Sanctuaries Act of 1972, as amended.

(b) Inspection limitations. Section 326.4 does not establish a non-discretionary duty to inspect permitted activities for safety, sound engineering practices, or interference with other permitted or unpermitted structures or uses in the area. Further, the regulations implementing the Corps regulatory program do not establish a non-discretionary duty to inspect permitted activities for any other purpose.

(c) Inspection expenses. The expenses incurred in connection with the inspection of permitted activities will normally be paid by the Federal Government unless daily supervision or other unusual expenses are involved. In such unusual cases, the district engineer may condition permits to require permittees to pay inspection expenses pursuant to the authority contained in section 9701 of Pub L. 97-258 (33 U.S.C. 9701). The collection and disposition of inspection expense funds obtained from applicants will be administered in accordance with the relevant Corps regulations governing such funds.

(d) Non-compliance. If a district engineer determines that a permittee has violated the terms or conditions of the permit and that the violation is sufficiently serious to require an enforcement action, then he should, unless at his discretion he deems it inappropriate: (1) First contact the permittee;

(2) Request corrected plans reflecting actual work, if needed; and

(3) Attempt to resolve the violation. Resolution of the violation may take the form of the permitted project being voluntarily brought into compliance or of a permit modification (33 CFR 325.7(b)). If a mutually agreeable solution cannot be reached, a written order requiring compliance should normally be issued and delivered by personal service. Issuance of an order is not, however, a prerequisite to legal action. If an order is issued, it will specify a time period of not more than 30 days for bringing the permitted project into compliance, and a copy will be sent to the appropriate state official pursuant to section 404(s)(2) of the Clean Water Act. If the permittee fails to comply with the order within the specified period of time, the district engineer may consider using the suspension/revocation procedures in 33 CFR 325.7(c) and/or he may recommend legal action in accordance with § 326.5.

§ 326.5 Legal action.

(a) General. For cases the district engineer determines to be appropriate, he will recommend criminal or civil actions to obtain penalties for violations, compliance with the orders and directives he has issued pursuant to §§ 326.3 and 326.4, or other relief as appropriate. Appropriate cases for criminal or civil action include, but are not limited to, violations which, in the district engineer's opinion, are willful, repeated, flagrant, or of substantial impact.

(b) Preparation of case. If the district engineer determines that legal action is appropriate, he will prepare a litigation report or such other documentation that he and the local U.S. Attorney have mutually agreed to, which contains an analysis of the information obtained during his investigation of the violation or during the processing of a permit application and a recommendation of appropriate legal action. The litigation report or alternative documentation will also recommend what, if any, restoration or mitigative measures are required and will provide the rationale for any such recommendation.

(c) Referral to the local U.S. Attorney. Except as provided in paragraph (d) of this section, district engineers are authorized to refer cases directly to the U.S. Attorney. Because of the unique legal system in the Trust Territories, all cases over which the Department of Justice has no authority will be referred to the Attorney General for the trust Territories. Information copies of all letters of referral shall be forwarded to the appropriate division counsel, the Office, Chief of Engineers, ATTN: DAEN-CCK, the Office of the Assistant Secretary of the Army (Civil Works), and the Chief of the Environmental Defense Section, Lands and Natural Resources Division, U.S. Department of Justice.

(d) Referral to the Office, Chief of Engineers. District engineers will forward litigation reports with recommendations through division offices to the Office, Chief of Engineers, ATTN: DAEN-CCK, for all cases that qualify under the following criteria:

(1) Significant precedential or controversial questions of law or fact;

(2) Requests for elevation to the Washington level by the Department of Justice;

(3) Violations of section 9 of the Rivers and Harbors Act of 1899;

(4) Violations of section 103 the Marine Protection, Research and Sanctuaries Act of 1972;

(5) All cases involving violations by American Indians (original of litigation report to DAEN-CCI with copy to DAEN-CCK) on reservation lands or in pursuit of specific treaty rights;

(6) All cases involving violations by officials acting on behalf of foreign governments; and

(7) Cases requiring action pursuant to paragraph (e) of this section.

(e) Legal option not available. In cases where the local U.S. Attorney declines to take legal action, it would be appropriate for the district engineer to close the enforcement case record unless he believes that the case warrants special attention. In that situation, he is encouraged to forward a litigation report to the Office, Chief of Engineers, ATTN: DAEN-CCK, for direct coordination through the Office of the Assistant Secretary of the Army (Civil Works) with the Department of Justice. Further, the case record should not be closed if the district engineer anticipates that further administrative enforcement actions, taken in accordance with the procedures prescribed in this part, will identify remedial measures which, if not complied with by the parties responsible for the violation, will result in appropriate legal action at a later date.

§ 326.6 Class I administrative penalties.

(a) Introduction. (1) This section sets forth procedures for initiation and administration of Class I administrative penalty orders under Section 309(g) of the Clean Water Act, judicially-imposed civil penalties under Section 404(s) of the Clean Water Act, and Section 205 of the National Fishing Enhancement Act. Under Section 309(g)(2)(A) of the Clean Water Act, Class I civil penalties may not exceed $27,379 per violation, except that the maximum amount of any Class I civil penalty shall not exceed $68,446. Under Section 404(s)(4) of the Clean Water Act, judicially-imposed civil penalties may not exceed $68,446 per day for each violation. Under Section 205(e) of the National Fishing Enhancement Act, penalties for violations of permits issued in accordance with that Act shall not exceed $29,980 for each violation.

Table 1 to Paragraph (a)(1)

Environmental statute and U.S. code citation | Statutory civil monetary penalty amount for violations that occurred after November 2, 2015, and are assessed on or after August 8, 2025

Clean Water Act (CWA), Section 309(g)(2)(A), 33 U.S.C. 1319(g)(2)(A) | $27,379 per violation, with a maximum of $68,446.

CWA, Section 404(s)(4), 33 U.S.C. 1344(s)(4) | Maximum of $68,446 per day for each violation.

National Fishing Enhancement Act, Section 205(e), 33 U.S.C. 2104(e) | Maximum of $29,980 per violation.

(2) These procedures supplement the existing enforcement procedures at §§ 326.1 through 326.5. However, as a matter of Corps enforcement discretion once the Corps decides to proceed with an administrative penalty under these procedures it shall not subsequently pursue judicial action pursuant to § 326.5. Therefore, an administrative penalty should not be pursued if a subsequent judicial action for civil penalties is desired. An administrative civil penalty may be pursued in conjunction with a compliance order; request for restoration and/or request for mitigation issued under § 326.4.

(3) Definitions. For the purposes of this section of the regulation:

(i) Corps means the Secretary of the Army, acting through the U.S. Army Corps of Engineers, with respect to the matters covered by this regulation.

(ii) Interested person outside the Corps includes the permittee, any person who filed written comments on the proposed penalty order, and any other person not employed by the Corps with an interest in the subject of proposed penalty order, and any attorney of record for those persons.

(iii) Interested Corps staff means those Corps employees, whether temporary or permanent, who may investigate, litigate, or present evidence, arguments, or the position of the Corps in the hearing or who participated in the preparation, investigation or deliberations concerning the proposed penalty order, including any employee, contractor, or consultant who may be called as a witness.

(iv) Permittee means the person to whom the Corps issued a permit under section 404 of the Clean Water Act, (or section 10 of the Rivers and Harbors Act for an Artificial Reef) the conditions and limitations of which permit have allegedly been violated.

(v) Presiding Officer means a member of Corps Counsel staff or any other qualified person designated by the District Engineer (DE), to hold a hearing on a proposed administrative civil penalty order (hereinafter referred to as “proposed order”) in accordance with the rules set forth in this regulation and to make such recommendations to the DE as prescribed in this regulation.

(vi) Ex parte communication means any communication, written or oral, relating to the merits of the proceeding, between the Presiding Officer and an interested person outside the Corps or the interested Corps staff, which was not originally filed or stated in the administrative record or in the hearing. Such communication is not an “ex parte communication” if all parties have received prior written notice of the proposed communication and have been given the opportunity to participate herein.

(b) Initiation of action. (1) If the DE or a delegatee of the DE finds that a recipient of a Department of the Army permit (hereinafter referred to as “the permittee”) has violated any permit condition or limitation contained in that permit, the DE is authorized to prepare and process a proposed order in accordance with these procedures. The proposed order shall specify the amount of the penalty which the permittee may be assessed and shall describe with reasonable specificity the nature of the violation.

(2) The permittee will be provided actual notice, in writing, of the DE's proposal to issue an administrative civil penalty and will be advised of the right to request a hearing and to present evidence on the alleged violation. Notice to the permittee will be provided by certified mail, return receipt requested, or other notice, at the discretion of the DE when he determines justice so requires. This notice will be accompanied by a copy of the proposed order, and will include the following information:

(i) A description of the alleged violation and copies of the applicable law and regulations;

(ii) An explanation of the authority to initiate the proceeding;

(iii) An explanation, in general terms, of the procedure for assessing civil penalties, including opportunities for public participation;

(iv) A statement of the amount of the penalty that is proposed and a statement of the maximum amount of the penalty which the DE is authorized to assess for the violations alleged;

(v) A statement that the permittee may within 30 calendar days of receipt of the notice provided under this subparagraph, request a hearing prior to issuance of any final order. Further, that the permittee must request a hearing within 30 calendar days of receipt of the notice provided under this subparagraph in order to be entitled to receive such a hearing;

(vi) The name and address of the person to whom the permittee must send a request for hearing;

(vii) Notification that the DE may issue the final order on or after 30 calendar days following receipt of the notice provided under these rules, if the permittee does not request a hearing; and

(viii) An explanation that any final order issued under this section shall become effective 30 calendar days following its issuance unless a petition to set aside the order and to hold a hearing is filed by a person who commented on the proposed order and such petition is granted or an appeal is taken under section 309(g)(8) of the Clean Water Act.

(3) At the same time that actual notice is provided to the permittee, the DE shall give public notice of the proposed order, and provide reasonable opportunity for public comment on the proposed order, prior to issuing a final order assessing an administrative civil penalty. Procedures for giving public notice and providing the opportunity for public comment are contained in § 326.6(c).

(4) At the same time that actual notice is provided to the permittee, the DE shall provide actual notice, in writing, to the appropriate state agency for the state in which the violation occurred. Procedures for providing actual notice to and consulting with the appropriate state agency are contained in § 326.6(d).

(c) Public notice and comment. (1) At the same time the permittee and the appropriate state agency are provided actual notice, the DE shall provide public notice of and a reasonable opportunity to comment on the DE's proposal to issue an administrative civil penalty against the permittee.

(2) A 30 day public comment period shall be provided. Any person may submit written comments on the proposed administrative penalty order. The DE shall include all written comments in an administrative record relating to the proposed order. Any person who comments on a proposed order shall be given notice of any hearing held on the proposed order. Such persons shall have a reasonable opportunity to be heard and to present evidence in such hearings.

(3) If no hearing is requested by the permittee, any person who has submitted comments on the proposed order shall be given notice by the DE of any final order issued, and will be given 30 calendar days in which to petition the DE to set aside the order and to provide a hearing on the penalty. The DE shall set aside the order and provide a hearing in accordance with these rules if the evidence presented by the commenter in support of the commenter's petition for a hearing is material and was not considered when the order was issued. If the DE denies a hearing, the DE shall provide notice to the commenter filing the petition for the hearing, together with the reasons for the denial. Notice of the denial and the reasons for the denial shall be published in the Federal Register by the DE.

(4) The DE shall give public notice by mailing a copy of the information listed in paragraph (c)(5), of this section to:

(i) Any person who requests notice;

(ii) Other persons on a mailing list developed to include some or all of the following sources:

(A) Persons who request in writing to be on the list;

(B) Persons on “area lists” developed from lists of participants in past similar proceedings in that area, including hearings or other actions related to section 404 permit issuance as required by § 325.3(d)(1). The DE may update the mailing list from time to time by requesting written indication of continued interest from those listed. The DE may delete from the list the name of any person who fails to respond to such a request.

(5) All public notices under this subpart shall contain at a minimum the information provided to the permittee as described in § 326.6(b)(2) and:

(i) A statement of the opportunity to submit written comments on the proposed order and the deadline for submission of such comments;

(ii) Any procedures through which the public may comment on or participate in proceedings to reach a final decision on the order;

(iii) The location of the administrative record referenced in § 326.6(e), the times at which the administrative record will be available for public inspection, and a statement that all information submitted by the permittee and persons commenting on the proposed order is available as part of the administrative record, subject to provisions of law restricting the public disclosure of confidential information.

(d) State consultation. (1) At the same time that the permittee is provided actual notice, the DE shall send the appropriate state agency written notice of proposal to issue an administrative civil penalty order. This notice will include the same information required pursuant to § 326.6(c)(5).

(2) For the purposes of this regulation, the appropriate State agency will be the agency administering the 401 certification program, unless another state agency is agreed to by the District and the respective state through formal/informal agreement with the state.

(3) The appropriate state agency will be provided the same opportunity to comment on the proposed order and participate in any hearing that is provided pursuant to § 326.6(c).

(e) Availability of the administrative record. (1) At any time after the public notice of a proposed penalty order is given under § 326.6(c), the DE shall make available the administrative record at reasonable times for inspection and copying by any interested person, subject to provisions of law restricting the public disclosure of confidential information. Any person requesting copies of the administrative record or portions of the administrative record may be required by the DE to pay reasonable charges for reproducing the information requested.

(2) The administrative record shall include the following:

(i) Documentation relied on by the DE to support the violations alleged in the proposed penalty order with a summary of violations, if a summary has been prepared;

(ii) Proposed penalty order or assessment notice;

(iii) Public notice of the proposed order with evidence of notice to the permittee and to the public;

(iv) Comments by the permittee and/or the public on the proposed penalty order, including any requests for a hearing;

(v) All orders or notices of the Presiding Officer;

(vi) Subpoenas issued, if any, for the attendance and testimony of witnesses and the production of relevant papers, books, or documents in connection with any hearings;

(vii) All submittals or responses of any persons or comments to the proceeding, including exhibits, if any;

(viii) A complete and accurate record or transcription of any hearing;

(ix) The recommended decision of the Presiding Officer and final decision and/or order of the Corps issued by the DE; and

(x) Any other appropriate documents related to the administrative proceeding;

(f) Counsel. A permittee may be represented at all stages of the proceeding by counsel. After receiving notification that a permittee or any other party or commenter is represented by counsel, the Presiding Officer and DE shall direct all further communications to that counsel.

(g) Opportunity for hearing. (1) The permittee may request a hearing and may provide written comments on the proposed administrative penalty order at any time within 30 calendar days after receipt of the notice set forth in § 326.6(b)(2). The permittee must request the hearing in writing, specifying in summary form the factual and legal issues which are in dispute and the specific factual and legal grounds for the permittee's defense.

(2) The permittee waives the right to a hearing to present evidence on the alleged violation or violations if the permittee does not submit the request for the hearing to the official designated in the notice of the proposed order within 30 calendar days of receipt of the notice. The DE shall determine the date of receipt of notice by permittee's signed and dated return receipt or such other evidence that constitutes proof of actual notice on a certain date.

(3) The DE shall promptly schedule requested hearings and provide reasonable notice of the hearing schedule to all participants, except that no hearing shall be scheduled prior to the end of the thirty day public comment period provided in § 326.6(c)(2). The DE may grant any delays or continuances necessary or desirable to resolve the case fairly.

(4) The hearing shall be held at the district office or a location chosen by the DE, except the permittee may request in writing upon a showing of good cause that the hearing be held at an alternative location. Action on such request is at the discretion of the DE.

(h) Hearing. (1) Hearings shall afford permittees with an opportunity to present evidence on alleged violations and shall be informal, adjudicatory hearings and shall not be subject to section 554 or 556 of the Administrative Procedure Act. Permittees may present evidence either orally or in written form in accordance with the hearing procedures specified in § 326.6(i).

(2) The DE shall give written notice of any hearing to be held under these rules to any person who commented on the proposed administrative penalty order under § 326.6(c). This notice shall specify a reasonable time prior to the hearing within which the commenter may request an opportunity to be heard and to present oral evidence or to make comments in writing in any such hearing. The notice shall require that any such request specify the facts or issues which the commenter wishes to address. Any commenter who files comments pursuant to § 326.6(c)(2) shall have a right to be heard and to present evidence at the hearing in conformance with these procedures.

(3) The DE shall select a member of the Corps counsel staff or other qualified person to serve as Presiding Officer of the hearing. The Presiding Officer shall exercise no other responsibility, direct or supervisory, for the investigation or prosecution of any case before him. The Presiding Officer shall conduct hearings as specified by these rules and make a recommended decision to the DE.

(4) The Presiding Officer shall consider each case on the basis of the evidence presented, and must have no prior connection with the case. The Presiding Officer is solely responsible for the recommended decision in each case.

(5) Ex parte communications. (i) No interested person outside the Corps or member of the interested Corps staff shall make, or knowingly cause to be made, any ex parte communication on the merits of the proceeding.

(ii) The Presiding Officer shall not make, or knowingly cause to be made, any ex parte communication on the proceeding to any interested person outside the Corps or to any member of the interested Corps staff.

(iii) The DE may replace the Presiding Officer in any proceeding in which it is demonstrated to the DE's satisfaction that the Presiding Officer has engaged in prohibited ex parte communications to the prejudice of any participant.

(iv) Whenever an ex parte communication in violation of this section is received by the Presiding Officer or made known to the Presiding Officer, the Presiding Officer shall immediately notify all participants in the proceeding of the circumstances and substance of the communication and may require the person who made the communication or caused it to be made, or the party whose representative made the communication or caused it to be made, to the extent consistent with justice and the policies of the Clean Water Act, to show cause why that person or party's claim or interest in the proceedings should not be dismissed, denied, disregarded, or otherwise adversely affected on account of such violation.

(v) The prohibitions of this paragraph apply upon designation of the Presiding Officer and terminate on the date of final action or the final order.

(i) Hearing procedures. (1) The Presiding Officer shall conduct a fair and impartial proceeding in which the participants are given a reasonable opportunity to present evidence.

(2) The Presiding Officer may subpoena witnesses and issue subpoenas for documents pursuant to the provisions of the Clean Water Act.

(3) The Presiding Officer shall provide interested parties a reasonable opportunity to be heard and to present evidence. Interested parties include the permittee, any person who filed a request to participate under 33 CFR 326.6(c), and any other person attending the hearing. The Presiding Officer may establish reasonable time limits for oral testimony.

(4) The permittee may not challenge the permit condition or limitation which is the subject matter of the administrative penalty order.

(5) Prior to the commencement of the hearing, the DE shall provide to the Presiding Officer the complete administrative record as of that date. During the hearing, the DE, or an authorized representative of the DE may summarize the basis for the proposed administrative order. Thereafter, the administrative record shall be admitted into evidence and the Presiding Officer shall maintain the administrative record of the proceedings and shall include in that record all documentary evidence, written statements, correspondence, the record of hearing, and any other relevant matter.

(6) The Presiding Officer shall cause a tape recording, written transcript or other permanent, verbatim record of the hearing to be made, which shall be included in the administrative record, and shall, upon written request, be made available, for inspection or copying, to the permittee or any person, subject to provisions of law restricting the public disclosure of confidential information. Any person making a request may be required to pay reasonable charges for copies of the administrative record or portions thereof.

(7) In receiving evidence, the Presiding Officer is not bound by strict rules of evidence. The Presiding Officer may determine the weight to be accorded the evidence.

(8) The permittee has the right to examine, and to respond to the administrative record. The permittee may offer into evidence, in written form or through oral testimony, a response to the administrative record including, any facts, statements, explanations, documents, testimony, or other exculpatory items which bear on any appropriate issues. The Presiding Officer may question the permittee and require the authentication of any written exhibit or statement. The Presiding Officer may exclude any repetitive or irrelevant matter.

(9) At the close of the permittee's presentation of evidence, the Presiding Officer should allow the introduction of rebuttal evidence. The Presiding Officer may allow the permittee to respond to any such rebuttal evidence submitted and to cross-examine any witness.

(10) The Presiding Officer may take official notice of matters that are not reasonably in dispute and are commonly known in the community or are ascertainable from readily available sources of known accuracy. Prior to taking official notice of a matter, the Presiding Officer shall give the Corps and the permittee an opportunity to show why such notice should not be taken. In any case in which official notice is taken, the Presiding Officer shall place a written statement of the matters as to which such notice was taken in the record, including the basis for such notice and a statement that the Corps or permittee consented to such notice being taken or a summary of the objections of the Corps or the permittee.

(11) After all evidence has been presented, any participant may present argument on any relevant issue, subject to reasonable time limitations set at the discretion of the Presiding Officer.

(12) The hearing record shall remain open for a period of 10 business days from the date of the hearing so that the permittee or any person who has submitted comments on the proposed order may examine and submit responses for the record.

(13) At the close of this 10 business day period, the Presiding Officer may allow the introduction of rebuttal evidence. The Presiding Officer may hold the record open for an additional 10 business days to allow the presentation of such rebuttal evidence.

(j) The decision. (1) Within a reasonable time following the close of the hearing and receipt of any statements following the hearing and after consultation with the state pursuant to § 326.6(d), the Presiding Officer shall forward a recommended decision accompanied by a written statement of reasons to the DE. The decision shall recommend that the DE withdraw, issue, or modify and issue the proposed order as a final order. The recommended decision shall be based on a preponderance of the evidence in the administrative record. If the Presiding Officer finds that there is not a preponderance of evidence in the record to support the penalty or the amount of the penalty in a proposed order, the Presiding Officer may recommend that the order be withdrawn or modified and then issued on terms that are supported by a preponderance of evidence on the record. The Presiding Officer also shall make the complete administrative record available to the DE for review.

(2) The Presiding Officer's recommended decision to the DE shall become part of the administrative record and shall be made available to the parties to the proceeding at the time the DE's decision is released pursuant to § 326.6(j)(5). The Presiding Officer's recommended decision shall not become part of the administrative record until the DE's final decision is issued, and shall not be made available to the permittee or public prior to that time.

(3) The rules applicable to Presiding Officers under § 326.6(h)(5) regarding ex parte communications are also applicable to the DE and to any person who advises the DE on the decision or the order, except that communications between the DE and the Presiding Officer do not constitute ex parte communications, nor do communications between the DE and his staff prior to issuance of the proposed order.

(4) The DE may request additional information on specified issues from the participants, in whatever form the DE designates, giving all participants a fair opportunity to be heard on such additional matters. The DE shall include this additional information in the administrative record.

(5) Within a reasonable time following receipt of the Presiding Officer's recommended decision, the DE shall withdraw, issue, or modify and issue the proposed order as a final order. The DE's decision shall be based on a preponderance of the evidence in the administrative record, shall consider the penalty factors set out in section 309(g)(3) of the CWA, shall be in writing, shall include a clear and concise statement of reasons for the decision, and shall include any final order assessing a penalty. The DE's decision, once issued, shall constitute final Corps action for purposes of judicial review.

(6) The DE shall issue the final order by sending the order, or written notice of its withdrawal, to the permittee by certified mail. Issuance of the order under this subparagraph constitutes final Corps action for purposes of judicial review.

(7) The DE shall provide written notice of the issuance, modification and issuance, or withdrawal of the proposed order to every person who submitted written comments on the proposed order.

(8) The notice shall include a statement of the right to judicial review and of the procedures and deadlines for obtaining judicial review. The notice shall also note the right of a commenter to petition for a hearing pursuant to 33 CFR 326.6(c)(3) if no hearing was previously held.

(k) Effective date of order. (1) Any final order issued under this subpart shall become effective 30 calendar days following its issuance unless an appeal is taken pursuant to section 309(g)(8) of the Clean Water Act, or in the case where no hearing was held prior to the final order, and a petition for hearing is filed by a prior commenter.

(2) If a petition for hearing is received within 30 days after the final order is issued, the DE shall:

(i) Review the evidence presented by the petitioner.

(ii) If the evidence is material and was not considered in the issuance of the order, the DE shall immediately set aside the final order and schedule a hearing. In that case, a hearing will be held, a new recommendation will be made by the Presiding Officer to the DE and a new final decision issued by the DE.

(iii) If the DE denies a hearing under this subparagraph, the DE shall provide to the petitioner, and publish in the Federal Register, notice of, and the reasons for, such denial.

(l) Judicial review. (1) Any permittee against whom a final order assessing a civil penalty under these regulations or any person who provided written comments on a proposed order may obtain judicial review of the final order.

(2) In order to obtain judicial review, the permittee or commenter must file a notice of appeal in the United States District Court for either the District of Columbia, or the district in which the violation was alleged to have occurred, within 30 calendar days after the date of issuance of the final order.

(3) Simultaneously with the filing of the notice of appeal, the permittee or commenter must send a copy of such notice by certified mail to the DE and the Attorney General.

[54 FR 50709, Dec. 8, 1989, as amended at 69 FR 35518, June 25, 2004; 78 FR 5726, Jan. 28, 2013; 82 FR 47628, Oct. 13, 2017; 83 FR 19184, May 2, 2018; 84 FR 18982, May 3, 2019; 85 FR 35005, June 8, 2020; 86 FR 37249, July 15, 2021; 87 FR 62989, Oct. 18, 2022; 88 FR 51236, Aug. 3, 2023; 89 FR 47865, June 4, 2024; 90 FR 38405, Aug. 8, 2025]

§ 327.1 Purpose.

This regulation prescribes the policy, practice and procedures to be followed by the U.S. Army Corps of Engineers in the conduct of public hearings conducted in the evaluation of a proposed DA permit action or Federal project as defined in § 327.3 of this part including those held pursuant to section 404 of the Clean Water Act (33 U.S.C. 1344) and section 103 of the Marine Protection, Research and Sanctuaries Act (MPRSA), as amended (33 U.S.C. 1413).

§ 327.2 Applicability.

This regulation is applicable to all divisions and districts responsible for the conduct of public hearings.

§ 327.3 Definitions.

(a) Public hearing means a public proceeding conducted for the purpose of acquiring information or evidence which will be considered in evaluating a proposed DA permit action, or Federal project, and which affords the public an opportunity to present their views, opinions, and information on such permit actions or Federal projects.

(b) Permit action, as used herein means the evaluation of and decision on an application for a DA permit pursuant to sections 9 or 10 of the Rivers and Harbors Act of 1899, section 404 of the Clean Water Act, or section 103 of the MPRSA, as amended, or the modification, suspension or revocation of any DA permit (see 33 CFR 325.7).

(c) Federal project means a Corps of Engineers project (work or activity of any nature for any purpose which is to be performed by the Chief of Engineers pursuant to Congressional authorizations) involving the discharge of dredged or fill material into waters of the United States or the transportation of dredged material for the purpose of dumping it in ocean waters subject to section 404 of the Clean Water Act, or section 103 of the MPRSA.

§ 327.4 General policies.

(a) A public hearing will be held in connection with the consideration of a DA permit application or a Federal project whenever a public hearing is needed for making a decision on such permit application or Federal project. In addition, a public hearing may be held when it is proposed to modify or revoke a permit. (See 33 CFR 325.7).

(b) Unless the public notice specifies that a public hearing will be held, any person may request, in writing, within the comment period specified in the public notice on a DA permit application or on a Federal project, that a public hearing be held to consider the material matters at issue in the permit application or with respect to Federal project. Upon receipt of any such request, stating with particularity the reasons for holding a public hearing, the district engineer may expeditiously attempt to resolve the issues informally. Otherwise, he shall promptly set a time and place for the public hearing, and give due notice thereof, as prescribed in § 327.11 of this part. Requests for a public hearing under this paragraph shall be granted, unless the district engineer determines that the issues raised are insubstantial or there is otherwise no valid interest to be served by a hearing. The district engineer will make such a determination in writing, and communicate his reasons therefor to all requesting parties. Comments received as form letters or petitions may be acknowledged as a group to the person or organization responsible for the form letter or petition.

(c) In case of doubt, a public hearing shall be held. HQDA has the discretionary power to require hearings in any case.

(d) In fixing the time and place for a hearing, the convenience and necessity of the interested public will be duly considered.

§ 327.5 Presiding officer.

(a) The district engineer, in whose district a matter arises, shall normally serve as the presiding officer. When the district engineer is unable to serve, he may designate the deputy district engineer or other qualified person as presiding officer. In cases of unusual interest, the Chief of Engineers or the division engineer may appoint such person as he deems appropriate to serve as the presiding officer.

(b) The presiding officer shall include in the administrative record of the permit action the request or requests for the hearing and any data or material submitted in justification thereof, materials submitted in opposition to or in support of the proposed action, the hearing transcript, and such other material as may be relevant or pertinent to the subject matter of the hearing. The administrative record shall be available for public inspection with the exception of material exempt from disclosure under the Freedom of Information Act.

§ 327.6 Legal adviser.

At each public hearing, the district counsel or his designee may serve as legal advisor to the presiding officer. In appropriate circumstances, the district engineer may waive the requirement for a legal advisor to be present.

§ 327.7 Representation.

At the public hearing, any person may appear on his own behalf, or may be represented by counsel, or by other representatives.

§ 327.8 Conduct of hearings.

(a) The presiding officer shall make an opening statement outlining the purpose of the hearing and prescribing the general procedures to be followed.

(b) Hearings shall be conducted by the presiding officer in an orderly but expeditious manner. Any person shall be permitted to submit oral or written statements concerning the subject matter of the hearing, to call witnesses who may present oral or written statements, and to present recommendations as to an appropriate decision. Any person may present written statements for the hearing record prior to the time the hearing record is closed to public submissions, and may present proposed findings and recommendations. The presiding officer shall afford participants a reasonable opportunity for rebuttal.

(c) The presiding officer shall have discretion to establish reasonable limits upon the time allowed for statements of witnesses, for arguments of parties or their counsel or representatives, and upon the number of rebuttals.

(d) Cross-examination of witnesses shall not be permitted.

(e) All public hearings shall be reported verbatim. Copies of the transcripts of proceedings may be purchased by any person from the Corps of Engineers or the reporter of such hearing. A copy will be available for public inspection at the office of the appropriate district engineer.

(f) All written statements, charts, tabulations, and similar data offered in evidence at the hearing shall, subject to exclusion by the presiding officer for reasons of redundancy, be received in evidence and shall constitute a part of the record.

(g) The presiding officer shall allow a period of not less than 10 days after the close of the public hearing for submission of written comments.

(h) In appropriate cases, the district engineer may participate in joint public hearings with other Federal or state agencies, provided the procedures of those hearings meet the requirements of this regulation. In those cases in which the other Federal or state agency allows a cross-examination in its public hearing, the district engineer may still participate in the joint public hearing but shall not require cross examination as a part of his participation.

§ 327.9 Filing of the transcript of the public hearing.

Where the presiding officer is the initial action authority, the transcript of the public hearing, together with all evidence introduced at the public hearing, shall be made a part of the administrative record of the permit action or Federal project. The initial action authority shall fully consider the matters discussed at the public hearing in arriving at his initial decision or recommendation and shall address, in his decision or recommendation, all substantial and valid issues presented at the hearing. Where a person other than the initial action authority serves as presiding officer, such person shall forward the transcript of the public hearing and all evidence received in connection therewith to the initial action authority together with a report summarizing the issues covered at the hearing. The report of the presiding officer and the transcript of the public hearing and evidence submitted thereat shall in such cases be fully considered by the initial action authority in making his decision or recommendation to higher authority as to such permit action or Federal project.

§ 327.10 Authority of the presiding officer.

Presiding officers shall have the following authority:

(a) To regulate the course of the hearing including the order of all sessions and the scheduling thereof, after any initial session, and the recessing, reconvening, and adjournment thereof; and

(b) To take any other action necessary or appropriate to the discharge of the duties vested in them, consistent with the statutory or other authority under which the Chief of Engineers functions, and with the policies and directives of the Chief of Engineers and the Secretary of the Army.

§ 327.11 Public notice.

(a) Public notice shall be given of any public hearing to be held pursuant to this regulation. Such notice should normally provide for a period of not less than 30 days following the date of public notice during which time interested parties may prepare themselves for the hearing. Notice shall also be given to all Federal agencies affected by the proposed action, and to state and local agencies and other parties having an interest in the subject matter of the hearing. Notice shall be sent to all persons requesting a hearing and shall be posted in appropriate government buildings and provided to newspapers of general circulation for publication. Comments received as form letters or petitions may be acknowledged as a group to the person or organization responsible for the form letter or petition.

(b) The notice shall contain time, place, and nature of hearing; the legal authority and jurisdiction under which the hearing is held; and location of and availability of the draft environmental impact statement or environmental assessment.

§ 328.1 Purpose.

This section defines the term “waters of the United States” as it applies to the jurisdictional limits of the authority of the Corps of Engineers under the Clean Water Act. It prescribes the policy, practice, and procedures to be used in determining the extent of jurisdiction of the Corps of Engineers concerning “waters of the United States.” The terminology used by section 404 of the Clean Water Act includes “navigable waters” which is defined at section 502(7) of the Act as “waters of the United States including the territorial seas.” To provide clarity and to avoid confusion with other Corps of Engineer regulatory programs, the term “waters of the United States” is used throughout 33 CFR parts 320 through 330. This section does not apply to authorities under the Rivers and Harbors Act of 1899 except that some of the same waters may be regulated under both statutes (see 33 CFR parts 322 and 329).

§ 328.2 General scope.

Waters of the United States include those waters listed in § 328.3(a). The lateral limits of jurisdiction in those waters may be divided into three categories. The categories include the territorial seas, tidal waters, and non-tidal waters (see 33 CFR 328.4 (a), (b), and (c), respectively).

§ 328.3 Definitions.

For the purpose of this regulation these terms are defined as follows:

(a) Waters of the United States means:

(1) Waters which are:

(i) Currently used, or were used in the past, or may be susceptible to use in interstate or foreign commerce, including all waters which are subject to the ebb and flow of the tide;

(ii) The territorial seas; or

(iii) Interstate waters;

(2) Impoundments of waters otherwise defined as waters of the United States under this definition, other than impoundments of waters identified under paragraph (a)(5) of this section;

(3) Tributaries of waters identified in paragraph (a)(1) or (2) of this section that are relatively permanent, standing or continuously flowing bodies of water;

(4) Wetlands adjacent to the following waters:

(i) Waters identified in paragraph (a)(1) of this section; or

(ii) Relatively permanent, standing or continuously flowing bodies of water identified in paragraph (a)(2) or (a)(3) of this section and with a continuous surface connection to those waters;

(5) Intrastate lakes and ponds not identified in paragraphs (a)(1) through (4) of this section that are relatively permanent, standing or continuously flowing bodies of water with a continuous surface connection to the waters identified in paragraph (a)(1) or (a)(3) of this section.

(b) The following are not “waters of the United States” even where they otherwise meet the terms of paragraphs (a)(2) through (5) of this section:

(1) Waste treatment systems, including treatment ponds or lagoons, designed to meet the requirements of the Clean Water Act;

(2) Prior converted cropland designated by the Secretary of Agriculture. The exclusion would cease upon a change of use, which means that the area is no longer available for the production of agricultural commodities. Notwithstanding the determination of an area's status as prior converted cropland by any other Federal agency, for the purposes of the Clean Water Act, the final authority regarding Clean Water Act jurisdiction remains with EPA;

(3) Ditches (including roadside ditches) excavated wholly in and draining only dry land and that do not carry a relatively permanent flow of water;

(4) Artificially irrigated areas that would revert to dry land if the irrigation ceased;

(5) Artificial lakes or ponds created by excavating or diking dry land to collect and retain water and which are used exclusively for such purposes as stock watering, irrigation, settling basins, or rice growing;

(6) Artificial reflecting or swimming pools or other small ornamental bodies of water created by excavating or diking dry land to retain water for primarily aesthetic reasons;

(7) Waterfilled depressions created in dry land incidental to construction activity and pits excavated in dry land for the purpose of obtaining fill, sand, or gravel unless and until the construction or excavation operation is abandoned and the resulting body of water meets the definition of waters of the United States; and

(8) Swales and erosional features (e.g., gullies, small washes) characterized by low volume, infrequent, or short duration flow.

(c) In this section, the following definitions apply:

(1) Wetlands means those areas that are inundated or saturated by surface or ground water at a frequency and duration sufficient to support, and that under normal circumstances do support, a prevalence of vegetation typically adapted for life in saturated soil conditions. Wetlands generally include swamps, marshes, bogs, and similar areas.

(2) Adjacent means having a continuous surface connection.

(3) High tide line means the line of intersection of the land with the water's surface at the maximum height reached by a rising tide. The high tide line may be determined, in the absence of actual data, by a line of oil or scum along shore objects, a more or less continuous deposit of fine shell or debris on the foreshore or berm, other physical markings or characteristics, vegetation lines, tidal gages, or other suitable means that delineate the general height reached by a rising tide. The line encompasses spring high tides and other high tides that occur with periodic frequency but does not include storm surges in which there is a departure from the normal or predicted reach of the tide due to the piling up of water against a coast by strong winds such as those accompanying a hurricane or other intense storm.

(4) Ordinary high water mark means that line on the shore established by the fluctuations of water and indicated by physical characteristics such as clear, natural line impressed on the bank, shelving, changes in the character of soil, destruction of terrestrial vegetation, the presence of litter and debris, or other appropriate means that consider the characteristics of the surrounding areas.

(5) Tidal waters means those waters that rise and fall in a predictable and measurable rhythm or cycle due to the gravitational pulls of the moon and sun. Tidal waters end where the rise and fall of the water surface can no longer be practically measured in a predictable rhythm due to masking by hydrologic, wind, or other effects.

[88 FR 3142, Jan. 18, 2023, as amended at 88 FR 61968, Sept. 8, 2023]

§ 328.4 Limits of jurisdiction.

(a) Territorial Seas. The limit of jurisdiction in the territorial seas is measured from the baseline in a seaward direction a distance of three nautical miles. (See 33 CFR 329.12)

(b) Tidal waters of the United States. The landward limits of jurisdiction in tidal waters:

(1) Extends to the high tide line, or

(2) When adjacent non-tidal waters of the United States are present, the jurisdiction extends to the limits identified in paragraph (c) of this section.

(c) Non-tidal waters of the United States. The limits of jurisdiction in non-tidal waters:

(1) In the absence of adjacent wetlands, the jurisdiction extends to the ordinary high water mark, or

(2) When adjacent wetlands are present, the jurisdiction extends beyond the ordinary high water mark to the limit of the adjacent wetlands.

(3) When the water of the United States consists only of wetlands the jurisdiction extends to the limit of the wetland.

§ 328.5 Changes in limits of waters of the United States.

Permanent changes of the shoreline configuration result in similar alterations of the boundaries of waters of the United States. Gradual changes which are due to natural causes and are perceptible only over some period of time constitute changes in the bed of a waterway which also change the boundaries of the waters of the United States. For example, changing sea levels or subsidence of land may cause some areas to become waters of the United States while siltation or a change in drainage may remove an area from waters of the United States. Man-made changes may affect the limits of waters of the United States; however, permanent changes should not be presumed until the particular circumstances have been examined and verified by the district engineer. Verification of changes to the lateral limits of jurisdiction may be obtained from the district engineer.

§ 329.1 Purpose.

This regulation defines the term “navigable waters of the United States” as it is used to define authorities of the Corps of Engineers. It also prescribes the policy, practice and procedure to be used in determining the extent of the jurisdiction of the Corps of Engineers and in answering inquiries concerning “navigable waters of the United States.” This definition does not apply to authorities under the Clean Water Act which definitions are described under 33 CFR parts 323 and 328.

§ 329.2 Applicability.

This regulation is applicable to all Corps of Engineers districts and divisions having civil works responsibilities.

§ 329.3 General policies.

Precise definitions of “navigable waters of the United States” or “navigability” are ultimately dependent on judicial interpretation and cannot be made conclusively by administrative agencies. However, the policies and criteria contained in this regulation are in close conformance with the tests used by Federal courts and determinations made under this regulation are considered binding in regard to the activities of the Corps of Engineers.

§ 329.4 General definition.

Navigable waters of the United States are those waters that are subject to the ebb and flow of the tide and/or are presently used, or have been used in the past, or may be susceptible for use to transport interstate or foreign commerce. A determination of navigability, once made, applies laterally over the entire surface of the waterbody, and is not extinguished by later actions or events which impede or destroy navigable capacity.

§ 329.5 General scope of determination.

The several factors which must be examined when making a determination whether a waterbody is a navigable water of the United States are discussed in detail below. Generally, the following conditions must be satisfied:

(a) Past, present, or potential presence of interstate or foreign commerce;

(b) Physical capabilities for use by commerce as in paragraph (a) of this section; and

(c) Defined geographic limits of the waterbody.

§ 329.6 Interstate or foreign commerce.

(a) Nature of commerce: type, means, and extent of use. The types of commercial use of a waterway are extremely varied and will depend on the character of the region, its products, and the difficulties or dangers of navigation. It is the waterbody's capability of use by the public for purposes of transportation of commerce which is the determinative factor, and not the time, extent or manner of that use. As discussed in § 329.9 of this part, it is sufficient to establish the potential for commercial use at any past, present, or future time. Thus, sufficient commerce may be shown by historical use of canoes, bateaux, or other frontier craft, as long as that type of boat was common or well-suited to the place and period. Similarly, the particular items of commerce may vary widely, depending again on the region and period. The goods involved might be grain, furs, or other commerce of the time. Logs are a common example; transportation of logs has been a substantial and well-recognized commercial use of many navigable waters of the United States. Note, however, that the mere presence of floating logs will not of itself make the river “navigable”; the logs must have been related to a commercial venture. Similarly, the presence of recreational craft may indicate that a waterbody is capable of bearing some forms of commerce, either presently, in the future, or at a past point in time.

(b) Nature of commerce: interstate and intrastate. Interstate commerce may of course be existent on an intrastate voyage which occurs only between places within the same state. It is only necessary that goods may be brought from, or eventually be destined to go to, another state. (For purposes of this regulation, the term “interstate commerce” hereinafter includes “foreign commerce” as well.)

§ 329.7 Intrastate or interstate nature of waterway.

A waterbody may be entirely within a state, yet still be capable of carrying interstate commerce. This is especially clear when it physically connects with a generally acknowledged avenue of interstate commerce, such as the ocean or one of the Great Lakes, and is yet wholly within one state. Nor is it necessary that there be a physically navigable connection across a state boundary. Where a waterbody extends through one or more states, but substantial portions, which are capable of bearing interstate commerce, are located in only one of the states, the entirety of the waterway up to the head (upper limit) of navigation is subject to Federal jurisdiction.

§ 329.8 Improved or natural conditions of the waterbody.

Determinations are not limited to the natural or original condition of the waterbody. Navigability may also be found where artificial aids have been or may be used to make the waterbody suitable for use in navigation.

(a) Existing improvements: artificial waterbodies. (1) An artificial channel may often constitute a navigable water of the United States, even though it has been privately developed and maintained, or passes through private property. The test is generally as developed above, that is, whether the waterbody is capable of use to transport interstate commerce. Canals which connect two navigable waters of the United States and which are used for commerce clearly fall within the test, and themselves become navigable. A canal open to navigable waters of the United States on only one end is itself navigable where it in fact supports interstate commerce. A canal or other artificial waterbody that is subject to ebb and flow of the tide is also a navigable water of the United States.

(2) The artificial waterbody may be a major portion of a river or harbor area or merely a minor backwash, slip, or turning area (see § 329.12(b) of this part).

(3) Private ownership of the lands underlying the waterbody, or of the lands through which it runs, does not preclude a finding of navigability. Ownership does become a controlling factor if a privately constructed and operated canal is not used to transport interstate commerce nor used by the public; it is then not considered to be a navigable water of the United States. However, a private waterbody, even though not itself navigable, may so affect the navigable capacity of nearby waters as to nevertheless be subject to certain regulatory authorities.

(b) Non-existing improvements, past or potential. A waterbody may also be considered navigable depending on the feasibility of use to transport interstate commerce after the construction of whatever “reasonable” improvements may potentially be made. The improvement need not exist, be planned, nor even authorized; it is enough that potentially they could be made. What is a “reasonable” improvement is always a matter of degree; there must be a balance between cost and need at a time when the improvement would be (or would have been) useful. Thus, if an improvement were “reasonable” at a time of past use, the water was therefore navigable in law from that time forward. The changes in engineering practices or the coming of new industries with varying classes of freight may affect the type of the improvement; those which may be entirely reasonable in a thickly populated, highly developed industrial region may have been entirely too costly for the same region in the days of the pioneers. The determination of reasonable improvement is often similar to the cost analyses presently made in Corps of Engineers studies.

§ 329.9 Time at which commerce exists or determination is made.

(a) Past use. A waterbody which was navigable in its natural or improved state, or which was susceptible of reasonable improvement (as discussed in § 329.8(b) of this part) retains its character as “navigable in law” even though it is not presently used for commerce, or is presently incapable of such use because of changed conditions or the presence of obstructions. Nor does absence of use because of changed economic conditions affect the legal character of the waterbody. Once having attained the character of “navigable in law,” the Federal authority remains in existence, and cannot be abandoned by administrative officers or court action. Nor is mere inattention or ambiguous action by Congress an abandonment of Federal control. However, express statutory declarations by Congress that described portions of a waterbody are non-navigable, or have been abandoned, are binding upon the Department of the Army. Each statute must be carefully examined, since Congress often reserves the power to amend the Act, or assigns special duties of supervision and control to the Secretary of the Army or Chief of Engineers.

(b) Future or potential use. Navigability may also be found in a waterbody's susceptibility for use in its ordinary condition or by reasonable improvement to transport interstate commerce. This may be either in its natural or improved condition, and may thus be existent although there has been no actual use to date. Non-use in the past therefore does not prevent recognition of the potential for future use.

§ 329.10 Existence of obstructions.

A stream may be navigable despite the existence of falls, rapids, sand bars, bridges, portages, shifting currents, or similar obstructions. Thus, a waterway in its original condition might have had substantial obstructions which were overcome by frontier boats and/or portages, and nevertheless be a “channel” of commerce, even though boats had to be removed from the water in some stretches, or logs be brought around an obstruction by means of artificial chutes. However, the question is ultimately a matter of degree, and it must be recognized that there is some point beyond which navigability could not be established.

§ 329.11 Geographic and jurisdictional limits of rivers and lakes.

(a) Jurisdiction over entire bed. Federal regulatory jurisdiction, and powers of improvement for navigation, extend laterally to the entire water surface and bed of a navigable waterbody, which includes all the land and waters below the ordinary high water mark. Jurisdiction thus extends to the edge (as determined above) of all such waterbodies, even though portions of the waterbody may be extremely shallow, or obstructed by shoals, vegetation or other barriers. Marshlands and similar areas are thus considered navigable in law, but only so far as the area is subject to inundation by the ordinary high waters.

(1) The “ordinary high water mark” on non-tidal rivers is the line on the shore established by the fluctuations of water and indicated by physical characteristics such as a clear, natural line impressed on the bank; shelving; changes in the character of soil; destruction of terrestrial vegetation; the presence of litter and debris; or other appropriate means that consider the characteristics of the surrounding areas.

(2) Ownership of a river or lake bed or of the lands between high and low water marks will vary according to state law; however, private ownership of the underlying lands has no bearing on the existence or extent of the dominant Federal jurisdiction over a navigable waterbody.

(b) Upper limit of navigability. The character of a river will, at some point along its length, change from navigable to non-navigable. Very often that point will be at a major fall or rapids, or other place where there is a marked decrease in the navigable capacity of the river. The upper limit will therefore often be the same point traditionally recognized as the head of navigation, but may, under some of the tests described above, be at some point yet farther upstream.

§ 329.12 Geographic and jurisdictional limits of oceanic and tidal waters.

(a) Ocean and coastal waters. The navigable waters of the United States over which Corps of Engineers regulatory jurisdiction extends include all ocean and coastal waters within a zone three geographic (nautical) miles seaward from the baseline (The Territorial Seas). Wider zones are recognized for special regulatory powers exercised over the outer continental shelf. (See 33 CFR 322.3(b)).

(1) Baseline defined. Generally, where the shore directly contacts the open sea, the line on the shore reached by the ordinary low tides comprises the baseline from which the distance of three geographic miles is measured. The baseline has significance for both domestic and international law and is subject to precise definitions. Special problems arise when offshore rocks, islands, or other bodies exist, and the baseline may have to be drawn seaward of such bodies.

(2) Shoreward limit of jurisdiction. Regulatory jurisdiction in coastal areas extends to the line on the shore reached by the plane of the mean (average) high water. Where precise determination of the actual location of the line becomes necessary, it must be established by survey with reference to the available tidal datum, preferably averaged over a period of 18.6 years. Less precise methods, such as observation of the “apparent shoreline” which is determined by reference to physical markings, lines of vegetation, or changes in type of vegetation, may be used only where an estimate is needed of the line reached by the mean high water.

(b) Bays and estuaries. Regulatory jurisdiction extends to the entire surface and bed of all waterbodies subject to tidal action. Jurisdiction thus extends to the edge (as determined by paragraph (a)(2) of this section) of all such waterbodies, even though portions of the waterbody may be extremely shallow, or obstructed by shoals, vegetation, or other barriers. Marshlands and similar areas are thus considered “navigable in law,” but only so far as the area is subject to inundation by the mean high waters. The relevant test is therefore the presence of the mean high tidal waters, and not the general test described above, which generally applies to inland rivers and lakes.

§ 329.13 Geographic limits: Shifting boundaries.

Permanent changes of the shoreline configuration result in similar alterations of the boundaries of the navigable waters of the United States. Thus, gradual changes which are due to natural causes and are perceptible only over some period of time constitute changes in the bed of a waterbody which also change the shoreline boundaries of the navigable waters of the United States. However, an area will remain “navigable in law,” even though no longer covered with water, whenever the change has occurred suddenly, or was caused by artificial forces intended to produce that change. For example, shifting sand bars within a river or estuary remain part of the navigable water of the United States, regardless that they may be dry at a particular point in time.

§ 329.14 Determination of navigability.

(a) Effect on determinations. Although conclusive determinations of navigability can be made only by federal Courts, those made by federal agencies are nevertheless accorded substantial weight by the courts. It is therefore necessary that when jurisdictional questions arise, district personnel carefully investigate those waters which may be subject to Federal regulatory jurisdiction under guidelines set out above, as the resulting determination may have substantial impact upon a judicial body. Official determinations by an agency made in the past can be revised or reversed as necessary to reflect changed rules or interpretations of the law.

(b) Procedures of determination. A determination whether a waterbody is a navigable water of the United States will be made by the division engineer, and will be based on a report of findings prepared at the district level in accordance with the criteria set out in this regulation. Each report of findings will be prepared by the district engineer, accompanied by an opinion of the district counsel, and forwarded to the division engineer for final determination. Each report of findings will be based substantially on applicable portions of the format in paragraph (c) of this section.

(c) Suggested format of report of findings:

(1) Name of waterbody:

(2) Tributary to:

(3) Physical characteristics:

(i) Type: (river, bay, slough, estuary, etc.)

(ii) Length:

(iii) Approximate discharge volumes: Maximum, Minimum, Mean:

(iv) Fall per mile:

(v) Extent of tidal influence:

(vi) Range between ordinary high and ordinary low water:

(vii) Description of improvements to navigation not listed in paragraph (c)(5) of this section:

(4) Nature and location of significant obstructions to navigation in portions of the waterbody used or potentially capable of use in interstate commerce:

(5) Authorized projects:

(i) Nature, condition and location of any improvements made under projects authorized by Congress:

(ii) Description of projects authorized but not constructed:

(iii) List of known survey documents or reports describing the waterbody:

(6) Past or present interstate commerce:

(i) General types, extent, and period in time:

(ii) Documentation if necessary:

(7) Potential use for interstate commerce, if applicable:

(i) If in natural condition:

(ii) If improved:

(8) Nature of jurisdiction known to have been exercised by Federal agencies if any:

(9) State or Federal court decisions relating to navigability of the waterbody, if any:

(10) Remarks:

(11) Finding of navigability (with date) and recommendation for determination:

§ 329.15 Inquiries regarding determinations.

(a) Findings and determinations should be made whenever a question arises regarding the navigability of a waterbody. Where no determination has been made, a report of findings will be prepared and forwarded to the division engineer, as described above. Inquiries may be answered by an interim reply which indicates that a final agency determination must be made by the division engineer. If a need develops for an emergency determination, district engineers may act in reliance on a finding prepared as in section 329.14 of this part. The report of findings should then be forwarded to the division engineer on an expedited basis.

(b) Where determinations have been made by the division engineer, inquiries regarding the navigability of specific portions of waterbodies covered by these determinations may be answered as follows:

This Department, in the administration of the laws enacted by Congress for the protection and preservation of the navigable waters of the United States, has determined that ___ (River) (Bay) (Lake, etc.) is a navigable water of the United States from ___ to ___. Actions which modify or otherwise affect those waters are subject to the jurisdiction of this Department, whether such actions occur within or outside the navigable areas.

(c) Specific inquiries regarding the jurisdiction of the Corps of Engineers can be answered only after a determination whether (1) the waters are navigable waters of the United States or

(2) If not navigable, whether the proposed type of activity may nevertheless so affect the navigable waters of the United States that the assertion of regulatory jurisdiction is deemed necessary.

§ 329.16 Use and maintenance of lists of determinations.

(a) Tabulated lists of final determinations of navigability are to be maintained in each district office, and be updated as necessitated by court decisions, jurisdictional inquiries, or other changed conditions.

(b) It should be noted that the lists represent only those waterbodies for which determinations have been made; absence from that list should not be taken as an indication that the waterbody is not navigable.

(c) Deletions from the list are not authorized. If a change in status of a waterbody from navigable to non-navigable is deemed necessary, an updated finding should be forwarded to the division engineer; changes are not considered final until a determination has been made by the division engineer.

§ 330.1 Purpose and policy.

(a) Purpose. This part describes the policy and procedures used in the Department of the Army's nationwide permit program to issue, modify, suspend, or revoke nationwide permits; to identify conditions, limitations, and restrictions on the nationwide permits; and, to identify any procedures, whether required or optional, for authorization by nationwide permits.

(b) Nationwide permits. Nationwide permits (NWPs) are a type of general permit issued by the Chief of Engineers and are designed to regulate with little, if any, delay or paperwork certain activities having minimal impacts. The NWPs are proposed, issued, modified, reissued (extended), and revoked from time to time after an opportunity for public notice and comment. Proposed NWPs or modifications to or reissuance of existing NWPs will be adopted only after the Corps gives notice and allows the public an opportunity to comment on and request a public hearing regarding the proposals. The Corps will give full consideration to all comments received prior to reaching a final decision.

(c) Terms and conditions. An activity is authorized under an NWP only if that activity and the permittee satisfy all of the NWP's terms and conditions. Activities that do not qualify for authorization under an NWP still may be authorized by an individual or regional general permit. The Corps will consider unauthorized any activity requiring Corps authorization if that activity is under construction or completed and does not comply with all of the terms and conditions of an NWP, regional general permit, or an individual permit. The Corps will evaluate unauthorized activities for enforcement action under 33 CFR part 326. The district engineer (DE) may elect to suspend enforcement proceedings if the permittee modifies his project to comply with an NWP or a regional general permit. After considering whether a violation was knowing or intentional, and other indications of the need for a penalty, the DE can elect to terminate an enforcement proceeding with an after-the-fact authorization under an NWP, if all terms and conditions of the NWP have been satisfied, either before or after the activity has been accomplished.

(d) Discretionary authority. District and division engineers have been delegated a discretionary authority to suspend, modify, or revoke authorizations under an NWP. This discretionary authority may be used by district and division engineers only to further condition or restrict the applicability of an NWP for cases where they have concerns for the aquatic environment under the Clean Water Act section 404(b)(1) Guidelines or for any factor of the public interest. Because of the nature of most activities authorized by NWP, district and division engineers will not have to review every such activity to decide whether to exercise discretionary authority. The terms and conditions of certain NWPs require the DE to review the proposed activity before the NWP authorizes its construction. However, the DE has the discretionary authority to review any activity authorized by NWP to determine whether the activity complies with the NWP. If the DE finds that the proposed activity would have more than minimal individual or cumulative net adverse effects on the environment or otherwise may be contrary to the public interest, he shall modify the NWP authorization to reduce or eliminate those adverse effects, or he shall instruct the prospective permittee to apply for a regional general permit or an individual permit. Discretionary authority is also discussed at 33 CFR 330.4(e) and 330.5.

(e) Notifications. (1) In most cases, permittees may proceed with activities authorized by NWPs without notifying the DE. However, the prospective permittee should carefully review the language of the NWP to ascertain whether he must notify the DE prior to commencing the authorized activity. For NWPs requiring advance notification, such notification must be made in writing as early as possible prior to commencing the proposed activity. The permittee may presume that his project qualifies for the NWP unless he is otherwise notified by the DE within a 45-day period. The 45-day period starts on the date of receipt of the notification in the Corps district office and ends 45 calendar days later regardless of weekends or holidays. If the DE notifies the prospective permittee that the notification is incomplete, a new 45-day period will commence upon receipt of the revised notification. The prospective permittee may not proceed with the proposed activity before expiration of the 45-day period unless otherwise notified by the DE. If the DE fails to act within the 45-day period, he must use the procedures of 33 CFR 330.5 in order to modify, suspend, or revoke the NWP authorization.

(2) The DE will review the notification and may add activity-specific conditions to ensure that the activity complies with the terms and conditions of the NWP and that the adverse impacts on the aquatic environment and other aspects of the public interest are individually and cumulatively minimal.

(3) For some NWPs involving discharges into wetlands, the notification must include a wetland delineation. The DE will review the notification and determine if the individual and cumulative adverse environmental effects are more than minimal. If the adverse effects are more than minimal the DE will notify the prospective permittee that an individual permit is required or that the prospective permittee may propose measures to mitigate the loss of special aquatic sites, including wetlands, to reduce the adverse impacts to minimal. The prospective permittee may elect to propose mitigation with the original notification. The DE will consider that proposed mitigation when deciding if the impacts are minimal. The DE shall add activity-specific conditions to ensure that the mitigation will be accomplished. If sufficient mitigation cannot be developed to reduce the adverse environmental effects to the minimal level, the DE will not allow authorization under the NWP and will instruct the prospective permittee on procedures to seek authorization under an individual permit.

(f) Individual Applications. DEs should review all incoming applications for individual permits for possible eligibility under regional general permits or NWPs. If the activity complies with the terms and conditions of one or more NWP, he should verify the authorization and so notify the applicant. If the DE determines that the activity could comply after reasonable project modifications and/or activity-specific conditions, he should notify the applicant of such modifications and conditions. If such modifications and conditions are accepted by the applicant, verbally or in writing, the DE will verify the authorization with the modifications and conditions in accordance with 33 CFR 330.6(a). However, the DE will proceed with processing the application as an individual permit and take the appropriate action within 15 calendar days of receipt, in accordance with 33 CFR 325.2(a)(2), unless the applicant indicates that he will accept the modifications or conditions.

(g) Authority. NWPs can be issued to satisfy the permit requirements of section 10 of the Rivers and Harbors Act of 1899, section 404 of the Clean Water Act, section 103 of the Marine Protection, Research, and Sanctuaries Act, or some combination thereof. The applicable authority will be indicated at the end of each NWP. NWPs and their conditions previously published at 33 CFR 330.5 and 330.6 will remain in effect until they expire or are modified or revoked in accordance with the procedures of this part.

[56 FR 59134, Nov. 22, 1991, as amended at 78 FR 5733, Jan. 28, 2013]

§ 330.2 Definitions.

(a) The definitions found in 33 CFR parts 320-329 are applicable to the terms used in this part.

(b) Nationwide permit refers to a type of general permit which authorizes activities on a nationwide basis unless specifically limited. (Another type of general permit is a “regional permit” which is issued by division or district engineers on a regional basis in accordance with 33 CFR part 325). (See 33 CFR 322.2(f) and 323.2(h) for the definition of a general permit.)

(c) Authorization means that specific activities that qualify for an NWP may proceed, provided that the terms and conditions of the NWP are met. After determining that the activity complies with all applicable terms and conditions, the prospective permittee may assume an authorization under an NWP. This assumption is subject to the DE's authority to determine if an activity complies with the terms and conditions of an NWP. If requested by the permittee in writing, the DE will verify in writing that the permittee's proposed activity complies with the terms and conditions of the NWP. A written verification may contain activity-specific conditions and regional conditions which a permittee must satisfy for the authorization to be valid.

(d) Headwaters means non-tidal rivers, streams, and their lakes and impoundments, including adjacent wetlands, that are part of a surface tributary system to an interstate or navigable water of the United States upstream of the point on the river or stream at which the average annual flow is less than five cubic feet per second. The DE may estimate this point from available data by using the mean annual area precipitation, area drainage basin maps, and the average runoff coefficient, or by similar means. For streams that are dry for long periods of the year, DEs may establish the point where headwaters begin as that point on the stream where a flow of five cubic feet per second is equaled or exceeded 50 percent of the time.

(e) Isolated waters means those non-tidal waters of the United States that are:

(1) Not part of a surface tributary system to interstate or navigable waters of the United States; and

(2) Not adjacent to such tributary waterbodies.

(f) Filled area means the area within jurisdictional waters which is eliminated or covered as a direct result of the discharge (i.e., the area actually covered by the discharged material). It does not include areas excavated nor areas impacted as an indirect effect of the fill.

(g) Discretionary authority means the authority described in §§ 330.1(d) and 330.4(e) which the Chief of Engineers delegates to division or district engineers to modify an NWP authorization by adding conditions, to suspend an NWP authorization, or to revoke an NWP authorization and thus require individual permit authorization.

(h) Terms and conditions. The “terms” of an NWP are the limitations and provisions included in the description of the NWP itself. The “conditions” of NWPs are additional provisions which place restrictions or limitations on all of the NWPs. These are published with the NWPs. Other conditions may be imposed by district or division engineers on a geographic, category-of-activity, or activity-specific basis (See 33 CFR 330.4(e)).

(i) Single and complete project means the total project proposed or accomplished by one owner/developer or partnership or other association of owners/developers. For example, if construction of a residential development affects several different areas of a headwater or isolated water, or several different headwaters or isolated waters, the cumulative total of all filled areas should be the basis for deciding whether or not the project will be covered by an NWP. For linear projects, the “single and complete project” (i.e., single and complete crossing) will apply to each crossing of a separate water of the United States (i.e., single waterbody) at that location; except that for linear projects crossing a single waterbody several times at separate and distant locations, each crossing is considered a single and complete project. However, individual channels in a braided stream or river, or individual arms of a large, irregularly-shaped wetland or lake, etc., are not separate waterbodies.

(j) Special aquatic sites means wetlands, mudflats, vegetated shallows, coral reefs, riffle and pool complexes, sanctuaries, and refuges as defined at 40 CFR 230.40 through 230.45.

§ 330.3 Activities occurring before certain dates.

The following activities were permitted by NWPs issued on July 19, 1977, and, unless the activities are modified, they do not require further permitting:

(a) Discharges of dredged or fill material into waters of the United States outside the limits of navigable waters of the United States that occurred before the phase-in dates which extended Section 404 jurisdiction to all waters of the United States. The phase-in dates were: After July 25, 1975, discharges into navigable waters of the United States and adjacent wetlands; after September 1, 1976, discharges into navigable waters of the United States and their primary tributaries, including adjacent wetlands, and into natural lakes, greater than 5 acres in surface area; and after July 1, 1977, discharges into all waters of the United States, including wetlands. (section 404)

(b) Structures or work completed before December 18, 1968, or in waterbodies over which the DE had not asserted jurisdiction at the time the activity occurred, provided in both instances, there is no interference with navigation. Activities completed shoreward of applicable Federal Harbor lines before May 27, 1970 do not require specific authorization. (section 10)

§ 330.4 Conditions, limitations, and restrictions.

(a) General. A prospective permittee must satisfy all terms and conditions of an NWP for a valid authorization to occur. Some conditions identify a “threshold” that, if met, requires additional procedures or provisions contained in other paragraphs in this section. It is important to remember that the NWPs only authorize activities from the perspective of the Corps regulatory authorities and that other Federal, state, and local permits, approvals, or authorizations may also be required.

(b) Further information. (1) DEs have authority to determine if an activity complies with the terms and conditions of an NWP.

(2) NWPs do not obviate the need to obtain other Federal, state, or local permits, approvals, or authorizations required by law.

(3) NWPs do not grant any property rights or exclusive privileges.

(4) NWPs do not authorize any injury to the property or rights of others.

(5) NWPs do not authorize interference with any existing or proposed Federal project.

(c) State 401 water quality certification. (1) State 401 water quality certification pursuant to section 401 of the Clean Water Act, or waiver thereof, is required prior to the issuance or reissuance of NWPs authorizing activities which may result in a discharge into waters of the United States.

(2) If, prior to the issuance or reissuance of such NWPs, a state issues a 401 water quality certification which includes special conditions, the division engineer will make these special conditions regional conditions of the NWP for activities which may result in a discharge into waters of United States in that state, unless he determines that such conditions do not comply with the provisions of 33 CFR 325.4. In the latter case, the conditioned 401 water quality certification will be considered a denial of the certification (see paragraph (c)(3) of this section).

(3) If a state denies a required 401 water quality certification for an activity otherwise meeting the terms and conditions of a particular NWP, that NWP's authorization for all such activities within that state is denied without prejudice until the state issues an individual 401 water quality certification or waives its right to do so. State denial of 401 water quality certification for any specific NWP affects only those activities which may result in a discharge. That NWP continues to authorize activities which could not reasonably be expected to result in discharges into waters of the United States. 1

1 NWPs numbered 1, 2, 8, 9, 10, 11, 19, 24, 28, and 35, do not require 401 water quality certification since they would authorize activities which, in the opinion of the Corps, could not reasonably be expected to result in a discharge and in the case of NWP 8 is seaward of the territorial seas. NWPs numbered 3, 4, 5, 6, 7, 13, 14, 18, 20, 21, 22, 23, 27, 32, 36, 37, and 38, involve various activities, some of which may result in a discharge and require 401 water quality certification, and others of which do not. State denial of 401 water quality certification for any specific NWP in this category affects only those activities which may result in a discharge. For those activities not involving discharges, the NWP remains in effect. NWPs numbered 12, 15, 16, 17, 25, 26, and 40 involve activities which would result in discharges and therefore 401 water quality certification is required.

(4) DEs will take appropriate measures to inform the public of which activities, waterbodies, or regions require an individual 401 water quality certification before authorization by NWP.

(5) The DE will not require or process an individual permit application for an activity which may result in a discharge and otherwise qualifies for an NWP solely on the basis that the 401 water quality certification has been denied for that NWP. However, the district or division engineer may consider water quality, among other appropriate factors, in determining whether to exercise his discretionary authority and require a regional general permit or an individual permit.

(6) In instances where a state has denied the 401 water quality certification for discharges under a particular NWP, permittees must furnish the DE with an individual 401 water quality certification or a copy of the application to the state for such certification. For NWPs for which a state has denied the 401 water quality certification, the DE will determine a reasonable period of time after receipt of the request for an activity-specific 401 water quality certification (generally 60 days), upon the expiration of which the DE will presume state waiver of the certification for the individual activity covered by the NWPs. However, the DE and the state may negotiate for additional time for the 401 water quality certification, but in no event shall the period exceed one (1) year (see 33 CFR 325.2(b)(1)(ii)). Upon receipt of an individual 401 water quality certification, or if the prospective permittee demonstrates to the DE state waiver of such certification, the proposed work can be authorized under the NWP. For NWPs requiring a 45-day pre-construction notification the district engineer will immediately begin, and complete, his review prior to the state action on the individual section 401 water quality certification. If a state issues a conditioned individual 401 water quality certification for an individual activity, the DE will include those conditions as activity-specific conditions of the NWP.

(7) Where a state, after issuing a 401 water quality certification for an NWP, subsequently attempts to withdraw it for substantive reasons after the effective date of the NWP, the division engineer will review those reasons and consider whether there is substantial basis for suspension, modification, or revocation of the NWP authorization as outlined in § 330.5. Otherwise, such attempted state withdrawal is not effective and the Corps will consider the state certification to be valid for the NWP authorizations until such time as the NWP is modified or reissued.

(d) Coastal zone management consistency determination. (1) Section 307(c)(1) of the Coastal Zone Management Act (CZMA) requires the Corps to provide a consistency determination and receive state agreement prior to the issuance, reissuance, or expansion of activities authorized by an NWP that authorizes activities within a state with a Federally-approved Coastal Management Program when activities that would occur within, or outside, that state's coastal zone will affect land or water uses or natural resources of the state's coastal zone.

(2) If, prior to the issuance, reissuance, or expansion of activities authorized by an NWP, a state indicates that additional conditions are necessary for the state to agree with the Corps consistency determination, the division engineer will make such conditions regional conditions for the NWP in that state, unless he determines that the conditions do not comply with the provisions of 33 CFR 325.4 or believes for some other specific reason it would be inappropriate to include the conditions. In this case, the state's failure to agree with the Corps consistency determination without the conditions will be considered to be a disagreement with the Corps consistency determination.

(3) When a state has disagreed with the Corps consistency determination, authorization for all such activities occurring within or outside the state's coastal zone that affect land or water uses or natural resources of the state's coastal zone is denied without prejudice until the prospective permittee furnishes the DE an individual consistency certification pursuant to section 307(c)(3) of the CZMA and demonstrates that the state has concurred in it (either on an individual or generic basis), or that concurrence should be presumed (see paragraph (d)(6) of this section).

(4) DEs will take appropriate measures, such as public notices, to inform the public of which activities, waterbodies, or regions require prospective permittees to make an individual consistency determination and seek concurrence from the state.

(5) DEs will not require or process an individual permit application for an activity otherwise qualifying for an NWP solely on the basis that the activity has not received CZMA consistency agreement from the state. However, the district or division engineer may consider that factor, among other appropriate factors, in determining whether to exercise his discretionary authority and require a regional general permit or an individual permit application.

(6) In instances where a state has disagreed with the Corps consistency determination for activities under a particular NWP, permittees must furnish the DE with an individual consistency concurrence or a copy of the consistency certification provided to the state for concurrence. If a state fails to act on a permittee's consistency certification within six months after receipt by the state, concurrence will be presumed. Upon receipt of an individual consistency concurrence or upon presumed consistency, the proposed work is authorized if it complies with all terms and conditions of the NWP. For NWPs requiring a 45-day pre-construction notification the DE will immediately begin, and may complete, his review prior to the state action on the individual consistency certification. If a state indicates that individual conditions are necessary for consistency with the state's Federally-approved coastal management program for that individual activity, the DE will include those conditions as activity-specific conditions of the NWP unless he determines that such conditions do not comply with the provisions of 33 CFR 325.4. In the latter case the DE will consider the conditioned concurrence as a non-concurrence unless the permittee chooses to comply voluntarily with all the conditions in the conditioned concurrence.

(7) Where a state, after agreeing with the Corps consistency determination, subsequently attempts to reverse it's agreement for substantive reasons after the effective date of the NWP, the division engineer will review those reasons and consider whether there is substantial basis for suspension, modification, or revocation as outlined in 33 CFR 330.5. Otherwise, such attempted reversal is not effective and the Corps will consider the state CZMA consistency agreement to be valid for the NWP authorization until such time as the NWP is modified or reissued.

(8) Federal activities must be consistent with a state's Federally-approved coastal management program to the maximum extent practicable. Federal agencies should follow their own procedures and the Department of Commerce regulations appearing at 15 CFR part 930 to meet the requirements of the CZMA. Therefore, the provisions of 33 CFR 330.4(d)(1)-(7) do not apply to Federal activities. Indian tribes doing work on Indian Reservation lands shall be treated in the same manner as Federal applicants.

(e) Discretionary authority. The Corps reserves the right (i.e., discretion) to modify, suspend, or revoke NWP authorizations. Modification means the imposition of additional or revised terms or conditions on the authorization. Suspension means the temporary cancellation of the authorization while a decision is made to either modify, revoke, or reinstate the authorization. Revocation means the cancellation of the authorization. The procedures for modifying, suspending, or revoking NWP authorizations are detailed in § 330.5.

(1) A division engineer may assert discretionary authority by modifying, suspending, or revoking NWP authorizations for a specific geographic area, class of activity, or class of waters within his division, including on a statewide basis, whenever he determines sufficient concerns for the environment under the section 404(b)(1) Guidelines or any other factor of the public interest so requires, or if he otherwise determines that the NWP would result in more than minimal adverse environmental effects either individually or cumulatively.

(2) A DE may assert discretionary authority by modifying, suspending, or revoking NWP authorization for a specific activity whenever he determines sufficient concerns for the environment or any other factor of the public interest so requires. Whenever the DE determines that a proposed specific activity covered by an NWP would have more than minimal individual or cumulative adverse effects on the environment or otherwise may be contrary to the public interest, he must either modify the NWP authorization to reduce or eliminate the adverse impacts, or notify the prospective permittee that the proposed activity is not authorized by NWP and provide instructions on how to seek authorization under a regional general or individual permit.

(3) The division or district engineer will restore authorization under the NWPs at any time he determines that his reason for asserting discretionary authority has been satisfied by a condition, project modification, or new information.

(4) When the Chief of Engineers modifies or reissues an NWP, division engineers must use the procedures of § 330.5 to reassert discretionary authority to reinstate regional conditions or revocation of NWP authorizations for specific geographic areas, class of activities, or class of waters. Division engineers will update existing documentation for each NWP. Upon modification or reissuance of NWPs, previous activity-specific conditions or revocations of NWP authorization will remain in effect unless the DE specifically removes the activity-specific conditions or revocations.

(f) Endangered species. No activity is authorized by any NWP if that activity is likely to jeopardize the continued existence of a threatened or endangered species as listed or proposed for listing under the Federal Endangered Species Act (ESA), or to destroy or adversely modify the critical habitat of such species.

(1) Federal agencies should follow their own procedures for complying with the requirements of the ESA.

(2) Non-federal permittees shall notify the DE if any Federally listed (or proposed for listing) endangered or threatened species or critical habitat might be affected or is in the vicinity of the project. In such cases, the prospective permittee will not begin work under authority of the NWP until notified by the district engineer that the requirements of the Endangered Species Act have been satisfied and that the activity is authorized. If the DE determines that the activity may affect any Federally listed species or critical habitat, the DE must initiate section 7 consultation in accordance with the ESA. In such cases, the DE may:

(i) Initiate section 7 consultation and then, upon completion, authorize the activity under the NWP by adding, if appropriate, activity-specific conditions; or

(ii) Prior to or concurrent with section 7 consultation, assert discretionary authority (see 33 CFR 330.4(e)) and require an individual permit (see 33 CFR 330.5(d)).

(3) Prospective permittees are encouraged to obtain information on the location of threatened or endangered species and their critical habitats from the U.S. Fish and Wildlife Service, Endangered Species Office, and the National Marine Fisheries Service.

(g) Historic properties. No activity which may affect properties listed or properties eligible for listing in the National Register of Historic Places, is authorized until the DE has complied with the provisions of 33 CFR part 325, appendix C.

(1) Federal permittees should follow their own procedures for compliance with the requirements of the National Historic Preservation Act and other Federal historic preservation laws.

(2) Non-federal permittees will notify the DE if the activity may affect historic properties which the National Park Service has listed, determined eligible for listing, or which the prospective permittee has reason to believe may be eligible for listing, on the National Register of Historic Places. In such cases, the prospective permittee will not begin the proposed activity until notified by the DE that the requirements of the National Historic Preservation Act have been satisfied and that the activity is authorized. If a property in the permit area of the activity is determined to be an historic property in accordance with 33 CFR part 325, appendix C, the DE will take into account the effects on such properties in accordance with 33 CFR part 325, appendix C. In such cases, the district engineer may:

(i) After complying with the requirements of 33 CFR part 325, appendix C, authorize the activity under the NWP by adding, if appropriate, activity-specific conditions; or

(ii) Prior to or concurrent with complying with the requirements of 33 CFR part 325, appendix C, he may assert discretionary authority (see 33 CFR 330.4(e)) and instruct the prospective permittee of procedures to seek authorization under a regional general permit or an individual permit. (See 33 CFR 330.5(d).)

(3) The permittee shall immediately notify the DE if, before or during prosecution of the work authorized, he encounters an historic property that has not been listed or determined eligible for listing on the National Register, but which the prospective permittee has reason to believe may be eligible for listing on the National Register.

(4) Prospective permittees are encouraged to obtain information on the location of historic properties from the State Historic Preservation Officer and the National Register of Historic Places.

[56 FR 59134, Nov. 22, 1991, as amended at 78 FR 5733, Jan. 28, 2013]

§ 330.5 Issuing, modifying, suspending, or revoking nationwide permits and authorizations.

(a) General. This section sets forth the procedures for issuing and reissuing NWPs and for modifying, suspending, or revoking NWPs and authorizations under NWPs.

(b) Chief of Engineers. (1) Anyone may, at any time, suggest to the Chief of Engineers, (ATTN: CECW-OR), any new NWPs or conditions for issuance, or changes to existing NWPs, which he believes to be appropriate for consideration. From time-to-time new NWPs and revocations of or modifications to existing NWPs will be evaluated by the Chief of Engineers following the procedures specified in this section. Within five years of issuance of the NWPs, the Chief of Engineers will review the NWPs and propose modification, revocation, or reissuance.

(2) Public notice. (i) Upon proposed issuance of new NWPs or modification, suspension, revocation, or reissuance of existing NWPs, the Chief of Engineers will publish a document seeking public comments, including the opportunity to request a public hearing. This document will also state that the information supporting the Corps' provisional determination that proposed activities comply with the requirements for issuance under general permit authority is available at the Office of the Chief of Engineers and at all district offices. The Chief of Engineers will prepare this information which will be supplemented, if appropriate, by division engineers.

(ii) Concurrent with the Chief of Engineers' notification of proposed, modified, reissued, or revoked NWPs, DEs will notify the known interested public by a notice issued at the district level. The notice will include proposed regional conditions or proposed revocations of NWP authorizations for specific geographic areas, classes of activities, or classes of waters, if any, developed by the division engineer.

(3) Documentation. The Chief of Engineers will prepare appropriate NEPA documents and, if applicable, section 404(b)(1) Guidelines compliance analyses for proposed NWPs. Documentation for existing NWPs will be modified to reflect any changes in these permits and to reflect the Chief of Engineers' evaluation of the use of the permit since the last issuance. Copies of all comments received on the document will be included in the administrative record. The Chief of Engineers will consider these comments in making his decision on the NWPs, and will prepare a statement of findings outlining his views regarding each NWP and discussing how substantive comments were considered. The Chief of Engineers will also determine the need to hold a public hearing for the proposed NWPs.

(4) Effective dates. The Chief of Engineers will advise the public of the effective date of any issuance, modification, or revocation of an NWP.

(c) Division Engineer. (1) A division engineer may use his discretionary authority to modify, suspend, or revoke NWP authorizations for any specific geographic area, class of activities, or class of waters within his division, including on a statewide basis, by issuing a public notice or notifying the individuals involved. The notice will state his concerns regarding the environment or the other relevant factors of the public interest. Before using his discretionary authority to modify or revoke such NWP authorizations, division engineers will:

(i) Give an opportunity for interested parties to express their views on the proposed action (the DE will publish and circulate a notice to the known interested public to solicit comments and provide the opportunity to request a public hearing);

(ii) Consider fully the views of affected parties;

(iii) Prepare supplemental documentation for any modifications or revocations that may result through assertion of discretionary authority. Such documentation will include comments received on the district public notices and a statement of findings showing how substantive comments were considered;

(iv) Provide, if appropriate, a grandfathering period as specified in § 330.6(b) for those who have commenced work or are under contract to commence in reliance on the NWP authorization; and

(v) Notify affected parties of the modification, suspension, or revocation, including the effective date (the DE will publish and circulate a notice to the known interested public and to anyone who commented on the proposed action).

(2) The modification, suspension, or revocation of authorizations under an NWP by the division engineer will become effective by issuance of public notice or a notification to the individuals involved.

(3) A copy of all regional conditions imposed by division engineers on activities authorized by NWPs will be forwarded to the Office of the Chief of Engineers, ATTN: CECW-OR.

(d) District Engineer. (1) When deciding whether to exercise his discretionary authority to modify, suspend, or revoke a case specific activity's authorization under an NWP, the DE should consider to the extent relevant and appropriate: Changes in circumstances relating to the authorized activity since the NWP itself was issued or since the DE confirmed authorization under the NWP by written verification; the continuing need for, or adequacy of, the specific conditions of the authorization; any significant objections to the authorization not previously considered; progress inspections of individual activities occurring under an NWP; cumulative adverse environmental effects resulting from activities occurring under the NWP; the extent of the permittee's compliance with the terms and conditions of the NWPs; revisions to applicable statutory or regulatory authorities; and, the extent to which asserting discretionary authority would adversely affect plans, investments, and actions the permittee has made or taken in reliance on the permit; and, other concerns for the environment, including the aquatic environment under the section 404(b)(1) Guidelines, and other relevant factors of the public interest.

(2) Procedures. (i) When considering whether to modify or revoke a specific authorization under an NWP, whenever practicable, the DE will initially hold informal consultations with the permittee to determine whether special conditions to modify the authorization would be mutually agreeable or to allow the permittee to furnish information which satisfies the DE's concerns. If a mutual agreement is reached, the DE will give the permittee written verification of the authorization, including the special conditions. If the permittee furnishes information which satisfies the DE's concerns, the permittee may proceed. If appropriate, the DE may suspend the NWP authorization while holding informal consultations with the permittee.

(ii) If the DE's concerns remain after the informal consultation, the DE may suspend a specific authorization under an NWP by notifying the permittee in writing by the most expeditious means available that the authorization has been suspended, stating the reasons for the suspension, and ordering the permittee to stop any activities being done in reliance upon the authorization under the NWP. The permittee will be advised that a decision will be made either to reinstate or revoke the authorization under the NWP; or, if appropriate, that the authorization under the NWP may be modified by mutual agreement. The permittee will also be advised that within 10 days of receipt of the notice of suspension, he may request a meeting with the DE, or his designated representative, to present information in this matter. After completion of the meeting (or within a reasonable period of time after suspending the authorization if no meeting is requested), the DE will take action to reinstate, modify, or revoke the authorization.

(iii) Following completion of the suspension procedures, if the DE determines that sufficient concerns for the environment, including the aquatic environment under the section 404(b)(1) Guidelines, or other relevant factors of the public interest so require, he will revoke authorization under the NWP. The DE will provide the permittee a written final decision and instruct him on the procedures to seek authorization under a regional general permit or an individual permit.

(3) The DE need not issue a public notice when asserting discretionary authority over a specific activity. The modification, suspension, or revocation will become effective by notification to the prospective permittee.

§ 330.6 Authorization by nationwide permit.

(a) Nationwide permit verification. (1) Nationwide permittees may, and in some cases must, request from a DE confirmation that an activity complies with the terms and conditions of an NWP. DEs should respond as promptly as practicable to such requests.

(2) If the DE decides that an activity does not comply with the terms or conditions of an NWP, he will notify the person desiring to do the work and instruct him on the procedures to seek authorization under a regional general permit or individual permit.

(3) If the DE decides that an activity does comply with the terms and conditions of an NWP, he will notify the nationwide permittee.

(i) The DE may add conditions on a case-by-case basis to clarify compliance with the terms and conditions of an NWP or to ensure that the activity will have only minimal individual and cumulative adverse effects on the environment, and will not be contrary to the public interest.

(ii) The DE's response will state that the verification is valid for a specific period of time (generally until the expiration date of the NWP) unless the NWP authorization is modified, suspended, or revoked. The response should also include a statement that the verification will remain valid for the specified period of time, if during that time period, the NWP authorization is reissued without modification or the activity complies with any subsequent modification of the NWP authorization. Furthermore, the response should include a statement that the provisions of § 330.6(b) will apply, if during that period of time, the NWP authorization expires, or is suspended or revoked, or is modified, such that the activity would no longer comply with the terms and conditions of an NWP. Finally, the response should include any known expiration date that would occur during the specified period of time. A period of time less than the amount of time remaining until the expiration date of the NWP may be used if deemed appropriate.

(iii) For activities where a state has denied 401 water quality certification and/or did not agree with the Corps consistency determination for an NWP the DE's response will state that the proposed activity meets the terms and conditions for authorization under the NWP with the exception of a state 401 water quality certification and/or CZM consistency concurrence. The response will also indicate the activity is denied without prejudice and cannot be authorized until the requirements of §§ 330.4(c)(3), 330.4(c)(6), 330.4(d)(3), and 330.4(d)(6) are satisfied. The response will also indicate that work may only proceed subject to the terms and conditions of the state 401 water quality certification and/or CZM concurrence.

(iv) Once the DE has provided such verification, he must use the procedures of 33 CFR 330.5 in order to modify, suspend, or revoke the authorization.

(b) Expiration of nationwide permits. The Chief of Engineers will periodically review NWPs and their conditions and will decide to either modify, reissue, or revoke the permits. If an NWP is not modified or reissued within five years of its effective date, it automatically expires and becomes null and void. Activities which have commenced (i.e, are under construction) or are under contract to commence in reliance upon an NWP will remain authorized provided the activity is completed within twelve months of the date of an NWP's expiration, modification, or revocation, unless discretionary authority has been exercised on a case-by-case basis to modify, suspend, or revoke the authorization in accordance with 33 CFR 330.4(e) and 33 CFR 330.5 (c) or (d). Activities completed under the authorization of an NWP which was in effect at the time the activity was completed continue to be authorized by that NWP.

(c) Multiple use of nationwide permits. Two or more different NWPs can be combined to authorize a “single and complete project” as defined at 33 CFR 330.2(i). However, the same NWP cannot be used more than once for a single and complete project.

(d) Combining nationwide permits with individual permits. Subject to the following qualifications, portions of a larger project may proceed under the authority of the NWPs while the DE evaluates an individual permit application for other portions of the same project, but only if the portions of the project qualifying for NWP authorization would have independent utility and are able to function or meet their purpose independent of the total project. When the functioning or usefulness of a portion of the total project qualifying for an NWP is dependent on the remainder of the project, such that its construction and use would not be fully justified even if the Corps were to deny the individual permit, the NWP does not apply and all portions of the project must be evaluated as part of the individual permit process.

(1) When a portion of a larger project is authorized to proceed under an NWP, it is with the understanding that its construction will in no way prejudice the decision on the individual permit for the rest of the project. Furthermore, the individual permit documentation must include an analysis of the impacts of the entire project, including related activities authorized by NWP.

(2) NWPs do not apply, even if a portion of the project is not dependent on the rest of the project, when any portion of the project is subject to an enforcement action by the Corps or EPA.

(e) After-the-fact authorizations. These authorizations often play an important part in the resolution of violations. In appropriate cases where the activity complies with the terms and conditions of an NWP, the DE can elect to use the NWP for resolution of an after-the-fact permit situation following a consideration of whether the violation being resolved was knowing or intentional and other indications of the need for a penalty. For example, where an unauthorized fill meets the terms and conditions of NWP 13, the DE can consider the appropriateness of allowing the residual fill to remain, in situations where said fill would normally have been permitted under NWP 13. A knowing, intentional, willful violation should be the subject of an enforcement action leading to a penalty, rather than an after-the-fact authorization. Use of after-the-fact NWP authorization must be consistent with the terms of the Army/EPA Memorandum of Agreement on Enforcement. Copies are available from each district engineer.

[56 FR 59134, Nov. 22, 1991, as amended at 78 FR 5733, Jan. 28, 2013]

§ 331.1 Purpose and policy.

(a) General. The purpose of this part is to establish policies and procedures to be used for the administrative appeal of approved jurisdictional determinations (JDs), permit applications denied with prejudice, and declined permits. The appeal process will allow the affected party to pursue an administrative appeal of certain Corps of Engineers decisions with which they disagree. The basis for an appeal and the specific policies and procedures of the appeal process are described in the following sections. It shall be the policy of the Corps of Engineers to promote and maintain an administrative appeal process that is independent, objective, fair, prompt, and efficient.

(b) Level of decision maker. Appealable actions decided by a division engineer or higher authority may be appealed to an Army official at least one level higher than the decision maker. This higher Army official shall make the decision on the merits of the appeal, and may appoint a qualified individual to act as a review officer (as defined in § 331.2). References to the division engineer in this part shall be understood as also referring to a higher level Army official when such official is conducting an administrative appeal.

§ 331.2 Definitions.

The terms and definitions contained in 33 CFR Parts 320 through 330 are applicable to this part. In addition, the following terms are defined for the purposes of this part:

Affected party means a permit applicant, landowner, a lease, easement or option holder (i.e., an individual who has an identifiable and substantial legal interest in the property) who has received an approved JD, permit denial, or has declined a proffered individual permit.

Agent(s) means the affected party's business partner, attorney, consultant, engineer, planner, or any individual with legal authority to represent the appellant's interests.

Appealable action means an approved JD, a permit denial, or a declined permit, as these terms are defined in this section.

Appellant means an affected party who has filed an appeal of an approved JD, a permit denial or declined permit under the criteria and procedures of this part.

Approved jurisdictional determination means a Corps document stating the presence or absence of waters of the United States on a parcel or a written statement and map identifying the limits of waters of the United States on a parcel. Approved JDs are clearly designated appealable actions and will include a basis of JD with the document.

Basis of jurisdictional determination is a summary of the indicators that support the Corps approved JD. Indicators supporting the Corps approved JD can include, but are not limited to: indicators of wetland hydrology, hydric soils, and hydrophytic plant communities; indicators of ordinary high water marks, high tide lines, or mean high water marks; indicators of adjacency to navigable or interstate waters; indicators that the wetland or waterbody is of part of a tributary system; or indicators of linkages between isolated water bodies and interstate or foreign commerce.

Declined permit means a proffered individual permit, including a letter of permission, that an applicant has refused to accept, because he has objections to the terms and special conditions therein. A declined permit can also be an individual permit that the applicant originally accepted, but where such permit was subsequently modified by the district engineer, pursuant to 33 CFR 325.7, in such a manner that the resulting permit contains terms and special conditions that lead the applicant to decline the modified permit, provided that the applicant has not started work in waters of the United States authorized by such permit. Where an applicant declines a permit (either initial or modified), the applicant does not have a valid permit to conduct regulated activities in waters of the United States, and must not begin construction of the work requiring a Corps permit unless and until the applicant receives and accepts a valid Corps permit.

Denial determination means a letter from the district engineer detailing the reasons a permit was denied with prejudice. The decision document for the project will be attached to the denial determination in all cases.

Jurisdictional determination (JD) means a written Corps determination that a wetland and/or waterbody is subject to regulatory jurisdiction under Section 404 of the Clean Water Act (33 U.S.C. 1344) or a written determination that a waterbody is subject to regulatory jurisdiction under Section 9 or 10 of the Rivers and Harbors Act of 1899 (33 U.S.C. 401 et seq.). Additionally, the term includes a written reverification of expired JDs and a written reverification of JDs where new information has become available that may affect the previously written determination. For example, such geographic JDs may include, but are not limited to, one or more of the following determinations: the presence or absence of wetlands; the location(s) of the wetland boundary, ordinary high water mark, mean high water mark, and/or high tide line; interstate commerce nexus for isolated waters; and adjacency of wetlands to other waters of the United States. All JDs will be in writing and will be identified as either preliminary or approved. JDs do not include determinations that a particular activity requires a DA permit.

Notification of Appeal Process (NAP) means a fact sheet that explains the criteria and procedures of the administrative appeal process. Every approved JD, permit denial, and every proffered individual permit returned for reconsideration after review by the district engineer in accordance with § 331.6(b) will have an NAP form attached.

Notification of Applicant Options (NAO) means a fact sheet explaining an applicant's options with a proffered individual permit under the administrative appeal process.

Permit denial means a written denial with prejudice (see 33 CFR 320.4(j)) of an individual permit application as defined in 33 CFR 325.5(b).

Preliminary JDs are written indications that there may be waters of the United States on a parcel or indications of the approximate location(s) of waters of the United States on a parcel. Preliminary JDs are advisory in nature and may not be appealed. Preliminary JDs include compliance orders that have an implicit JD, but no approved JD.

Proffered permit means a permit that is sent to an applicant that is in the proper format for the applicant to sign (for a standard permit) or accept (for a letter of permission). The term “initial proffered permit” as used in this part refers to the first time a permit is sent to the applicant. The initial proffered permit is not an appealable action. However, the applicant may object to the terms or conditions of the initial proffered permit and, if so, a second reconsidered permit will be sent to the applicant. The term “proffered permit” as used in this part refers to the second permit that is sent to the applicant. Such proffered permit is an appealable action.

Request for appeal (RFA) means the affected party's official request to initiate the appeal process. The RFA must include the name of the affected party, the Corps file number of the approved JD, denied permit, or declined permit, the reason(s) for the appeal, and any supporting data and information. No new information may be submitted. A grant of right of entry for the Corps to the project site is a condition of the RFA to allow the RO to clarify elements of the record or to conduct field tests or sampling for purposes directly related to the appeal. A standard RFA form will be provided to the affected party with the NAP form. For appeals of decisions related to unauthorized activities a signed tolling agreement, as required by 33 CFR 326.3(e)(1)(v), must be included with the RFA, unless a signed tolling agreement has previously been furnished to the Corps district office. The affected party initiates the administrative appeal process by providing an acceptable RFA to the appropriate Corps of Engineers division office. An acceptable RFA contains all the required information and provides reasons for appeal that meets the criteria identified in § 331.5.

Review officer (RO) means the Corps official responsible for assisting the division engineer or higher authority responsible for rendering the final decision on the merits of an appeal.

Tolling agreement refers to a document signed by any person who appeals an approved JD associated with an unauthorized activity or applies for an after-the-fact (ATF) permit, where the application is accepted and evaluated by the Corps. The agreement states that the affected party agrees to have the statute of limitations regarding any violation associated with that approved JD or application “tolled” or temporarily set aside until one year after the final Corps decision, as defined at § 331.10. No ATF permit application or administrative appeal associated with an unauthorized activity will be accepted until a tolling agreement is furnished to the district engineer.

§ 331.3 Review officer.

(a) Authority. (1) The division engineer has the authority and responsibility for administering a fair, reasonable, prompt, and effective administrative appeal process. The division engineer may act as the review officer (RO), or may delegate, either generically or on a case-by-case basis, any authority or responsibility described in this part as that of the RO. With the exception of JDs, as described in this paragraph (a)(1), the division engineer may not delegate any authority or responsibility described in this part as that of the division engineer. For approved JDs only, the division engineer may delegate any authority or responsibility described in this part as that of the division engineer, including the final appeal decision. In such cases, any delegated authority must be granted to an official that is at the same or higher grade level than the grade level of the official that signed the approved JD. Regardless of any delegation of authority or responsibility for ROs or for final appeal decisions for approved JDs, the division engineer retains overall responsibility for the administrative appeal process.

(2) The RO will assist the division engineer in reaching and documenting the division engineer's decision on the merits of an appeal, if the division engineer has delegated this responsibility as explained in paragraph (a)(1) of this section. The division engineer has the authority to make the final decision on the merits of the appeal. Neither the RO nor the division engineer has the authority to make a final decision to issue or deny any particular permit nor to make an approved JD, pursuant to the administrative appeal process established by this part. The authority to issue or deny permits remains with the district engineer. However, the division engineer may exercise the authority at 33 CFR 325.8(c) to elevate any permit application, and subsequently make the final permit decision. In such a case, any appeal process of the district engineer's initial decision is terminated. If a particular permit application is elevated to the division engineer pursuant to 33 CFR 325.8(c), and the division engineer's decision on the permit application is a permit denial or results in a declined permit, that permit denial or declined permit would be subject to an administrative appeal to the Chief of Engineers.

(3) Qualifications. The RO will be a Corps employee with extensive knowledge of the Corps regulatory program. Where the permit decision being appealed was made by the division engineer or higher authority, a Corps official at least one level higher than the decision maker shall make the decision on the merits of the RFA, and this Corps official shall appoint a qualified individual as the RO to conduct the appeal process.

(b) General—(1) Independence. The RO will not perform, or have been involved with, the preparation, review, or decision making of the action being appealed. The RO will be independent and impartial in reviewing any appeal, and when assisting the division engineer to make a decision on the merits of the appeal.

(2) Review. The RO will conduct an independent review of the administrative record to address the reasons for the appeal cited by the applicant in the RFA. In addition, to the extent that it is practicable and feasible, the RO will also conduct an independent review of the administrative record to verify that the record provides an adequate and reasonable basis supporting the district engineer's decision, that facts or analysis essential to the district engineer's decision have not been omitted from the administrative record, and that all relevant requirements of law, regulations, and officially promulgated Corps policy guidance have been satisfied. Should the RO require expert advice regarding any subject, he may seek such advice from any employee of the Corps or of another Federal or state agency, or from any recognized expert, so long as that person had not been previously involved in the action under review.

§ 331.4 Notification of appealable actions.

Affected parties will be notified in writing of a Corps decision on those activities that are eligible for an appeal. For approved JDs, the notification must include an NAP fact sheet, an RFA form, and a basis of JD. For permit denials, the notification must include a copy of the decision document for the permit application, an NAP fact sheet and an RFA form. For proffered individual permits, when the initial proffered permit is sent to the applicant, the notification must include an NAO fact sheet. For declined permits (i.e., proffered individual permits that the applicant refuses to accept and sends back to the Corps), the notification must include an NAP fact sheet and an RFA form. Additionally, an affected party has the right to obtain a copy of the administrative record.

§ 331.5 Criteria.

(a) Criteria for appeal—(1) Submission of RFA. The appellant must submit a completed RFA (as defined at § 331.2) to the appropriate division office in order to appeal an approved JD, a permit denial, or a declined permit. An individual permit that has been signed by the applicant, and subsequently unilaterally modified by the district engineer pursuant to 33 CFR 325.7, may be appealed under this process, provided that the applicant has not started work in waters of the United States authorized by the permit. The RFA must be received by the division engineer within 60 days of the date of the NAP.

(2) Reasons for appeal. The reason(s) for requesting an appeal of an approved JD, a permit denial, or a declined permit must be specifically stated in the RFA and must be more than a simple request for appeal because the affected party did not like the approved JD, permit decision, or the permit conditions. Examples of reasons for appeals include, but are not limited to, the following: A procedural error; an incorrect application of law, regulation or officially promulgated policy; omission of material fact; incorrect application of the current regulatory criteria and associated guidance for identifying and delineating wetlands; incorrect application of the Section 404(b)(1) Guidelines (see 40 CFR part 230); or use of incorrect data. The reasons for appealing a permit denial or a declined permit may include jurisdiction issues, whether or not a previous approved JD was appealed.

(b) Actions not appealable. An action or decision is not subject to an administrative appeal under this part if it falls into one or more of the following categories:

(1) An individual permit decision (including a letter of permission or a standard permit with special conditions), where the permit has been accepted and signed by the permittee. By signing the permit, the applicant waives all rights to appeal the terms and conditions of the permit, unless the authorized work has not started in waters of the United States and that issued permit is subsequently modified by the district engineer pursuant to 33 CFR 325.7;

(2) Any site-specific matter that has been the subject of a final decision of the Federal courts;

(3) A final Corps decision that has resulted from additional analysis and evaluation, as directed by a final appeal decision;

(4) A permit denial without prejudice or a declined permit, where the controlling factor cannot be changed by the Corps decision maker (e.g., the requirements of a binding statute, regulation, state Section 401 water quality certification, state coastal zone management disapproval, etc. (See 33 CFR 320.4(j));

(5) A permit denial case where the applicant has subsequently modified the proposed project, because this would constitute an amended application that would require a new public interest review, rather than an appeal of the existing record and decision;

(6) Any request for the appeal of an approved JD, a denied permit, or a declined permit where the RFA has not been received by the division engineer within 60 days of the date of the NAP;

(7) A previously approved JD that has been superseded by another approved JD based on new information or data submitted by the applicant. The new approved JD is an appealable action;

(8) An approved JD associated with an individual permit where the permit has been accepted and signed by the permittee;

(9) A preliminary JD; or

(10) A JD associated with unauthorized activities except as provided in § 331.11.

§ 331.6 Filing an appeal.

(a) An affected party appealing an approved JD, permit denial or declined permit must submit an RFA that is received by the division engineer within 60 days of the date of the NAP. Flow charts illustrating the appeal process are in the Appendices of this part.

(b) In the case where an applicant objects to an initial proffered individual permit, the appeal process proceeds as follows. To initiate the appeal process regarding the terms and special conditions of the permit, the applicant must write a letter to the district engineer explaining his objections to the permit. The district engineer, upon evaluation of the applicant's objections, may: Modify the permit to address all of the applicant's objections or modify the permit to address some, but not all, of the applicant's objections, or not modify the permit, having determined that the permit should be issued as previously written. In the event that the district engineer agrees to modify the initial proffered individual permit to address all of the applicant's objections, the district engineer will proffer such modified permit to the applicant, enclosing an NAP fact sheet and an RFA form as well. Should the district engineer modify the initial proffered individual permit to address some, but not all, of the applicant's objections, the district engineer will proffer such modified permit to the applicant, enclosing an NAP fact sheet, RFA form, and a copy of the decision document for the project. If the district engineer does not modify the initial proffered individual permit, the district engineer will proffer the unmodified permit to the applicant a second time, enclosing an NAP fact sheet, an RFA form, and a copy of the decision document. If the applicant still has objections, after receiving the second proffered permit (modified or unmodified), the applicant may decline such proffered permit; this declined permit may be appealed to the division engineer upon submittal of a complete RFA form. The completed RFA must be received by the division engineer within 60 days of the NAP. A flow chart of an applicant's options for an initial proffered individual permit is shown in appendix B of this part. A flow chart of the appeal process for a permit denial or a declined permit (i.e., a proffered permit declined after the Corps decision on the applicant's objections to the initial proffered permit) is shown in appendix A of this part. A flow chart of the appeal process for an approved jurisdictional determination is shown in appendix C of this part. A flow chart of the process for when an unacceptable request for appeal is returned to an applicant is shown in appendix D of this part.

(c) An approved JD will be reconsidered by the district engineer if the affected party submits new information or data to the district engineer within 60 days of the date of the NAP. (An RFA that contains new information will either be returned to the district engineer for reconsideration or the appeal will be processed if the applicant withdraws the new information.) The district engineer has 60 days from the receipt of such new information or data to review the new information or data, consider whether or not that information changes the previously approved JD, and, reissue the approved JD or issue a new approved JD. The reconsideration of an approved JD by the district engineer does not commence the administrative appeal process. The affected party may appeal the district engineer's reissued or new approved JD.

(d) The district engineer may not delegate his signature authority to deny the permit with prejudice or to return an individual permit to the applicant with unresolved objections. The district engineer may delegate signature authority for JDs, including approved JDs.

(e) Affected parties may appeal approved JDs where the determination was dated after March 28, 2000, but may not appeal approved JDs dated on or before March 28, 2000. The Corps will begin processing JD appeals no later than May 30, 2000. All appeals must meet the criteria set forth in § 331.5. If work is authorized by either general or individual permit, and the affected party wishes to request an appeal of the JD associated with the general permit authorization or individual permit or the special conditions of the proffered individual permit, the appeal must be received by the Corps and the appeal process concluded prior to the commencement of any work in waters of the United States and prior to any work that could alter the hydrology of waters of the United States.

§ 331.7 Review procedures.

(a) General. The administrative appeal process for approved JDs, permit denials, and declined permits is a one level appeal, normally to the division engineer. The appeal process will normally be conducted by the RO. The RO will document the appeal process, and assist the division engineer in making a decision on the merits of the appeal. The division engineer may participate in the appeal process as the division engineer deems appropriate. The division engineer will make the decision on the merits of the appeal, and provide any instructions, as appropriate, to the district engineer.

(b) Requests for the appeal of approved JDs, permit denials, or declined permits. Upon receipt of an RFA, the RO shall review the RFA to determine whether the RFA is acceptable (i.e., complete and meets the criteria for appeal). If the RFA is acceptable, the RO will so notify the appellant in writing within 30 days of the receipt of the acceptable RFA. If the RO determines that the RFA is not complete the RO will so notify the appellant in writing within 30 days of the receipt of the RFA detailing the reason(s) why the RFA is not complete. If the RO believes that the RFA does not meet the criteria for appeal (see § 331.5), the RO will make a recommendation on the RFA to the division engineer. If the division engineer determines that the RFA is not acceptable, the division engineer will notify the appellant of this determination by a certified letter detailing the reason(s) why the appeal failed to meet the criteria for appeal. No further administrative appeal is available, unless the appellant revises the RFA to correct the deficiencies noted in the division engineer's letter or the RO's letter. The revised RFA must be received by the division engineer within 30 days of the date of the Corps letter indicating that the initial RFA is not acceptable. If the RO determines that the revised RFA is still not complete, the RO will again so notify the appellant in writing within 30 days of the receipt of the RFA detailing the reason(s) why the RFA is not complete. If the division engineer determines that the revised RFA is still not acceptable, the division engineer will notify the appellant of this determination by a certified letter within 30 days of the date of the receipt of the revised RFA, and will advise the appellant that the matter is not eligible for appeal. No further RFAs will be accepted after this point.

(c) Site investigations. Within 30 days of receipt of an acceptable RFA, the RO should determine if a site investigation is needed to clarify the administrative record. The RO should normally conduct any such site investigation within 60 days of receipt of an acceptable RFA. The RO may also conduct a site investigation at the request of the appellant, provided the RO has determined that such an investigation would be of benefit in interpreting the administrative record. The appellant and the appellant's authorized agent(s) must be provided an opportunity to participate in any site investigation, and will be given 15 days notice of any site investigation. The RO will attempt to schedule any site investigation at the earliest practicable time acceptable to both the RO and the appellant. The RO, the appellant, the appellant's agent(s) and the Corps district staff are authorized participants at any site investigation. The RO may also invite any other party the RO has determined to be appropriate, such as any technical experts consulted by the Corps. For permit denials and declined permit appeals, any site investigation should be scheduled in conjunction with the appeal review conference, where practicable. If extenuating circumstances occur at the site that preclude the appellant and/or the RO from conducting any required site visit within 60 days, the RO may extend the time period for review. Examples of extenuating circumstances may include seasonal hydrologic conditions, winter weather, or disturbed site conditions. The site visit must be conducted as soon as practicable as allowed by the extenuating circumstances, however, in no case shall any site visit extend the total appeals process beyond twelve months from the date of receipt of the RFA. If any site visit delay is necessary, the RO will notify the appellant in writing.

(d) Approved JD appeal meeting. The RO may schedule an informal meeting moderated by the RO or conference call with the appellant, his authorized agent, or both, and appropriate Corps regulatory personnel to review and discuss issues directly related to the appeal for the purpose of clarifying the administrative record. If a meeting is held, the appellant will bear his own costs associated with necessary arrangements, exhibits, travel, and representatives. The approved JD appeal meeting should be held at a location of reasonable convenience to the appellant and near the site where the approved JD was conducted.

(e) Permit denials and declined permits appeal conference. Conferences held in accordance with this part will be informal, and will be chaired by the RO. The purpose of the appeal conference is to provide a forum that allows the participants to discuss freely all relevant issues and material facts associated with the appeal. An appeal conference will be held for every appeal of a permit denial or a declined permit, unless the RO and the appellant mutually agree to forego a conference. The conference will take place within 60 days of receipt of an acceptable RFA, unless the RO determines that unforeseen or unusual circumstances require scheduling the conference for a later date. The purpose of the conference will be to allow the appellant and the Corps district representatives to discuss supporting data and information on issues previously identified in the administrative record, and to allow the RO the opportunity to clarify elements of the administrative record. Presentations by the appellant and the Corps district representatives may include interpretation, clarification, or explanation of the legal, policy, and factual bases for their positions. The conference will be governed by the following guidelines:

(1) Notification. The RO will set a date, time, and location for the conference. The RO will notify the appellant and the Corps district office in writing within 30 days of receipt of the RFA, and not less than 15 days before the date of the conference.

(2) Facilities. The conference will be held at a location that has suitable facilities and that is reasonably convenient to the appellant, preferably in the proximity of the project site. Public facilities available at no expense are preferred. If a free facility is not available, the Corps will pay the cost for the facility.

(3) Participants. The RO, the appellant, the appellant's agent(s) and the Corps district staff are authorized participants in the conference. The RO may also invite any other party the RO has determined to be appropriate, such as any technical experts consulted by the Corps, adjacent property owners or Federal or state agency personnel to clarify elements of the administrative record. The division engineer and/or the district engineer may attend the conference at their discretion. If the appellant or his authorized agent(s) fail to attend the appeal conference, the appeal process is terminated, unless the RO excuses the appellant for a justifiable reason. Furthermore, should the process be terminated in such a manner, the district engineer's original decision on the appealed action will be sustained.

(4) The role of the RO. The RO shall be in charge of conducting the conference. The RO shall open the conference with a summary of the policies and procedures for conducting the conference. The RO will conduct a fair and impartial conference, hear and fully consider all relevant issues and facts, and seek clarification of any issues of the administrative record, as needed, to allow the division engineer to make a final determination on the merits of the appeal. The RO will also be responsible for documenting the appeal conference.

(5) Appellant rights. The appellant, and/or the appellant's authorized agent(s), will be given a reasonable opportunity to present the appellant's views regarding the subject permit denial or declined permit.

(6) Subject matter. The purpose of the appeal conference will be to discuss the reasons for appeal contained in the RFA. Any material in the administrative record may be discussed during the conference, but the discussion should be focused on relevant issues needed to address the reasons for appeal contained in the RFA. The RO may question the appellant or the Corps representatives with respect to interpretation of particular issues in the record, or otherwise to clarify elements of the administrative record. Issues not identified in the administrative record by the date of the NAP for the application may not be raised or discussed, because substantive new information or project modifications would be treated as a new permit application (see § 331.5(b)(5)).

(7) Documentation of the appeal conference. The appeal conference is an informal proceeding, intended to provide clarifications and explanations of the administrative record for the RO and the division engineer; it is not intended to supplement the administrative record. Consequently, the proceedings of the conference will not be recorded verbatim by the Corps or any other party attending the conference, and no verbatim transcripts of the conference will be made. However, after the conference, the RO will write a memorandum for the record (MFR) summarizing the presentations made at the conference, and will provide a copy of that MFR to the division engineer, the appellant, and the district engineer.

(8) Appellant costs. The appellant will be responsible for his own expenses for attending the appeal conference.

(f) Basis of decision and communication with the RO. The appeal of an approved JD, a permit denial, or a declined permit is limited to the information contained in the administrative record by the date of the NAP for the application or approved JD, the proceedings of the appeal conference, and any relevant information gathered by the RO as described in § 331.5. Neither the appellant nor the Corps may present new information not already contained in the administrative record, but both parties may interpret, clarify or explain issues and information contained in the record.

(g) Applicability of appeal decisions. Because a decision to determine geographic jurisdiction, deny a permit, or condition a permit depends on the facts, circumstances, and physical conditions particular to the specific project and/or site being evaluated, appeal decisions would be of little or no precedential utility. Therefore, an appeal decision of the division engineer is applicable only to the instant appeal, and has no other precedential effect. Such a decision may not be cited in any other administrative appeal, and may not be used as precedent for the evaluation of any other jurisdictional determination or permit application. While administrative appeal decisions lack precedential value and may not be cited by an appellant or a district engineer in any other appeal proceeding, the Corps goal is to have the Corps regulatory program operate as consistently as possible, particularly with respect to interpretations of law, regulation, an Executive Order, and officially-promulgated policy. Therefore, a copy of each appeal decision will be forwarded to Corps Headquarters; those decisions will be periodically reviewed at the headquarters level for consistency with law, Executive Orders, and policy. Additional official guidance will be issued as necessary to maintain or improve the consistency of the Corps' appellate and permit decisions.

§ 331.8 Timeframes for final appeal decisions.

The Division Engineer will make a final decision on the merits of the appeal at the earliest practicable time, in accordance with the following time limits. The administrative appeal process is initiated by the receipt of an RFA by the division engineer. The Corps will review the RFA to determine whether the RFA is acceptable. The Corps will notify the appellant accordingly within 30 days of the receipt of the RFA in accordance with § 331.7(b). If the Corps determines that the RFA is acceptable, the RO will immediately request the administrative record from the district engineer. The division engineer will normally make a final decision on the merits of the appeal within 90 days of the receipt of an acceptable RFA unless any site visit is delayed pursuant to § 331.7(c). In such case, the RO will complete the appeal review and the division engineer will make a final appeal decision within 30 days of the site visit. In no case will a site visit delay extend the total appeal process beyond twelve months from the date of receipt of an acceptable RFA.

§ 331.9 Final appeal decision.

(a) In accordance with the authorities contained in § 331.3(a), the division engineer will make a decision on the merits of the appeal. While reviewing an appeal and reaching a decision on the merits of an appeal, the division engineer can consult with or seek information from any person, including the district engineer.

(b) The division engineer will disapprove the entirety of or any part of the district engineer's decision only if he determines that the decision on some relevant matter was arbitrary, capricious, an abuse of discretion, not supported by substantial evidence in the administrative record, or plainly contrary to a requirement of law, regulation, an Executive Order, or officially promulgated Corps policy guidance. The division engineer will not attempt to substitute his judgment for that of the district engineer regarding a matter of fact, so long as the district engineer's determination was supported by substantial evidence in the administrative record, or regarding any other matter if the district engineer's determination was reasonable and within the zone of discretion delegated to the district engineer by Corps regulations. The division engineer may instruct the district engineer on how to correct any procedural error that was prejudicial to the appellant (i.e., that was not a “harmless” procedural error), or to reconsider the decision where any essential part of the district engineer's decision was not supported by accurate or sufficient information, or analysis, in the administrative record. The division engineer will document his decision on the merits of the appeal in writing, and provide a copy of this decision to the applicant (using certified mail) and the district engineer.

(c) The final decision of the division engineer on the merits of the appeal will conclude the administrative appeal process, and this decision will be filed in the administrative record for the project.

§ 331.10 Final Corps decision.

The final Corps decision on a permit application is the initial decision to issue or deny a permit, unless the applicant submits an RFA, and the division engineer accepts the RFA, pursuant to this Part. The final Corps decision on an appealed action is as follows:

(a) If the division engineer determines that the appeal is without merit, the final Corps decision is the district engineer's letter advising the applicant that the division engineer has decided that the appeal is without merit, confirming the district engineer's initial decision, and sending the permit denial or the proffered permit for signature to the appellant; or

(b) If the division engineer determines that the appeal has merit, the final Corps decision is the district engineer's decision made pursuant to the division engineer's remand of the appealed action. The division engineer will remand the decision to the district engineer with specific instructions to review the administrative record, and to further analyze or evaluate specific issues. If the district engineer determines that the effects of the district engineer's reconsideration of the administrative record would be narrow in scope and impact, the district engineer must provide notification only to those parties who commented or participated in the original review, and would allow 15 days for the submission of supplemental comments. For permit decisions, where the district engineer determines that the effect of the district engineer's reconsideration of the administrative record would be substantial in scope and impact, the district engineer's review process will include issuance of a new public notice, and/or preparation of a supplemental environmental analysis and decision document (see 33 CFR 325.7). Subsequently, the district engineer's decision made pursuant to the division engineer's remand of the appealed action becomes the final Corps permit decision. Nothing in this part precludes the agencies' authorities pursuant to Section 404(q) of the Clean Water Act.

§ 331.11 Unauthorized activities.

Approved JDs, permit denials, and declined permits associated with after-the-fact permit applications are appealable actions for the purposes of this part. If the Corps accepts an after-the-fact permit application, an administrative appeal of an approved JD, permit denial, or declined permit may be filed and processed in accordance with these regulations subject to the provisions of paragraphs (a), (b), and (c) of this section. An appeal of an approved JD associated with unauthorized activities will normally not be accepted unless the Corps accepts an after-the-fact permit application. However, in rare cases, the district engineer may accept an appeal of such an approved JD, if the district engineer determines that the interests of justice, fairness, and administrative efficiency would be served thereby. Furthermore, no such appeal will be accepted if the unauthorized activity is the subject of a referral to the Department of Justice or the EPA, or for which the EPA has the lead enforcement authority or has requested lead enforcement authority.

(a) Initial corrective measures. If the district engineer determines that initial corrective measures are necessary pursuant to 33 CFR 326.3(d), an RFA for an appealable action will not be accepted by the Corps, until the initial corrective measures have been completed to the satisfaction of the district engineer.

(b) Penalties. If an affected party requests, under this Section, an administrative appeal of an appealable action prior to the resolution of the unauthorized activity, and the division engineer determines that the appeal has no merit, the responsible party remains subject to any civil, criminal, and administrative penalties as provided by law.

(c) Tolling of statute of limitations. Any person who appeals an approved JD associated with an unauthorized activity or applies for an after-the-fact permit, where the application is accepted and processed by the Corps, thereby agrees that the statute of limitations regarding any violation associated with that approved JD or application is tolled until one year after the final Corps decision, as defined at § 331.10. Moreover, the recipient of an approved JD associated with an unauthorized activity or applicant for an after-the-fact permit must also memorialize that agreement to toll the statute of limitations, by signing an agreement to that effect, in exchange for the Corps acceptance of the after-the-fact permit application, and/or any administrative appeal (See 33 CFR 326.3(e)(1)(v)). No administrative appeal associated with an unauthorized activity or after-the-fact permit application will be accepted until such signed tolling agreement is furnished to the district engineer.

§ 331.12 Exhaustion of administrative remedies.

No affected party may file a legal action in the Federal courts based on a permit denial or a proffered permit until after a final Corps decision has been made and the appellant has exhausted all applicable administrative remedies under this part. The appellant is considered to have exhausted all administrative remedies when a final Corps permit decision is made in accordance with § 331.10.

§ 332.1 Purpose and general considerations.

(a) Purpose. (1) The purpose of this part is to establish standards and criteria for the use of all types of compensatory mitigation, including on-site and off-site permittee-responsible mitigation, mitigation banks, and in-lieu fee mitigation to offset unavoidable impacts to waters of the United States authorized through the issuance of Department of the Army (DA) permits pursuant to section 404 of the Clean Water Act (33 U.S.C. 1344) and/or sections 9 or 10 of the Rivers and Harbors Act of 1899 (33 U.S.C. 401, 403). This part implements section 314(b) of the 2004 National Defense Authorization Act (Pub. L. 108-136), which directs that the standards and criteria shall, to the maximum extent practicable, maximize available credits and opportunities for mitigation, provide for regional variations in wetland conditions, functions, and values, and apply equivalent standards and criteria to each type of compensatory mitigation. This part is intended to further clarify mitigation requirements established under U.S. Army Corps of Engineers (Corps) and U.S. Environmental Protection Agency (U.S. EPA) regulations at 33 CFR part 320 and 40 CFR part 230, respectively.

(2) This part has been jointly developed by the Secretary of the Army, acting through the Chief of Engineers, and the Administrator of the Environmental Protection Agency. From time to time guidance on interpreting and implementing this part may be prepared jointly by U.S. EPA and the Corps at the national or regional level. No modifications to the basic application, meaning, or intent of this part will be made without further joint rulemaking by the Secretary of the Army, acting through the Chief of Engineers and the Administrator of the Environmental Protection Agency, pursuant to the Administrative Procedure Act (5 U.S.C. 551 et seq.).

(b) Applicability. This part does not alter the regulations at § 320.4(r) of this title, which address the general mitigation requirements for DA permits. In particular, it does not alter the circumstances under which compensatory mitigation is required or the definitions of “waters of the United States” or “navigable waters of the United States,” which are provided at parts 328 and 329 of this chapter, respectively. Use of resources as compensatory mitigation that are not otherwise subject to regulation under section 404 of the Clean Water Act and/or sections 9 or 10 of the Rivers and Harbors Act of 1899 does not in and of itself make them subject to such regulation.

(c) Sequencing. (1) Nothing in this section affects the requirement that all DA permits subject to section 404 of the Clean Water Act comply with applicable provisions of the Section 404(b)(1) Guidelines at 40 CFR part 230.

(2) Pursuant to these requirements, the district engineer will issue an individual section 404 permit only upon a determination that the proposed discharge complies with applicable provisions of 40 CFR part 230, including those which require the permit applicant to take all appropriate and practicable steps to avoid and minimize adverse impacts to waters of the United States. Practicable means available and capable of being done after taking into consideration cost, existing technology, and logistics in light of overall project purposes. Compensatory mitigation for unavoidable impacts may be required to ensure that an activity requiring a section 404 permit complies with the Section 404(b)(1) Guidelines.

(3) Compensatory mitigation for unavoidable impacts may be required to ensure that an activity requiring a section 404 permit complies with the Section 404(b)(1) Guidelines. During the 404(b)(1) Guidelines compliance analysis, the district engineer may determine that a DA permit for the proposed activity cannot be issued because of the lack of appropriate and practicable compensatory mitigation options.

(d) Public interest. Compensatory mitigation may also be required to ensure that an activity requiring authorization under section 404 of the Clean Water Act and/or sections 9 or 10 of the Rivers and Harbors Act of 1899 is not contrary to the public interest.

(e) Accounting for regional variations. Where appropriate, district engineers shall account for regional characteristics of aquatic resource types, functions and services when determining performance standards and monitoring requirements for compensatory mitigation projects.

(f) Relationship to other guidance documents. (1) This part applies instead of the “Federal Guidance for the Establishment, Use, and Operation of Mitigation Banks,” which was issued on November 28, 1995, the “Federal Guidance on the Use of In-Lieu Fee Arrangements for Compensatory Mitigation Under Section 404 of the Clean Water Act and Section 10 of the Rivers and Harbors Act,” which was issued on November 7, 2000, and Regulatory Guidance Letter 02-02, “Guidance on Compensatory Mitigation Projects for Aquatic Resource Impacts Under the Corps Regulatory Program Pursuant to Section 404 of the Clean Water Act and Section 10 of the Rivers and Harbors Act of 1899” which was issued on December 24, 2002. These guidance documents are no longer to be used as compensatory mitigation policy in the Corps Regulatory Program.

(2) In addition, this part also applies instead of the provisions relating to the amount, type, and location of compensatory mitigation projects, including the use of preservation, in the February 6, 1990, Memorandum of Agreement (MOA) between the Department of the Army and the Environmental Protection Agency on the Determination of Mitigation Under the Clean Water Act Section 404(b)(1) Guidelines. All other provisions of this MOA remain in effect.

§ 332.2 Definitions.

For the purposes of this part, the following terms are defined:

Adaptive management means the development of a management strategy that anticipates likely challenges associated with compensatory mitigation projects and provides for the implementation of actions to address those challenges, as well as unforeseen changes to those projects. It requires consideration of the risk, uncertainty, and dynamic nature of compensatory mitigation projects and guides modification of those projects to optimize performance. It includes the selection of appropriate measures that will ensure that the aquatic resource functions are provided and involves analysis of monitoring results to identify potential problems of a compensatory mitigation project and the identification and implementation of measures to rectify those problems.

Advance credits means any credits of an approved in-lieu fee program that are available for sale prior to being fulfilled in accordance with an approved mitigation project plan. Advance credit sales require an approved in-lieu fee program instrument that meets all applicable requirements including a specific allocation of advance credits, by service area where applicable. The instrument must also contain a schedule for fulfillment of advance credit sales.

Buffer means an upland, wetland, and/or riparian area that protects and/or enhances aquatic resource functions associated with wetlands, rivers, streams, lakes, marine, and estuarine systems from disturbances associated with adjacent land uses.

Compensatory mitigation means the restoration (re-establishment or rehabilitation), establishment (creation), enhancement, and/or in certain circumstances preservation of aquatic resources for the purposes of offsetting unavoidable adverse impacts which remain after all appropriate and practicable avoidance and minimization has been achieved.

Compensatory mitigation project means compensatory mitigation implemented by the permittee as a requirement of a DA permit (i.e., permittee-responsible mitigation), or by a mitigation bank or an in-lieu fee program.

Condition means the relative ability of an aquatic resource to support and maintain a community of organisms having a species composition, diversity, and functional organization comparable to reference aquatic resources in the region.

Credit means a unit of measure (e.g., a functional or areal measure or other suitable metric) representing the accrual or attainment of aquatic functions at a compensatory mitigation site. The measure of aquatic functions is based on the resources restored, established, enhanced, or preserved.

DA means Department of the Army.

Days means calendar days.

Debit means a unit of measure (e.g., a functional or areal measure or other suitable metric) representing the loss of aquatic functions at an impact or project site. The measure of aquatic functions is based on the resources impacted by the authorized activity.

Enhancement means the manipulation of the physical, chemical, or biological characteristics of an aquatic resource to heighten, intensify, or improve a specific aquatic resource function(s). Enhancement results in the gain of selected aquatic resource function(s), but may also lead to a decline in other aquatic resource function(s). Enhancement does not result in a gain in aquatic resource area.

Establishment (creation) means the manipulation of the physical, chemical, or biological characteristics present to develop an aquatic resource that did not previously exist at an upland site. Establishment results in a gain in aquatic resource area and functions.

Fulfillment of advance credit sales of an in-lieu fee program means application of credits released in accordance with a credit release schedule in an approved mitigation project plan to satisfy the mitigation requirements represented by the advance credits. Only after any advance credit sales within a service area have been fulfilled through the application of released credits from an in-lieu fee project (in accordance with the credit release schedule for an approved mitigation project plan), may additional released credits from that project be sold or transferred to permittees. When advance credits are fulfilled, an equal number of new advance credits is restored to the program sponsor for sale or transfer to permit applicants.

Functional capacity means the degree to which an area of aquatic resource performs a specific function.

Functions means the physical, chemical, and biological processes that occur in ecosystems.

Impact means adverse effect.

In-kind means a resource of a similar structural and functional type to the impacted resource.

In-lieu fee program means a program involving the restoration, establishment, enhancement, and/or preservation of aquatic resources through funds paid to a governmental or non-profit natural resources management entity to satisfy compensatory mitigation requirements for DA permits. Similar to a mitigation bank, an in-lieu fee program sells compensatory mitigation credits to permittees whose obligation to provide compensatory mitigation is then transferred to the in-lieu program sponsor. However, the rules governing the operation and use of in-lieu fee programs are somewhat different from the rules governing operation and use of mitigation banks. The operation and use of an in-lieu fee program are governed by an in-lieu fee program instrument.

In-lieu fee program instrument means the legal document for the establishment, operation, and use of an in-lieu fee program.

Instrument means mitigation banking instrument or in-lieu fee program instrument.

Interagency Review Team (IRT) means an interagency group of federal, tribal, state, and/or local regulatory and resource agency representatives that reviews documentation for, and advises the district engineer on, the establishment and management of a mitigation bank or an in-lieu fee program.

Mitigation bank means a site, or suite of sites, where resources (e.g., wetlands, streams, riparian areas) are restored, established, enhanced, and/or preserved for the purpose of providing compensatory mitigation for impacts authorized by DA permits. In general, a mitigation bank sells compensatory mitigation credits to permittees whose obligation to provide compensatory mitigation is then transferred to the mitigation bank sponsor. The operation and use of a mitigation bank are governed by a mitigation banking instrument.

Mitigation banking instrument means the legal document for the establishment, operation, and use of a mitigation bank.

Off-site means an area that is neither located on the same parcel of land as the impact site, nor on a parcel of land contiguous to the parcel containing the impact site.

On-site means an area located on the same parcel of land as the impact site, or on a parcel of land contiguous to the impact site.

Out-of-kind means a resource of a different structural and functional type from the impacted resource.

Performance standards are observable or measurable physical (including hydrological), chemical and/or biological attributes that are used to determine if a compensatory mitigation project meets its objectives.

Permittee-responsible mitigation means an aquatic resource restoration, establishment, enhancement, and/or preservation activity undertaken by the permittee (or an authorized agent or contractor) to provide compensatory mitigation for which the permittee retains full responsibility.

Preservation means the removal of a threat to, or preventing the decline of, aquatic resources by an action in or near those aquatic resources. This term includes activities commonly associated with the protection and maintenance of aquatic resources through the implementation of appropriate legal and physical mechanisms. Preservation does not result in a gain of aquatic resource area or functions.

Re-establishment means the manipulation of the physical, chemical, or biological characteristics of a site with the goal of returning natural/historic functions to a former aquatic resource. Re-establishment results in rebuilding a former aquatic resource and results in a gain in aquatic resource area and functions.

Reference aquatic resources are a set of aquatic resources that represent the full range of variability exhibited by a regional class of aquatic resources as a result of natural processes and anthropogenic disturbances.

Rehabilitation means the manipulation of the physical, chemical, or biological characteristics of a site with the goal of repairing natural/historic functions to a degraded aquatic resource. Rehabilitation results in a gain in aquatic resource function, but does not result in a gain in aquatic resource area.

Release of credits means a determination by the district engineer, in consultation with the IRT, that credits associated with an approved mitigation plan are available for sale or transfer, or in the case of an in-lieu fee program, for fulfillment of advance credit sales. A proportion of projected credits for a specific mitigation bank or in-lieu fee project may be released upon approval of the mitigation plan, with additional credits released as milestones specified in the credit release schedule are achieved.

Restoration means the manipulation of the physical, chemical, or biological characteristics of a site with the goal of returning natural/historic functions to a former or degraded aquatic resource. For the purpose of tracking net gains in aquatic resource area, restoration is divided into two categories: re-establishment and rehabilitation.

Riparian areas are lands adjacent to streams, rivers, lakes, and estuarine-marine shorelines. Riparian areas provide a variety of ecological functions and services and help improve or maintain local water quality.

Service area means the geographic area within which impacts can be mitigated at a specific mitigation bank or an in-lieu fee program, as designated in its instrument.

Services mean the benefits that human populations receive from functions that occur in ecosystems.

Sponsor means any public or private entity responsible for establishing, and in most circumstances, operating a mitigation bank or in-lieu fee program.

Standard permit means a standard, individual permit issued under the authority of section 404 of the Clean Water Act and/or sections 9 or 10 of the Rivers and Harbors Act of 1899.

Temporal loss is the time lag between the loss of aquatic resource functions caused by the permitted impacts and the replacement of aquatic resource functions at the compensatory mitigation site. Higher compensation ratios may be required to compensate for temporal loss. When the compensatory mitigation project is initiated prior to, or concurrent with, the permitted impacts, the district engineer may determine that compensation for temporal loss is not necessary, unless the resource has a long development time.

Watershed means a land area that drains to a common waterway, such as a stream, lake, estuary, wetland, or ultimately the ocean.

Watershed approach means an analytical process for making compensatory mitigation decisions that support the sustainability or improvement of aquatic resources in a watershed. It involves consideration of watershed needs, and how locations and types of compensatory mitigation projects address those needs. A landscape perspective is used to identify the types and locations of compensatory mitigation projects that will benefit the watershed and offset losses of aquatic resource functions and services caused by activities authorized by DA permits. The watershed approach may involve consideration of landscape scale, historic and potential aquatic resource conditions, past and projected aquatic resource impacts in the watershed, and terrestrial connections between aquatic resources when determining compensatory mitigation requirements for DA permits.

Watershed plan means a plan developed by federal, tribal, state, and/or local government agencies or appropriate non-governmental organizations, in consultation with relevant stakeholders, for the specific goal of aquatic resource restoration, establishment, enhancement, and preservation. A watershed plan addresses aquatic resource conditions in the watershed, multiple stakeholder interests, and land uses. Watershed plans may also identify priority sites for aquatic resource restoration and protection. Examples of watershed plans include special area management plans, advance identification programs, and wetland management plans.

§ 332.3 General compensatory mitigation requirements.

(a) General considerations. (1) The fundamental objective of compensatory mitigation is to offset environmental losses resulting from unavoidable impacts to waters of the United States authorized by DA permits. The district engineer must determine the compensatory mitigation to be required in a DA permit, based on what is practicable and capable of compensating for the aquatic resource functions that will be lost as a result of the permitted activity. When evaluating compensatory mitigation options, the district engineer will consider what would be environmentally preferable. In making this determination, the district engineer must assess the likelihood for ecological success and sustainability, the location of the compensation site relative to the impact site and their significance within the watershed, and the costs of the compensatory mitigation project. In many cases, the environmentally preferable compensatory mitigation may be provided through mitigation banks or in-lieu fee programs because they usually involve consolidating compensatory mitigation projects where ecologically appropriate, consolidating resources, providing financial planning and scientific expertise (which often is not practical for permittee-responsible compensatory mitigation projects), reducing temporal losses of functions, and reducing uncertainty over project success. Compensatory mitigation requirements must be commensurate with the amount and type of impact that is associated with a particular DA permit. Permit applicants are responsible for proposing an appropriate compensatory mitigation option to offset unavoidable impacts.

(2) Compensatory mitigation may be performed using the methods of restoration, enhancement, establishment, and in certain circumstances preservation. Restoration should generally be the first option considered because the likelihood of success is greater and the impacts to potentially ecologically important uplands are reduced compared to establishment, and the potential gains in terms of aquatic resource functions are greater, compared to enhancement and preservation.

(3) Compensatory mitigation projects may be sited on public or private lands. Credits for compensatory mitigation projects on public land must be based solely on aquatic resource functions provided by the compensatory mitigation project, over and above those provided by public programs already planned or in place. All compensatory mitigation projects must comply with the standards in this part, if they are to be used to provide compensatory mitigation for activities authorized by DA permits, regardless of whether they are sited on public or private lands and whether the sponsor is a governmental or private entity.

(b) Type and location of compensatory mitigation. (1) When considering options for successfully providing the required compensatory mitigation, the district engineer shall consider the type and location options in the order presented in paragraphs (b)(2) through (b)(6) of this section. In general, the required compensatory mitigation should be located within the same watershed as the impact site, and should be located where it is most likely to successfully replace lost functions and services, taking into account such watershed scale features as aquatic habitat diversity, habitat connectivity, relationships to hydrologic sources (including the availability of water rights), trends in land use, ecological benefits, and compatibility with adjacent land uses. When compensating for impacts to marine resources, the location of the compensatory mitigation site should be chosen to replace lost functions and services within the same marine ecological system (e.g., reef complex, littoral drift cell). Compensation for impacts to aquatic resources in coastal watersheds (watersheds that include a tidal water body) should also be located in a coastal watershed where practicable. Compensatory mitigation projects should not be located where they will increase risks to aviation by attracting wildlife to areas where aircraft-wildlife strikes may occur (e.g., near airports).

(2) Mitigation bank credits. When permitted impacts are located within the service area of an approved mitigation bank, and the bank has the appropriate number and resource type of credits available, the permittee's compensatory mitigation requirements may be met by securing those credits from the sponsor. Since an approved instrument (including an approved mitigation plan and appropriate real estate and financial assurances) for a mitigation bank is required to be in place before its credits can begin to be used to compensate for authorized impacts, use of a mitigation bank can help reduce risk and uncertainty, as well as temporal loss of resource functions and services. Mitigation bank credits are not released for debiting until specific milestones associated with the mitigation bank site's protection and development are achieved, thus use of mitigation bank credits can also help reduce risk that mitigation will not be fully successful. Mitigation banks typically involve larger, more ecologically valuable parcels, and more rigorous scientific and technical analysis, planning and implementation than permittee-responsible mitigation. Also, development of a mitigation bank requires site identification in advance, project-specific planning, and significant investment of financial resources that is often not practicable for many in-lieu fee programs. For these reasons, the district engineer should give preference to the use of mitigation bank credits when these considerations are applicable. However, these same considerations may also be used to override this preference, where appropriate, as, for example, where an in-lieu fee program has released credits available from a specific approved in-lieu fee project, or a permittee-responsible project will restore an outstanding resource based on rigorous scientific and technical analysis.

(3) In-lieu fee program credits. Where permitted impacts are located within the service area of an approved in-lieu fee program, and the sponsor has the appropriate number and resource type of credits available, the permittee's compensatory mitigation requirements may be met by securing those credits from the sponsor. Where permitted impacts are not located in the service area of an approved mitigation bank, or the approved mitigation bank does not have the appropriate number and resource type of credits available to offset those impacts, in-lieu fee mitigation, if available, is generally preferable to permittee-responsible mitigation. In-lieu fee projects typically involve larger, more ecologically valuable parcels, and more rigorous scientific and technical analysis, planning and implementation than permittee-responsible mitigation. They also devote significant resources to identifying and addressing high-priority resource needs on a watershed scale, as reflected in their compensation planning framework. For these reasons, the district engineer should give preference to in-lieu fee program credits over permittee-responsible mitigation, where these considerations are applicable. However, as with the preference for mitigation bank credits, these same considerations may be used to override this preference where appropriate. Additionally, in cases where permittee-responsible mitigation is likely to successfully meet performance standards before advance credits secured from an in-lieu fee program are fulfilled, the district engineer should also give consideration to this factor in deciding between in-lieu fee mitigation and permittee-responsible mitigation.

(4) Permittee-responsible mitigation under a watershed approach. Where permitted impacts are not in the service area of an approved mitigation bank or in-lieu fee program that has the appropriate number and resource type of credits available, permittee-responsible mitigation is the only option. Where practicable and likely to be successful and sustainable, the resource type and location for the required permittee-responsible compensatory mitigation should be determined using the principles of a watershed approach as outlined in paragraph (c) of this section.

(5) Permittee-responsible mitigation through on-site and in-kind mitigation. In cases where a watershed approach is not practicable, the district engineer should consider opportunities to offset anticipated aquatic resource impacts by requiring on-site and in-kind compensatory mitigation. The district engineer must also consider the practicability of on-site compensatory mitigation and its compatibility with the proposed project.

(6) Permittee-responsible mitigation through off-site and/or out-of-kind mitigation. If, after considering opportunities for on-site, in-kind compensatory mitigation as provided in paragraph (b)(5) of this section, the district engineer determines that these compensatory mitigation opportunities are not practicable, are unlikely to compensate for the permitted impacts, or will be incompatible with the proposed project, and an alternative, practicable off-site and/or out-of-kind mitigation opportunity is identified that has a greater likelihood of offsetting the permitted impacts or is environmentally preferable to on-site or in-kind mitigation, the district engineer should require that this alternative compensatory mitigation be provided.

(c) Watershed approach to compensatory mitigation. (1) The district engineer must use a watershed approach to establish compensatory mitigation requirements in DA permits to the extent appropriate and practicable. Where a watershed plan is available, the district engineer will determine whether the plan is appropriate for use in the watershed approach for compensatory mitigation. In cases where the district engineer determines that an appropriate watershed plan is available, the watershed approach should be based on that plan. Where no such plan is available, the watershed approach should be based on information provided by the project sponsor or available from other sources. The ultimate goal of a watershed approach is to maintain and improve the quality and quantity of aquatic resources within watersheds through strategic selection of compensatory mitigation sites.

(2) Considerations. (i) A watershed approach to compensatory mitigation considers the importance of landscape position and resource type of compensatory mitigation projects for the sustainability of aquatic resource functions within the watershed. Such an approach considers how the types and locations of compensatory mitigation projects will provide the desired aquatic resource functions, and will continue to function over time in a changing landscape. It also considers the habitat requirements of important species, habitat loss or conversion trends, sources of watershed impairment, and current development trends, as well as the requirements of other regulatory and non-regulatory programs that affect the watershed, such as storm water management or habitat conservation programs. It includes the protection and maintenance of terrestrial resources, such as non-wetland riparian areas and uplands, when those resources contribute to or improve the overall ecological functioning of aquatic resources in the watershed. Compensatory mitigation requirements determined through the watershed approach should not focus exclusively on specific functions (e.g., water quality or habitat for certain species), but should provide, where practicable, the suite of functions typically provided by the affected aquatic resource.

(ii) Locational factors (e.g., hydrology, surrounding land use) are important to the success of compensatory mitigation for impacted habitat functions and may lead to siting of such mitigation away from the project area. However, consideration should also be given to functions and services (e.g., water quality, flood control, shoreline protection) that will likely need to be addressed at or near the areas impacted by the permitted impacts.

(iii) A watershed approach may include on-site compensatory mitigation, off-site compensatory mitigation (including mitigation banks or in-lieu fee programs), or a combination of on-site and off-site compensatory mitigation.

(iv) A watershed approach to compensatory mitigation should include, to the extent practicable, inventories of historic and existing aquatic resources, including identification of degraded aquatic resources, and identification of immediate and long-term aquatic resource needs within watersheds that can be met through permittee-responsible mitigation projects, mitigation banks, or in-lieu fee programs. Planning efforts should identify and prioritize aquatic resource restoration, establishment, and enhancement activities, and preservation of existing aquatic resources that are important for maintaining or improving ecological functions of the watershed. The identification and prioritization of resource needs should be as specific as possible, to enhance the usefulness of the approach in determining compensatory mitigation requirements.

(v) A watershed approach is not appropriate in areas where watershed boundaries do not exist, such as marine areas. In such cases, an appropriate spatial scale should be used to replace lost functions and services within the same ecological system (e.g., reef complex, littoral drift cell).

(3) Information needs. (i) In the absence of a watershed plan determined by the district engineer under paragraph (c)(1) of this section to be appropriate for use in the watershed approach, the district engineer will use a watershed approach based on analysis of information regarding watershed conditions and needs, including potential sites for aquatic resource restoration activities and priorities for aquatic resource restoration and preservation. Such information includes: current trends in habitat loss or conversion; cumulative impacts of past development activities, current development trends, the presence and needs of sensitive species; site conditions that favor or hinder the success of compensatory mitigation projects; and chronic environmental problems such as flooding or poor water quality.

(ii) This information may be available from sources such as wetland maps; soil surveys; U.S. Geological Survey topographic and hydrologic maps; aerial photographs; information on rare, endangered and threatened species and critical habitat; local ecological reports or studies; and other information sources that could be used to identify locations for suitable compensatory mitigation projects in the watershed.

(iii) The level of information and analysis needed to support a watershed approach must be commensurate with the scope and scale of the proposed impacts requiring a DA permit, as well as the functions lost as a result of those impacts.

(4) Watershed scale. The size of watershed addressed using a watershed approach should not be larger than is appropriate to ensure that the aquatic resources provided through compensation activities will effectively compensate for adverse environmental impacts resulting from activities authorized by DA permits. The district engineer should consider relevant environmental factors and appropriate locally developed standards and criteria when determining the appropriate watershed scale in guiding compensation activities.

(d) Site selection. (1) The compensatory mitigation project site must be ecologically suitable for providing the desired aquatic resource functions. In determining the ecological suitability of the compensatory mitigation project site, the district engineer must consider, to the extent practicable, the following factors:

(i) Hydrological conditions, soil characteristics, and other physical and chemical characteristics;

(ii) Watershed-scale features, such as aquatic habitat diversity, habitat connectivity, and other landscape scale functions;

(iii) The size and location of the compensatory mitigation site relative to hydrologic sources (including the availability of water rights) and other ecological features;

(iv) Compatibility with adjacent land uses and watershed management plans;

(v) Reasonably foreseeable effects the compensatory mitigation project will have on ecologically important aquatic or terrestrial resources (e.g., shallow sub-tidal habitat, mature forests), cultural sites, or habitat for federally- or state-listed threatened and endangered species; and

(vi) Other relevant factors including, but not limited to, development trends, anticipated land use changes, habitat status and trends, the relative locations of the impact and mitigation sites in the stream network, local or regional goals for the restoration or protection of particular habitat types or functions (e.g., re-establishment of habitat corridors or habitat for species of concern), water quality goals, floodplain management goals, and the relative potential for chemical contamination of the aquatic resources.

(2) District engineers may require on-site, off-site, or a combination of on-site and off-site compensatory mitigation to replace permitted losses of aquatic resource functions and services.

(3) Applicants should propose compensation sites adjacent to existing aquatic resources or where aquatic resources previously existed.

(e) Mitigation type. (1) In general, in-kind mitigation is preferable to out-of-kind mitigation because it is most likely to compensate for the functions and services lost at the impact site. For example, tidal wetland compensatory mitigation projects are most likely to compensate for unavoidable impacts to tidal wetlands, while perennial stream compensatory mitigation projects are most likely to compensate for unavoidable impacts to perennial streams. Thus, except as provided in paragraph (e)(2) of this section, the required compensatory mitigation shall be of a similar type to the affected aquatic resource.

(2) If the district engineer determines, using the watershed approach in accordance with paragraph (c) of this section that out-of-kind compensatory mitigation will serve the aquatic resource needs of the watershed, the district engineer may authorize the use of such out-of-kind compensatory mitigation. The basis for authorization of out-of-kind compensatory mitigation must be documented in the administrative record for the permit action.

(3) For difficult-to-replace resources (e.g., bogs, fens, springs, streams, Atlantic white cedar swamps) if further avoidance and minimization is not practicable, the required compensation should be provided, if practicable, through in-kind rehabilitation, enhancement, or preservation since there is greater certainty that these methods of compensation will successfully offset permitted impacts.

(f) Amount of compensatory mitigation. (1) If the district engineer determines that compensatory mitigation is necessary to offset unavoidable impacts to aquatic resources, the amount of required compensatory mitigation must be, to the extent practicable, sufficient to replace lost aquatic resource functions. In cases where appropriate functional or condition assessment methods or other suitable metrics are available, these methods should be used where practicable to determine how much compensatory mitigation is required. If a functional or condition assessment or other suitable metric is not used, a minimum one-to-one acreage or linear foot compensation ratio must be used.

(2) The district engineer must require a mitigation ratio greater than one-to-one where necessary to account for the method of compensatory mitigation (e.g., preservation), the likelihood of success, differences between the functions lost at the impact site and the functions expected to be produced by the compensatory mitigation project, temporal losses of aquatic resource functions, the difficulty of restoring or establishing the desired aquatic resource type and functions, and/or the distance between the affected aquatic resource and the compensation site. The rationale for the required replacement ratio must be documented in the administrative record for the permit action.

(3) If an in-lieu fee program will be used to provide the required compensatory mitigation, and the appropriate number and resource type of released credits are not available, the district engineer must require sufficient compensation to account for the risk and uncertainty associated with in-lieu fee projects that have not been implemented before the permitted impacts have occurred.

(g) Use of mitigation banks and in-lieu fee programs. Mitigation banks and in-lieu fee programs may be used to compensate for impacts to aquatic resources authorized by general permits and individual permits, including after-the-fact permits, in accordance with the preference hierarchy in paragraph (b) of this section.

(h) Preservation. (1) Preservation may be used to provide compensatory mitigation for activities authorized by DA permits when all the following criteria are met:

(i) The resources to be preserved provide important physical, chemical, or biological functions for the watershed;

(ii) The resources to be preserved contribute significantly to the ecological sustainability of the watershed. In determining the contribution of those resources to the ecological sustainability of the watershed, the district engineer must use appropriate quantitative assessment tools, where available;

(iii) Preservation is determined by the district engineer to be appropriate and practicable;

(iv) The resources are under threat of destruction or adverse modifications; and

(v) The preserved site will be permanently protected through an appropriate real estate or other legal instrument (e.g., easement, title transfer to state resource agency or land trust).

(2) Where preservation is used to provide compensatory mitigation, to the extent appropriate and practicable the preservation shall be done in conjunction with aquatic resource restoration, establishment, and/or enhancement activities. This requirement may be waived by the district engineer where preservation has been identified as a high priority using a watershed approach described in paragraph (c) of this section, but compensation ratios shall be higher.

(i) Buffers. District engineers may require the restoration, establishment, enhancement, and preservation, as well as the maintenance, of riparian areas and/or buffers around aquatic resources where necessary to ensure the long-term viability of those resources. Buffers may also provide habitat or corridors necessary for the ecological functioning of aquatic resources. If buffers are required by the district engineer as part of the compensatory mitigation project, compensatory mitigation credit will be provided for those buffers.

(j) Relationship to other federal, tribal, state, and local programs. (1) Compensatory mitigation projects for DA permits may also be used to satisfy the environmental requirements of other programs, such as tribal, state, or local wetlands regulatory programs, other federal programs such as the Surface Mining Control and Reclamation Act, Corps civil works projects, and Department of Defense military construction projects, consistent with the terms and requirements of these programs and subject to the following considerations:

(i) The compensatory mitigation project must include appropriate compensation required by the DA permit for unavoidable impacts to aquatic resources authorized by that permit.

(ii) Under no circumstances may the same credits be used to provide mitigation for more than one permitted activity. However, where appropriate, compensatory mitigation projects, including mitigation banks and in-lieu fee projects, may be designed to holistically address requirements under multiple programs and authorities for the same activity.

(2) Except for projects undertaken by federal agencies, or where federal funding is specifically authorized to provide compensatory mitigation, federally-funded aquatic resource restoration or conservation projects undertaken for purposes other than compensatory mitigation, such as the Wetlands Reserve Program, Conservation Reserve Program, and Partners for Wildlife Program activities, cannot be used for the purpose of generating compensatory mitigation credits for activities authorized by DA permits. However, compensatory mitigation credits may be generated by activities undertaken in conjunction with, but supplemental to, such programs in order to maximize the overall ecological benefits of the restoration or conservation project.

(3) Compensatory mitigation projects may also be used to provide compensatory mitigation under the Endangered Species Act or for Habitat Conservation Plans, as long as they comply with the requirements of paragraph (j)(1) of this section.

(k) Permit conditions. (1) The compensatory mitigation requirements for a DA permit, including the amount and type of compensatory mitigation, must be clearly stated in the special conditions of the individual permit or general permit verification (see 33 CFR 325.4 and 330.6(a)). The special conditions must be enforceable.

(2) For an individual permit that requires permittee-responsible mitigation, the special conditions must:

(i) Identify the party responsible for providing the compensatory mitigation;

(ii) Incorporate, by reference, the final mitigation plan approved by the district engineer;

(iii) State the objectives, performance standards, and monitoring required for the compensatory mitigation project, unless they are provided in the approved final mitigation plan; and

(iv) Describe any required financial assurances or long-term management provisions for the compensatory mitigation project, unless they are specified in the approved final mitigation plan.

(3) For a general permit activity that requires permittee-responsible compensatory mitigation, the special conditions must describe the compensatory mitigation proposal, which may be either conceptual or detailed. The general permit verification must also include a special condition that states that the permittee cannot commence work in waters of the United States until the district engineer approves the final mitigation plan, unless the district engineer determines that such a special condition is not practicable and not necessary to ensure timely completion of the required compensatory mitigation. To the extent appropriate and practicable, special conditions of the general permit verification should also address the requirements of paragraph (k)(2) of this section.

(4) If a mitigation bank or in-lieu fee program is used to provide the required compensatory mitigation, the special conditions must indicate whether a mitigation bank or in-lieu fee program will be used, and specify the number and resource type of credits the permittee is required to secure. In the case of an individual permit, the special condition must also identify the specific mitigation bank or in-lieu fee program that will be used. For general permit verifications, the special conditions may either identify the specific mitigation bank or in-lieu fee program, or state that the specific mitigation bank or in-lieu fee program used to provide the required compensatory mitigation must be approved by the district engineer before the credits are secured.

(l) Party responsible for compensatory mitigation. (1) For permittee-responsible mitigation, the special conditions of the DA permit must clearly indicate the party or parties responsible for the implementation, performance, and long-term management of the compensatory mitigation project.

(2) For mitigation banks and in-lieu fee programs, the instrument must clearly indicate the party or parties responsible for the implementation, performance, and long-term management of the compensatory mitigation project(s). The instrument must also contain a provision expressing the sponsor's agreement to assume responsibility for a permittee's compensatory mitigation requirements, once that permittee has secured the appropriate number and resource type of credits from the sponsor and the district engineer has received the documentation described in paragraph (l)(3) of this section.

(3) If use of a mitigation bank or in-lieu fee program is approved by the district engineer to provide part or all of the required compensatory mitigation for a DA permit, the permittee retains responsibility for providing the compensatory mitigation until the appropriate number and resource type of credits have been secured from a sponsor and the district engineer has received documentation that confirms that the sponsor has accepted the responsibility for providing the required compensatory mitigation. This documentation may consist of a letter or form signed by the sponsor, with the permit number and a statement indicating the number and resource type of credits that have been secured from the sponsor. Copies of this documentation will be retained in the administrative records for both the permit and the instrument. If the sponsor fails to provide the required compensatory mitigation, the district engineer may pursue measures against the sponsor to ensure compliance.

(m) Timing. Implementation of the compensatory mitigation project shall be, to the maximum extent practicable, in advance of or concurrent with the activity causing the authorized impacts. The district engineer shall require, to the extent appropriate and practicable, additional compensatory mitigation to offset temporal losses of aquatic functions that will result from the permitted activity.

(n) Financial assurances. (1) The district engineer shall require sufficient financial assurances to ensure a high level of confidence that the compensatory mitigation project will be successfully completed, in accordance with applicable performance standards. In cases where an alternate mechanism is available to ensure a high level of confidence that the compensatory mitigation will be provided and maintained (e.g., a formal, documented commitment from a government agency or public authority) the district engineer may determine that financial assurances are not necessary for that compensatory mitigation project.

(2) The amount of the required financial assurances must be determined by the district engineer, in consultation with the project sponsor, and must be based on the size and complexity of the compensatory mitigation project, the degree of completion of the project at the time of project approval, the likelihood of success, the past performance of the project sponsor, and any other factors the district engineer deems appropriate. Financial assurances may be in the form of performance bonds, escrow accounts, casualty insurance, letters of credit, legislative appropriations for government sponsored projects, or other appropriate instruments, subject to the approval of the district engineer. The rationale for determining the amount of the required financial assurances must be documented in the administrative record for either the DA permit or the instrument. In determining the assurance amount, the district engineer shall consider the cost of providing replacement mitigation, including costs for land acquisition, planning and engineering, legal fees, mobilization, construction, and monitoring.

(3) If financial assurances are required, the DA permit must include a special condition requiring the financial assurances to be in place prior to commencing the permitted activity.

(4) Financial assurances shall be phased out once the compensatory mitigation project has been determined by the district engineer to be successful in accordance with its performance standards. The DA permit or instrument must clearly specify the conditions under which the financial assurances are to be released to the permittee, sponsor, and/or other financial assurance provider, including, as appropriate, linkage to achievement of performance standards, adaptive management, or compliance with special conditions.

(5) A financial assurance must be in a form that ensures that the district engineer will receive notification at least 120 days in advance of any termination or revocation. For third-party assurance providers, this may take the form of a contractual requirement for the assurance provider to notify the district engineer at least 120 days before the assurance is revoked or terminated.

(6) Financial assurances shall be payable at the direction of the district engineer to his designee or to a standby trust agreement. When a standby trust is used (e.g., with performance bonds or letters of credit) all amounts paid by the financial assurance provider shall be deposited directly into the standby trust fund for distribution by the trustee in accordance with the district engineer's instructions.

(o) Compliance with applicable law. The compensatory mitigation project must comply with all applicable federal, state, and local laws. The DA permit, mitigation banking instrument, or in-lieu fee program instrument must not require participation by the Corps or any other federal agency in project management, including receipt or management of financial assurances or long-term financing mechanisms, except as determined by the Corps or other agency to be consistent with its statutory authority, mission, and priorities.

§ 332.4 Planning and documentation.

(a) Pre-application consultations. Potential applicants for standard permits are encouraged to participate in pre-application meetings with the Corps and appropriate agencies to discuss potential mitigation requirements and information needs.

(b) Public review and comment. (1) For an activity that requires a standard DA permit pursuant to section 404 of the Clean Water Act, the public notice for the proposed activity must contain a statement explaining how impacts associated with the proposed activity are to be avoided, minimized, and compensated for. This explanation shall address, to the extent that such information is provided in the mitigation statement required by § 325.1(d)(7) of this chapter, the proposed avoidance and minimization and the amount, type, and location of any proposed compensatory mitigation, including any out-of-kind compensation, or indicate an intention to use an approved mitigation bank or in-lieu fee program. The level of detail provided in the public notice must be commensurate with the scope and scale of the impacts. The notice shall not include information that the district engineer and the permittee believe should be kept confidential for business purposes, such as the exact location of a proposed mitigation site that has not yet been secured. The permittee must clearly identify any information being claimed as confidential in the mitigation statement when submitted. In such cases, the notice must still provide enough information to enable the public to provide meaningful comment on the proposed mitigation.

(2) For individual permits, district engineers must consider any timely comments and recommendations from other federal agencies; tribal, state, or local governments; and the public.

(3) For activities authorized by letters of permission or general permits, the review and approval process for compensatory mitigation proposals and plans must be conducted in accordance with the terms and conditions of those permits and applicable regulations including the applicable provisions of this part.

(c) Mitigation plan—(1) Preparation and approval. (i) For individual permits, the permittee must prepare a draft mitigation plan and submit it to the district engineer for review. After addressing any comments provided by the district engineer, the permittee must prepare a final mitigation plan, which must be approved by the district engineer prior to issuing the individual permit. The approved final mitigation plan must be incorporated into the individual permit by reference. The final mitigation plan must include the items described in paragraphs (c)(2) through (c)(14) of this section, but the level of detail of the mitigation plan should be commensurate with the scale and scope of the impacts. As an alternative, the district engineer may determine that it would be more appropriate to address any of the items described in paragraphs (c)(2) through (c)(14) of this section as permit conditions, instead of components of a compensatory mitigation plan. For permittees who intend to fulfill their compensatory mitigation obligations by securing credits from approved mitigation banks or in-lieu fee programs, their mitigation plans need include only the items described in paragraphs (c)(5) and (c)(6) of this section, and the name of the specific mitigation bank or in-lieu fee program to be used.

(ii) For general permits, if compensatory mitigation is required, the district engineer may approve a conceptual or detailed compensatory mitigation plan to meet required time frames for general permit verifications, but a final mitigation plan incorporating the elements in paragraphs (c)(2) through (c)(14) of this section, at a level of detail commensurate with the scale and scope of the impacts, must be approved by the district engineer before the permittee commences work in waters of the United States. As an alternative, the district engineer may determine that it would be more appropriate to address any of the items described in paragraphs (c)(2) through (c)(14) of this section as permit conditions, instead of components of a compensatory mitigation plan. For permittees who intend to fulfill their compensatory mitigation obligations by securing credits from approved mitigation banks or in-lieu fee programs, their mitigation plans need include only the items described in paragraphs (c)(5) and (c)(6) of this section, and either the name of the specific mitigation bank or in-lieu fee program to be used or a statement indicating that a mitigation bank or in-lieu fee program will be used (contingent upon approval by the district engineer).

(iii) Mitigation banks and in-lieu fee programs must prepare a mitigation plan including the items in paragraphs (c)(2) through (c)(14) of this section for each separate compensatory mitigation project site. For mitigation banks and in-lieu fee programs, the preparation and approval process for mitigation plans is described in § 332.8.

(2) Objectives. A description of the resource type(s) and amount(s) that will be provided, the method of compensation (i.e., restoration, establishment, enhancement, and/or preservation), and the manner in which the resource functions of the compensatory mitigation project will address the needs of the watershed, ecoregion, physiographic province, or other geographic area of interest.

(3) Site selection. A description of the factors considered during the site selection process. This should include consideration of watershed needs, on-site alternatives where applicable, and the practicability of accomplishing ecologically self-sustaining aquatic resource restoration, establishment, enhancement, and/or preservation at the compensatory mitigation project site. (See § 332.3(d).)

(4) Site protection instrument. A description of the legal arrangements and instrument, including site ownership, that will be used to ensure the long-term protection of the compensatory mitigation project site (see § 332.7(a)).

(5) Baseline information. A description of the ecological characteristics of the proposed compensatory mitigation project site and, in the case of an application for a DA permit, the impact site. This may include descriptions of historic and existing plant communities, historic and existing hydrology, soil conditions, a map showing the locations of the impact and mitigation site(s) or the geographic coordinates for those site(s), and other site characteristics appropriate to the type of resource proposed as compensation. The baseline information should also include a delineation of waters of the United States on the proposed compensatory mitigation project site. A prospective permittee planning to secure credits from an approved mitigation bank or in-lieu fee program only needs to provide baseline information about the impact site, not the mitigation bank or in-lieu fee project site.

(6) Determination of credits. A description of the number of credits to be provided, including a brief explanation of the rationale for this determination. (See § 332.3(f).)

(i) For permittee-responsible mitigation, this should include an explanation of how the compensatory mitigation project will provide the required compensation for unavoidable impacts to aquatic resources resulting from the permitted activity.

(ii) For permittees intending to secure credits from an approved mitigation bank or in-lieu fee program, it should include the number and resource type of credits to be secured and how these were determined.

(7) Mitigation work plan. Detailed written specifications and work descriptions for the compensatory mitigation project, including, but not limited to, the geographic boundaries of the project; construction methods, timing, and sequence; source(s) of water, including connections to existing waters and uplands; methods for establishing the desired plant community; plans to control invasive plant species; the proposed grading plan, including elevations and slopes of the substrate; soil management; and erosion control measures. For stream compensatory mitigation projects, the mitigation work plan may also include other relevant information, such as planform geometry, channel form (e.g., typical channel cross-sections), watershed size, design discharge, and riparian area plantings.

(8) Maintenance plan. A description and schedule of maintenance requirements to ensure the continued viability of the resource once initial construction is completed.

(9) Performance standards. Ecologically-based standards that will be used to determine whether the compensatory mitigation project is achieving its objectives. (See § 332.5.)

(10) Monitoring requirements. A description of parameters to be monitored in order to determine if the compensatory mitigation project is on track to meet performance standards and if adaptive management is needed. A schedule for monitoring and reporting on monitoring results to the district engineer must be included. (See § 332.6.)

(11) Long-term management plan. A description of how the compensatory mitigation project will be managed after performance standards have been achieved to ensure the long-term sustainability of the resource, including long-term financing mechanisms and the party responsible for long-term management. (See § 332.7(d).)

(12) Adaptive management plan. A management strategy to address unforeseen changes in site conditions or other components of the compensatory mitigation project, including the party or parties responsible for implementing adaptive management measures. The adaptive management plan will guide decisions for revising compensatory mitigation plans and implementing measures to address both foreseeable and unforeseen circumstances that adversely affect compensatory mitigation success. (See § 332.7(c).)

(13) Financial assurances. A description of financial assurances that will be provided and how they are sufficient to ensure a high level of confidence that the compensatory mitigation project will be successfully completed, in accordance with its performance standards (see § 332.3(n)).

(14) Other information. The district engineer may require additional information as necessary to determine the appropriateness, feasibility, and practicability of the compensatory mitigation project.

§ 332.5 Ecological performance standards.

(a) The approved mitigation plan must contain performance standards that will be used to assess whether the project is achieving its objectives. Performance standards should relate to the objectives of the compensatory mitigation project, so that the project can be objectively evaluated to determine if it is developing into the desired resource type, providing the expected functions, and attaining any other applicable metrics (e.g., acres).

(b) Performance standards must be based on attributes that are objective and verifiable. Ecological performance standards must be based on the best available science that can be measured or assessed in a practicable manner. Performance standards may be based on variables or measures of functional capacity described in functional assessment methodologies, measurements of hydrology or other aquatic resource characteristics, and/or comparisons to reference aquatic resources of similar type and landscape position. The use of reference aquatic resources to establish performance standards will help ensure that those performance standards are reasonably achievable, by reflecting the range of variability exhibited by the regional class of aquatic resources as a result of natural processes and anthropogenic disturbances. Performance standards based on measurements of hydrology should take into consideration the hydrologic variability exhibited by reference aquatic resources, especially wetlands. Where practicable, performance standards should take into account the expected stages of the aquatic resource development process, in order to allow early identification of potential problems and appropriate adaptive management.

§ 332.6 Monitoring.

(a) General. (1) Monitoring the compensatory mitigation project site is necessary to determine if the project is meeting its performance standards, and to determine if measures are necessary to ensure that the compensatory mitigation project is accomplishing its objectives. The submission of monitoring reports to assess the development and condition of the compensatory mitigation project is required, but the content and level of detail for those monitoring reports must be commensurate with the scale and scope of the compensatory mitigation project, as well as the compensatory mitigation project type. The mitigation plan must address the monitoring requirements for the compensatory mitigation project, including the parameters to be monitored, the length of the monitoring period, the party responsible for conducting the monitoring, the frequency for submitting monitoring reports to the district engineer, and the party responsible for submitting those monitoring reports to the district engineer.

(2) The district engineer may conduct site inspections on a regular basis (e.g., annually) during the monitoring period to evaluate mitigation site performance.

(b) Monitoring period. The mitigation plan must provide for a monitoring period that is sufficient to demonstrate that the compensatory mitigation project has met performance standards, but not less than five years. A longer monitoring period must be required for aquatic resources with slow development rates (e.g., forested wetlands, bogs). Following project implementation, the district engineer may reduce or waive the remaining monitoring requirements upon a determination that the compensatory mitigation project has achieved its performance standards. Conversely the district engineer may extend the original monitoring period upon a determination that performance standards have not been met or the compensatory mitigation project is not on track to meet them. The district engineer may also revise monitoring requirements when remediation and/or adaptive management is required.

(c) Monitoring reports. (1) The district engineer must determine the information to be included in monitoring reports. This information must be sufficient for the district engineer to determine how the compensatory mitigation project is progressing towards meeting its performance standards, and may include plans (such as as-built plans), maps, and photographs to illustrate site conditions. Monitoring reports may also include the results of functional, condition, or other assessments used to provide quantitative or qualitative measures of the functions provided by the compensatory mitigation project site.

(2) The permittee or sponsor is responsible for submitting monitoring reports in accordance with the special conditions of the DA permit or the terms of the instrument. Failure to submit monitoring reports in a timely manner may result in compliance action by the district engineer.

(3) Monitoring reports must be provided by the district engineer to interested federal, tribal, state, and local resource agencies, and the public, upon request.

§ 332.7 Management.

(a) Site protection. (1) The aquatic habitats, riparian areas, buffers, and uplands that comprise the overall compensatory mitigation project must be provided long-term protection through real estate instruments or other available mechanisms, as appropriate. Long-term protection may be provided through real estate instruments such as conservation easements held by entities such as federal, tribal, state, or local resource agencies, non-profit conservation organizations, or private land managers; the transfer of title to such entities; or by restrictive covenants. For government property, long-term protection may be provided through federal facility management plans or integrated natural resources management plans. When approving a method for long-term protection of non-government property other than transfer of title, the district engineer shall consider relevant legal constraints on the use of conservation easements and/or restrictive covenants in determining whether such mechanisms provide sufficient site protection. To provide sufficient site protection, a conservation easement or restrictive covenant should, where practicable, establish in an appropriate third party (e.g., governmental or non-profit resource management agency) the right to enforce site protections and provide the third party the resources necessary to monitor and enforce these site protections.

(2) The real estate instrument, management plan, or other mechanism providing long-term protection of the compensatory mitigation site must, to the extent appropriate and practicable, prohibit incompatible uses (e.g., clear cutting or mineral extraction) that might otherwise jeopardize the objectives of the compensatory mitigation project. Where appropriate, multiple instruments recognizing compatible uses (e.g., fishing or grazing rights) may be used.

(3) The real estate instrument, management plan, or other long-term protection mechanism must contain a provision requiring 60-day advance notification to the district engineer before any action is taken to void or modify the instrument, management plan, or long-term protection mechanism, including transfer of title to, or establishment of any other legal claims over, the compensatory mitigation site.

(4) For compensatory mitigation projects on public lands, where federal facility management plans or integrated natural resources management plans are used to provide long-term protection, and changes in statute, regulation, or agency needs or mission results in an incompatible use on public lands originally set aside for compensatory mitigation, the public agency authorizing the incompatible use is responsible for providing alternative compensatory mitigation that is acceptable to the district engineer for any loss in functions resulting from the incompatible use.

(5) A real estate instrument, management plan, or other long-term protection mechanism used for site protection of permittee-responsible mitigation must be approved by the district engineer in advance of, or concurrent with, the activity causing the authorized impacts.

(b) Sustainability. Compensatory mitigation projects shall be designed, to the maximum extent practicable, to be self-sustaining once performance standards have been achieved. This includes minimization of active engineering features (e.g., pumps) and appropriate siting to ensure that natural hydrology and landscape context will support long-term sustainability. Where active long-term management and maintenance are necessary to ensure long-term sustainability (e.g., prescribed burning, invasive species control, maintenance of water control structures, easement enforcement), the responsible party must provide for such management and maintenance. This includes the provision of long-term financing mechanisms where necessary. Where needed, the acquisition and protection of water rights must be secured and documented in the permit conditions or instrument.

(c) Adaptive management. (1) If the compensatory mitigation project cannot be constructed in accordance with the approved mitigation plans, the permittee or sponsor must notify the district engineer. A significant modification of the compensatory mitigation project requires approval from the district engineer.

(2) If monitoring or other information indicates that the compensatory mitigation project is not progressing towards meeting its performance standards as anticipated, the responsible party must notify the district engineer as soon as possible. The district engineer will evaluate and pursue measures to address deficiencies in the compensatory mitigation project. The district engineer will consider whether the compensatory mitigation project is providing ecological benefits comparable to the original objectives of the compensatory mitigation project.

(3) The district engineer, in consultation with the responsible party (and other federal, tribal, state, and local agencies, as appropriate), will determine the appropriate measures. The measures may include site modifications, design changes, revisions to maintenance requirements, and revised monitoring requirements. The measures must be designed to ensure that the modified compensatory mitigation project provides aquatic resource functions comparable to those described in the mitigation plan objectives.

(4) Performance standards may be revised in accordance with adaptive management to account for measures taken to address deficiencies in the compensatory mitigation project. Performance standards may also be revised to reflect changes in management strategies and objectives if the new standards provide for ecological benefits that are comparable or superior to the approved compensatory mitigation project. No other revisions to performance standards will be allowed except in the case of natural disasters.

(d) Long-term management. (1) The permit conditions or instrument must identify the party responsible for ownership and all long-term management of the compensatory mitigation project. The permit conditions or instrument may contain provisions allowing the permittee or sponsor to transfer the long-term management responsibilities of the compensatory mitigation project site to a land stewardship entity, such as a public agency, non-governmental organization, or private land manager, after review and approval by the district engineer. The land stewardship entity need not be identified in the original permit or instrument, as long as the future transfer of long-term management responsibility is approved by the district engineer.

(2) A long-term management plan should include a description of long-term management needs, annual cost estimates for these needs, and identify the funding mechanism that will be used to meet those needs.

(3) Any provisions necessary for long-term financing must be addressed in the original permit or instrument. The district engineer may require provisions to address inflationary adjustments and other contingencies, as appropriate. Appropriate long-term financing mechanisms include non-wasting endowments, trusts, contractual arrangements with future responsible parties, and other appropriate financial instruments. In cases where the long-term management entity is a public authority or government agency, that entity must provide a plan for the long-term financing of the site.

(4) For permittee-responsible mitigation, any long-term financing mechanisms must be approved in advance of the activity causing the authorized impacts.

§ 332.8 Mitigation banks and in-lieu fee programs.

(a) General considerations. (1) All mitigation banks and in-lieu fee programs must have an approved instrument signed by the sponsor and the district engineer prior to being used to provide compensatory mitigation for DA permits.

(2) To the maximum extent practicable, mitigation banks and in-lieu fee project sites must be planned and designed to be self-sustaining over time, but some active management and maintenance may be required to ensure their long-term viability and sustainability. Examples of acceptable management activities include maintaining fire-dependent habitat communities in the absence of natural fire and controlling invasive exotic plant species.

(3) All mitigation banks and in-lieu fee programs must comply with the standards in this part, if they are to be used to provide compensatory mitigation for activities authorized by DA permits, regardless of whether they are sited on public or private lands and whether the sponsor is a governmental or private entity.

(b) Interagency Review Team. (1) The district engineer will establish an Interagency Review Team (IRT) to review documentation for the establishment and management of mitigation banks and in-lieu fee programs. The district engineer or his designated representative serves as Chair of the IRT. In cases where a mitigation bank or in-lieu fee program is proposed to satisfy the requirements of another federal, tribal, state, or local program, in addition to compensatory mitigation requirements of DA permits, it may be appropriate for the administering agency to serve as co-Chair of the IRT.

(2) In addition to the Corps, representatives from the U.S. Environmental Protection Agency, U.S. Fish and Wildlife Service, NOAA Fisheries, the Natural Resources Conservation Service, and other federal agencies, as appropriate, may participate in the IRT. The IRT may also include representatives from tribal, state, and local regulatory and resource agencies, where such agencies have authorities and/or mandates directly affecting, or affected by, the establishment, operation, or use of the mitigation bank or in-lieu fee program. The district engineer will seek to include all public agencies with a substantive interest in the establishment of the mitigation bank or in-lieu fee program on the IRT, but retains final authority over its composition.

(3) The primary role of the IRT is to facilitate the establishment of mitigation banks or in-lieu fee programs through the development of mitigation banking or in-lieu fee program instruments. The IRT will review the prospectus, instrument, and other appropriate documents and provide comments to the district engineer. The district engineer and the IRT should use a watershed approach to the extent practicable in reviewing proposed mitigation banks and in-lieu fee programs. Members of the IRT may also sign the instrument, if they so choose. By signing the instrument, the IRT members indicate their agreement with the terms of the instrument. As an alternative, a member of the IRT may submit a letter expressing concurrence with the instrument. The IRT will also advise the district engineer in assessing monitoring reports, recommending remedial or adaptive management measures, approving credit releases, and approving modifications to an instrument. In order to ensure timely processing of instruments and other documentation, comments from IRT members must be received by the district engineer within the time limits specified in this section. Comments received after these deadlines will only be considered at the discretion of the district engineer to the extent that doing so does not jeopardize the deadlines for district engineer action.

(4) The district engineer will give full consideration to any timely comments and advice of the IRT. The district engineer alone retains final authority for approval of the instrument in cases where the mitigation bank or in-lieu fee program is used to satisfy compensatory mitigation requirements of DA permits.

(5) MOAs with other agencies. The district engineer and members of the IRT may enter into a memorandum of agreement (MOA) with any other federal, state or local government agency to perform all or some of the IRT review functions described in this section. Such MOAs must include provisions for appropriate federal oversight of the review process. The district engineer retains sole authority for final approval of instruments and other documentation required under this section.

(c) Compensation planning framework for in-lieu fee programs. (1) The approved instrument for an in-lieu fee program must include a compensation planning framework that will be used to select, secure, and implement aquatic resource restoration, establishment, enhancement, and/or preservation activities. The compensation planning framework must support a watershed approach to compensatory mitigation. All specific projects used to provide compensation for DA permits must be consistent with the approved compensation planning framework. Modifications to the framework must be approved as a significant modification to the instrument by the district engineer, after consultation with the IRT.

(2) The compensation planning framework must contain the following elements:

(i) The geographic service area(s), including a watershed-based rationale for the delineation of each service area;

(ii) A description of the threats to aquatic resources in the service area(s), including how the in-lieu fee program will help offset impacts resulting from those threats;

(iii) An analysis of historic aquatic resource loss in the service area(s);

(iv) An analysis of current aquatic resource conditions in the service area(s), supported by an appropriate level of field documentation;

(v) A statement of aquatic resource goals and objectives for each service area, including a description of the general amounts, types and locations of aquatic resources the program will seek to provide;

(vi) A prioritization strategy for selecting and implementing compensatory mitigation activities;

(vii) An explanation of how any preservation objectives identified in paragraph (c)(2)(v) of this section and addressed in the prioritization strategy in paragraph (c)(2)(vi) satisfy the criteria for use of preservation in § 332.3(h);

(viii) A description of any public and private stakeholder involvement in plan development and implementation, including, where appropriate, coordination with federal, state, tribal and local aquatic resource management and regulatory authorities;

(ix) A description of the long-term protection and management strategies for activities conducted by the in-lieu fee program sponsor;

(x) A strategy for periodic evaluation and reporting on the progress of the program in achieving the goals and objectives in paragraph (c)(2)(v) of this section, including a process for revising the planning framework as necessary; and

(xi) Any other information deemed necessary for effective compensation planning by the district engineer.

(3) The level of detail necessary for the compensation planning framework is at the discretion of the district engineer, and will take into account the characteristics of the service area(s) and the scope of the program. As part of the in-lieu fee program instrument, the compensation planning framework will be reviewed by the IRT, and will be a major factor in the district engineer's decision on whether to approve the instrument.

(d) Review process. (1) The sponsor is responsible for preparing all documentation associated with establishment of the mitigation bank or in-lieu fee program, including the prospectus, instrument, and other appropriate documents, such as mitigation plans for a mitigation bank. The prospectus provides an overview of the proposed mitigation bank or in-lieu fee program and serves as the basis for public and initial IRT comment. For a mitigation bank, the mitigation plan, as described in § 332.4(c), provides detailed plans and specifications for the mitigation bank site. For in-lieu fee programs, mitigation plans will be prepared as in-lieu fee project sites are identified after the instrument has been approved and the in-lieu fee program becomes operational. The instrument provides the authorization for the mitigation bank or in-lieu fee program to provide credits to be used as compensatory mitigation for DA permits.

(2) Prospectus. The prospectus must provide a summary of the information regarding the proposed mitigation bank or in-lieu fee program, at a sufficient level of detail to support informed public and IRT comment. The review process begins when the sponsor submits a complete prospectus to the district engineer. For modifications of approved instruments, submittal of a new prospectus is not required; instead, the sponsor must submit a written request for an instrument modification accompanied by appropriate documentation. The district engineer must notify the sponsor within 30 days whether or not a submitted prospectus is complete. A complete prospectus includes the following information:

(i) The objectives of the proposed mitigation bank or in-lieu fee program.

(ii) How the mitigation bank or in-lieu fee program will be established and operated.

(iii) The proposed service area.

(iv) The general need for and technical feasibility of the proposed mitigation bank or in-lieu fee program.

(v) The proposed ownership arrangements and long-term management strategy for the mitigation bank or in-lieu fee project sites.

(vi) The qualifications of the sponsor to successfully complete the type(s) of mitigation project(s) proposed, including information describing any past such activities by the sponsor.

(vii) For a proposed mitigation bank, the prospectus must also address:

(A) The ecological suitability of the site to achieve the objectives of the proposed mitigation bank, including the physical, chemical, and biological characteristics of the bank site and how that site will support the planned types of aquatic resources and functions; and

(B) Assurance of sufficient water rights to support the long-term sustainability of the mitigation bank.

(viii) For a proposed in-lieu fee program, the prospectus must also include:

(A) The compensation planning framework (see paragraph (c) of this section); and

(B) A description of the in-lieu fee program account required by paragraph (i) of this section.

(3) Preliminary review of prospectus. Prior to submitting a prospectus, the sponsor may elect to submit a draft prospectus to the district engineer for comment and consultation. The district engineer will provide copies of the draft prospectus to the IRT and will provide comments back to the sponsor within 30 days. Any comments from IRT members will also be forwarded to the sponsor. This preliminary review is optional but is strongly recommended. It is intended to identify potential issues early so that the sponsor may attempt to address those issues prior to the start of the formal review process.

(4) Public review and comment. Within 30 days of receipt of a complete prospectus or an instrument modification request that will be processed in accordance with paragraph (g)(1) of this section, the district engineer will provide public notice of the proposed mitigation bank or in-lieu fee program, in accordance with the public notice procedures at 33 CFR 325.3. The public notice must, at a minimum, include a summary of the prospectus and indicate that the full prospectus is available to the public for review upon request. For modifications of approved instruments, the public notice must instead summarize, and make available to the public upon request, whatever documentation is appropriate for the modification (e.g., a new or revised mitigation plan). The comment period for public notice will be 30 days, unless the district engineer determines that a longer comment period is appropriate. The district engineer will notify the sponsor if the comment period is extended beyond 30 days, including an explanation of why the longer comment period is necessary. Copies of all comments received in response to the public notice must be distributed to the other IRT members and to the sponsor within 15 days of the close of the public comment period. The district engineer and IRT members may also provide comments to the sponsor at this time, and copies of any such comments will also be distributed to all IRT members. If the construction of a mitigation bank or an in-lieu fee program project requires a DA permit, the public notice requirement may be satisfied through the public notice provisions of the permit processing procedures, provided all of the relevant information is provided.

(5) Initial evaluation. (i) After the end of the comment period, the district engineer will review the comments received in response to the public notice, and make a written initial evaluation as to the potential of the proposed mitigation bank or in-lieu fee program to provide compensatory mitigation for activities authorized by DA permits. This initial evaluation letter must be provided to the sponsor within 30 days of the end of the public notice comment period.

(ii) If the district engineer determines that the proposed mitigation bank or in-lieu fee program has potential for providing appropriate compensatory mitigation for activities authorized by DA permits, the initial evaluation letter will inform the sponsor that he/she may proceed with preparation of the draft instrument (see paragraph (d)(6) of this section).

(iii) If the district engineer determines that the proposed mitigation bank or in-lieu fee program does not have potential for providing appropriate compensatory mitigation for DA permits, the initial evaluation letter must discuss the reasons for that determination. The sponsor may revise the prospectus to address the district engineer's concerns, and submit the revised prospectus to the district engineer. If the sponsor submits a revised prospectus, a revised public notice will be issued in accordance with paragraph (d)(4) of this section.

(iv) This initial evaluation procedure does not apply to proposed modifications of approved instruments.

(6) Draft instrument. (i) After considering comments from the district engineer, the IRT, and the public, if the sponsor chooses to proceed with establishment of the mitigation bank or in-lieu fee program, he must prepare a draft instrument and submit it to the district engineer. In the case of an instrument modification, the sponsor must prepare a draft amendment (e.g., a specific instrument provision, a new or modified mitigation plan), and submit it to the district engineer. The district engineer must notify the sponsor within 30 days of receipt, whether the draft instrument or amendment is complete. If the draft instrument or amendment is incomplete, the district engineer will request from the sponsor the information necessary to make the draft instrument or amendment complete. Once any additional information is submitted, the district engineer must notify the sponsor as soon as he determines that the draft instrument or amendment is complete. The draft instrument must be based on the prospectus and must describe in detail the physical and legal characteristics of the mitigation bank or in-lieu fee program and how it will be established and operated.

(ii) For mitigation banks and in-lieu fee programs, the draft instrument must include the following information:

(A) A description of the proposed geographic service area of the mitigation bank or in-lieu fee program. The service area is the watershed, ecoregion, physiographic province, and/or other geographic area within which the mitigation bank or in-lieu fee program is authorized to provide compensatory mitigation required by DA permits. The service area must be appropriately sized to ensure that the aquatic resources provided will effectively compensate for adverse environmental impacts across the entire service area. For example, in urban areas, a U.S. Geological Survey 8-digit hydrologic unit code (HUC) watershed or a smaller watershed may be an appropriate service area. In rural areas, several contiguous 8-digit HUCs or a 6-digit HUC watershed may be an appropriate service area. Delineation of the service area must also consider any locally-developed standards and criteria that may be applicable. The economic viability of the mitigation bank or in-lieu fee program may also be considered in determining the size of the service area. The basis for the proposed service area must be documented in the instrument. An in-lieu fee program or umbrella mitigation banking instrument may have multiple service areas governed by its instrument (e.g., each watershed within a state or Corps district may be a separate service area under the instrument); however, all impacts and compensatory mitigation must be accounted for by service area;

(B) Accounting procedures;

(C) A provision stating that legal responsibility for providing the compensatory mitigation lies with the sponsor once a permittee secures credits from the sponsor;

(D) Default and closure provisions;

(E) Reporting protocols; and

(F) Any other information deemed necessary by the district engineer.

(iii) For a mitigation bank, a complete draft instrument must include the following additional information:

(A) Mitigation plans that include all applicable items listed in § 332.4(c)(2) through (14); and

(B) A credit release schedule, which is tied to achievement of specific milestones. All credit releases must be approved by the district engineer, in consultation with the IRT, based on a determination that required milestones have been achieved. The district engineer, in consultation with the IRT, may modify the credit release schedule, including reducing the number of available credits or suspending credit sales or transfers altogether, where necessary to ensure that all credit sales or transfers remain tied to compensatory mitigation projects with a high likelihood of meeting performance standards;

(iv) For an in-lieu fee program, a complete draft instrument must include the following additional information:

(A) The compensation planning framework (see paragraph (c) of this section);

(B) Specification of the initial allocation of advance credits (see paragraph (n) of this section) and a draft fee schedule for these credits, by service area, including an explanation of the basis for the allocation and draft fee schedule;

(C) A methodology for determining future project-specific credits and fees; and

(D) A description of the in-lieu fee program account required by paragraph (i) of this section.

(7) IRT review. Upon receipt of notification by the district engineer that the draft instrument or amendment is complete, the sponsor must provide the district engineer with a sufficient number of copies of the draft instrument or amendment to distribute to the IRT members. The district engineer will promptly distribute copies of the draft instrument or amendment to the IRT members for a 30-day comment period. The 30-day comment period begins 5 days after the district engineer distributes the copies of the draft instrument or amendment to the IRT. Following the comment period, the district engineer will discuss any comments with the appropriate agencies and with the sponsor. The district engineer will seek to resolve issues using a consensus based approach, to the extent practicable, while still meeting the decision-making time frames specified in this section. Within 90 days of receipt of the complete draft instrument or amendment by the IRT members, the district engineer must notify the sponsor of the status of the IRT review. Specifically, the district engineer must indicate to the sponsor if the draft instrument or amendment is generally acceptable and what changes, if any, are needed. If there are significant unresolved concerns that may lead to a formal objection from one or more IRT members to the final instrument or amendment, the district engineer will indicate the nature of those concerns.

(8) Final instrument. The sponsor must submit a final instrument to the district engineer for approval, with supporting documentation that explains how the final instrument addresses the comments provided by the IRT. For modifications of approved instruments, the sponsor must submit a final amendment to the district engineer for approval, with supporting documentation that explains how the final amendment addresses the comments provided by the IRT. The final instrument or amendment must be provided directly by the sponsor to all members of the IRT. Within 30 days of receipt of the final instrument or amendment, the district engineer will notify the IRT members whether or not he intends to approve the instrument or amendment. If no IRT member objects, by initiating the dispute resolution process in paragraph (e) of this section within 45 days of receipt of the final instrument or amendment, the district engineer will notify the sponsor of his final decision and, if the instrument or amendment is approved, arrange for it to be signed by the appropriate parties. If any IRT member initiates the dispute resolution process, the district engineer will notify the sponsor. Following conclusion of the dispute resolution process, the district engineer will notify the sponsor of his final decision, and if the instrument or amendment is approved, arrange for it to be signed by the appropriate parties. For mitigation banks, the final instrument must contain the information items listed in paragraphs (d)(6)(ii), and (iii) of this section. For in-lieu fee programs, the final instrument must contain the information items listed in paragraphs (d)(6)(ii) and (iv) of this section. For the modification of an approved instrument, the amendment must contain appropriate information, as determined by the district engineer. The final instrument or amendment must be made available to the public upon request.

(e) Dispute resolution process. (1) Within 15 days of receipt of the district engineer's notification of intent to approve an instrument or amendment, the Regional Administrator of the U.S. EPA, the Regional Director of the U.S. Fish and Wildlife Service, the Regional Director of the National Marine Fisheries Service, and/or other senior officials of agencies represented on the IRT may notify the district engineer and other IRT members by letter if they object to the approval of the proposed final instrument or amendment. This letter must include an explanation of the basis for the objection and, where feasible, offer recommendations for resolving the objections. If the district engineer does not receive any objections within this time period, he may proceed to final action on the instrument or amendment.

(2) The district engineer must respond to the objection within 30 days of receipt of the letter. The district engineer's response may indicate an intent to disapprove the instrument or amendment as a result of the objection, an intent to approve the instrument or amendment despite the objection, or may provide a modified instrument or amendment that attempts to address the objection. The district engineer's response must be provided to all IRT members.

(3) Within 15 days of receipt of the district engineer's response, if the Regional Administrator or Regional Director is not satisfied with the response he may forward the issue to the Assistant Administrator for Water of the U.S. EPA, the Assistant Secretary for Fish and Wildlife and Parks of the U.S. FWS, or the Undersecretary for Oceans and Atmosphere of NOAA, as appropriate, for review and must notify the district engineer by letter via electronic mail or facsimile machine (with copies to all IRT members) that the issue has been forwarded for Headquarters review. This step is available only to the IRT members representing these three federal agencies, however other IRT members who do not agree with the district engineer's final decision do not have to sign the instrument or amendment or recognize the mitigation bank or in-lieu fee program for purposes of their own programs and authorities. If an IRT member other than the one filing the original objection has a new objection based on the district engineer's response, he may use the first step in this procedure (paragraph (e)(1) of this section) to provide that objection to the district engineer.

(4) If the issue has not been forwarded to the objecting agency's Headquarters, then the district engineer may proceed with final action on the instrument or amendment. If the issue has been forwarded to the objecting agency's Headquarters, the district engineer must hold in abeyance the final action on the instrument or amendment, pending Headquarters level review described below.

(5) Within 20 days from the date of the letter requesting Headquarters level review, the Assistant Administrator for Water, the Assistant Secretary for Fish and Wildlife and Parks, or the Undersecretary for Oceans and Atmosphere must either notify the Assistant Secretary of the Army (Civil Works) (ASA(CW)) that further review will not be requested, or request that the ASA(CW) review the final instrument or amendment.

(6) Within 30 days of receipt of the letter from the objecting agency's Headquarters request for ASA(CW)'s review of the final instrument, the ASA(CW), through the Director of Civil Works, must review the draft instrument or amendment and advise the district engineer on how to proceed with final action on that instrument or amendment. The ASA(CW) must immediately notify the Assistant Administrator for Water, the Assistant Secretary for Fish and Wildlife and Parks, and/or the Undersecretary for Oceans and Atmosphere of the final decision.

(7) In cases where the dispute resolution procedure is used, the district engineer must notify the sponsor of his final decision within 150 days of receipt of the final instrument or amendment.

(f) Extension of deadlines. (1) The deadlines in paragraphs (d) and (e) of this section may be extended by the district engineer at his sole discretion in cases where:

(i) Compliance with other applicable laws, such as consultation under section 7 of the Endangered Species Act or section 106 of the National Historic Preservation Act, is required;

(ii) It is necessary to conduct government-to-government consultation with Indian tribes;

(iii) Timely submittal of information necessary for the review of the proposed mitigation bank or in-lieu fee program or the proposed modification of an approved instrument is not accomplished by the sponsor; or

(iv) Information that is essential to the district engineer's decision cannot be reasonably obtained within the specified time frame.

(2) In such cases, the district engineer must promptly notify the sponsor in writing of the extension and the reason for it. Such extensions shall be for the minimum time necessary to resolve the issue necessitating the extension.

(g) Modification of instruments—(1) Approval of an amendment to an approved instrument. Modification of an approved instrument, including the addition and approval of umbrella mitigation bank sites or in-lieu fee project sites or expansions of previously approved mitigation bank or in-lieu fee project sites, must follow the appropriate procedures in paragraph (d) of this section, unless the district engineer determines that the streamlined review process described in paragraph (g)(2) of this section is warranted.

(2) Streamlined review process. The streamlined modification review process may be used for the following modifications of instruments: changes reflecting adaptive management of the mitigation bank or in-lieu fee program, credit releases, changes in credit releases and credit release schedules, and changes that the district engineer determines are not significant. If the district engineer determines that the streamlined review process is warranted, he must notify the IRT members and the sponsor of this determination and provide them with copies of the proposed modification. IRT members and the sponsor have 30 days to notify the district engineer if they have concerns with the proposed modification. If IRT members or the sponsor notify the district engineer of such concerns, the district engineer shall attempt to resolve those concerns. Within 60 days of providing the proposed modification to the IRT, the district engineer must notify the IRT members of his intent to approve or disapprove the proposed modification. If no IRT member objects, by initiating the dispute resolution process in paragraph (e) of this section, within 15 days of receipt of this notification, the district engineer will notify the sponsor of his final decision and, if the modification is approved, arrange for it to be signed by the appropriate parties. If any IRT member initiates the dispute resolution process, the district engineer will so notify the sponsor. Following conclusion of the dispute resolution process, the district engineer will notify the sponsor of his final decision, and if the modification is approved, arrange for it to be signed by the appropriate parties.

(h) Umbrella mitigation banking instruments. A single mitigation banking instrument may provide for future authorization of additional mitigation bank sites. As additional sites are selected, they must be included in the mitigation banking instrument as modifications, using the procedures in paragraph (g)(1) of this section. Credit withdrawal from the additional bank sites shall be consistent with paragraph (m) of this section.

(i) In-lieu fee program account. (1) The in-lieu fee program sponsor must establish a program account after the instrument is approved by the district engineer, prior to accepting any fees from permittees. If the sponsor accepts funds from entities other than permittees, those funds must be kept in separate accounts. The program account must be established at a financial institution that is a member of the Federal Deposit Insurance Corporation. All interests and earnings accruing to the program account must remain in that account for use by the in-lieu fee program for the purposes of providing compensatory mitigation for DA permits. The program account may only be used for the selection, design, acquisition, implementation, and management of in-lieu fee compensatory mitigation projects, except for a small percentage (as determined by the district engineer in consultation with the IRT and specified in the instrument) that can be used for administrative costs.

(2) The sponsor must submit proposed in-lieu fee projects to the district engineer for funding approval. Disbursements from the program account may only be made upon receipt of written authorization from the district engineer, after the district engineer has consulted with the IRT. The terms of the program account must specify that the district engineer has the authority to direct those funds to alternative compensatory mitigation projects in cases where the sponsor does not provide compensatory mitigation in accordance with the time frame specified in paragraph (n)(4) of this section.

(3) The sponsor must provide annual reports to the district engineer and the IRT. The annual reports must include the following information:

(i) All income received, disbursements, and interest earned by the program account;

(ii) A list of all permits for which in-lieu fee program funds were accepted. This list shall include: The Corps permit number (or the state permit number if there is no corresponding Corps permit number, in cases of state programmatic general permits or other regional general permits), the service area in which the authorized impacts are located, the amount of authorized impacts, the amount of required compensatory mitigation, the amount paid to the in-lieu fee program, and the date the funds were received from the permittee;

(iii) A description of in-lieu fee program expenditures from the account, such as the costs of land acquisition, planning, construction, monitoring, maintenance, contingencies, adaptive management, and administration;

(iv) The balance of advance credits and released credits at the end of the report period for each service area; and

(v) Any other information required by the district engineer.

(4) The district engineer may audit the records pertaining to the program account. All books, accounts, reports, files, and other records relating to the in-lieu fee program account shall be available at reasonable times for inspection and audit by the district engineer.

(j) In-lieu fee project approval. (1) As in-lieu fee project sites are identified and secured, the sponsor must submit mitigation plans to the district engineer that include all applicable items listed in § 332.4(c)(2) through (14). The mitigation plan must also include a credit release schedule consistent with paragraph (o)(8) of this section that is tied to achievement of specific performance standards. The review and approval of in-lieu fee projects will be conducted in accordance with the procedures in paragraph (g)(1) of this section, as modifications of the in-lieu fee program instrument. This includes compensatory mitigation projects conducted by another party on behalf of the sponsor through requests for proposals and awarding of contracts.

(2) If a DA permit is required for an in-lieu fee project, the permit should not be issued until all relevant provisions of the mitigation plan have been substantively determined, to ensure that the DA permit accurately reflects all relevant provisions of the approved mitigation plan, such as performance standards.

(k) Coordination of mitigation banking instruments and DA permit issuance. In cases where initial establishment of the mitigation bank, or the development of a new project site under an umbrella banking instrument, involves activities requiring DA authorization, the permit should not be issued until all relevant provisions of the mitigation plan have been substantively determined. This is to ensure that the DA permit accurately reflects all relevant provisions of the final instrument, such as performance standards.

(l) Project implementation. (1) The sponsor must have an approved instrument prior to collecting funds from permittees to satisfy compensatory mitigation requirements for DA permits.

(2) Authorization to sell credits to satisfy compensatory mitigation requirements in DA permits is contingent on compliance with all of the terms of the instrument. This includes constructing a mitigation bank or in-lieu fee project in accordance with the mitigation plan approved by the district engineer and incorporated by reference in the instrument. If the aquatic resource restoration, establishment, enhancement, and/or preservation activities cannot be implemented in accordance with the approved mitigation plan, the district engineer must consult with the sponsor and the IRT to consider modifications to the instrument, including adaptive management, revisions to the credit release schedule, and alternatives for providing compensatory mitigation to satisfy any credits that have already been sold.

(3) An in-lieu fee program sponsor is responsible for the implementation, long-term management, and any required remediation of the restoration, establishment, enhancement, and/or preservation activities, even though those activities may be conducted by other parties through requests for proposals or other contracting mechanisms.

(m) Credit withdrawal from mitigation banks. The mitigation banking instrument may allow for an initial debiting of a percentage of the total credits projected at mitigation bank maturity, provided the following conditions are satisfied: the mitigation banking instrument and mitigation plan have been approved, the mitigation bank site has been secured, appropriate financial assurances have been established, and any other requirements determined to be necessary by the district engineer have been fulfilled. The mitigation banking instrument must provide a schedule for additional credit releases as appropriate milestones are achieved (see paragraph (o)(8) of this section). Implementation of the approved mitigation plan shall be initiated no later than the first full growing season after the date of the first credit transaction.

(n) Advance credits for in-lieu fee programs. (1) The in-lieu fee program instrument may make a limited number of advance credits available to permittees when the instrument is approved. The number of advance credits will be determined by the district engineer, in consultation with the IRT, and will be specified for each service area in the instrument. The number of advance credits will be based on the following considerations:

(i) The compensation planning framework;

(ii) The sponsor's past performance for implementing aquatic resource restoration, establishment, enhancement, and/or preservation activities in the proposed service area or other areas; and

(iii) The projected financing necessary to begin planning and implementation of in-lieu fee projects.

(2) To determine the appropriate number of advance credits for a particular service area, the district engineer may require the sponsor to provide confidential supporting information that will not be made available to the general public. Examples of confidential supporting information may include prospective in-lieu fee project sites.

(3) As released credits are produced by in-lieu fee projects, they must be used to fulfill any advance credits that have already been provided within the project service area before any remaining released credits can be sold or transferred to permittees. Once previously provided advance credits have been fulfilled, an equal number of advance credits is re-allocated to the sponsor for sale or transfer to fulfill new mitigation requirements, consistent with the terms of the instrument. The number of advance credits available to the sponsor at any given time to sell or transfer to permittees in a given service area is equal to the number of advance credits specified in the instrument, minus any that have already been provided but not yet fulfilled.

(4) Land acquisition and initial physical and biological improvements must be completed by the third full growing season after the first advance credit in that service area is secured by a permittee, unless the district engineer determines that more or less time is needed to plan and implement an in-lieu fee project. If the district engineer determines that there is a compensatory mitigation deficit in a specific service area by the third growing season after the first advance credit in that service area is sold, and determines that it would not be in the public interest to allow the sponsor additional time to plan and implement an in-lieu fee project, the district engineer must direct the sponsor to disburse funds from the in-lieu fee program account to provide alternative compensatory mitigation to fulfill those compensation obligations.

(5) The sponsor is responsible for complying with the terms of the in-lieu fee program instrument. If the district engineer determines, as a result of review of annual reports on the operation of the in-lieu fee program (see paragraphs (p)(2) and (q)(1) of this section), that it is not performing in compliance with its instrument, the district engineer will take appropriate action, which may include suspension of credit sales, to ensure compliance with the in-lieu fee program instrument (see paragraph (o)(10) of this section). Permittees that secured credits from the in-lieu fee program are not responsible for in-lieu fee program compliance.

(o) Determining credits. (1) Units of measure. The principal units for credits and debits are acres, linear feet, functional assessment units, or other suitable metrics of particular resource types. Functional assessment units or other suitable metrics may be linked to acres or linear feet.

(2) Assessment. Where practicable, an appropriate assessment method (e.g., hydrogeomorphic approach to wetlands functional assessment, index of biological integrity) or other suitable metric must be used to assess and describe the aquatic resource types that will be restored, established, enhanced and/or preserved by the mitigation bank or in-lieu fee project.

(3) Credit production. The number of credits must reflect the difference between pre- and post-compensatory mitigation project site conditions, as determined by a functional or condition assessment or other suitable metric.

(4) Credit value. Once a credit is debited (sold or transferred to a permittee), its value cannot change.

(5) Credit costs. (i) The cost of compensatory mitigation credits provided by a mitigation bank or in-lieu fee program is determined by the sponsor.

(ii) For in-lieu fee programs, the cost per unit of credit must include the expected costs associated with the restoration, establishment, enhancement, and/or preservation of aquatic resources in that service area. These costs must be based on full cost accounting, and include, as appropriate, expenses such as land acquisition, project planning and design, construction, plant materials, labor, legal fees, monitoring, and remediation or adaptive management activities, as well as administration of the in-lieu fee program. The cost per unit credit must also take into account contingency costs appropriate to the stage of project planning, including uncertainties in construction and real estate expenses. The cost per unit of credit must also take into account the resources necessary for the long-term management and protection of the in-lieu fee project. In addition, the cost per unit credit must include financial assurances that are necessary to ensure successful completion of in-lieu fee projects.

(6) Credits provided by preservation. These credits should be specified as acres, linear feet, or other suitable metrics of preservation of a particular resource type. In determining the compensatory mitigation requirements for DA permits using mitigation banks or in-lieu fee programs, the district engineer should apply a higher mitigation ratio if the requirements are to be met through the use of preservation credits. In determining this higher ratio, the district engineer must consider the relative importance of both the impacted and the preserved aquatic resources in sustaining watershed functions.

(7) Credits provided by riparian areas, buffers, and uplands. These credits should be specified as acres, linear feet, or other suitable metrics of riparian area, buffer, and uplands, respectively. Non-aquatic resources can only be used as compensatory mitigation for impacts to aquatic resources authorized by DA permits when those resources are essential to maintaining the ecological viability of adjoining aquatic resources. In determining the compensatory mitigation requirements for DA permits using mitigation banks and in-lieu fee programs, the district engineer may authorize the use of riparian area, buffer, and/or upland credits if he determines that these areas are essential to sustaining aquatic resource functions in the watershed and are the most appropriate compensation for the authorized impacts.

(8) Credit release schedule. (i) General considerations. Release of credits must be tied to performance-based milestones (e.g., construction, planting, establishment of specified plant and animal communities). The credit release schedule should reserve a significant share of the total credits for release only after full achievement of ecological performance standards. When determining the credit release schedule, factors to be considered may include, but are not limited to: The method of providing compensatory mitigation credits (e.g., restoration), the likelihood of success, the nature and amount of work needed to generate the credits, and the aquatic resource type(s) and function(s) to be provided by the mitigation bank or in-lieu fee project. The district engineer will determine the credit release schedule, including the share to be released only after full achievement of performance standards, after consulting with the IRT. Once released, credits may only be used to satisfy compensatory mitigation requirements of a DA permit if the use of credits for a specific permit has been approved by the district engineer.

(ii) For single-site mitigation banks, the terms of the credit release schedule must be specified in the mitigation banking instrument. The credit release schedule may provide for an initial debiting of a limited number of credits once the instrument is approved and other appropriate milestones are achieved (see paragraph (m) of this section).

(iii) For in-lieu fee projects and umbrella mitigation bank sites, the terms of the credit release schedule must be specified in the approved mitigation plan. When an in-lieu fee project or umbrella mitigation bank site is implemented and is achieving the performance-based milestones specified in the credit release schedule, credits are generated in accordance with the credit release schedule for the approved mitigation plan. If the in-lieu fee project or umbrella mitigation bank site does not achieve those performance-based milestones, the district engineer may modify the credit release schedule, including reducing the number of credits.

(9) Credit release approval. Credit releases for mitigation banks and in-lieu fee projects must be approved by the district engineer. In order for credits to be released, the sponsor must submit documentation to the district engineer demonstrating that the appropriate milestones for credit release have been achieved and requesting the release. The district engineer will provide copies of this documentation to the IRT members for review. IRT members must provide any comments to the district engineer within 15 days of receiving this documentation. However, if the district engineer determines that a site visit is necessary, IRT members must provide any comments to the district engineer within 15 days of the site visit. The district engineer must schedule the site visit so that it occurs as soon as it is practicable, but the site visit may be delayed by seasonal considerations that affect the ability of the district engineer and the IRT to assess whether the applicable credit release milestones have been achieved. After full consideration of any comments received, the district engineer will determine whether the milestones have been achieved and the credits can be released. The district engineer shall make a decision within 30 days of the end of that comment period, and notify the sponsor and the IRT.

(10) Suspension and termination. If the district engineer determines that the mitigation bank or in-lieu fee program is not meeting performance standards or complying with the terms of the instrument, appropriate action will be taken. Such actions may include, but are not limited to, suspending credit sales, adaptive management, decreasing available credits, utilizing financial assurances, and terminating the instrument.

(p) Accounting procedures. (1) For mitigation banks, the instrument must contain a provision requiring the sponsor to establish and maintain a ledger to account for all credit transactions. Each time an approved credit transaction occurs, the sponsor must notify the district engineer.

(2) For in-lieu fee programs, the instrument must contain a provision requiring the sponsor to establish and maintain an annual report ledger in accordance with paragraph (i)(3) of this section, as well as individual ledgers that track the production of released credits for each in-lieu fee project.

(q) Reporting. (1) Ledger account. The sponsor must compile an annual ledger report showing the beginning and ending balance of available credits and permitted impacts for each resource type, all additions and subtractions of credits, and any other changes in credit availability (e.g., additional credits released, credit sales suspended). The ledger report must be submitted to the district engineer, who will distribute copies to the IRT members. The ledger report is part of the administrative record for the mitigation bank or in-lieu fee program. The district engineer will make the ledger report available to the public upon request.

(2) Monitoring reports. The sponsor is responsible for monitoring the mitigation bank site or the in-lieu fee project site in accordance with the approved monitoring requirements to determine the level of success and identify problems requiring remedial action or adaptive management measures. Monitoring must be conducted in accordance with the requirements in § 332.6, and at time intervals appropriate for the particular project type and until such time that the district engineer, in consultation with the IRT, has determined that the performance standards have been attained. The instrument must include requirements for periodic monitoring reports to be submitted to the district engineer, who will provide copies to other IRT members.

(3) Financial assurance and long-term management funding report. The district engineer may require the sponsor to provide an annual report showing beginning and ending balances, including deposits into and any withdrawals from, the accounts providing funds for financial assurances and long-term management activities. The report should also include information on the amount of required financial assurances and the status of those assurances, including their potential expiration.

(r) Use of credits. Except as provided below, all activities authorized by DA permits are eligible, at the discretion of the district engineer, to use mitigation banks or in-lieu fee programs to fulfill compensatory mitigation requirements for DA permits. The district engineer will determine the number and type(s) of credits required to compensate for the authorized impacts. Permit applicants may propose to use a particular mitigation bank or in-lieu fee program to provide the required compensatory mitigation. In such cases, the sponsor must provide the permit applicant with a statement of credit availability. The district engineer must review the permit applicant's compensatory mitigation proposal, and notify the applicant of his determination regarding the acceptability of using that mitigation bank or in-lieu fee program.

(s) IRT concerns with use of credits. If, in the view of a member of the IRT, an issued permit or series of issued permits raises concerns about how credits from a particular mitigation bank or in-lieu fee program are being used to satisfy compensatory mitigation requirements (including concerns about whether credit use is consistent with the terms of the instrument), the IRT member may notify the district engineer in writing of the concern. The district engineer shall promptly consult with the IRT to address the concern. Resolution of the concern is at the discretion of the district engineer, consistent with applicable statutes, regulations, and policies regarding compensatory mitigation requirements for DA permits. Nothing in this section limits the authorities designated to IRT agencies under existing statutes or regulations.

(t) Site protection. (1) For mitigation bank sites, real estate instruments, management plans, or other long-term mechanisms used for site protection must be finalized before any credits can be released.

(2) For in-lieu fee project sites, real estate instruments, management plans, or other long-term protection mechanisms used for site protection must be finalized before advance credits can become released credits.

(u) Long-term management. (1) The legal mechanisms and the party responsible for the long-term management and the protection of the mitigation bank site must be documented in the instrument or, in the case of umbrella mitigation banking instruments and in-lieu fee programs, the approved mitigation plans. The responsible party should make adequate provisions for the operation, maintenance, and long-term management of the compensatory mitigation project site. The long-term management plan should include a description of long-term management needs and identify the funding mechanism that will be used to meet those needs.

(2) The instrument may contain provisions for the sponsor to transfer long-term management responsibilities to a land stewardship entity, such as a public agency, non-governmental organization, or private land manager.

(3) The instrument or approved mitigation plan must address the financial arrangements and timing of any necessary transfer of long-term management funds to the steward.

(4) Where needed, the acquisition and protection of water rights should be secured and documented in the instrument or, in the case of umbrella mitigation banking instruments and in-lieu fee programs, the approved mitigation site plan.

(v) Grandfathering of existing instruments—(1) Mitigation banking instruments. All mitigation banking instruments approved on or after July 9, 2008 must meet the requirements of this part. Mitigation banks approved prior to July 9, 2008 may continue to operate under the terms of their existing instruments. However, any modification to such a mitigation banking instrument on or after July 9, 2008, including authorization of additional sites under an umbrella mitigation banking instrument, expansion of an existing site, or addition of a different type of resource credits (e.g., stream credits to a wetland bank) must be consistent with the terms of this part.

(2) In-lieu fee program instruments. All in-lieu fee program instruments approved on or after July 9, 2008 must meet the requirements of this part. In-lieu fee programs operating under instruments approved prior to July 9, 2008 may continue to operate under those instruments for two years after the effective date of this rule, after which time they must meet the requirements of this part, unless the district engineer determines that circumstances warrant an extension of up to three additional years. The district engineer must consult with the IRT before approving such extensions. Any revisions made to the in-lieu fee program instrument on or after July 9, 2008 must be consistent with the terms of this part. Any approved project for which construction was completed under the terms of a previously approved instrument may continue to operate indefinitely under those terms if the district engineer determines that the project is providing appropriate mitigation substantially consistent with the terms of this part.

§ 333.1 Purpose and policy.

(a) The purpose of these procedures is to integrate the National Environmental Policy Act (NEPA) into the U.S. Army Corps of Engineers' (Corps) decision-making processes for evaluating applications from other, non-Corps entities for authorization by the Corps. Specifically, the procedures: describe the process by which a District or Division Engineer determines what actions are subject to NEPA's procedural requirements and the applicable level of NEPA review; ensure that relevant environmental information is identified and considered early in the process in order to ensure informed decision making; enable District Engineers to conduct coordinated, consistent, predictable and timely environmental reviews; reduce unnecessary burdens and delays; and implement NEPA's mandates regarding lead and cooperating agency roles, page and time limits, and sponsor preparation of environmental documents.

(b) This part sets forth the Corps procedures and practices for implementing NEPA when considering Department of the Army permit applications under 33 U.S.C. 1344 (Clean Water Act, section 404); 33 U.S.C. 401 (Rivers and Harbors Act of 1899, section 9); 33 U.S.C. 403 (Rivers and Harbors Act of 1899, section 10); and 33 U.S.C. 1413 (Marine Protection, Research, and Sanctuaries Act of 1972, section 103) and requests for permission under 33 U.S.C. 408 (Rivers and Harbors Act of 1899, section 14). The Regulatory Program of the Corps implements 33 U.S.C. 1344, 33 U.S.C. 401, and 33 U.S.C. 1413 and references to the Regulatory Program in this part refer to the processing of permit applications under those authorities. As used in this part, “permit” means an authorization under any of the authorities in this paragraph, and “application” means any request for authorization under any of the above identified authorities. This part further explains the Corps' interpretation of certain key terms in NEPA. It does not, nor does it intend to, govern the rights and obligations of any party outside the government. It does, however, establish the procedures under which Corps District Engineers will typically fulfill requirements under NEPA for decisions under the authorities in this paragraph. The responsibilities of the District Engineer, as described in this part, may be elevated to a higher authority consistent with existing delegations and authorities and in such cases the role of the District Engineer described in the part will be assumed by the entity with decision making authority.

(c) Consultation with the Council on Environmental Quality (“CEQ”). In addition to the process for establishing or revising categorical exclusions set forth in § 333.14(b) and (d), the Corps will consult with CEQ while developing or revising their proposed NEPA implementing procedures, in accord with NEPA section 102(2)(B), 42 U.S.C. 4332(B).

§ 333.2 Applicability.

(a) Applicability. This Part applies to all Corps elements processing applications for Department of the Army Permits or requests for permission under the authorities listed in 33 CFR 333.1(b).

(b) Authority. NEPA imposes certain procedural requirements on the exercise of the Corps' existing legal authority in relevant circumstances. Nothing contained in these procedures is intended or should be construed to limit the Corps' other authorities or legal responsibilities.

§ 333.11 Determining when NEPA applies.

District Engineers will determine that NEPA does not apply to a proposed agency permitting action when:

(a) The activities or decision do not result in final agency action under the Administrative Procedure Act, 5 U.S.C. 704, or any other relevant statute that includes a finality requirement;

(b) The proposed activity or decision is exempted from NEPA by law;

(c) Compliance with NEPA would clearly and fundamentally conflict with the requirements of another provision of law;

(d) In circumstances where Congress by statute has prescribed decisional criteria with sufficient completeness and precision such that the Corps retains no residual discretion to alter its action based on the consideration of environmental factors, then that function of the Corps is nondiscretionary within the meaning of NEPA section 106(a)(4) and/or section 111(10)(B)(vii) (42 U.S.C. 4336(a)(4) and 4336e(10)(B)(vii), respectively), and NEPA does not apply to the action in question;

(e) The proposed action is an action for which another statute's requirements serve the function of agency compliance with the Act; or

(f) The proposed action is not a “major Federal action,” which is defined at 42 U.S.C. 4336e(10). Additionally, the terms “major” and “Federal action” each have independent force. NEPA applies only when both of these two criteria are met. Such a determination is specific to the facts and circumstances of each individual situation and is reserved to the judgment of the District Engineer in each instance. In addition to the illustrative general categories in NEPA section 111(10), 42 U.S.C. 4336e(10), the Corps has determined that the following non-exhaustive list of Corps activities related to the Regulatory Program and 33 U.S.C. 408 are presumptively not subject to NEPA as not meeting the definition of a major Federal action:

(1) Preliminary Jurisdictional Determinations;

(2) Approved Jurisdictional Determinations;

(3) Determination of whether an activity requires a Corps permit or permission;

(4) Aquatic resource delineation concurrence or non-concurrence determinations; or

(5) Determination that the modification of unimproved real estate of a project would not affect the function and usefulness of the project.

(g) NEPA does not apply to “non-Federal actions.” Therefore, under the terms of the statute, NEPA does not apply to actions with no or minimal Federal funding, or with no or minimal Federal involvement where a Federal agency cannot control the outcome of the project. NEPA § 111(10)(B)(i), 42 U.S.C. 4336e(10)(B)(i). A but-for causal relationship is insufficient to make the Corps responsible for a particular action under NEPA.

(h) The issuance or update of the Corps' NEPA procedures is not subject to NEPA review.

(i) In determining whether NEPA applies to a proposed action, the Corps will consider only the project at hand.

§ 333.12 Determine the appropriate level of NEPA review.

(a) If the District Engineer determines under § 333.11 that NEPA applies to a proposed activity or decision, the District Engineer will then determine the appropriate level of NEPA review in the following sequence and manner. At all steps in the following process, the Corps will consider the proposed activity and its effects.

(1) If the Corps has established, or adopted pursuant to NEPA section 109, 42 U.S.C. 4336c, a categorical exclusion that covers the proposed activity, the District Engineer will analyze whether to apply the categorical exclusion to the proposed activity and apply the categorical exclusion, if appropriate, pursuant to § 333.14(e).

(2) If another agency has already established a categorical exclusion that covers the proposed activity, the District Engineer will consider whether to recommend that the Headquarters, U.S. Army Corps of Engineers adopt that exclusion pursuant to § 333.14(c) so that it can be applied to the proposed activity at issue, and so that Headquarters may consider applying to future activities of that type.

(3) If the proposed activity warrants the establishment of a new categorical exclusion, or the revision of an existing categorical exclusion, pursuant to § 333.14(b), the Chief of Engineers will consider whether to so establish or revise, and then apply the categorical exclusion to the proposed action pursuant to § 333.14(e).

(4) If the District Engineer cannot apply a categorical exclusion to the proposed activity consistent with paragraphs (a)(1)-(3), the District Engineer will determine the appropriate level of review, i.e., whether the proposed activity warrants preparation of an environmental assessment or an environmental impact statement. Most activities requiring a Corps permit that are not otherwise covered by a categorical exclusion normally require only an environmental assessment. In determining the level of review, the District Engineer will consider the proposed action's reasonably foreseeable effects consistent with paragraph (b), and then will:

(i) develop an environmental assessment, as described in § 333.15, if the proposed activity is not likely to have reasonably foreseeable significant effects or the significance of the effects is unknown; or

(ii) develop an environmental impact statement, as described in § 333.21, if the proposed activity is likely to have reasonably foreseeable significant effects.

(b) When considering whether the reasonably foreseeable effects of the proposed activity are significant, the District Engineer will analyze the potentially affected environment and degree of the effects of the activity within their jurisdiction or control. The District Engineer may use any reliable data source, but will not undertake new research of any type unless it is essential to evaluating alternatives and the cost and time of obtaining it are not unreasonable. District Engineers should not determine that a proposed activity is significant based solely on public interest or opposition.

(1) In considering the potentially affected environment, the District Engineer may consider, as appropriate to the specific activity, the affected area (national, regional, or local) and its resources. The District Engineer may, as appropriate, consider the regulated activity's effect on factors such as conservation, economics, aesthetics, general environmental concerns, wetlands, historic properties, fish and wildlife values, flood hazards, floodplain values, land use, navigation, shore erosion and accretion, recreation, water supply and conservation, water quality, energy needs, safety, food and fiber production, mineral needs, considerations of property ownership and, in general, the needs and welfare of the people.

(2) In considering the degree of the effects, the District Engineer may consider the following, as appropriate to the specific action:

(i) Both short- and long-term effects.

(ii) Both beneficial and adverse effects.

(iii) Effects on public health and safety.

(iv) Economic effects.

§ 333.13 NEPA and agency decision-making.

(a) Process. The District Engineer will consider input received in response to the public notice, where public notice is required by the legal authority governing the proposed activity for which authorization is sought, advising interested parties of the proposed activity for which authorization is sought when determining the environmental effects that should be considered in the NEPA analysis. District Engineers will promote efficiency through the adoption or incorporation of existing applicable EAs and EISs and other relevant environmental analysis to the extent practicable. Information developed through the NEPA process will inform the District Engineer's decision on the permit application or request for permission.

(b) Limitations on actions during the NEPA process. Except as provided in paragraph (c) of this section, until the Corps issues a record of decision or a finding of no significant impact, or makes a categorical exclusion determination, as applicable, the permit applicant should take no action concerning their application that would:

(1) have an adverse environmental effect within an area under the jurisdiction of the Corps; or

(2) limit the choice of reasonable alternatives.

(c) If the Corps is considering an application from a non-Federal entity and becomes aware that the applicant is about to take an action within the Corps' jurisdiction that would meet either of the criteria in § 333.13(b), the Corps will promptly notify the applicant that the Corps will take appropriate action to ensure that the objectives and procedures of NEPA are achieved.

(d) Coordination with the Applicant.

(1) The District Engineer will:

(i) Coordinate at the earliest reasonable time in the application review process to inform the applicant what information the District Engineer might need to comply with NEPA and, if the lead agency, establish a schedule for completing steps in the NEPA review process, consistent with NEPA's statutory deadlines and any internal agency NEPA schedule requirements; and

(ii) Begin the NEPA process by determining whether NEPA applies, as described in § 333.11, and if it does, determine the appropriate level of NEPA review, as described in § 333.12, as soon as practicable after receiving the complete application

(2) The District Engineer may require the applicant to furnish appropriate information that the District Engineer considers necessary for the preparation of an EA or EIS. An applicant or a contractor hired by the applicant may prepare an environmental assessment or environmental impact statement under the District Engineer's supervision. The Corps procedures for applicant-prepared environmental assessments and environmental impact statement are included in § 333.51 of this part.

§ 333.14 Categorical exclusions.

(a) Generally. This section describes the process the Corps uses for establishing and revising categorical exclusions, for adopting other agencies' categorical exclusions, and for applying categorical exclusions to a proposed agency action. The Corps categorical exclusions, including Corps categorical exclusions specifically applicable to evaluating applications from other entities for authorization by the Corps established consistent with its NEPA procedures, any legislative categorical exclusions, and categorical exclusions adopted from other agencies, are listed in paragraph (g) in this section.

(b) Establishing and revising categorical exclusions. To establish or revise a categorical exclusion, the Chief of Engineers will determine that the category of actions normally does not significantly affect the quality of the human environment. In making this determination, the Headquarters, U.S. Army Corps of Engineers will:

(1) Develop a written record containing information to substantiate its determination;

(2) Consult with CEQ on its proposed categorical exclusion, including the written record, for a period not to exceed 30 days prior to providing public notice as described in paragraph (b)(3) of this section;

(3) Provide public notice in the Federal Register of the Corps' establishment or revisions of the categorical exclusion and where the record is available; and

(4) Document the establishment or revision of the categorical exclusion in the Corps' implementing procedures at § 333.14(g).

(c) Adopting categorical exclusions from other Federal agencies. (1) Consistent with NEPA section 109, 42 U.S.C. 4336c, the Corps may adopt a categorical exclusion listed in another agency's NEPA procedures. When adopting a categorical exclusion, the Headquarters, U.S. Army Corps of Engineers, in coordination with any recommending Districts, will:

(i) Identify the categorical exclusion listed in another agency's NEPA procedures that covers its category of proposed or related actions;

(ii) Consult with the agency that established the categorical exclusion to ensure that the proposed adoption of the categorical exclusion is appropriate;

(iii) Provide public notification of the categorical exclusion that the Corps is adopting, including a brief description of the proposed action or category of proposed actions to which the Corps intends to apply the adopted categorical exclusion; and

(iv) Document the adoption of the categorical exclusion in the Corps' implementing procedures at § 333.14(g).

(2) The Corps may rely on another agency's determination that a categorical exclusion applies to a specific proposed activity if the specific activity covered by the original categorical exclusion determination and the Corps' proposed regulatory activity are substantially the same. For the Corps, actions occurring at essentially the same time and place are considered substantially the same when a proposed action would result in a categorical exclusion determination by one agency and an environmental assessment and a finding of no significant impact by another agency. For example, this would be the case when another agency's action may be a funding decision for a proposed project covered by a categorical exclusion established by the funding agency, and the Corps' proposed regulatory action is to consider a permit for construction activities with less than significant adverse environmental effects for that same project. When relying on another agency's determination that a categorical exclusion applies to a specific proposed Corps regulatory activity, the District Engineer will document the reliance on the agency's categorical exclusion determination in the administrative record for the proposal under Corps review.

(d) Removal of categorical exclusions. The Assistant Secretary of the Army for Civil Works must approve the removal of a categorical exclusion from § 333.14(g) and, in coordination with the Corps, will:

(1) Develop a written justification for the removal;

(2) Consult with CEQ on its proposed removal of the categorical exclusion, including a description of the rationale for the removal, for a period not to exceed 30 days prior to providing public notice as described in paragraph (d)(3) of this section;

(3) Provide public notice of the Corps' removal of the categorical exclusion and a summary of the justification in the Federal Register; and

(4) Document the removal of the categorical exclusion in the Corps' implementing procedures at § 333.14(g).

(e) Applying categorical exclusions. (1) If the District Engineer determines that a categorical exclusion covers a proposed agency action, they should evaluate the presence of extraordinary circumstances where normally excluded actions could have reasonably foreseeable significant environmental effects. If an extraordinary circumstance is not present, the District Engineer will determine that the categorical exclusion applies to the proposed agency action and conclude review.

(2) If an extraordinary circumstance is present, the District Engineer will determine that the categorical exclusion applies to the proposed agency action and conclude review if the permit applicant modifies the proposed agency action to avoid those effects or if the District Engineer determines that, notwithstanding the extraordinary circumstance, the proposed action is not likely to result in reasonably foreseeable significant effects. If the District Engineer determines that they cannot apply the categorical exclusion to the proposed action, the District Engineer will prepare an environmental assessment or environmental impact statement, as appropriate.

(3) In cases where a single action's constituent parts are covered by multiple categorical exclusions, the District Engineer may conclude the entire action is categorically excluded when there are no extraordinary circumstances present that are likely to result in reasonably foreseeable significant effects, or there are extraordinary circumstances present, but the District Engineer determines that applying a categorical exclusion is appropriate consistent with paragraph (e)(2) of this section.

(4) Documentation of categorical exclusion determinations. The District Engineer will document its evaluation of the applicability of a categorical exclusion in the statement of findings supporting the permit or permission decision.

(5) The documentation of evaluation of the applicability of a categorical exclusion does not have a prescribed format but should briefly address consideration of any potential extraordinary circumstances and any mitigation measures that reduce the level of impact. The level of analysis should reflect the sensitivity of the resources being impacted and the scale of the activity.

(f) Reliance on categorical exclusion determinations of other agencies. The District Engineer may also rely on another agency's determination that a categorical exclusion applies to a particular proposed activity if the agency action covered by that determination and the proposed activity are substantially the same. The District Engineer will document its reliance on another agency's categorical exclusion determination in the statement of findings supporting the permit or permission decision.

(g) List of categorical exclusions. The following activities normally do not significantly affect the quality of the human environment t and are therefore categorically excluded from NEPA documentation:

(1) For permit applications for Clean Water Act, Section 404, River and Harbors Act of 1899, Section 10, and Marine Protection, Research, and Sanctuaries Act of 1972, section 103:

(i) Fixed or floating small private piers, small docks, boat hoists and boathouses.

(ii) Minor utility distribution and collection lines including irrigation;

(iii) Minor maintenance dredging using existing disposal sites;

(iv) Boat launching ramps;

(v) All applications which qualify as letters of permission (as described at 33 CFR 325.5(b)(2)).

(2) In addition to those listed for other permit applications in this section, the District Engineer can rely on the categorical exclusions at 33 CFR 230.9 for requests for permission under 33 U.S.C. 408.

§ 333.15 Environmental assessments.

(a) Generally. If an activity is subject to NEPA, as determined following the procedures in § 333.11, and unless the District Engineer finds that the proposed activity is excluded from having to prepare an environmental assessment or environmental impact statement pursuant to a categorical exclusion as determined following the procedures in § 333.14, or by another provision of law, the District Engineer will prepare an environmental assessment with respect to the proposed activity that does not have a reasonably foreseeable significant effect on the quality of the human environment, or if the significance of such effect is unknown. District Engineers must follow Congress' direction that environmental assessments are to be “concise.” NEPA section 106(b)(2); 42 U.S.C. 4336(b)(2). The environmental assessment should normally be combined with any other required documents including Clean Water Act, section 404(b)(1) guidelines documentation, any applicable public interest review, any statement of findings, a finding of no significant impact or a determination that an environmental impact statement is required. Environmental assessment as used throughout this part normally refers to this combined document. When the environmental assessment is a separate document, it must be completed prior to completion of the statement of finding. The District Engineer may delegate the signing of the NEPA document. Should the environmental assessment demonstrate that an environmental impact statement is necessary, the District Engineer shall follow the procedures outlined in subpart C of this part. In those cases where an environmental impact statement is required, an environmental assessment is not required. However, the District Engineer must document their reasons for requiring an environmental impact statement.

(b) Elements. For the purpose of providing evidence and analysis for determining whether to prepare an environmental impact statement or a finding of no significant impact, environmental assessments will:

(1) Briefly discuss the:

(i) Purpose and need for the proposed activity based on the Corps' statutory authority. The purpose and need for the proposed activity will also be informed by the applicant's goals (See 33 CFR 333.22 for considerations in developing purpose and need);

(ii) Alternatives to the extent required by NEPA section 102(2)(H), 42 U.S.C. 4332(2)(H).

(A) If the EA confirms that the impact of the applicant's proposal is not significant and there are no unresolved conflicts concerning alternative uses of available resources, and, for activities evaluated under section 404 of the Clean Water Act, the proposed activity is a “water dependent” activity as defined in 40 CFR 230.10(a)(3), the EA need not include a discussion on alternatives.

(B) In all other cases where the district engineer determines that there are unresolved conflicts concerning alternative uses of available resources, the EA shall include a discussion of the reasonable alternatives which are to be considered. The decision options available to the Corps, which embrace all of the applicant's alternatives, are issue the permit, issue with modifications, or deny the permit. Modifications are limited to those project modifications within the scope of established permit conditioning policy (see 33 CFR 325.4) or within the scope of authority under Section 408. The decision option to deny the permit results in the “no action” alternative (i.e. no activity requiring a Corps permit).

(iii) The reasonably foreseeable effects of the proposed activity and the alternatives considered.

(iv) The combined document shall conclude with a finding of no significant impact or a determination that an environmental impact statement is required.

(c) Agency actions normally requiring an environmental assessment. Most permits or permissions under the authorities identified in § 333.1(b) normally require environmental assessments, but likely do not require an environmental impact statement.

(d) Page limits. (1) The text of an environmental assessment is strictly prohibited from exceeding 75 pages, not including citations or appendices.

(2) Appendices are to be used for voluminous materials, such as scientific tables, collections of data, statistical calculations, and the like, which substantiate the analysis provided in the environmental assessment. Appendices are not to be used to provide additional substantive analysis, because that would circumvent the Congressionally mandated page limits.

(3) Environmental assessments will be formatted for an 8.5”x11” page with one-inch margins using a word processor with 12-point proportionally spaced font, single spaced. Footnotes may be in 10-point font. Such size restrictions do not apply to explanatory maps, diagrams, graphs, tables, and other means of graphically displaying quantitative or geospatial information, although pages containing such material do count towards the page limit. When an item of graphical material is larger than 8.5”x11”, each such item will count as one page.

(4) Certification related to page limits. The breadth and depth of analysis in an environmental assessment will be tailored to ensure that the environmental analysis does not exceed this page limit. As part of the finalization of the environmental assessment, the District Engineer will certify (and the certification will be incorporated into the environmental assessment) that the District Engineer has considered the factors mandated by NEPA; that the environmental assessment represents the Corps' good-faith effort to prioritize documentation of the most important considerations required by the statute within the congressionally mandated page limits; that this prioritization reflects the District Engineer's expert judgment; and that any considerations addressed briefly or left unaddressed were, in the District Engineer's judgment, comparatively not of a substantive nature that meaningfully informed the consideration of environmental effects and the resulting decision on how to proceed.

(e) Deadlines. (1) NEPA is governed by a rule of reason. Congress supplied the measure of that reason in the 2003 revision of NEPA by setting the deadlines in NEPA 107(g), 42 U.S.C. 4336a(g). These deadlines indicate Congress's determination that an agency has presumptively spent a reasonable amount of time on analysis and the document should issue, absent very unusual circumstances. In such circumstances, an extension will be given only for such time as is necessary to complete the analysis. Thus, unless otherwise specified in statute, the District Engineer will complete the environmental assessment not later than the date that is one year after the date on which they determine the preparation of an environmental assessment for the proposed activity is required. The District Engineer will typically make this decision at the start of the comment period for the public notice of the permit application, request for permission, or proposed general permit.

(2) The end date is either:

(i)When the District Engineer reaches a permit decision and initially proffers the permit to the applicant or provides permission to the requestor under 33 U.S.C. 408;

(ii) When the District Engineer denies the permit or denies permission under 33 U.S.C. 408 with or without prejudice; or

(iii) When the District Engineer publishes a general permit or categorical permission; or

(iv) When the District Engineer reaches a decision on the mitigation instrument and provides the bank or in-lieu fee program sponsor with an instrument signed by the Corps.

(3) The District Engineer may publish notification of the environmental assessment (unless the deadline is extended pursuant to the provision below), within a reasonable time after the deadline elapses or the completion of the document, whichever comes first.

(4) Deadline extensions. If the District Engineer determines they are not able to meet the deadline prescribed by NEPA section 107(g)(1)(B), 42 U.S.C. 4336a(g)(1)(B), they must consult with the applicant pursuant to NEPA section 107(g)(2), 42 U.S.C. 4336a(g)(2). After such consultation, if needed, and for cause stated, the District Engineer may establish a new deadline. Cause for establishing a new deadline is only established if the environmental assessment is so incomplete, at the time at which the District Engineer determines it is not able to meet the statutory deadline, that issuance pursuant to § 333.15(e)(3) above would, in the Corps' view, result in an inadequate analysis. Such new deadline must provide only so much additional time as is necessary to complete such environmental assessment. The District Engineer will document in the administrative record for the proposed action the new deadline the reason why the environmental assessment was not able to be completed under the statutory deadline and whether the applicant consented to the new deadline.

(5) Certification related to deadline. When the environmental assessment is complete, the District Engineer will certify (and the certification will be incorporated into the environmental assessment) that the resulting environmental assessment represents the Corps' good-faith effort to fulfill NEPA's requirements within the Congressional timeline; that such effort is substantially complete; that, in the District Engineer's expert opinion, they have thoroughly considered the factors mandated by NEPA; and that, in the District Engineer's judgment, the analysis contained therein is adequate to inform and reasonably explain the District Engineer's final decision regarding the proposed Federal activity.

§ 333.16 Findings of no significant impact.

(a) The District Engineer will prepare a finding of no significant impact if the District Engineer determines, based on the environmental assessment, not to prepare an environmental impact statement because the proposed activity will not have significant effects. The finding of no significant impact will:

(1) Be included in the environmental assessment;

(2) Document the reasons why the District Engineer has determined that the selected alternative will not have a significant effect on the quality of the human environment;

(3) If the District Engineer finds no significant effects based on mitigation, the mitigated finding of no significant impact will state any mitigation requirements enforceable by the agency or voluntary mitigation commitments that will be undertaken by the applicant to avoid significant effects;

(4) Identify any other documents related to the finding of no significant impact; and

(5) State that the District Engineer will not prepare an environmental impact statement, concluding the NEPA process for that permit application, request for permission, or mitigation instrument.

(b) The District Engineer may publish notification of the environmental assessment and finding of no significant impact on a public website.

§ 333.17 Lead and cooperating agencies.

(a) Corps as lead agency. In many instances, a proposed activity or decision is undertaken in the context which entails activities or decisions undertaken by other Federal agencies (e.g., where multiple Federal authorizations are required with respect to a project sponsor's overall purpose and goal). These activities and decisions may be “related actions,” in that they are each the responsibility of a particular agency and they may be all related in a matter relevant to NEPA, e.g., by their relationship with one overarching project. In such instances, Congress has provided that the multiple agencies involved shall determine which of them will be the lead agency pursuant to the criteria identified in NEPA section 107(a)(1)(A), 42 U.S.C. 4336a(a)(1)(A), or any other applicable statute. When serving as the lead agency, the Corps is responsible for managing the NEPA process, including those portions of a non-Federal applicant's proposed project which come under the jurisdiction of other Federal agencies. When serving as the lead agency, the Corps will also determine and document the scope of analysis. When a joint lead relationship is established pursuant to NEPA section 107(a)(1)(B), 42 U.S.C. 4336a(a)(1)(B), the Corps and the other joint lead agency or agencies are collectively responsible for completing the NEPA process. The Corps may reimburse, under agreement, staff support from other Federal agencies beyond the immediate jurisdiction of those agencies.

(b) Corps as cooperating agency. As a cooperating agency the Corps will be responsible to the lead agency for providing environmental information which is directly related to the regulatory matter involved and which is required for the preparation of the NEPA documentation. This in no way shall be construed as lessening the District Engineer's ability to request the applicant to furnish appropriate information as discussed in § 333.51 of this part. The District Engineer will identify to the lead agency the information and analysis that is required to be included in the resulting NEPA documentation so that it can be relied on by the Corps for purposes of exercising its permitting authority. When the Corps is a cooperating agency because of a regulatory responsibility, the district engineer should make available staff support at the lead agency's request to enhance the latter's interdisciplinary capability provided the request pertains to the Corps regulatory action covered by the NEPA document, to the extent this is practicable. Beyond this, Corps staff support will generally be made available to the lead agency to the extent practicable within its own responsibility and available resources. Any assistance to a lead agency beyond this will normally be by written agreement with the lead agency providing for the Corps expenses on a cost reimbursable basis. If the District Engineer believes a public hearing should be held and another agency is lead agency, the District Engineer should request such a hearing and provide their reasoning for the request. The District Engineer should suggest a joint hearing and offer to take an active part in the hearing and ensure coverage of the Corps concerns. When the applicant's proposed activities qualify for an existing general permit or categorical permission, the Corps' obligations under NEPA were satisfied when the Corps issued the general permit or categorical permission. On this basis, Corps contributions as a cooperating agency on an environmental impact statement or environmental assessment should be limited to assisting the lead agency with accurate information pertaining to the proposed impacts under Corps authorities.

§ 333.18 Notices of intent and scoping.

(a) Notice of intent. As soon as practicable after determining that a proposed activity for which Corps authorization is sought is sufficiently developed to allow for meaningful public comment and requires an environmental impact statement, the District Engineer will publish a notice of intent to prepare an environmental impact statement.

(1) The notice of intent for an environmental impact statement will include a request for public comment on alternatives or effects and on relevant information, studies, or analyses with respect to the proposed agency action.

(2) In addition to a request for comment required for notices of intent for environmental impact statements, notice of intent for any environmental document may include:

(i) The purpose and need for the proposed action;

(ii) A preliminary description of the proposed action and alternatives the environmental impact statement will consider;

(iii) A brief summary of expected effects;

(iv) Anticipated permits and other authorizations (i.e., anticipated related actions);

(v) A schedule for the decision-making process;

(vi) A description of the public scoping process, including any scoping meeting(s);

(vii) Contact information for the project manager handling the permit application, who can answer questions about the proposed action and the environmental impact statement; and

(viii) Identification of any cooperating and participating agencies (i.e., agencies responsible for related actions), and any information that such agencies require in the notice to facilitate their decisions or authorizations

(b) Scoping. In addition to the notice of intent process described above, the District Engineer may also use other early and open processes to determine the scope of issues for analysis in an environmental document, including substantive issues that meaningfully inform the consideration of environmental effects and the resulting decision on how to proceed, eliminating from further study non-substantive issues, and determining whether connected actions should be addressed in the same environmental document. Scoping may begin as soon as practicable after the proposal for action is sufficiently developed for consideration. Scoping may include appropriate pre-application procedures, public meetings, or work conducted prior to publication of the notice of intent.

(c) Scope of analysis. It is the exclusive responsibility of the District Engineer to determine the appropriate scope of analysis for the applicant's proposed activity based on the Corps' legal authority over the activity and whether the Corps has sufficient control and responsibility over any aspect of the applicant's proposed activity beyond the Corps' limited statutory authorities. When determining the scope of an environmental assessment or an environmental impact statement, the District Engineer must consider the following:

(1) In some situations, a permit applicant may propose to conduct a specific activity requiring a Department of the Army (DA) permit (e.g., construction of a pier in a navigable water of the United States), which is merely one component of a larger project (e.g., construction of an oil refinery on an upland area). The district engineer should establish the scope of the Corps' NEPA review to address the impacts of the specific activity requiring a DA permit or 33 U.S.C. 408 permission and those portions of the entire project over which the district engineer has sufficient control, responsibility, and legal authority to warrant Federal review.

(2) The District Engineer is considered to have control, responsibility, and legal authority for portions of the project beyond the limits of Corps jurisdiction where the Federal involvement is sufficient to turn an essentially private action into a Federal action, consistent with Congress's exclusions from the definition of “major Federal action” at NEPA Section 111(10) and the Supreme Court's holding in Seven County that NEPA does not require an agency to analyze effects from actions beyond the action the agency itself is taking or authorizing.. These are cases where the environmental consequences of the larger project are essentially products of the Corps permit or 33 U.S.C. 408 permission action. Typical factors to be considered in determining whether sufficient control, responsibility, and legal authority exist to turn an essentially private action occurring outside of Corps jurisdiction into a Federal action include:

(i) Whether or not the regulated activity comprises merely a link in a corridor type project (e.g., a transportation or utility transmission project).

(ii) Whether there are aspects of the upland facility in the immediate vicinity of the regulated activity which affect the location and configuration of the regulated activity.

(iii) The extent to which the entire project will be within Corps jurisdiction.

(iv) The extent of cumulative Federal control, responsibility, and legal authority.

(A) Federal control, responsibility, and legal authority will include the portions of the project beyond the limits of Corps jurisdiction where the cumulative Federal involvement of the Corps and other Federal agencies is sufficient to grant legal control over such additional portions of the project. These are cases where the environmental consequences of the additional portions of the projects are essentially products of Federal financing, assistance, direction, regulation, or approval (not including funding assistance solely in the form of general revenue sharing funds, with no Federal agency control over the subsequent use of such funds, and not including judicial or administrative civil or criminal enforcement actions).

(B) In determining whether sufficient cumulative Federal involvement exists to expand the scope of Federal action the district engineer should consider whether other Federal agencies are required to take Federal action under their statutory authorities, and/or other environmental review laws and executive orders.

(C) The District Engineer should also refer to § 333.17 of this part for guidance on determining whether the Corps should be the lead or a cooperating agency in these situations.

(3) Examples:

(i) If a non-Federal oil refinery, electric generating plant, or industrial facility is proposed to be built on an upland site and the only DA permit or 33 U.S.C. 408 permission requirement relates to a connecting pipeline, supply loading terminal, or fill road, that pipeline, terminal or fill road permit, in and of itself, normally would not constitute sufficient overall Federal involvement with the project to justify expanding the scope of a Corps NEPA document to cover upland portions of the facility beyond the structures in the immediate vicinity of the regulated activity that would affect the location and configuration of the regulated activity.

Similarly, if an applicant seeks a DA permit to fill waters or wetlands or 33 U.S.C. 408 permission to alter a covered project on which other construction or work is proposed, the control, responsibility, and legal authority of the Corps, as well as its overall Federal involvement, would extend to the portions of the project to be located on the permitted fill or within the boundary of the project covered by 33 U.S.C. 408. However, the NEPA review would be extended to the entire project, including portions outside waters of the United States or the project area covered by 33 U.S.C. 408, only if sufficient Federal control, responsibility, and legal authority over the entire project is determined to exist; that is, if the regulated activities, and those activities involving regulation, funding, etc., by other Federal agencies, comprise a substantial portion of the overall project. In any case, once the scope of analysis has been defined, the NEPA analysis for that action should include the effects or impacts from the proposed action or alternatives on all Federal interests within the purview of the NEPA statute. The District Engineer should, whenever practicable, incorporate by reference and rely upon the reviews of other Federal, State, Tribal, and local agencies.

(ii) For those regulated activities that comprise merely a link in a transportation or utility transmission project, the scope of analysis should address the Federal action, i.e., the specific activity requiring a DA permit or 33 U.S.C. 408 permission and any other portion of the project that is within the control, responsibility, and legal authority of the Corps of Engineers (or other Federal agencies).

For example, a 50-mile electrical transmission cable crossing a 1 1/4 mile-wide river that is a navigable water of the United States requires a DA permit. Neither the origin nor the destination of the cable, nor its route to and from the navigable water, except as the route applies to the location and configuration of the crossing, are within the control, responsibility, or legal authority of the Corps. Those matters would not be included in the Corps' scope of analysis which, in this case, would address the impacts of the specific cable crossing.

As another example, the same 50-mile electrical transmission cable crossing a Corps civil works project requires a 33 U.S.C. 408 permission. As with the previous example, neither the origin nor the destination of the cable, nor its route to and from the civil works project, except as the route applies to the location and configuration of the crossing within the civil works project, are within the control, responsibility, or legal authority of the Corps. Those matters would not be included in the Corps' scope of analysis which, in this case, would address the impacts of the specific cable crossing on the Corps civil works project.

Conversely, for those activities that require a DA permit or 33 U.S.C. 408 permission for a major portion of a transportation or utility transmission project, such that the Corps permit or 33 U.S.C. 408 permission bears upon the origin and destination as well as the route of the project outside the Corps regulatory boundaries (including those covered by 33 U.S.C. 408), the scope of analysis should include those portions of the project outside the boundaries of the Corps jurisdiction. To use the same example, if 30 miles of the 50-mile transmission line would cross jurisdictional wetlands, other “waters of the United States,” or Corps civil works boundaries covered by 33 U.S.C. 408, the scope of analysis should reflect impacts of the whole 50-mile transmission line.

(iii) For those activities that require a DA permit for a major portion of a shoreside facility, the scope of analysis should extend to upland portions of the facility. For example, a shipping terminal normally requires dredging, wharves, bulkheads, berthing areas, and disposal of dredged material in order to function. Permits for such activities are normally considered sufficient Federal control, responsibility, and legal authority to warrant extending the scope of analysis to include the upland portions of the facility.

(4) In all cases, the scope of analysis used for analyzing both impacts and alternatives should be the same scope of analysis used for analyzing the benefits of a proposal.

(5) In preparing the environmental assessment or environmental impact statement, the District Engineer will focus its analysis on whether the environmental effects of the regulated activity are significant.

(i) Similarly, the District Engineer will document in the environmental assessment or environmental impact statement where and how it drew a reasonable and manageable line relating to its consideration of any environmental effects from the regulated activity that extend outside the geographical territory of the project or might materialize later in time.

(ii) To the extent it assists in reasoned decision-making, the District Engineer may, but is not required to by NEPA, analyze environmental effects from other projects separate in time, or separate in place, or that fall outside of the Corps' regulatory authority, or that would have to be initiated by a third party. If the District Engineer determines that such analysis would assist it in reasoned decisionmaking, it will document this determination in the environmental assessment and explain where it drew a reasonable and manageable line relating to the consideration of such effects from such separate projects.

§ 333.20 Significance determination.

(a) General. Prior to initiating an environmental impact statement, the District Engineer must determine the proposed activity is likely to have reasonably foreseeable significant effects on the quality of the human environment, after consideration of any mitigation the Corps may require. As described in § 333.12(a)(5)(i) and § 333.15 of this part, this determination can be made following the completion of an environmental assessment in cases where that environmental assessment cannot conclude in a finding of no significant impact; in other situations, it can be made without first preparing an environmental assessment in instances where initial consideration as to the appropriate level of review as described indicates that the proposed activity is likely to have reasonably foreseeable significant effects. In cases where it is obvious that the proposed activity is likely to result in reasonably foreseeable significant effects and an environmental assessment terminating in a finding of no significant impact is therefore not prepared, the District Engineer must make a determination that an environmental impact statement is required due to the likely significant effects of the activity. This determination will be made in accordance with § 333.12(b) and documented. Whether an impact rises to the level of significant is a matter of the District Engineer's expert judgment.

(b) Timing. The determination to prepare an environmental impact statement should be made as soon as the Corps has sufficient information to consider on whether the project would result in significant effects on the human environment, after consideration of any mitigation the Corps would require. In many cases this is soon after the receipt of a complete DA permit application or request for permission, although in some cases a determination may not be made until after an environmental assessment has been prepared. After a determination has been made to prepare an environmental impact statement as the lead agency, the Corps will notify the applicant in writing as soon as practicable.

§ 333.21 Preparation of environmental impact statements.

(a) During the process of preparing an environmental impact statement, the District Engineer:

(1) Will contact all appropriate Federal agencies to determine their respective role(s), i.e., that of lead agency or cooperating agency consistent with § 333.17 of this part.

(2) Will obtain the comments of:

(i) Any Federal agency that has specific statutory jurisdiction or special expertise identified in statute with respect to any environmental impact involved or is authorized to develop and enforce environmental standards. The District Engineer shall only consider comments directly tied to the commenting Federal agency's specific statutory jurisdiction or special expertise identified in statute and relevant to impacts or issues within the scope of analysis as determined by the District Engineer. The District Engineer shall only include those comments in the permit or 33 U.S.C. 408 permission administrative file and record.

(ii) Appropriate State, Tribal, and local agencies that are authorized to develop and enforce environmental standards.

(3) May request the comments of:

(i) State, Tribal, or local governments that may be affected by the proposed action;

(ii) Any Federal agency that has requested it receive statements on actions of the kind proposed to the extent the comments are directly tied to that agency's statutory jurisdiction or special expertise as identified in statute;

(iii) The applicant, and

(iv) The public, including by affirmatively soliciting comments in a manner designed to inform those persons or organizations who may be interested in or affected by the proposed action.

(b) This process of obtaining and requesting comments pursuant to paragraph (a) of this section may be undertaken at any time that is reasonable in the process of preparing the environmental impact statement. The District Engineer will ensure the process of obtaining and request comments pursuant to paragraph (a) of this part, and the District Engineers' analysis of and response to those comments, does not cause the Corps to violate the congressionally mandated deadline for completion of an environmental impact statement.

(c) The District Engineer will address any substantive and significant comments received consistent with paragraph (a) of this section in the environmental impact statement. Such responses to comments will be documented and may include:

(1) Modifying alternatives, including the proposed activity.

(2) Developing and evaluating alternatives not previously given serious consideration.

(3) Supplementing, improving, or modifying analyses, to include consideration of science or literature not previously considered.

(4) Making factual corrections.

(5) No action needed. The agency may provide a brief rationale for taking no action, such as:

(i) The comment is outside the scope of what is being proposed;

(ii) There is no cause-effect relationship between the actions the agency is proposing and the issue raised and/or recommendation made;

(iii) The commenter misinterpreted the information provided; or

(iv) The recommendation made does not comply with applicable laws or regulations and/or are not feasible to implement (technically or economically), etc.

(d) In those instances in which the District Engineer solicits comments from the public, the request for comments will provide clear instructions on how comments should be submitted, including electronic submission, and the dates during which comments will be accepted. The solicitation of comments should include requests for comments on specific questions or issues or for information that would be helpful in informing the District Engineer's decision.

(e) If the District Engineer determines that an environmental impact statement is not required after a notice of intent has been published, the District Engineer shall terminate the environmental impact statement preparation and withdraw the notice of intent. The District Engineer shall notify in writing the appropriate Division Engineer; Headquarters U.S. Army Corps of Engineers; any appropriate federal agencies; and the public of the determination.

§ 333.22 Purpose and need.

(a) The statement will include the purpose and need for the proposed agency action based on the Corps' statutory authority and independent judgment. The purpose and need for the proposed agency action must be informed by the goals of the applicant. The applicant may provide a statement of the purpose and need from their perspective, but the District Engineer will exercise independent judgment in defining the purpose and need for the project.

(b) If the scope of analysis for the NEPA document (see § 333.18(b) of this part) covers only the proposed specific activity requiring a Department of the Army permit or 33 U.S.C. 408 permission, then the underlying purpose and need for that specific activity should be stated. (For example, “The purpose and need for the pipe is to obtain cooling water from the river for the electric generating plant.”)

(c) If the scope of analysis covers a more extensive project, only part of which may require a DA permit or 33 U.S.C. 408 permission, then the underlying purpose and need for the entire project should be stated. (For example, “The purpose and need for the electric generating plant is to provide increased supplies of electricity to the (named) geographic area.”)

§ 333.23 Analysis within the environmental impact statement.

(a) The Corps is neither an opponent nor proponent of the applicant's proposal; therefore, the applicant's final proposal will be identified as the “applicant's preferred alternative” in the final EIS. Decision options available to the District Engineer, which embrace all of the applicant's alternatives, are issue the permit, issue with modifications or conditions, or deny the permit.

(b) The environmental impact statement will include a detailed statement on:

(1) Reasonably foreseeable environmental effects of the applicant's preferred alternative;

(2) Any reasonably foreseeable adverse environmental effects which cannot be avoided should the applicant's preferred alternative be implemented;

(3) A reasonable range of alternatives to the applicant's preferred alternative, including an analysis of any negative environmental impacts of not implementing the applicant's preferred alternative in the case of a no action alternative.

(i) Only reasonable alternatives need be considered in detail. Reasonable alternatives must be those that are, in the District Engineer's expert judgment, technically, legally, and economically feasible and such feasibility must focus on the accomplishment of the underlying purpose and need.

(ii) The alternatives analysis should be thorough enough to use the 404(b)(1) guidelines (40 CFR part 230) where applicable.

(iii) Those alternatives that are unavailable to the applicant, whether or not they require Federal action (permits), should normally be included in the analysis of the no-Federal-action (denial) alternative.

(iv) The EIS should discuss geographic alternatives, e.g., changes in location and other site-specific variables, and functional alternatives, e.g., project substitutes and design modifications.

(v) The “no-action” alternative is one which results in no construction requiring a Corps permit or permission. It may be brought by either the applicant electing to modify their proposal to eliminate work under the jurisdiction of the Corps or by the denial of the permit or permission. District engineers, when evaluating this alternative, should discuss, when appropriate, the consequences of other likely uses of a project site, should the permit be denied.

(4) The relationship between local short-term uses of man's environment and the maintenance and enhancement of long-term productivity; and

(5) Any irreversible and irretrievable commitments of Federal resources which would be involved in the proposed agency action should it be implemented; and

(6) Any means identified to mitigate adverse environmental effects of the proposed action. (To note, NEPA itself does not require or authorize the Corps to impose any mitigation measures); and

(7) Such alternatives should be evaluated only to the extent necessary to allow a complete and objective evaluation and a fully informed decision regarding the permit application or request for permission.

(b) Environmental impact statements will discuss effects in proportion to their significance. With respect to issues that are not of a substantive nature and do not meaningfully inform the consideration of environmental effects and the resulting decision on how to proceed, there will be no more than the briefest possible discussion to explain why those issues are not substantive and therefore not worthy of any further analysis. Environmental impact statements will be analytic, concise, and no longer than necessary to comply with NEPA in light of the congressionally mandated page limits and deadlines.

(c) The District Engineer will not include a cost-benefit analysis for projects requiring a Corps permit or permission, but may indicate any cost considerations relevant to the permit decision or 33 U.S.C. 408 permission decision.

§ 333.24 Page limits.

(a) Page limits. Except as provided in paragraph (b) of this section, the text of an environmental impact statement will not exceed 150 pages, not including citations or appendices.

(b) An environmental impact statement for a proposed agency action of extraordinary complexity is strictly prohibited from not exceeding 300 pages, not including any citations or appendices. The District Engineer will determine at the earliest possible stage of preparation of an environmental impact statement whether the conditions for exceeding the page limit in paragraph (a) of this section are present. Factors that may indicate extraordinary complexity include: a geographically expansive project that affects multiple resource types; numerous alternatives that must be considered; involves a long time period for implementation; impacts multiple sensitive resources; involve authorization decisions by multiple agencies.

(c) Appendices are to be used for voluminous materials, such as scientific tables, collections of data, statistical calculations, and the like, which substantiate the analysis provided in the environmental assessment. Appendices are not to be used to provide additional substantive analysis, because that would circumvent the Congressionally mandated page limits.

(d) Format. Environmental impact statements will be formatted for 8.5”x11” paper with one-inch margins using a word processor with 12-point proportionally spaced font, single spaced. Footnotes may be in 10-point font. Such size restrictions do not apply to explanatory maps, diagrams, graphs, tables, and other means of graphically displaying quantitative or geospatial information. When an item of graphical material is larger than 8.5”x11”, each such item will count as one page.

(e) Certification related to page limits. The breadth and depth of analysis in an environmental impact statement will be tailored to ensure that the environmental impact statement does not exceed these page limits. In this regard, as part of the finalization of the environmental impact statement, a responsible official will certify that the Corps has considered the factors mandated by NEPA; that the environmental impact statement represents the Corps' good-faith effort to prioritize documentation of the most important considerations required by the statute within the congressionally mandated page limits; that this prioritization reflects the District Engineer's expert judgment; and that any considerations addressed briefly or left unaddressed were, in the District Engineer's judgment, comparatively unimportant or frivolous.

§ 333.25 Deadlines.

(a) NEPA is governed by a “rule of reason.” Congress supplied the measure of that reason in the 2023 revision of NEPA by settling the deadlines in NEPA 107(g), 42 U.S.C. 4336a(g). These deadlines indicate Congress's determination that an agency, working with Congress's allocation of resources has presumptively spent a reasonable amount of time on analysis and the document should issue, absent very unusual circumstances. In such circumstances, an extension will be given only for such time as is necessary to complete the analysis. Thus, unless otherwise specified in statute, the District Engineer will complete the environmental impact statement not later than the date that is two years after the date on which the District Engineer determines that the activity requires the issuance of an environmental impact statement.

(b) The end date is either:

(1) When the District Engineer reaches a decision and initially proffers the permit to the applicant or provides the requestor 33 U.S.C. 408 permission; or

(2) When the District Engineer denies the permit or denies permission under 33 U.S.C. 408 with or without prejudice.

(c) The District Engineer will publish the environmental impact statement.

(d) If the District Engineer determines they are not able to meet the deadline prescribed by NEPA section 107(g)(1)(A), 42 U.S.C. 4336a(g)(1)(A), they must consult with the applicant pursuant to NEPA section 107(g)(2), 42 U.S.C. 4336a(g)(2). After such consultation, if needed, and for cause stated, the District Engineer may establish a new deadline and must notify the Division Engineer and Headquarters, U.S. Army Corps of Engineers of the deadline extension. Cause for establishing a new deadline is only established if the environmental impact statement is so incomplete, at the time at which the District Engineer determines they are not able to meet the statutory deadline, that issuance pursuant to paragraph (c) of this section above would, in the District Engineer's view, result in an inadequate analysis. Such new deadline must provide only so much additional time as is necessary to complete such environmental impact statement. The District Engineer will document in the administrative record for the proposed action the new deadline, the reason why the environmental impact statement was not able to be completed under the statutory deadline, when the District Engineer consulted with the applicant on the new deadline, and whether the applicant consented to the new deadline.

(e) When the environmental impact statement is published, the District Engineer will certify (and the certification will be incorporated into the environmental impact statement) that the resulting environmental impact statement represents the Corps' good-faith effort to fulfill NEPA's requirements within the Congressional timeline; that such effort is substantially complete; and that, in the District Engineer's expert opinion, they have thoroughly considered the factors mandated by NEPA; and that, in the District Engineer's judgment, the analysis contained therein is adequate to inform and reasonably explain the District Engineer's decision regarding the proposed Federal activity. .

§ 333.26 Publication of the environmental impact statement.

The District Engineer will publish the entire environmental impact statement on a publicly available website. During the process of preparing the environmental impact statement, the District Engineer may publish a draft statement or other materials that in their judgment may assist in fulfilling their NEPA responsibilities.

§ 333.27 Public hearing.

If a public hearing is to be held pursuant to 33 CFR part 327, or any other authority, for a permit application requiring an environmental impact statement, the actions analyzed by the environmental impact statement should be considered at the public hearing. The District Engineer can, but need not, make a draft of the environmental impact statement available to the public and, in instances where the District Engineer does so, should do so at least 15 days in advance of the hearing. If a hearing request is received from another agency having jurisdiction over an element of the applicant's activity, the district engineer should coordinate a joint hearing with that agency whenever appropriate.

§ 333.28 Comments received on an environmental impact statement.

For permit applications or requests for permissions to be decided at the district level, the District Engineer should consider incoming comments and provide responses in the environmental impact statement when substantive issues are raised. For permit applications or requests for permissions to be decided at a higher authority, the District Engineer shall forward any comment letters together with appropriate responses to the higher authority.

§ 333.29 Review of other agencies' environmental impact statements.

District Engineers should provide comments directly to the requesting agency specifically related to the Corps jurisdiction by law or special expertise. If the District Engineer determines that another agency's environmental impact statement which involves a Corps permit or permission action is inadequate with respect to the Corps permit or permission action, the district engineer should attempt to resolve the differences concerning the Corps permit or permission action prior to the filing of the environmental impact statement by the other agency.

§ 333.31 Tiered and programmatic environmental documents.

(a) Activities that require Corps authorization under 33 U.S.C. 1344, 33 U.S.C. 401, 33 U.S.C. 403, and 33 U.S.C. 1413 are reviewed (and when applicable, permitted) on a site-specific basis based upon an application containing a complete description of the proposed activity, and all activities which the applicant plans to undertake which are reasonably related to the same project and for which a Corps permit will be required. See 33 CFR 325.1(d)(1)-(2). However, only for reviews of activities under 33 U.S.C. 408, the District Engineer may prepare tiered environmental documents when conducting multi-phased reviews of proposed alterations or in other appropriate circumstances. Multi-phased reviews under 33 U.S.C. 408 evaluate proposed alterations in multiple successive iterations of progressively greater detail. Each successive review must be accompanied by a NEPA document that considers the potential impacts of the alteration at the level of detail of the given phase of review to help inform the development of the proposed alteration. The analysis in each environmental document will reflect the level of planning in each tier. For example, the first tier may consider the differing impacts of selecting different sites for the alteration, the second tier may consider different project configurations, and the final tier may consider the impacts from different construction methods. Each successive analysis should build off the previous analysis, formally incorporating the prior environmental documents.

(b) After completing a programmatic environmental assessment or environmental impact statement for a review under 33 U.S.C. 408, the District Engineer may rely on that document for 5 years if there are not substantial new circumstances or information about the significance of adverse effects that bear on the analysis. After 5 years, as long as the District Engineer reevaluates the analysis in the programmatic environmental document and any underlying assumption to ensure reliance on the analysis remains valid and briefly documents its reevaluation and explains why the analysis remains valid considering any new and substantial information or circumstances, the District Engineer may continue to rely on the document.

§ 333.32 Reliance on existing environmental documents.

(a) Generally. The District Engineer may rely on an environmental impact statement, environmental assessment, or portion thereof, provided that the statement, assessment, or portion thereof meets the standards for an adequate statement or assessment under these procedures. When relying on an environmental impact statement, environmental assessment, or portion thereof, the District Engineer will cite, briefly describe the content and relevance to the environmental document, and may make modifications that are necessary to render the relied-upon document, or portion thereof, fit for fulfilling NEPA's analytic requirements for the action. If the District Engineer finds that the other agency's environmental impact statement or environmental assessment is inadequate with respect to the Corps permit or permission action, the District Engineer should incorporate the other agency's NEPA document or a portion thereof and prepare an appropriate and adequate NEPA document to address the Corps involvement with the proposed action.

(b) Substantial similarity. (1) If the actions covered by the original environmental impact statement or environmental assessment and the proposed action are substantially the same, the District Engineer will document their reliance on the statement or assessment.

(2) If the actions are not substantially the same, the District Engineer may modify the statement or assessment as necessary to render the statement fit for fulfilling NEPA's analytic requirements for the action at hand, and document the reliance on the statement or assessment, as modified, or may incorporate relevant portions in the District Engineer's own NEPA document. Where appropriate, the District Engineer may solicit comment to the extent that solicitation of comment will assist the District Engineer in expeditiously adapting the relied-upon statement or assessment so that it is fit for the District Engineer's purposes.

§ 333.33 Incorporation.

The District Engineer may incorporate material, such as planning studies, analyses, or other relevant information, into environmental documents by reference when the effect will be to cut down on bulk without impeding the Corps review of the action. When incorporating material by reference, the District Engineer will cite, briefly describe the content and relevance to the environmental document, and make the materials reasonably available for review by potentially interested parties. The District Engineer will not use incorporation as a means to evade the statutory page limits.

§ 333.34 Supplements to environmental documents.

The District Engineer will prepare supplements to environmental documents only if a major Federal action remains to occur, and:

(a) The applicant makes substantial changes to the proposed action that are relevant to environmental concerns; or

(b) The District Engineer decides, in their discretion, that there are substantial significant new circumstances or information about the significance of the adverse effects that bear on the proposed action or its effects.

§ 333.35 Integrity and completeness of information.

(a) The District Engineer will not undertake new scientific and technical research to inform their analyses unless that is essential to a reasoned choice among alternatives and the overall costs and time frame of such undertaking are not unreasonable. Rather, the District Engineer will make use of reliable existing data and resources.

(b) When the District Engineer is evaluating an action's reasonably foreseeable effects on the human environment, and there is incomplete or unavailable information that cannot be obtained at a reasonable cost or the means to obtain it are unknown, the District Engineer will make clear in the relevant environmental document that such information is lacking.

§ 333.36 Integrating NEPA with other environmental requirements.

(a) To the fullest extent possible, the District Engineer will prepare environmental documents concurrently with and integrated with analyses and related surveys and studies required by other Federal statutes. In appropriate instances, the District Engineer may participate in preparing single environmental assessment, finding of no significant impact, environmental impact statement, and Record of Decision documents.

(b) The District Engineer will combine an environmental document prepared in compliance with NEPA with any other agency document to reduce duplication and paperwork. Thus, the District Engineer may combine an environmental document with related plans, rules, or amendments as a single consolidated document.

(c) If comments on a notice of intent or other aspects of a scoping process identify consultations, permits, or licenses necessary under other environmental laws, the environmental document may contain a section briefly listing the applicable requirements and how the applicant has or will meet them (e.g., permits applied for or received, consultations initiated or concluded).

§ 333.37 Elimination of duplication with State, Tribal, and local procedures.

(a) The District Engineer will, where appropriate, cooperate with State, Tribal, and local agencies that are responsible for preparing environmental documents.

(b) To the fullest extent practicable unless specifically prohibited by law, the District Engineer will cooperate with State, Tribal, and local agencies to reduce duplication between NEPA and State, Tribal, and local requirements, including through use of studies, analysis, and decisions developed by State, Tribal, or local agencies. Such cooperation may include:

(1) Joint planning processes;

(2) Joint environmental research and studies;

(3) Joint public hearings (except where otherwise provided by statute); or

(4) Joint environmental documents.

§ 333.38 Unique identification numbers.

For all environmental documents, the District Engineer will provide a unique identification number for tracking purposes, which the District Engineer will reference on all associated environmental review documents prepared for the proposed agency action and in any database or tracking system for such documents. The District Engineer will coordinate with the CEQ and other Federal agencies to ensure uniformity of such identification numbers across Federal agencies.

§ 333.39 Emergency procedures.

In responding to emergency situations to prevent or reduce imminent risk of life, health, property, or severe economic losses, district commanders may proceed without the specific documentation and procedural requirements of other sections of this regulation. District Engineers shall consider the probable environmental consequences in determining appropriate emergency actions and when requesting approval to proceed on emergency actions, will describe proposed NEPA documentation or reasons for exclusion from documentation. NEPA documentation should be accomplished prior to initiation of emergency work if time constraints render this practicable. Such documentation may also be accomplished after the completion of emergency work, if appropriate. When possible, emergency actions considered major in scope with potentially significant environmental impacts shall be referred through the Division Engineers to Headquarters, U.S. Army Corps of Engineers for consultation with CEQ about NEPA alternative arrangements.

§ 333.41 Decision documents.

At the time of its decision on its proposed action, the Corps may prepare and timely publish a concise public decision document notifying the public that the District Engineer has certified that the Corps has considered all relevant information raised in the NEPA process and that the NEPA process has closed. To avoid duplication, a finding of no significant impact may reference the environmental assessment and a record of decision may reference the environmental impact statement. The decision document prepared for NEPA compliance informs the final agency action of making the decision on the permit application or the request for permission under 33 U.S.C. 408(a) but is not the final agency action.

§ 333.42 Filing requirements.

The District Engineer will file environmental impact statements together with comments and any responses with the Environmental Protection Agency (EPA), Office of Federal Activities for publication in the Federal Register.

§ 333.51 Procedures for applicant-prepared environmental documents.

The District Engineer may require the applicant to furnish appropriate information that the district engineer considers necessary for the preparation of an EA or EIS. The District Engineer may prepare an EA or an EIS, or may obtain information needed to prepare an EA or an EIS, either with Corps staff or by third-party contract. In accordance with NEPA section 107(f), 42 U.S.C. 4336a(f), the Corps has established procedures allowing applicants, or contractors hired by applicants, to prepare environmental assessments and environmental impact statements documents under the District Engineer supervision.

(a) The District Engineer will independently evaluate the environmental document and will take responsibility for its contents. The District Engineer is responsible for ensuring that the information provided by the applicant-hired contractor is consistent with Corps' need to take a hard, objective look at the public interest and environmental factors consistent with its statutory requirements.

(b) The District Engineer will assist applicants and applicant-hired contractors by providing guidance and outlining the types of information required for the preparation of the environmental document. Third party contracting is the primary method for preparing all or part of environmental impact statements covered by this part. The District Engineer may also provide appropriate guidance and assist in environmental document preparation, to the extent that the District Engineer's resources and policy priorities allow. The District Engineer will work with the applicant to define the purpose and need, and, when appropriate, to develop a reasonable range of alternatives to meet that purpose and need.

(c) The District Engineer will work develop and modify, as appropriate, a schedule for preparation of the environmental document. Major changes to the schedule or related matters will be documented through written correspondence.

(d) The District Engineer may request from an applicant environmental information for use by the Corps in preparing or evaluating an environmental document. This may include a decision file consisting of any factual, scientific, or technical information used, developed, or considered by the applicant or applicant-hired contractor in the course of preparing the environmental document, including any correspondence with the Corps or with third parties.

(e) The applicant may accept or reject the District Engineer's guidance. The District Engineer, however, may after specifying the information in contention, require the applicant to resubmit any previously submitted data which the District Engineer considers inadequate or inaccurate. The District Engineer must document in the record the Corps' independent evaluation of the information and its accuracy.

§ 333.61 Definitions.

As used in these implementing procedures, terms have the meanings provided in NEPA section 111, 42 U.S.C. 4336e. In addition:

(a) NEPA means the National Environmental Policy Act, as amended (42 U.S.C. 4321, et seq.).

(b) Authorization means a permit or permission.

(c) Connected action means a separate Federal action within the Corps' authority that is closely related to the proposed agency action and should be addressed in a single environmental document because the proposed agency action:

(1) Automatically triggers the separate Federal action, which independently would require the preparation of additional environmental documents;

(2) Cannot proceed unless the separate Federal action is taken previously or simultaneously; or

(3) Is an interdependent part of a larger Federal action that includes a separate Federal action, which mutually depend on the larger Federal action for their justification.

(d) Effects or impacts means changes to the human environment from the proposed action or alternatives that are reasonably foreseeable and have a reasonably close causal relationship to the proposed action or alternatives.

(1) Effects include ecological (such as the effects on natural resources and on the components, structures, and functioning of affected ecosystems), aesthetic, historic, cultural, economic (such as the effects on employment), social, or health effects. Effects appropriate for analysis under NEPA may be either beneficial or adverse, or both, with respect to these values.

(2) A “but for” causal relationship is insufficient to make an agency responsible for a particular effect under NEPA. Effects should generally not be considered if they are remote in time, geographically remote, or the product of a lengthy causal chain. Effects do not include those effects that the agency has no ability to prevent due to the limits of its regulatory authority, or that would occur regardless of the proposed action, or that would need to be initiated by a third party.

(e) Human environment means comprehensively the natural and physical environment and the relationship of Americans with that environment. (See also the definition of “effects or impacts” in paragraph (c) of this section.)

(f) Jurisdiction means the specific legal authority to approve an activity, such as 33 U.S.C. 1344 (Clean Water Act, section 404); 33 U.S.C. 401 (Rivers and Harbors Act of 1899, section 9); 33 U.S.C. 403 (Rivers and Harbors Act of 1899, section 10); and 33 U.S.C. 1413 (Marine Protection, Research, and Sanctuaries Act of 1972, section 103) or 33 U.S.C. 408 (Rivers and Harbors Act of 1899, section 14).

(g) Mitigation for the purposes of NEPA means measures that avoid, minimize, or compensate for effects caused by a proposed action or alternatives as described in an environmental document or record of decision and that have a nexus to those effects. While NEPA requires consideration of mitigation, it does not mandate the form or adoption of any mitigation. Mitigation includes:

(1) Avoiding the impact altogether by not taking a certain action or parts of an action.

(2) Minimizing effects by limiting the degree or magnitude of the action and its implementation.

(3) Rectifying the impact by repairing, rehabilitating, or restoring the affected environment.

(4) Reducing or eliminating the impact over time by preservation and maintenance operations during the life of the action.

(5) Compensating for the impact by replacing or providing substitute resources or environments.

(h) NEPA process means all measures necessary for compliance with the requirements of NEPA section 102(2), 42 U.S.C. 4332(2).

(i) Notice of intent means a public notice that an agency will prepare and consider an environmental document.

(j) Participating agency means a Federal, State, Tribal, or local agency participating in an environmental review or authorization of an action.

(k) Permit, as used in this part, is the authorization described in 33 CFR 325.5 or the document granting Corps permission under 33 U.S.C. 408(a). A permit decision is the final agency action.

(l) Publish and publication mean methods found by the agency to efficiently and effectively make environmental documents and information available for review by interested persons, including electronic publication.

(m) Reasonable alternatives means a reasonable range of alternatives that are technically, legally, and economically feasible, meet the purpose and need for the proposed action, and, where applicable, meet the goals of the applicant.

(n) Reasonably foreseeable means sufficiently likely to occur such that a person of ordinary prudence would take it into account in reaching a decision.

(o) Related action means an action undertaken by an agency, e.g., a permitting action, some other type of authorization action, an analysis required by statute, or the like, that bears a relationship to other actions undertaken by other agencies relevant to NEPA, e.g., that a set of related actions are all related to one overarching project.

(p) Scope consists of the range of actions, alternatives, and effects subject to the Corps legal authority or subject to the Corps control and responsibility that should be considered in an environmental document. This part addresses the considerations for use by District Engineers when determining scope for NEPA compliance in § 333.18 of this part.

(q) Tiering when used for the purposes of multi-phased reviews of activities under 33 U.S.C. 408, refers to the coverage of general matters in broader environmental impact statements or environmental assessments (such as a general plan to address a need that identifies different conceptual options) with subsequent narrower or more detailed statements or environmental analyses (such as an analysis of how one of those conceptual options could be implemented at a specific site) incorporating by reference the general discussions and concentrating solely on the issues specific to the statement subsequently prepared.

§ 333.71 Severability.

The sections of this part are separate and severable from one another. If any section or portion therein is stayed or determined to be invalid, or the applicability of any section to any person or entity is held invalid, it is the Corps' intention that the validity of the remainder of those parts will not be affected. The remaining sections or portions, and all applications thereof, shall continue to be in effect.

§ 334.1 Purpose.

The purpose of this part is to:

(a) Prescribe procedures for establishing, amending and disestablishing danger zones and restricted areas;

(b) List the specific danger zones and restricted areas and their boundaries; and

(c) Prescribe specific requirements, access limitations and controlled activities within the danger zones and restricted areas.

[58 FR 37607, July 12, 1993]

§ 334.2 Definitions.

(a) Danger zone. A defined water area (or areas) used for target practice, bombing, rocket firing or other especially hazardous operations, normally for the armed forces. The danger zones may be closed to the public on a full-time or intermittent basis, as stated in the regulations.

(b) Restricted area. A defined water area for the purpose of prohibiting or limiting public access to the area. Restricted areas generally provide security for Government property and/or protection to the public from the risks of damage or injury arising from the Government's use of that area.

[58 FR 37607, July 12, 1993]

§ 334.3 Special policies.

(a) General. The general regulatory policies stated in 33 CFR part 320 will be followed as appropriate. In addition, danger zone and restricted area regulations shall provide for public access to the area to the maximum extent practicable.

(b) Food fishing industry. The authority to prescribe danger zone and restricted area regulations must be exercised so as not to unreasonably interfere with or restrict the food fishing industry. Whenever the proposed establishment of a danger zone or restricted area may affect fishing operations, the District Engineer will consult with the Regional Director, U.S. Fish and Wildlife Service, Department of the Interior and the Regional Director, National Marine Fisheries Service, National Oceanic & Atmospheric Administration (NOAA).

(c) Temporary, occasional or intermittent use. If the use of the water area is desired for a short period of time, not to exceed thirty days in duration, and that planned operations can be conducted safely without imposing unreasonable restrictions on navigation, and without promulgating restricted area regulations in accordance with the regulations in this section, applicants may be informed that formal regulations are not required. Activities of this type shall not reoccur more often than biennially (every other year), unless danger zone/restricted area rules are promulgated under this part. Proper notices for mariners requesting that vessels avoid the area will be issued by the Agency requesting such use of the water area, or if appropriate, by the District Engineer, to all known interested persons. Copies will also be sent to appropriate State agencies, the Commandant, U.S. Coast Guard, Washington, DC 20590, and Director, Defense Mapping Agency, Hydrographic Center, Washington, DC 20390, ATTN: Code NS 12. Notification to all parties and Agencies shall be made at least two weeks prior to the planned event, or earlier, if required for distribution of Local Notice to Mariners by the Coast Guard.

[58 FR 37607, July 12, 1993]

§ 334.4 Establishment and amendment procedures.

(a) Application. Any request for the establishment, amendment or revocation of a danger zone or restricted area must contain sufficient information for the District Engineer to issue a public notice, and as a minimum must contain the following:

(1) Name, address and telephone number of requestor including the identity of the command and DoD facility and the identity of a point of contact with phone number.

(2) Name of waterway and if a small tributary, the name of a larger connecting waterbody.

(3) Name of closest city or town, county/parish and state.

(4) Location of proposed or existing danger zone or restricted area with a map showing the location, if possible.

(5) A brief statement of the need for the area, its intended use and detailed description of the times, dates and extent of restriction.

(b) Public notice. (1) The Corps will normally publish public notices and Federal Register documents concurrently. Upon receipt of a request for the establishment, amendment or revocation of a danger zone or restricted area, the District Engineer should forward a copy of the request with his/her recommendation, a copy of the draft public notice and a draft Federal Register document to the Office of the Chief of Engineers, ATTN: CECW-OR. The Chief of Engineers will publish the proposal in the Federal Register concurrent with the public notice issued by the District Engineer.

(2) Content. The public notice and Federal Register documents must include sufficient information to give a clear understanding of the proposed action and should include the following items of information:

(i) Applicable statutory authority or authorities; (40 Stat. 266; 33 U.S.C. 1) and (40 Stat. 892; 33 U.S.C. 3)

(ii) A reasonable comment period. The public notice should fix a limiting date within which comments will be received, normally a period not less than 30 days after publication of the notice.

(iii) The address of the District Engineer as the recipient of any comments received.

(iv) The identity of the applicant/proponent;

(v) The name or title, address and telephone number of the Corps employee from whom additional information concerning the proposal may be obtained;

(vi) The location of the proposed activity accompanied by a map of sufficient detail to show the boundaries of the area(s) and its relationship to the surrounding area.

(3) Distribution. Public notice will be distributed in accordance with 33 CFR 325.3(d)(1). In addition to this general distribution, public notices will be sent to the following Agencies:

(i) The Federal Aviation Administration (FAA) where the use of airspace is involved.

(ii) The Commander, Service Force, U.S. Atlantic Fleet, if a proposed action involves a danger zone off the U.S. Atlantic coast.

(iii) Proposed danger zones on the U.S. Pacific coast must be coordinated with the applicable commands as follows:

Alaska, Oregon and Washington:

Commander, Naval Base, Seattle

California:

Commander, Naval Base, San Diego

Hawaii and Trust Territories:

Commander, Naval Base, Pearl Harbor

(c) Public hearing. The District Engineer may conduct a public hearing in accordance with 33 CFR part 327.

(d) Environmental documentation. The District Engineer shall prepare environmental documentation in accordance with appendix B to 33 CFR part 325.

(e) District Engineer's recommendation. After closure of the comment period, and upon completion of the District Engineer's review he/she shall forward the case through channels to the Office of the Chief of Engineers, ATTN: CECW-OR with a recommendation of whether or not the danger zone or restricted area regulation should be promulgated. The District Engineer shall include a copy of environmental documentation prepared in accordance with appendix B to 33 CFR part 325, the record of any public hearings, if held, a summary of any comments received and a response thereto, and a draft of the regulation as it is to appear in the Federal Register.

(f) Final decision. The Chief of Engineers will notify the District Engineer of the final decision to either approve or disapprove the regulations. The District Engineer will notify the applicant/proponent and publish a public notice of the final decision. Concurrent with issuance of the public notice the Office of the Chief of Engineers will publish the final decision in the Federal Register and either withdraw the proposed regulation or issue the final regulation, as appropriate. The final rule shall become effective no sooner than 30 days after publication in the Federal Register unless the Chief of Engineers finds that sufficient cause exists and publishes that rationale with the regulations.

[58 FR 37608, July 12, 1993]

§ 334.5 Disestablishment of a danger zone.

(a) Upon receipt of a request from any agency for the disestablishment of a danger zone, the District Engineer shall notify that agency of its responsibility for returning the area to a condition suitable for use by the public. The agency must either certify that it has not used the area for a purpose that requires cleanup or that it has removed all hazardous materials and munitions, before the Corps will disestablish the area. The agency will remain responsible for the enforcement of the danger zone regulations to prevent unauthorized entry into the area until the area is deemed safe for use by the public and the area is disestablished by the Corps.

(b) Upon receipt of the certification required in paragraph (a) of this section, the District shall forward the request for disestablishment of the danger zone through channels to CECW-OR, with its recommendations. Notice of proposed rulemaking and public procedures as outlined in § 334.4 are not normally required before publication of the final rule revoking a restricted area or danger zone regulation. The disestablishment/revocation of the danger zone or restricted area regulation removes a restriction on a waterway.

[58 FR 37608, July 12, 1993]

§ 334.6 Datum.

(a) Geographic coordinates expressed in terms of latitude or longitude, or both, are not intended for plotting on maps or charts whose reference horizontal datum is the North American Datum of 1983 (NAD 83), unless such geographic coordinates are expressly labeled NAD 83. Geographic coordinates without the NAD 83 reference may be plotted on maps or charts referenced to NAD 83 only after application of the appropriate corrections that are published on the particular map or chart being used.

(b) For further information on NAD 83 and National Service nautical charts please contact: Director, Coast Survey (N/CG2), National Ocean Service, NOAA, 1315 East-West Highway, Station 6147, Silver Spring, MD 20910-3282.

[60 FR 15233, Mar. 23, 1995]

§ 334.10 Gulf of Maine off Seal Island, Maine; naval aircraft bombing target area.

(a) The danger zone. A circular area with a radius of 1.5 nautical miles, having its center just easterly of Seal Island at latitude 43°53′00″ and longitude 68°44′00″.

(b) The regulations. (1) No aerial bombing practice will take place in the danger zone after 5:00 p.m. Mondays through Saturdays, at any time on Sundays, or during foggy or inclement weather.

(2) Vessels or other watercraft will be allowed to enter the danger zone any time there are no aerial bombing exercises being conducted.

(3) No live ammunition or explosives will be dropped in the area.

(4) Suitable Notice to Mariners, by appropriate methods, will be issued by the Commander, First Coast Guard District, Boston, Massachusetts; upon request of the Commandant, First Naval District, Boston, Massachusetts, or his designated agent.

(5) Prior to the conducting of each bombing practice, the area will be patrolled by a naval aircraft or surface vessel to ensure that no persons or watercraft are within the danger zone. Vessels may be requested to veer off when drops are to be made, however, drops will be made only when the area is clear. The patrol aircraft will employ the method of warning known as “buzzing” which consists of low flight by the airplane and repeated opening and closing of the throttle.

(6) Any such watercraft shall, upon being so warned, immediately leave the designated area and, until the conclusion of the practice, shall remain at such distance that it will be safe from falling projectiles.

(7) The regulations of this section shall be enforced by the Commandant, First Naval District, Boston, Massachusetts, or such agencies as he may designate.

[24 FR 7379, Sept. 12, 1959. Redesignated at 50 FR 42696, Oct. 22, 1985, as amended at 62 FR 17551, Apr. 10, 1997]

§ 334.20 Gulf of Maine off Cape Small, Maine; naval aircraft practice mining range area.

(a) The danger zone. Within an area bounded as follows: Beginning at latitude 43°43′00″, longitude 69°46′00″; thence to latitude 43°38′30″, longitude 69°46′00″; thence to latitude 43°38′30″, longitude 69°49′30″; thence to latitude 43°42′10″, longitude 69°49′30″; thence to the point of beginning.

(b) The regulations. (1) Test drops from aircraft will be made within the area at intermittent periods from noon until sunset local time and only during periods of good visibility.

(2) Testing will not restrict any fishing, recreational, or commercial activities in the testing area.

(3) Aircraft will patrol the area prior to and during test periods to insure that no surface vessels are within the area. No test drops will be made while surface vessels are transiting the area.

(4) No live ammunition or explosives will be dropped in the area.

(5) The regulations of this section shall be enforced by the Commandant, First Naval District, Boston, Mass., or such agencies as he may designate.

[36 FR 5218, Mar. 18, 1971. Redesignated at 50 FR 42696, Oct. 22, 1985]

§ 334.30 Gulf of Maine off Pemaquid Point, Maine; naval sonobuoy test area.

(a) The area. The test area or “Foul Area” encompasses a circular area one nautical mile in radius, the center of which is located 7.9 nautical miles, bearing 187° magnetic from Pemaquid Light.

(b) The regulations. (1) Sonobuoy drops will be made only in the designated area and when visibility is at least three miles.

(2) Sonobuoy drop tests will normally be conducted at intermittent periods on a 5-day week basis, Monday through Friday. However, on occasion tests may be conducted intermittently on a seven-day week basis.

(3) Prior to and during the period when sonobuoys are being dropped, an escort vessel or naval aircraft will be in the vicinity to ensure that no persons or vessels are in the testing area. Vessels may be requested to veer off when sonobuoys are about to be dropped, however, drops will be made only when the area is clear.

(4) The sonobuoys drops will be made in connection with the production and experimentation of sonobuoys.

(5) No live ammunition or explosives will be involved.

(6) The regulations in this section shall be enforced by the Commanding Officer, U.S. Naval Air Station, Brunswick, Maine, or such agencies as he may designate.

[27 FR 4280, May 4, 1962. Redesignated at 50 FR 42696, Oct. 22, 1985, as amended at 62 FR 17551, Apr. 10, 1997]

§ 334.40 Atlantic Ocean in vicinity of Duck Island, Maine, Isles of Shoals; naval aircraft bombing target area.

(a) The danger zone. A circular area with a radius of 500 yards having its center on Shag Rock in the vicinity of Duck Island at latitude 43°00′12″, longitude 70°36′12″.

(b) The regulations. (1) No person or vessel shall enter or remain in the danger zone from 8:00 a.m. to 5:00 p.m. (local time) daily, except as authorized by the enforcing agency.

(2) This section shall be enforced by the Commandant, First Naval District, and such agencies as he may designate.

[14 FR 5592, Sept. 13, 1949. Redesignated at 50 FR 42696, Oct. 22, 1985, as amended at 62 FR 17551, Apr. 10, 1997]

§ 334.45 Kennebec River, Bath Iron Works Shipyard, naval restricted area, Bath, Maine.

(a) The area. The waters within a coffin shaped area on the west side of the river south of the Carlton (Route 1) highway bridge beginning on the western shore at latitude 43°54′40.7″ N, longitude 069°48′44.8″ W; thence easterly to latitude 43°54′40.7″ N, longitude 069°48′36.8″ W; thence southeasterly to latitude 43°54′10.4″ N, longitude 069°48′34.7″ W; thence southwesterly to latitude 43°53′55.1″ N, longitude 069°48′39.1″ W; thence westerly to latitude 43°53′55.1″ N, longitude 69°48′51.8″ W; thence northerly along the westerly shoreline to the point of origin.

(b) The regulation. All persons, swimmers, vessels and other craft, except those vessels under the supervision or contract to local military or Naval authority, vessels of the United States Coast Guard, and local or state law enforcement vessels, are prohibited from entering the restricted areas without permission from the Supervisor of Shipbuilding, USN Bath Maine or his authorized representative

(c) Enforcement. The regulation in this section, promulgated by the United States Army Corps of Engineers, shall be enforced by the, Supervisor of Shipbuilding, Conversion and Repair Bath, United States Navy and/or such agencies or persons as he/she may designate.

[67 FR 20446, Apr. 25, 2002]

§ 334.50 Piscataqua River at Portsmouth Naval Shipyard, Kittery, Maine; restricted areas.

(a) The areas.

Area No. 1: The area bounded by a line at a point on the easterly side of Seavey Island at latitude 43°04′37″ N, longitude 70°43′44″ W, thence to latitude 43°04′36″ N; longitude 70°43′40″ N, thence to the pier on the westerly side of Clark Island at latitude 43°04′36.5″ N, longitude 70°43′34″ W; thence along the northerly side of Clark Island to a point on the easterly side at latitude 43°04′37″ N, longitude 70°43′25″ W, thence northeasterly to the easterly side of Jamaica Island at latitude 43°04′49″ N, longitude 70°43′24″ W, thence along the southerly and westerly sides of Jamaica Island and thence generally along the easterly side of Seavey Island to the point of beginning. Area No. 2: The area bounded by a line beginning at a point on the southerly side of Seavey Island at Henderson Point at latitude 43°04′29″ N, longitude 70°44′14″ W; thence to latitude 43°04′29.5″ N, longitude 70°44′17.4″ W; thence to latitude 43°04′36.6″ N, longitude 70°44′22.6″ W; thence to latitude 43°04′44.8″ N, longitude 70°44′33.2″ W; thence to latitude 43°04′47.4″ N, longitude 70°44′42.1″ W; thence to latitude 43°04′48″ N, longitude 70°44′52″ W; thence to latitude 43°04′49″ N, longitude 70°44′54″ W; thence to latitude 43°04′51″ N, longitude 70°44′55″ W; thence to latitude 43°04′53″ N, longitude 70°44′53″ W; thence to latitude 43°04′57″ N, longitude 70°44′47″ W; thence to latitude 43°04′58″ N, longitude 70°44′46″ W; thence to latitude 43°05′02″ N, longitude 70°44′36″ W; thence to latitude 43°05′04″ N, longitude 70°44′31″ W; thence along the westerly side of Seavey Island to the beginning point.

(b) The regulations. All persons, vessels and other craft, except those vessels under the supervision of or contract to local military or naval authority, are prohibited from entering the restricted areas without permission from the Commander, Portsmouth Naval Shipyard or his/her authorized representative.

[46 FR 43045, Aug. 26, 1981, 46 FR 61116, Dec. 15, 1981. Redesignated at 50 FR 42696, Oct. 22, 1985, as amended at 62 FR 17551, Apr. 10, 1997]

§ 334.60 Cape Cod Bay south of Wellfleet Harbor, Mass.; naval aircraft bombing target area.

(a) The danger zone. A circular area with a radius of 1,000 yards having its center on the aircraft bombing target hulk James Longstreet in Cape Cod Bay at latitude 41°49′46″, longitude 70°02′54″.

(b) The regulations. (1) No person or vessel shall enter or remain in the danger zone at any time, except as authorized by the enforcing agency.

(2) This section shall be enforced by the Commandant, First Naval District, and such agencies as he may designate.

[14 FR 5592, Sept. 13, 1949. Redesignated at 50 FR 42696, Oct. 22, 1985, as amended at 62 FR 17551, Apr. 10, 1997]

§ 334.70 Buzzards Bay, and adjacent waters, Mass.; danger zones for naval operations.

(a) Atlantic Ocean in vicinity of No Mans Land—(1) The area. The waters surrounding No Mans Land within an area bounded as follows: Beginning at latitude 41°12′30″, longitude 70°50′30″; thence northwesterly to latitude 41°15′30″, longitude 70°51′30″; thence northeasterly to latitude 41°17′30″, longitude 70°50′30″; thence southeasterly to latitude 41°16′00″, longitude 70°47′30″; thence south to latitude 41°12′30″, longitude 70°47′30″; thence westerly to the point of beginning.

(2) The regulations. No vessel or person shall at any time enter or remain within a rectangular portion of the area bounded on the north by latitude 41°16′00″, on the east by longitude 70°47′30″, on the south by latitude 41°12′30″, and on the west by longitude 70°50′30″, or within the remainder of the area between November 1, and April 30, inclusive, except by permission of the enforcing agency.

(3) The regulations in this paragraph shall be enforced by the Commandant, First Naval District, and such agencies as he may designate.

[26 FR 11195, Nov. 28, 1961, as amended at 27 FR 10296, Oct. 20, 1962; 33 FR 10930, Aug. 1, 1968. Redesignated at 50 FR 42696, Oct. 22, 1985, as amended at 62 FR 17552, Apr. 10, 1997; 79 FR 48691, Aug. 18, 2014]

§ 334.75 Thames River, Naval Submarine Base New London, restricted area.

(a) The area: The open waters of the Thames River approximately 5 nautical miles upriver from its mouth along the boundary between Groton and Waterford, Connecticut, within an area bounded as follows: From a point on the eastern shore at latitude 41°24′14.4″ N, longitude 72°05′38.0″ W then northerly along the coast to latitude 41°24′20.0″ N, longitude 72°05′37.9″ W then westerly across the river to a point on the western shore at latitude 41°24′20.0″ N, longitude 72°05′55.5″ W then southerly along the coast to a point on the western shore at latitude 41°24′5.0″ N, longitude 72°05′55.7″ W then easterly to the western edge of the dredged channel to a point located at latitude 41°24′04.1″ N, longitude 72°05′51.2″ W then southerly along the western edge of the dredged channel to a point at latitude 41°24′00″ N, longitude 72°05′52.6″ W then southerly along the western edge of the dredged channel to a point located at latitude 41°23′57.1″ N, longitude 72°05′52.5″ W then southerly to buoy “11” located at a point at latitude 41°23′45.6″ N, longitude 72°05′53.7″ W then southerly to buoy “B” on the northeastern shore of Mamacoke Hill to a point at latitude 41°23′33.8″ N, longitude 72°05′53.7″ W then southerly along the shore to buoy “A at latitude 41°23′25.0″ N, longitude 72°05′45.4″ W then southeasterly to buoy “9” at a point located at latitude 41°23′15.0″ N, longitude 72°05′35.0″ W then easterly to a point on the eastern shore at latitude 41°23′15.0″ N, longitude 72°05′17.9″ W then northerly along the shore to a point on the eastern shore at latitude 41°23′15.8″ N, longitude 72°05′17.9″ W then along the following points:

Latitude | Longitude

41°23′15.8″ N | 72°05′22.0″ W

41°23′25.9″ N | 72°05′29.9″ W

41°23′33.8″ N | 72°05′34.7″ W

41°23′37.0″ N | 72°05′38.0″ W

41°23′41.0″ N | 72°05′40.3″ W

41°23′47.2″ N | 72°05′42.3″ W

41°23′53.8″ N | 72°05′43.7″ W

41°23′59.8″ N | 72°05′43.0″ W

41°24′12.4″ N | 72°05′43.2″ W

Then to the point of beginning on the eastern shore.

(b) The regulations. (1) Vessels and other watercraft within the designated navigation channel may proceed through the restricted area at normal operating speeds without stopping. Vessels and watercraft may also utilize the water area within the restricted area located between the western edge of the designated channel and the western shore for fishing, anchoring and other recreational uses. However, all persons, vessels and watercraft, except U.S. military personnel and vessels must leave the restricted area when notified by personnel of the New London Submarine Base that such use will interfere with submarine maneuvering, operations or security.

(2) Commercial fishermen and shell fishermen may fish within the restricted area provided their vessels display registration numbers issued by the Naval Submarine Base, New London, Connecticut. The registration numbers may be obtained by contacting the Commanding Officer, Naval Submarine Base New London. All commercial fishermen and shell fishermen must also leave the restricted area when notified by personnel of the New London Submarine Base that such use will interfere with submarine maneuvering, operations or security.

(3) Vessels which are owned, operated or sponsored by local, state municipalities or academic institutions preparing for or participating in a water sport or water related recreational event sponsored by those local or state municipalities or academic institutions, or private or commercial vessels engaged in observing the conduct of the above event shall be exempt from the restrictions above, providing:

(i) The Commanding Officer, Naval Submarine Base New London, and the Coast Guard Captain of the Port are advised in writing at least 48 hours in advance of the event, or

(ii) The event was publicized in such a manner that the local public in general had a reasonable opportunity to learn of the event 48 hours in advance.

(4) The regulations in this section shall be enforced by the Commander, U.S. Naval Submarine Base New London, Connecticut, and such agencies as he/she may designate.

[53 FR 47802, Nov. 28, 1988, as amended at 54 FR 7033, Feb. 16, 1989; 62 FR 17552, Apr. 10, 1997]

§ 334.80 Narragansett Bay, RI; restricted area.

(a) Beginning at a point on the east shore of Conanicut Island at latitude 41°33′15″; thence southeasterly to latitude 41°32′44″, longitude 71°21′17″; thence southerly to latitude 41°32′09″, longitude 71°21′17″; thence southeasterly to latitude 41°31′50″, longitude 71°21′10″; thence southeasterly to latitude 41°31′26″, longitude 71°20′33″ thence easterly to latitude 41°31′27″, longitude 71°20′06″ thence northerly to a point on the southwesterly shore of Prudence Island at latitude 41°35′00″, thence northerly along the southwesterly shore of Prudence Island to a point at latitude 41°35′43″ longitude 71°20′15 5″; thence northwesterly to latitude 41°37′21″, longitude 71°20′48″; thence west to latitude 41°37′21″ longitude 71°21′48″; and thence south to latitude 41°33′54″, longitude 71°21′48″.

(b) The Regulations. (1) No person or vessel shall at any time, under any circumstances, anchor or fish or tow a drag of any kind in the prohibited area because of the extensive cable system located therein.

(2) Orders and instructions issued by patrol craft or other authorized representatives of the enforcing agency shall be carried out promptly by persons or vessels in or in the vicinity of the prohibited area.

(3) The regulations in this section shall be enforced by the Commander U.S. Naval Base, Newport, RI, and such agencies as he may designate.

[33 FR 4464, Mar. 13, 1968. Redesignated at 50 FR 42696, Oct. 22, 1985; 58 FR 37608, July 12, 1993; 62 FR 17552, Apr. 10, 1997]

§ 334.81 Narragansett Bay, East Passage, Coddington Cove, Naval Station Newport, naval restricted area, Newport, Rhode Island.

(a) The area. All of the navigable waters of Coddington Cove east of a line that connects Coddington Point at latitude 41°31′24.0″ N, longitude 071°19′24.0″ W; with the outer end of the Coddington Cove Breakwater on the north side of the cove at latitude 41°31′55.7″ N, longitude 071°19′28.2″ W.

(b) The regulation. All persons, swimmers, vessels and other craft, except those vessels under the supervision or contract to local military or Naval authority, vessels of the United States Coast Guard, and local or state law enforcement vessels, are prohibited from entering the restricted area without specific permission from the Commanding Officer, Naval Station Newport, USN, Newport, Rhode Island or his/her authorized representative.

(c) Enforcement. The regulation in this section, promulgated by the United States Army Corps of Engineers, shall be enforced by the United States Navy, Commanding Officer Naval Station Newport, and/or such agencies or persons as he/she may designate.

[67 FR 65313, Oct. 24, 2002]

§ 334.82 Narragansett Bay, East Passage, Coasters Harbor Island, Naval Station Newport, Newport, Rhode Island, restricted area.

(a) The area. The waters within a “C-shaped” area adjacent to and surrounding Coasters Harbor

Island beginning at Coddington Point at latitude 41°31′24.0″ N, longitude 71°19′24.0″ W; thence west southwest to latitude 41°31′21.5″ N, longitude 71°19′45.0″ W; thence south southwest to latitude 41°31′04.2″ N, longitude 71°19′52.8″ W; thence due south to latitude 41°30′27.3″ N, longitude 71°19′52.8″ W; thence south southeast to 41°30′13.8″ N, longitude 71°19′42.0″ W; thence southeast to latitude 41°30′10.2″ N, longitude 71°19′32.6″ W; thence due east to latitude 41°30′10.2″ N, longitude 71°19′20.0″ W; thence northerly along the mainland shoreline to the point of origin.

(b) The regulation. All persons, swimmers, vessels and other craft, except those vessels under the supervision or contract to local military or Naval authority, vessels of the United States Coast Guard, and Federal, local or State law enforcement vessels, are prohibited from entering the restricted areas without permission from the Commanding Officer Naval Station Newport, USN, Newport, Rhode Island or his/her authorized representative.

(c) Enforcement. (1) The regulation in this section, promulgated by the United States Army Corps of Engineers, shall be enforced by the United States Navy, Commanding Officer Naval Station Newport, Newport, Rhode Island and/or other persons or agencies as he/she may designate.

[69 FR 35519, June 25, 2004]

§ 334.85 New York Harbor, adjacent to the Stapleton Naval Station, Staten Island, New York; restricted area.

(a) The area. The waters of New York Harbor beginning at a point on shore at latitude 40°38′02″ N, longitude 074°04′24″ W; thence easterly to latitude 40°38′02.5″ N, longitude 074°04′09″ W; thence southerly to latitude 40°37′53″ N, longitude 074°04′07″ W; thence east-southeasterly to latitude 40°37′50″ N, longitude 074°03′50.2″ W; thence south-southeasterly to latitude 40°37′37.5″ N, longitude 074°03′46″ W; thence southwesterly to the shore line at latitude 40°37′24.5″ N, longitude 074°04′18″ W; thence northerly along the shore line to the point of origin.

(b) The regulations. (1) The portion of the restricted area extending from the shore out to a line 600 feet east of the U.S. Pierhead Line is closed to all persons and vessels except those vessels owned by, under hire to or performing work for Naval Station New York, Staten Island, New York.

(2) The portion of the restricted area beginning 600 feet seaward of the U.S. Pierhead Line is open to transiting vessels only. Vessels shall proceed across the area by the most direct route and without unnecessary delay. For vessels under sail, necessary tacking shall constitute a direct route.

(3) Commercial vessels at anchor will be permitted to swing into the seaward portion of the restricted area while at anchor and during the tide changes.

(c) Enforcement. The regulations in this section shall be enforced by the Commanding Officer, Naval Station New York, and such agencies as he/she shall designate.

[56 FR 5300, Feb. 8, 1991]

§ 334.100 Atlantic Ocean off Cape May, N.J.; Coast Guard Rifle Range.

(a) The danger zone. The waters of the Atlantic Ocean within an area described as follows: Beginning at Cape May West Jetty Light; thence 180° true, 800 yards; thence 250° true, 1,325 yards; and thence 335° true to the shore line.

(b) The regulations. (1) No person or vessel shall enter or remain in the danger area between sunrise and sunset daily, except as authorized by the enforcing agency.

(2) The regulations in this section shall be enforced by the Commander, Third Coast Guard District, or his authorized representative.

[25 FR 12244, Nov. 30, 1960. Redesignated at 50 FR 42696, Oct. 22, 1985, as amended at 62 FR 17552, Apr. 10, 1997]

§ 334.102 Sandy Hook Bay, Naval Weapons Station EARLE, Piers and Terminal Channel, restricted area, Middletown, New Jersey.

(a) The area. All of the navigable waters within the area bounded by these coordinates:

Latitude 40°25′55.6″ N, longitude 074°04′31.4″ W; thence to Latitude 40°26′54.0″ N, longitude 074°03′53.0″ W; thence to Latitude 40°26′58.0″ N, longitude 074°04′03.0″ W; thence to Latitude 40°27′56.0″ N, longitude 074°03′24.0″ W; thence to Latitude 40°27′41.7″ N, longitude 074°02′45.0″ W; thence to Latitude 40°28′23.5″ N, longitude 074°02′16.6″W; thence to Latitude 40°28′21.2″ N, longitude 074°01′56.0″ W; thence to Latitude 40°28′07.9″ N, longitude 074°02′18.6″ W; thence to Latitude 40°27′39.3″ N, longitude 074°02′38.3″ W; thence to Latitude 40°27′28.5″ N, longitude 074°02′10.4″ W; thence to Latitude 40°26′29.5″ N, longitude 074°02′51.2″ W; thence to Latitude 40°26′31.4″ N, longitude 074°02′55.4″ W; thence to Latitude 40°25′27.1″ N, longitude 074°03′39.7″W longitude; and thence along the shoreline to the point of origin (NAD 83).

The Department of the Navy plans to install buoys along these coordinates to outline the Restricted Area.

(b) The regulation. (1) Except as set forth in subparagraph (b)(2), no persons, unauthorized vessels or other unauthorized craft may enter the restricted area at any time;

(2) Vessels are authorized to cross the Terminal Channel provided that there are no naval vessels then transiting the channel bounded by:

Latitude 40°27′41.7″ N, longitude 074°02′45.0″ W; thence to Latitude 40°28′23.5″ N, longitude 074°02′16.6″ W; thence to Latitude 40°28′21.2″ N, longitude 074°01′56.0″ W; thence to Latitude 40°28′07.9″ N, longitude 074°02′18.6″ W; thence to Latitude 40°27′39.3″ N, longitude 074°02′38.3″ W); and (3) No person may swim in the Restricted Area.

(c) Enforcement. The regulation in this section, promulgated by the U.S. Army Corps of Engineers, shall be enforced by the Commanding Officer, Naval Weapons Station Earle, and/or other persons or agencies as he/she may designate.

[68 FR 37971, June 26, 2003]

§ 334.110 Delaware Bay off Cape Henlopen, Del.; naval restricted area.

(a) The area. Beginning at a point on the south shore of Delaware Bay at longitude 75°06′12″; thence to latitude 38°47′25″, longitude 75°06′20″; thence to latitude 38°47′48″, longitude 75°06′00″; thence to latitude 38°50′43″, longitude 75°02′11″; thence to latitude 38°49′16″, longitude 74°59′35″; thence to a point on the shore at latitude 38°46′09″; thence northwesterly and southwesterly along the shore at Cape Henlopen to the point of beginning.

(b) The regulations. (1) Anchoring, trawl fishing, crabbing, dragging, grappling, and towing with hawser on bottom are prohibited in the area and no object attached to a vessel shall be placed on or near the bottom.

(2) This section does not apply to anchored floating navigational aids or to placement or removal of such aids by the Coast Guard.

(3) This section does not apply to vessels engaged in commercial or pleasure boat fishing provided anchors, trawls, and ground tackle are not used.

(4) The regulations in this section shall be enforced by the Commandant, Fourth Naval District, and such agencies as he may designate.

[18 FR 4047, July 10, 1953. Redesignated at 50 FR 42696, Oct. 22, 1985]

§ 334.120 Delaware Bay off Milford Neck; naval aircraft bombing target area.

(a) The danger zone. A circular area of one nautical mile radius having its center in Delaware Bay at latitude 38°58′12″, longitude 75°17′30″.

(b) The regulations. (1) Anchoring, trawling, crabbing, fishing and dragging in the danger zone are prohibited during daylight hours.

(2) The regulations in this section shall be enforced by the Commandant, Fourth Naval District, and such agencies as he may designate.

[20 FR 563, Jan. 26, 1955. Redesignated at 50 FR 42696, Oct. 22, 1985]

§ 334.130 Atlantic Ocean off Wallops Island and Chincoteague Inlet, Va.; danger zone.

(a) The area. An area immediately behind and directly offshore from Wallops Island defined by lines drawn as follows: Beginning at latitude 37°53′00″ N, longitude 75°29′48″ W; thence to latitude 37°53′03″ N, longitude 74°50′52″ W; thence to latitude 37°38′28″ N, longitude 74°51′48″ W; thence to latitude 37°22′00″ N, longitude 75°09′35″ W; thence to latitude 37°19′11″ N, longitude 75°30′00″ W; thence to latitude 37°47′57″ N, longitude 75°32′19″ W; and thence to latitude 37°53′00″ N, longitude 75°29′48″ W.

(b) The regulations. (1) Persons and vessels shall only be prohibited from entering the area when launch operations are being conducted.

(2) In advance of scheduled launch operations which, in the opinion of the enforcing agency, may be dangerous to persons and watercraft, appropriate warnings will be issued to navigation interests through official government and civilian channels or in such other manner as the District Engineer, U.S. Army Corps of Engineers, may direct. Such warnings will specify the location, time, and duration of operations, and give other pertinent information as may be required in the interests of safety. Announcement of area of closure will appear in the weekly “Notice to Mariners.”

(3) The intent to conduct rocket-launching operations in the area shall also be indicated by visual signals consisting of a large orange-colored “blimp-shaped” balloon by day and a rotating alternately red and white beacon by night. The balloon shall be flown at latitude 37°50′38″ N, longitude 75°28′47″ W and the beacon shall be displayed about 200 feet above mean high water at latitude 37°50′16″ N, longitude 75°29′07″ W. The appropriate signals shall be displayed 30 minutes prior to rocket-launching time and shall remain displayed until the danger no longer exists.

(4) In addition to visual signals and prior to conducting launch operations, the area will be patrolled by aircraft or surface vessels and monitored by radars and cameras to ensure no persons or watercraft are within the danger zone or designated area of interest within the danger zone. Patrol aircraft and surface vessels are equipped with marine band radios and may attempt to hail watercraft and request that they leave the designated area and remain clear of the area at a safe distance until launch operations are complete, and launch will not occur until the designated area is clear. Patrol aircraft may also employ the method of warning known as “buzzing” which consists of low flight by the airplane and repeated opening and closing of the throttle. Surveillance vessels may also come close to watercraft and employ flashing light to establish communications to indicate that the watercraft is entering the designated hazard area.

(5) Any watercraft being so warned shall immediately leave the designated area until the conclusion of launch operations, and shall remain at a distance to ensure that it will be safe from falling debris.

(6) Nothing in this regulation shall be intended to prevent commercial fishing or the lawful use of approved waterfowl hunting blinds along the shorelines of the Wallops Flight Facility at Wallops Island, Virginia, provided that all necessary licenses and permits have been obtained from the Virginia Marine Resources Commission, Virginia Department of Game and Inland Fisheries, and U.S. Fish and Wildlife Service. Commercial fishermen and waterfowl hunters must observe all warnings and range clearances during hazardous range operations.

(c) Enforcement. The regulations in this section shall be enforced by the Director, National Aeronautics and Space Administration, Goddard Space Flight Center, Wallops Flight Facility Wallops Island, Va., or such agencies as he or she may designate.

[77 FR 61722, Oct. 11, 2012]

§ 334.140 Chesapeake Bay; U.S. Army Proving Ground Reservation, Aberdeen, Md.

(a) Restricted area defined. The following indicates the limits of the waters of or adjacent to the Aberdeen Proving Ground, Maryland, and inside of which boundaries will lie the restricted area known as the Aberdeen Proving Ground, Maryland.

(1) Beginning at a point on the westerly side of Chesapeake Bay, at the south side of the mouth of Swan Creek, Harford County, Maryland, the most northerly point of the reservation known as Plum Point; thence southeasterly along the low water mark on the shore of Chesapeake Bay to and across the north entrance of Spesutie Narrows to and thence along the low water mark on the north shore of Spesutie Island to Locust Point; thence along straight line from Locust Point to Turkey Point for a distance of approximately 1,400 yards; thence following a line parallel with and 1,000 yards from the low water mark on the easterly shore of Spesutie Island to a point 1,000 yards due southeast of Sandy Point; thence approximately southwest in a straight line to a point approximately 1,250 yards S. 10°30′ W. from Bear Point; thence approximately 9,275 yards S. 51°04′ W. to a point in Chesapeake Bay about 1,700 yards due east from Taylor Island Point; thence southwesterly in a straight course, except such variations as may be necessary to include all of Pooles Island to the southwesterly point of Pooles Island, thence in a northwesterly direction to the most southwesterly point of Spry Island, including all of Spry Island; thence northwesterly in a straight line to extreme southerly island off Lower Island Point; thence northwesterly in a straight line through Brier Point to a point in Seneca Creek where this line intersects a straight line which passes through monuments No. 124 and No. 125 on westerly part of Carroll Island; thence northeasterly in a straight line passing through Marshy Point, at the junction of Dundee Creek and Saltpeter Creek, to the intersection of the center line of Reardon Inlet with Gunpowder River, except such variations as may be necessary to exclude any and all parts of the point of land on the westerly side of Gunpowder River about one mile south of Oliver Point; thence northerly along the center line of Reardon Inlet to its intersection with the southeasterly line of the right of way of the Pennsylvania Railroad; thence northeast along the Pennsylvania Railroad following the reservation boundary line to shore of Bush River, and along its western shore to Fairview Point; thence northeast in a straight line across Bush River to concrete monument No. 64, located on the eastern shore of Bush River, south of Chelsea; thence along the eastern shore of Bush River northerly to the mouth of Sod Run; thence by a broken line along the boundary of the reservation to Swan Creek; and thence in a straight line to Plum Point. (The above description may be traced on Coast and Geodetic Chart No. 1226).

(b) Authority delegated Commanding Officer. The Commanding Officer, Aberdeen Proving Ground, has been delegated the authority by the Secretary of the Army to designate from time to time by suitably posted bulletins or announcements, the conditions under which the public, including food fishermen and crabbers, may enter restricted waters of the Aberdeen Proving Ground.

(c) Penalty. All persons who enter the restricted waters, except as authorized in this section, without the authority of the Commanding Officer, Aberdeen Proving Ground, Md., are under the terms of the information given above, guilty of a misdemeanor and upon conviction thereon are punishable by a fine not exceeding $500 or by imprisonment not exceeding 6 months.

(d) Entrance into restricted waters by the public. (1) The following water areas are closed to the public at all times:

(i) Supesutie Narrows—all waters north and east of a line between Bear Point and Black Point;

(ii) All creeks except Landerick Creek;

(iii) The water adjacent to Carroll Island which lies between Brier Point and Lower Island Point also known as Hawthorne Cove;

(iv) The waters immediately off the mouth of Romney Creek;

(v) The waters adjacent to Abbey Point Recovery Field more accurately described as area number 16; depicted in Aberdeen Proving Ground Regulation 210-10, Appendix A.

(vi) The waters on the north side of the Bush River from Pond Point to Chelsea Chimney are closed for fishing purposes.

(2) The remainder of the restricted areas will normally be open for authorized use (including navigation and fishing) during the following hours:

(i) Monday through Thursday, 5 p.m. to 7:30 a.m.;

(ii) Weekends, 5 p.m. Friday to 7:30 a.m. Monday;

(iii) National (not state) holidays, 5 p.m. the day preceding the holiday to 7:30 a.m. the day following the holiday.

(3) When requirements of tests, as determined by the Commanding Officer, Aberdeen Proving Ground, or his designee, necessitate closing the restricted areas during the aforementioned times and days, the Commanding Officer, Aberdeen Proving Ground, will publish appropriate circulars or cause to be broadcast over local radio stations notices informing the public of the time and days which entrance to the restricted waters of Aberdeen Proving Ground by the general public will be prohibited.

(4) A fleet of patrol boats will be positioned at the perimeter of the restricted water zone boundaries (except in extreme weather conditions such as gales or ice) during periods of testing to prevent unauthorized entry. If necessary to attract attention of another vessel about to penetrate the restricted area, the patrol boat may operate a distinctive rotating blue and red light, public address system, sound a siren, or by radio contact on shipshore FM channel 16 and citizen band channel 12. Buoys will mark the restricted waters along the Chesapeake Bay perimeter during the period, normally 4 June through 1 October annually.

(5) Authorized use. Authorized use as used in this section is defined as fishing from a vessel, navigation using a vessel to traverse a water area or anchoring a vessel in a water area. Any person who touches any land, or docks or grounds a vessel, within the boundaries of Aberdeen Proving Ground, Maryland, is not using the area for an authorized use and is in violation of this regulation. Further, water skiing in the water area of Aberdeen Proving Ground is permitted as an authorized use when the water area is open for use by the general public providing that no water skier touches any land, either dry land (fast land) or subaqueous land and comes no closer than 200 meters from any shoreline. Further, if any person is in the water area of Aberdeen Proving Ground, Maryland, outside of any vessel (except for the purposes of water skiing as outlined above) including, but not limited to, swimming, scuba diving, or other purpose, that person is not using the water in an authorized manner and is in violation of this regulation.

(e) Entry onto land and limitation of firing over land. (1) Entry onto any land, either dry land (fast land) or subaqueous land, within the boundaries of the Aberdeen Proving Ground Reservation as defined in paragraph (a)(1) of this section is prohibited at all times. Provided, the Commander, Aberdeen Proving Ground, is authorized to grant exceptions to this regulation either by written permission or by local regulation. Entry onto the land is punishable as in paragraph (c) of this section.

(2) There are no limitations on test firing by Federal testing facilities at Aberdeen Proving Ground over land belonging to Aberdeen Proving Ground.

(f) Permits required from the Commanding Officer to set fixed nets in restricted waters. (1) Fishermen and crabbers desiring to set fixed nets within the restricted waters of Aberdeen Proving Ground Reservation are required in every instance to have a written permit. A fixed net for the purpose of this paragraph is defined as a pound net, staked gill net, hedge fike net, hoop net, eel pot, crab pot, and all other types of nets fastened by means of poles, stakes, weights, or anchors. Permits to fish and crab within the restricted waters of Aberdeen Proving Ground may be obtained by written application to the Commanding Officer, Department of the Army, Aberdeen Proving Ground, Attention: Provost Marshall Division, Aberdeen Proving Ground, Md. Applicants for permits must state the location at which they desire to set fixed nets and state the period of time for which they desire the permit to cover. Nets placed in the restricted waters are subject to damage by gunfire and bombing, and the risk of such damage will be assumed by the holder of the permit.

(2) Holders of permits for setting fixed nets must comply with the provisions of this part and also with § 206.50(d) of this chapter.

(g) Identification signs required at each location of fixed nets. Fishermen and crabbers who have been granted permits to fish or crab within the restricted waters of Aberdeen Proving Ground Reservation with fixed nets must at each location have a stake securely driven at the outer end of the line of nets on which is mounted a sign board which contains their name and permit number. All stakes set within the restricted area established by this regulation will project at least three (3) feet above the surface of the water at all ordinary high stages of the tide. Nets and other fishing and crabbing structures erected will be marked by stakes set at intervals not greater than fifty (50) feet. Fishing and crabbing structures erected in Aberdeen Proving Ground waters will be plainly marked on both ends, and will be lighted with a white light between sunset and sunrise, by and at the expense of the owner.

(h) Removal of pound net poles and/or stakes. At the end of the fishing and crabbing season, fishermen and crabbers must remove and haul away from the location all pound nets, pots, poles or stakes used in their operation. Pound net poles or stakes must not be cast adrift after removal.

(i) Restrictions on fishermen and crabbers. It must be distinctly understood that holders of permits to fish or crab are not authorized to enter the restricted waters of Aberdeen Proving Ground Reservation outside the hours as announced by the Commanding Officer, Aberdeen Proving Ground. In addition, the privileges granted in this paragraph include no right to land nor to cut or procure pound net poles or stakes on the Aberdeen Proving Ground Reservation.

(j) Aberdeen Proving Ground Regulations (APGR) 210-10 will govern commercial fishing and crabbing and APGR 210-26 will govern recreational (non-commercial) fishing and crabbing. This section shall be enforced by the Commander, Aberdeen Proving Ground, and such agencies as he/she may designate.

(k) Compliance with Federal, State and county laws required. The taking of fish and crabs in the waters of Aberdeen Proving Ground Reservation and the setting of and location of nets, in a manner not in compliance with Federal, State, and county laws is prohibited.

(40 Stat. 266; 33 U.S.C. 3)

[13 FR 6915, Nov. 24, 1948, and 32 FR 15673, Nov. 14, 1967, as amended at 42 FR 41281, Aug. 16, 1977; 48 FR 54597, Dec. 6, 1983. Redesignated at 50 FR 42696, Oct. 22, 1985]

§ 334.145 Curtis Creek and Arundel Cove, U.S. Coast Guard Yard, Baltimore; restricted area.

(a) The area. All of the navigable waters of Curtis Creek extending approximately 120 meters from the high-water mark of the United States Coast Guard facility, bounded by these coordinates (including the Arundel Cove): Commencing from the shoreline at latitude 39°12′05.8″ N, longitude 076°34′28.4″ W; thence to latitude 39°12′04.8″ N, longitude 076′34′32″ W; thence to latitude 39°11′59″ N, longitude 076°34′28″ W; thence to latitude 39°11′44.8″ N, longitude 076°34′25″ W; thence to latitude 39°11′44.5″ N, longitude 076°34′07″ W; and thence along the shoreline to the point of origin. The datum for these coordinates is NAD-83.

(b) The regulations. (1) The restricted area as described in paragraph (a) of this section is only open to government vessels. Government vessels include, but are not limited to, U.S. Coast Guard, U.S. Coast Guard Auxiliary, Department of Defense, National Oceanic and Atmospheric Administration, state and local law enforcement, emergency services and vessels under contract with the U.S. Government. Vessels transiting the restricted area shall proceed across the area by the most direct route and without unnecessary delay. Fishing, crabbing, trawling, net-fishing and other aquatic activities are prohibited without prior approval from the Commanding Officer, U.S. Coast Guard Yard or his/her designated representative. The Coast Guard will install warning signs along the shoreline notifying individuals of the restricted area and prohibiting all unauthorized entry into the area along the property boundary.

(2) All persons, vessels and other craft are prohibited from entering, transiting, drifting, dredging or anchoring within the restricted area as described in paragraph (a) of this section without prior approval from the Commanding Officer, U.S. Coast Guard Yard or his/her designated representative.

(3) The restrictions described in paragraph (b)(1) of this section are in effect 24 hours a day, seven days a week.

(c) Enforcement. The regulations in this section shall be enforced by the Commanding Officer, U.S. Coast Guard Yard or such persons or agencies he/she may designate.

[84 FR 64204, Nov. 21, 2019]

§ 334.150 Severn River at Annapolis, Md.; experimental test area, U.S. Navy Marine Engineering Laboratory.

(a) The restricted area. The waters of Severn River shoreward of a line beginning at the southeasternmost corner of the U.S. Navy Marine Engineering Laboratory sea wall and running thence southwesterly perpendicular to the main Severn River channel, approximately 560 feet, thence northwesterly parallel to and 50 feet shoreward of the edge of the channel, 1,035 feet, and thence northeasterly perpendicular to the channel, approximately 600 feet, to the shore. Spar buoys will mark the corners of the area adjacent to the channel.

(b) The regulations. (1) No vessel or person other than specifically authorized military and naval vessels and persons shall enter or remain in the area during its use for experimental purposes. At all other times vessels and persons may use the area without restriction.

(2) The area will be in use intermittently, and this use will be signified by the presence of white-painted boats or floats, which will be lighted at night.

(3) Upon observing the boats or floats referred to in paragraph (b)(2) of this section, or upon being warned, vessels and persons shall immediately vacate the area and remain outside the area during the period of use.

(4) The regulations in this section shall be enforced by the Commandant, Severn River Naval Command, and such agencies as he may designate.

[17 FR 2573, Mar. 25, 1952, as amended at 30 FR 5631, Apr. 21, 1965. Redesignated at 50 FR 42696, Oct. 22, 1985]

§ 334.155 Severn River, Naval Station Annapolis, Small Boat Basin, Annapolis, MD; naval restricted area.

(a) The area. The waters within the Naval Station Annapolis small boat basin and adjacent waters of the Severn River enclosed by a line beginning at the southeast corner of the U.S. Navy Marine Engineering Laboratory; thence to latitude 38°58′56.5″, longitude 76°28′11.5″; thence to latitude 38°58′50.5″, longitude 76°27′52″; thence to the southeast corner of the Naval Station's seawall.

(b) The regulations. No person, vessel or other craft shall enter or remain in the restricted area at any time except as authorized by the enforcing agency.

(c) Enforcement. The regulations in this section shall be enforced by the Superintendent, U.S. Naval Academy, in Annapolis, Maryland, and such agencies as he/she may designate.

[63 FR 68140, Dec. 9, 1998]

§ 334.160 Severn River, at U.S. Naval Academy Santee Basin, Annapolis, Md.; naval restricted area.

(a) The area. The waters within the U.S. Naval Academy Santee Basin and adjacent waters of Severn River inclosed by a line beginning at the northeast corner of Dewey Field seawall; thence to latitude 38°59′03″, longitude 76°28′47.5″; thence to latitude 38°58′58″, longitude 76°28′40″; and thence to the northwest corner of Farragut Field seawall.

(b) The regulations. (1) No person in the water, vessel or other craft shall enter or remain in the restricted area at any time except as authorized by the enforcing agency.

(2) The regulations in this section shall be enforced by the Superintendent, U.S. Naval Academy, Annapolis, Md., and such agencies as he may designate.

[32 FR 10299, July 13, 1967. Redesignated at 50 FR 42696, Oct. 22, 1985]

§ 334.170 Chesapeake Bay, in the vicinity of Chesapeake Beach, Md.; firing range, Naval Research Laboratory.

(a) The danger zone—(1) Area A. A roughly rectangular area bounded on the north by latitude 38°39′55″; on the south by latitude 38°39′09″; on the east by longitude 76°31′03″; and on the west by the shore of Chesapeake Bay.

(2) Area B. The sector of a circle bounded by radii of 9,600 yards bearing 31° (to Bloody Point Bar Light) and 137°30′ (to Choptank River Approach Buoy 2), respectively, from the center at the southeast corner of building No. 3; excluding Area A.

(3) Area C. The segment of a circle inclosed by the arcs of two circles having radii of 9,600 yards and 13,200 yards, respectively, and bounded by the extended radii marking the north and south limits of Area B.

Note:

All bearings referred to true meridian.

(4) Area D. A roughly rectangular area bounded on the north by an east-west line through Chesapeake Beach Light 2 at the entrance channel to Fishing Creek; on the south by an east-west line through Plum Point Shoal Buoy 1 northeast from Breezy Point; on the east by the established fishing structure limit line; and on the west by the shore of Chesapeake Bay.

(b) The regulations. (1) No person or vessel shall enter or remain in Area A at any time.

(2) No person or vessel shall enter or remain in Area B or Area C between the hours of 1:00 p.m. and 5:00 p.m. daily except Sundays, except that through navigation of commercial craft will be permitted in Area C at all times, but such vessels shall proceed on their normal course and shall not delay their progress.

(3) No fishing structures, other than those presently in established locations, which may be maintained, will be permitted to be established in Area D without specific permission from the Commanding Officer, Naval Research Laboratory.

(4) The areas will be in use throughout the year, and no further notice is contemplated that firing is continuing.

(5) Prior to the conduct of each firing practice a patrol vessel will patrol the range to warn navigation. “Baker” will be flown from a conspicuous point on the patrol vessel and from a prominent position on shore.

(6) This section shall be enforced by the Commander, Naval Base, Norfolk, Virginia, and such agencies as he/she may designate.

[13 FR 6916, Nov. 24, 1948, as amended at 17 FR 4832, May 28, 1952; 48 FR 54597, Dec. 6, 1983. Redesignated at 50 FR 42696, Oct. 22, 1985, as amended at 62 FR 17552, Apr. 10, 1997]

§ 334.180 Patuxent River, Md.; restricted areas, U.S. Naval Air Test Center, Patuxent River, Md.

(a) Except in the gut off the tip of Point Patience, no person in the water and no craft shall approach closer than 75 yards to the beaches, shoreline, or piers of the area formerly occupied by the U.S. Naval Mine Warfare Test Station, or of U.S. Naval Air Station property. A person in the water or a civilian craft shall not approach rafts, barges, or platforms closer than 100 yards.

(b) Diving tenders will exhibit a square red flag with white X when underwater diving takes place from naval small craft. At such times, persons in the water and civilian craft shall stay at least 200 yards clear of these vessels and the civilian craft shall proceed at a speed not greater than five knots when within 1,000 yards thereof.

(c) On occasions, seaplane landings and takeoffs will be practiced in the seadrome area north of the U.S. Naval Air Station, Patuxent River. This area includes those waters of the Patuxent River between Town Point and Hog Point shoreward of a line described as follows: Beginning at a point on the shore just west of Lewis Creek, bearing 161°30′ true, 2,000 yards from Patuxent River Light 8; thence to a point bearing 130° true, 1,850 yards from Patuxent River Light 8; thence to a point bearing 247°30′ true, 3,650 yards from Drum Point Light 2; thence to point bearing 235° true, 2,060 yards from Drum Point Light 2; thence to a point bearing 129° true, 700 yards from Drum Point Light 2; thence to a point bearing 137° true, 1,060 yards from Drum Point Light 2; and thence to a point on the shore west of Harper Creek entrance, bearing 158°30′ true, 1,900 yards from Drum Point Light 2.

(d) The regulations in this section shall be enforced by the Commanding Officer, U.S. Naval Air Station, Patuxent River, Md., and such agencies as he may designate.

[30 FR 4198, Mar. 31, 1965, as amended at 48 FR 54598, Dec. 6, 1983. Redesignated at 50 FR 42696, Oct. 22, 1985]

§ 334.190 Chesapeake Bay, in vicinity of Bloodsworth Island, MD, U.S. Navy.

(a) The areas—(1) Prohibited area. All waters within a circle 0.5 miles in radius with its center at latitude 38°10′00″, longitude 76°06′00″; Bloodsworth Island, Pone Island, Northeast Island, and Adams Island.

(2) The danger zone. All waters of Chesapeake Bay and Tangier Sound within an area bounded as follows: Beginning at latitude 38°08′15″, longitude 76°10′00″; thence to latitude 38°12′00″, longitude 76°10′00″; thence to latitude 38°12′00″, longitude 76°07′00″; thence to latitude 38°13′00″, longitude 76°06′00″; thence to latitude 38°13′00″, longitude 76°04′00″; thence to latitude 38°12′00″, longitude 76°02′00″; thence to latitude 38°12′00″, longitude 76°00′00″; thence to latitude 38°08′15″, longitude 76°00′00″; thence to the point of beginning, excluding the prohibited area described in paragraph (a)(1) of this section.

(b) The regulations. (1) No person, vessel or other craft shall approach closer than 75 yards to the beaches, shoreline, or piers of Bloodsworth Island, Pone Island, Northeast Island, Adams Island, or any Patuxent River Naval Air Station property at any time unless authorized to do so by the enforcing agency. No person, vessel or other craft shall approach rafts, barges, or platforms closer than 100 yards.

(2) No person, vessel, or other craft shall enter or remain in the danger zone when notified by the enforcing authority to keep clear. Any watercraft under way or at anchor, upon being so warned, shall immediately vacate the area and shall remain outside the area until conclusion of potentially hazardous test or training events.

(3) The area will be in use intermittently throughout the year.

(4) Prior to the commencement of any potentially hazardous test or training event that requires clearing of non-participant boats from the danger zone, surface or air search of the entire area will be made for the purpose of locating and warning all craft and persons not connected with the test or training event, and a patrol will be maintained throughout the duration of the event.

(5) All persons, vessels, or other craft shall clear the area when warned by patrol vessels.

(6) Patrol vessels will provide warning that a potentially hazardous test or training event is in progress or is about to commence; when so warned, fishing or oystering vessels or other craft not directly connected with the event shall not navigate within the danger zone. Deep-draft vessels proceeding in established navigation channels normally will be permitted to traverse the area upon coordination with range patrol vessels. The patrol vessels will ensure safe separation between all non-participant vessels and potentially hazardous operations.

(7) When potentially hazardous testing or training is not in progress or is not about to commence, oystering and fishing boats and other craft may operate within the danger zone.

(8) All potentially hazardous test or training events will be performed in such a way as to contain the hazard footprint to the established danger zone described in paragraph (a) of this section. Naval authorities will not be responsible for damage to nets, traps, buoys, pots, fish pounds, stakes, or other equipment that may be located within the danger zone.

(9) Nothing in this regulation shall be intended to prevent the lawful use of approved waterfowl hunting blinds along the shorelines of Bloodsworth Island range complex, provided that all necessary licenses and permits have been obtained from the Maryland Department of Natural Resources and the completed copy of the permit has been submitted to the Conservation Division Director at NAS Patuxent River. Waterfowl hunters must observe all warnings and range clearances, as noted herein.

(10) The regulations in this section shall be enforced by the Commander, Naval Air Station Patuxent River, Maryland, and such agencies as he/she may designate.

[72 FR 65668, Nov. 23, 2007]

§ 334.200 Chesapeake Bay, Point Lookout to Cedar Point; aerial and surface firing range and target area, U.S. Naval Air Station, Patuxent River, Maryland, danger zones.

(a) Aerial firing range—(1) The danger zone. The waters of Chesapeake Bay within an area described as follows: Beginning at the easternmost extremity of Cedar Point; thence easterly to the southern tip of Barren Island; thence southeasterly to latitude 38°01′15″, longitude 76°05′33″; thence southwesterly to latitude 37°59′25″, longitude 76°10′54″; thence northwesterly to latitude 38°02′20″, longitude 76°17′26″; thence northerly to Point No Point Light; thence northwesterly to the shore at latitude 38°15′45″; thence northeasterly along the shore to the point of beginning. Aerial and surface firing and dropping of nonexplosive ordnance will be conducted throughout the year.

(2) The regulations. (i) Through navigation of surface craft outside the target areas will be permitted at all times. Vessels shall proceed on their normal course and shall not delay their progress.

(ii) Prior to firing or ordnance drops, the range will be patrolled by naval surface craft or aircraft to warn watercraft likely to be endangered. Surface craft so employed will display a square red flag. Naval aircraft will use a method of warning consisting of repeated shallow dives in the area, following each dive by a sharp pullup.

(iii) Any watercraft under way or at anchor, upon being so warned, shall immediately vacate the area and shall remain outside the area until conclusion of firing practice.

(iv) Nothing in this section shall prevent the taking of shellfish or the setting of fishing structures within the range outside target areas in accordance with Federal and State regulations: Provided, That no permanent or temporary fishing structures or oyster ground markers shall be placed on the western side of the Chesapeake Bay between Point No Point and Cedar Point without prior written approval of the Commanding Officer, U.S. Naval Air Station, Patuxent River, Md.

(v) Naval authorities will not be responsible for damage caused by projectiles, bombs, missiles, or Naval or Coast Guard vessels to fishing structures or fishing equipment which may be located in the aerial firing range immediately adjacent to the target areas.

(b) Target areas—(1) Prohibited area. A circular area with a radius of 1,000 yards having its center at latitude 38°13′00″, longitude 76°19′00″ identified as Hooper Target.

(2) The area. A circular area with a radius of 1000 yards having its center at latitude 38 degrees 02 minutes 18 seconds longitude 76 degrees 09 minutes 26 seconds identified as Hannibal Target.

(3) The regulations. Nonexplosive projectiles and bombs will be dropped at frequent intervals in the target areas. Hooper and Hannibal target areas shall be closed to navigation at all times, except for vessels engaged in operational and maintenance activities as directed by the Commanding Officer of the U.S. Naval Air Station, Patuxent River, Maryland. No person in the waters, vessel, or other craft shall enter or remain in the closed area or climb on targets except on prior written approval of the Commanding Officer, U.S. Naval Air Station, Patuxent River, Maryland.

(c) Enforcement. The regulations in this section shall be enforced by the Commanding Officer of the Naval Air Station, Patuxent River, Maryland and such agencies as he or she may designate.

[31 FR 13648, Oct. 22, 1966, as amended at 48 FR 54598, Dec. 6, 1983. Redesignated at 50 FR 42696, Oct. 22, 1985, as amended at 64 FR 18581, Apr. 15, 1999]

§ 334.205 Carr Creek and Whitehall Bay, in vicinity of Naval Support Activity Annapolis, United States Naval Academy firing range danger zones.

(a) The danger zones—(1) Danger Zone 1. Designated by waters of Carr Creek located north of the line drawn southeasterly from latitude 38°59′3″, longitude 76°27′35″ to latitude 38°58′53″ longitude 76°27′15″ across the mouth of Carr Creek, located near Annapolis, MD.

(2) Danger Zone 2. Designated by the rectangular area enclosed by a line beginning at latitude 38°58′53″, longitude 76°26′57″, thence to latitude 38°58′37″, longitude 76°26′10″, thence to latitude 38°58′16″, longitude 76°26′28″, thence to latitude 38°58′45″, longitude 76°27′4″, thence along the shoreline to the point of beginning.

(3) Danger Zone 3. Designated by the rectangular area enclosed by a line beginning at latitude 38°58′28″, longitude 76°26′17″, thence to latitude 38°58′14″, longitude 76°25′53″, thence to latitude 38°58′0″, longitude 76°26′9″, thence to latitude 38°58′16″, longitude 76°26′28″, thence to the point of beginning.

(4) Coordinates. All coordinates reference 1983 North American Datum (NAD 83). All danger zones have been charted on NOAA nautical charts.

(b) The regulations. (1) All persons, boats, vessels, or other craft are prohibited from entering, transiting, or remaining within the danger zones described in paragraphs (a)(1) through (3) of this section during range operations.

(2) Before and during range operations, range spotters will be on duty to watch for vessels nearing the danger zone(s), and warning lights will be activated on the shoreline. If necessary, the enforcing agency will coordinate with local patrol craft to alert persons or boats of the active danger zone. Prior to and following firing exercises, the Coast Guard Sector Maryland-NCR Command Center must be notified on VHF channel 16 or at 410-576-2525 to deconflict any active search and rescue cases.

(3) In addition to the above precautions, closure of the danger zone will be indicated by the weekly Fifth Coast Guard District's Local Notice to Mariners. The enforcing agency must submit a Local Notice to Mariners article to Sector Maryland-NCR Waterways Management Division at least one week prior to firing exercises. Sector Maryland's Waterways Division may be reached at MDNCRWaterways@uscg.mil. The enforcing agency will also post the danger zone closure schedule on its official Navy website, https://ndw.cnic.navy.mil/Installations/NSA-Annapolis/, and Facebook page, https://www.facebook.com/NSAAnnapolis/.

(4) Consistent with paragraph (b)(2) of this section, the enforcing agency is authorized to prohibit access into the danger zone by anyone, and all willful violations of the enforcing agency's prohibitions are punishable under 33 U.S.C. 3.

(5) Closures of Danger Zones 2 and 3 will be limited to 10 times per calendar year.

(c) The enforcing agency. The regulations in this section shall be enforced by the Superintendent, United States Naval Academy, or the Commanding Officer of Naval Support Activity Annapolis, and such agencies as they may designate.

[91 FR 35412, June 11, 2026]

§ 334.210 Chesapeake Bay, in vicinity of Tangier Island; naval guided missiles test operations area.

(a) The danger zone—(1) Prohibited area. A circle 1,000 yards in radius with its center at latitude 37°47′54″, longitude 76°03′48″.

(2) Restricted area. A circle three nautical miles in radius with its center at latitude 37°47′54″, longitude 76°03′48″, excluding the prohibited area.

(b) The regulations. (1) Persons, vessels or other craft shall not enter or remain in the prohibited area at any time unless authorized to do so by the enforcing agency.

(2) Except as otherwise provided in paragraph (b)(6) of this section, persons, vessels or other craft shall not enter or remain in the restricted area when firing is or will soon be in progress unless authorized to do so by the enforcing agency.

(3) Advance notice will be given of the date on which the first firing is to be conducted and such notice will be published in “Notice to Mariners.” Thereafter, the danger zone will be in use intermittently throughout the year and no further notice is contemplated that firing is continuing.

(4) Warning that firing is or will soon be in progress will be indicated by a red flag displayed from one of six dolphin platforms on the perimeter of the prohibited area, and by patrol vessels within the danger zone or by aircraft employing the method of warning known as “buzzing” which consists of low flight by the airplane and repeated opening and closing of the throttle. Surface or air search of the entire area will be made prior to the commencement of firing on each scheduled day. During periods of firing a patrol vessel will remain in the approaches to the restricted area and maintain continuous contact with the firing planes to warn when the area is not clear.

(5) Upon observing the warning flag or upon receiving a warning by any of the patrol vessels or aircraft, persons, vessels or other craft shall immediately vacate the restricted area and remain outside the area until the conclusion of firing for the day.

(6) This section shall not deny traverse of portions of the restricted area by commercial craft proceeding in established steamer lanes, but when firing is or will soon be in progress all such craft shall proceed on their normal course through the area with all practicable speed.

(7) All projectiles, bombs and rockets will be fired to land within the prohibited area, and on or in the immediate vicinity of a target in the restricted area located adjacent to the west side of Tangier Island. The Department of the Navy will not be responsible for damages by such projectiles, bombs, or rockets to nets, traps, buoys, pots, fishpounds, stakes, or other equipment which may be located within the restricted area.

(8) The regulations of this section shall be enforced by the Commander, Naval Air Bases, Fifth Naval District, Norfolk, Virginia, and such agencies as he may designate.

[13 FR 6918, Nov. 24, 1948, as amended at 22 FR 3706, May 25, 1957; 24 FR 3760, May 6, 1959. Redesignated at 50 FR 42696, Oct. 22, 1985, as amended at 62 FR 17552, Apr. 10, 1997]

§ 334.220 Chesapeake Bay, south of Tangier Island, Va.; naval firing range.

(a) The danger zone. Beginning at latitude 37°46′39″, longitude 75°57′43″, thence to latitude 37°43′42″, longitude 75°55′30″; thence to latitude 37°27′00″, longitude 76°02′48″; thence to latitude 37°27′00″; longitude 76°08′00″; thence to latitude 37°45′00″, longitude 76°09′48″; thence to latitude 37°45′00″, longitude 76°08′51″; and thence along the circumference of a circle of five nautical miles radius whose center is at latitude 37°47′54″, longitude 76°03′48″, to the point of beginning.

(b) The regulations. (1) Any vessel propelled by mechanical means or by sail at a speed greater than five knots may proceed through the danger zone to and from points without, but not from one point to another point within, the area, except when especially notified to the contrary.

(2) All vessels, other than naval craft, are forbidden to anchor within the danger zone except in cases of great emergency. All vessels anchoring under circumstances of great emergency within the area shall leave the area immediately after the emergency ceases or upon notification by the enforcing agency.

(3) Fishing, oystering, clamming, crabbing, and other aquatic activities are forbidden within the limits of the danger zone, except that existing fishing structures licensed by the State of Virginia may be maintained and operated: Provided, The owners thereof obtain written permits from the enforcing agency designated in paragraph (b)(5) of this section.

(4) Day and night firing over the range will be conducted intermittently by one or more vessels, depending on weather and operating schedules. When firing is in progress, adequate patrol by naval craft will be conducted to prevent vessels from entering or remaining within the danger zone.

(5) This section shall be enforced by the Commandant, Fifth Naval District, U. S. Naval Base, Norfolk, Virginia, and such agencies as he may designate.

[13 FR 6918, Nov. 24, 1948, as amended at 22 FR 6965, Dec. 4, 1957. Redesignated at 50 FR 42696, Oct. 22, 1985]

§ 334.230 Potomac River.

(a) Naval Surface Warfare Center, Dahlgren, VA—(1) The areas. Portions of the Upper Machodoc Creek and Potomac River near Dahlgren, VA as described below:

(i) Lower zone. The entire portion of the lower Potomac River between a line from Point Lookout, Maryland, to Smith Point, Virginia, and a line from Buoy 14 (abreast of St. Clements Island) to a point near the northeast shore of Hollis Marsh at latitude 38°10′00″, longitude 76°45′22.4″. Hazardous operations are conducted in this zone at infrequent intervals.

(ii) Middle zone. Beginning at the intersection of the Harry W. Nice Bridge with the Virginia shore; thence to Light 33; thence to latitude 38°19′06″, longitude 76°57′06″ which point is about 3,300 yards east-southeast of Light 30; thence to Line of Fire Buoy O, about 1,150 yards southwest of Swan Point; thence to Line of Fire Buoy M, about 1,700 yards south of Potomac View; thence to Line of Fire Buoy K, about 1,400 yards southwesterly of the lower end of Cobb Island; thence to Buoy 14, abreast of St. Clements Island, thence southwest to a point near the northeast shore of Hollis Marsh at latitude 38°10′00″; longitude 76°45′22.4″; thence northwest to Line of Fire Buoy J, about 3,000 yards off Popes Creek, Virginia; thence to Line of Fire Buoy L, about 3,600 yards off Church Point; thence to Line of Fire Buoy N, about 900 yards off Colonial Beach; thence to Line of Fire Buoy P, about 1,000 yards off Bluff Point; thence northwest to latitude 38°17′54″, longitude 77°01′02″, a point of the Virginia shore on property of the Naval Support Facility Dahlgren, a distance of about 4,080 yards; thence north along the Potomac shore of Naval Surface Warfare Center, Dahlgren to Baber Point; and thence west along the Upper Machodoc Creek shore of Naval Surface Warfare Center, Dahlgren to Howland Point at latitude 38°19′0.5″, longitude 77°03′23″; thence northeast to latitude 38°19′18″, longitude 77°02′29″, a point on the Naval Surface Warfare Center, Dahlgren shore about 350 yards southeast of the base of the Navy recreational pier. Hazardous operations are normally conducted in this zone daily except Saturdays, Sundays, and national holidays.

(iii) Upper zone. Beginning at Mathias Point, Va.; thence north to Light 5; thence north-northeast to Light 6; thence east-southeast to Lighted Buoy 2, thence east-southeast to a point on the Maryland shore at approximately latitude 38°23′35.5″, longitude 76°59′15.5″; thence south along the Maryland shore to, and then along, a line passing through Light 1 to the Virginia shore, parallel to the Harry W. Nice Bridge; thence north with the Virginia shore to the point of beginning. Hazardous operations are conducted in this zone at infrequent intervals.

(2) The regulations. (i) Hazardous operations normally take place between the hours of 8 a.m. and 5 p.m. daily except Saturdays, Sundays and national holidays, with infrequent night firing between 5 p.m. and 10:30 p.m. During a national emergency, hazardous operations will take place between the hours of 6 a.m. and 10:30 p.m. daily except Sundays. Hazardous operations may involve firing large or small caliber guns and projectiles, aerial bombing, use of directed energy, and operating manned or unmanned watercraft.

(ii) When hazardous operations are in progress, no person, or fishing or oystering vessels shall operate within the danger zone affected unless so authorized by the Naval Surface Warfare Center, Dahlgren's patrol boats. Oystering and fishing boats or other craft may cross the river in the danger zone only after they have reported to the patrol boat and received instructions as to when and where to cross. Deep-draft vessels using dredged channels and propelled by mechanical power at a speed greater than five miles per hour may proceed directly through the danger zones without restriction except when notified to the contrary by the patrol boat. Unless instructed to the contrary by the patrol boat, small craft navigating up or down the Potomac River during hazardous operations shall proceed outside of the northeastern boundary of the Middle Danger Zone. All craft desiring to enter the Middle Danger Zone when proceeding in or out of Upper Machodoc Creek during hazardous operations will be instructed by the patrol boat; for those craft that desire to proceed in or out of Upper Machodoc Creek on a course between the western shore of the Potomac River and a line from the Main Dock of Naval Surface Warfare Center, Dahlgren to Line of Fire Buoy P, clearance will be granted to proceed upon request directed to the patrol boat.

(iii) Due to hazards of unexploded ordnance, no person or craft in the Middle Danger Zone shall approach closer than 100 yards to the shoreline of Naval Surface Warfare Center, Dahlgren, previously known as the Naval Surface Weapons Center.

(3) Enforcement. The regulations shall be enforced by the Commander, Naval Surface Warfare Center, Dahlgren and such agencies as he/she may designate. Patrol boats, in the execution of their mission assigned herein, shall display a square red flag during daylight hours for purposes of identification; at night time, a 32 point red light shall be displayed at the mast head. Naval Surface Warfare Center, Dahlgren (Range Control) can be contacted by Marine VHF radio (Channel 16) or by telephone (540) 653-8791.

(4) Exceptions. Nothing in this regulation shall be intended to prevent commercial fishing or the lawful use of approved waterfowl hunting blinds along the shorelines of Naval Surface Warfare Center, Dahlgren, provided that all necessary licenses and permits have been obtained from the Maryland Department of Natural Resources, the Virginia Department of Game and Inland Fisheries, or the Potomac River Fisheries Commission. Waterfowl hunters shall provide a completed copy of their blind permit to the Natural Resources Manager at Naval Surface Warfare Center, Dahlgren. Commercial fishermen and waterfowl hunters must observe all warnings and range clearances, as noted herein. Federal, State and local law enforcement agencies are exempt from the provisions of paragraph (a) of this section.

(b) Accotink Bay, Accotink Creek, and Pohick Bay; U.S. Military Reservation, Fort Belvoir, Va—(1) The danger zone. The waters of Accotink Bay, Accotink Creek, and Pohick Bay, Virginia, within and adjacent to the target ranges of the U.S. Military Reservation, Fort Belvoir, as follows: All of Accotink Bay; all of Accotink Creek below the bridge which crosses Accotink Creek approximately 400 yards south of U.S. Highway No. 1; and that portion of Pohick Bay bordering its north shore. The mouth of Accotink Bay and that portion of Pohick Bay within the danger zone will be marked by the Post Commander with suitable warning buoys.

(2) The regulations. (i) When firing affecting the area is in progress, the Post Commander will post guards at such locations that the waters in the danger zone may be observed and arrange signals whereby these guards may stop the firing should any person be seen in the danger zone. When firing is in progress, the Post Commander will cause to be displayed both on the east shore of Accotink Bay at its mouth and near the danger zone boundary on Accotink Creek a red streamer which shall be visible to a person in a boat near those points.

(ii) Persons desiring to cross the waters in the danger zone shall first determine whether a red streamer is displayed on the east Shore of Accotink Bay at its mouth or near the danger zone boundary on Accotink Creek. If the red streamer is displayed, it will indicate that firing is in progress and that the waters in the danger zone are covered by rifle fire, and the area shall not be entered until the streamer is lowered.

(iii) The Post Commander is hereby authorized by using such agencies and equipment necessary to stop all persons and boats at the boundary of the danger zone and prohibit their crossing the area until convenient to the firing schedule to do so.

[13 FR 6916, Nov. 24, 1948, as amended at 13 FR 9557, Dec. 31, 1948; 21 FR 2817, May 1, 1956; 22 FR 2951, Apr. 26, 1957; 28 FR 349, Jan. 12, 1963; 48 FR 54597, Dec. 6, 1983. Redesignated at 50 FR 42696, Oct. 22, 1985, as amended at 62 FR 17552, Apr. 10, 1997; 76 FR 10523, Feb. 25, 2011]

§ 334.235 Potomac River, Marine Corps Base Quantico (MCB Quantico) in vicinity of Marine Corps Air Facility (MCAF), restricted area.

(a) The area. All of the navigable waters of the Potomac River extending approximately 500 meters from the high-water mark on the Eastern shoreline of the MCAF, bounded by these coordinates (including the Chopawamsic Creek channel, but excluding Chopawamsic Island): Beginning at latitude 38°29′34.04″ N, longitude 077°18′22.4″ W (Point A); thence to latitude 38°29′43.01″ N, longitude 077°18′4.1″ (Point B); thence to latitude 38°29′55.1″ N, longitude 077°17′51.3″ W (Point C); thence to latitude 38°30′10.1″ N, longitude 077°17′40.3″ W (Point D); thence to latitude 38°30′23.43″ N, longitude 077°17′50.30″ W (Point E); then along the western shoreline of Chopawamsic Island to latitude 38°30′35.13″ N, longitude 077°17′47.45″ W (Point F); thence to latitude 38°30′42.1″ N, longitude 077°17′37.1″ W (Point G); thence to latitude 38°30′50.71″ N, longitude 077°17′54.12″ W (Point H); then along the shoreline to latitude 38°30′0.058″ N, longitude 077°18′39.26″ W (Point I); then across the Chopawamsic Channel to latitude 38°29′58.45″ N, longitude 077°18′39.97″ W (Point J); thence to latitude 38°29′38.2″ N, longitude 077°18′38.14″ W (Point K); and thence to the beginning point of origin.

(b) The regulations. (1) All persons, vessels, or other craft are prohibited from entering, transiting, drifting, dredging, or anchoring within the restricted area without the permission of the Commander, MCB Quantico or his/her designated representatives. The restriction will be in place 24 hours a day, seven days a week.

(2) The boundary of the restricted area will be demarcated with marker buoys and warning signs set at 500 foot intervals. In addition, floating small craft intrusion barriers marked with reflective material will be placed across the Chopawamsic Creek channel at the entrance to the channel from the Potomac River and immediately west of the CSX railroad bridge.

(c) Enforcement. The regulations in this section shall be enforced by the Commander, MCB Quantico or any such agencies he/she designates. The areas identified in paragraph (a) of this section will be monitored 24 hours a day, 7 days a week. Any person or vessel encroaching within the areas identified in paragraph (a) of this section will be directed to immediately leave the restricted area. Failure to do so could result in forceful removal and/or criminal charges.

(d) Exceptions. Commercial fisherman will be authorized controlled access to the restricted area (with the exception of Chopawamisc Creek channel) after registering with MCB Quantico officials and following specific access notification procedures.

[76 FR 6328, Feb. 4, 2011; 76 FR 10524, Feb. 25, 2011]

§ 334.240 Potomac River, Mattawoman Creek and Chicamuxen Creek; U.S. Naval Surface Weapons Center, Indian Head Division, Indian Head, Md.

(a) The danger zone. Beginning at a point on the easterly shore of the Potomac River at latitude 38°36′00″, longitude 77°11′00″; thence to latitude 38°34′30″; longitude 77°13′00″; thence to latitude 38°33′20″, longitude 77°14′20″; thence to latitude 38°32′20″, longitude 77°15′10″; thence to latitude 38°32′00″, longitude 77°15′00″; thence to latitude 38°32′30″, longitude 77°14′00″; thence to latitude 38°32′30″, longitude 77°14′00″; thence upstream along the easterly shoreline of Chicamuxen Creek to its head thence downstream along the westerly shoreline of Chicamuxen Creek to the southernmost point of Stump Neck; thence northeasterly along the shoreline of Stump Neck to the mouth of Mattawoman Creek; thence along the southeasterly shore of Mattawoman Creek to the pilings remaining from the footbridge connecting the left bank of the creek to the Naval Surface Warfare Center, Indian Head Division; thence along the northwesterly shore of Mattawoman Creek from the pilings remaining from the footbridge to the mouth of the creek; thence in a northeasterly direction along the easterly shore of the Potomac River to the point of beginning.

(b) The regulations. (1) Firings consisting of controlled explosions within the danger zone, and controlled shore operations, or accidental explosions, hazardous to vessel traffic within the limits of the danger zone, may take place at any time of the day or night and on any day of the week.

(2) Flashing red lights, horns, and signs established at appropriate points will warn vessels of impending tests or operations considered to be hazardous to vessels within the danger zone.

(3) No persons or vessels except vessels of the United States or vessels authorized by the enforcing agency shall enter or remain in the danger zone while lights are flashing, when warning horns are in operation, or when warned or directed by a patrol vessel.

(4) Nothing in this section shall prohibit the use of Mattawoman Creek or Chicamuxen Creek as a harbor of refuge because of stress of weather.

(5) Except as prescribed in paragraph (b)(3) of this section, persons and vessels may enter and proceed through the danger zone without restriction. However, accidental explosions may occur at any time and persons and vessels entering the area do so at their own risk.

(6) Fishermen operating in the danger zone when warning signals are sounded shall evacuate the area immediately.

(7) The regulations in this section shall be enforced by the Commanding Officer, U.S. Naval Surface Warfare Center, Indian Head Division, Indian Head, Maryland.

[26 FR 9748, Oct. 17, 1961, as amended at 48 FR 54598, Dec. 6, 1983. Redesignated at 50 FR 42696, Oct. 22, 1985, as amended at 62 FR 17552, Apr. 10, 1997]

§ 334.250 Gunston Cove, at Whitestone Point, Va.; U.S. Army restricted area.

(a) The area. The waters within an area beginning at a point on the shoreline at longitude 77°08′36″; thence to latitude 38°40′22″, longitude 77°08′39″; thence to latitude 38°40′14″, longitude 77°08′22″; thence to a point on the shoreline at longitude 77°08′18″ and thence along the shoreline to the point of beginning.

(b) The regulations. No person, vessel, or other craft shall enter or remain in the area at any time except as authorized by the enforcing agency.

(c) The regulations in this section shall be enforced by the District Engineer, U.S. Army Engineer District, Philadelphia, Pa., and such agencies as he may designate.

[31 FR 16560, Dec. 28, 1966. Redesignated at 50 FR 42696, Oct. 22, 1985]

§ 334.260 York River, Va.; naval restricted areas.

(a) The areas—(1) Naval mine service-testing area (prohibited). A rectangular area surrounding Piers 1 and 2, Naval Weapons Station, and extending upstream therefrom, beginning at a point on the shore line at latitude 37°15′25″ N, longitude 76°32′32″ W; thence to latitude 37°15′42″ N, longitude 76°32′06″ W; thence to latitude 37°15′27″ N, longitude 76°31′48″ W; thence to latitude 37°15′05″ N, longitude 76°31′27″ W; thence to a point on the shore line at latitude 37°14′51″ N, longitude 76°31′50″ W; and thence along the shore line to the point of beginning.

(2) Naval mine service-testing area (restricted). A rectangular area adjacent to the northeast boundary of the prohibited area described in paragraph (a)(1) of this section, beginning at latitude 37°16′00″ N, longitude 76°32′29″ W; thence to latitude 37°16′23″ N, longitude 76°32′00″ W; thence to latitude 37°15′27″ N, longitude 76°30′54″ W; thence to latitude 37°15′05″ N, longitude 76°31′27″ W; thence to latitude 37°15′27″ N, longitude 76°31′48″ W; thence to latitude 37°15′42″ N, longitude 76°32′06″ W; thence to latitude 37°15′40″ N, longitude 76°32′09″ W; and thence to the point of beginning.

(3) Explosives-Handling Berth (Naval). A circular area of 600 yards radius with its center at latitude 37°13′56″ N, longitude 76°28′48″ W.

(4) Felgates Creek (prohibited). Navigable waters of the United States as defined at 33 CFR part 329 within Felgates Creek from the boundary fence line at the mouth to the mean high water line of the head and all associated tributaries. The area contains the entirety of Felgates Creek and all associated tributaries south of the line which begins at latitude 37°16′24″ N, longitude 76°35′12″ W and extends east to latitude 37°16′21″ N, longitude 76°35′00″ W.

(5) Indian Field Creek (prohibited). Navigable waters of the United States as defined at 33 CFR part 329 within Indian Field Creek from the boundary fence line at the mouth to the mean high water line of the head and all associated tributaries. The area contains the entirety of Indian Field Creek and all associated tributaries south of the line which begins at latitude 37°16′05″ N, longitude 76°33′29″ W and extends east to latitude 37°16′01″ N, longitude 76°33′22″ W.

(b) The regulations. (1) All persons and all vessels other than naval craft are forbidden to enter the prohibited area described in paragraph (a)(1) of this section.

(2) Trawling, dragging, and net-fishing are prohibited, and no permanent obstructions may at any time be placed in the area described in paragraph (a)(2) of this section. Upon official notification, any vessel anchored in the area and any person in the area will be required to vacate the area during the actual mine-laying operation. Persons and vessels entering the area during mine-laying operations by aircraft must proceed directly through the area without delay, except in case of emergency. Naval authorities are required to publish advance notice of mine-laying and/or retrieving operations scheduled to be carried on in the area, and during such published periods of operation, fishing or other aquatic activities are forbidden in the area. No vessel will be denied passage through the area at any time during either mine-laying or retrieving operations.

(3) The Explosives-Handling Berth (Naval) described in paragraph (a)(3) of this section is reserved for the exclusive use of naval vessels and except in cases of emergency no other vessel shall anchor therein without the permission of local naval authorities, obtained through the Captain of the Port, U.S. Coast Guard, Norfolk, Virginia. There shall be no restriction on the movement of vessels through the Explosive-Handling Berth.

(4) Vessels shall not be anchored, nor shall persons in the water approach within 300 yards of the perimeter of the Explosives-Handling Berth (Naval) when that berth is occupied by a vessel handling explosives.

(5) All persons and all vessels are forbidden to enter the prohibited areas described in paragraphs (a)(4) and (a)(5) of this section without prior permission of the enforcing agency.

(6) The regulations of this section shall be enforced by the Commander, Naval Weapons Station Yorktown, Virginia, and such agencies as he/she may designate.

[77 FR 61723, Oct. 11, 2012]

§ 334.270 York River adjacent to Cheatham Annex Depot, Naval Supply Center, Williamsburg, Va.; restricted area.

(a) The area. The waters of York River bounded as follows: Beginning at a point on shore at Cheatham Annex Depot at latitude 37°17′14″ N., longitude 76°35′38″ W.; thence to a point offshore at latitude 37°17′52″ N., longitude 76°35′20″ W.; thence approximately parallel to the shore to a point at latitude 37°17′23″ N., longitude 76°34′39″ W.; thence to the shore at latitude 37°16′58″ N., longitude 76°35′03″ W.; and thence along the shore at Cheatham Annex Depot to the point of beginning.

(b) The regulations. (1) No loitering will be permitted within the area. Oystermen may work their own leaseholds or public bottom within the area, provided they obtain special permission from the Officer in Charge, Cheatham Annex Depot, Naval Supply Center, Williamsburg, Virginia.

(2) The regulations in this section shall be enforced by the Officer in Charge, Cheatham Annex Depot, U.S. Naval Supply Center, Williamsburg, Virginia.

[22 FR 4814, July 9, 1957. Redesignated at 50 FR 42696, Oct. 22, 1985]

§ 334.275 North and Southwest Branch, Back River, Hampton, U.S. Air Force Base, Langley, Va.; restricted area.

(a) The area. Beginning at a point on the island at the entrance to Tide Mills Creek in the Southwest Branch of the Back River at latitude 37°03′50″ N, longitude 076°22′00″ W, thence along the shore of Langley Air Force Base, 35 yards off the ordinary mean high water (MHW) mark, to a point in the Northwest Branch of the Back River at latitude 37°06′40″ N, longitude 076°22′55″ W.

(b) The regulations. (1) No persons or vessels, recreational or commercial, may enter this restricted area without the permission of the Commanding Officer, Langley Air Force Base.

(2) The Commanding Officer shall not prevent persons from fulfilling their legal obligation to the Commonwealth of Virginia with regard to oyster planting ground leases that lie within the restricted area. The Commanding Officer may, at his/her discretion, require those persons and vessels working those leases to register with the Langley Air Force Base Security Officer on an annual basis. Failure to comply with this request may result in denial to access the oyster grounds until such time as the request has been complied with.

(3) Persons or vessels contracted with or utilized by the Commonwealth of Virginia to work the oyster grounds shall give verbal notification to the base Security Office prior to entering the restricted area.

(4) City, State and Federal law enforcement vessels may enter the restricted area at any time they deem necessary for the enforcement of their respective laws.

(c) Enforcement. The regulations in this section shall be enforced by the Commanding Officer of the Langley Air Force Base and such agencies as he/she may designate.

[58 FR 47788, Sept. 10, 1993]

§ 334.280 James River, Skiffes Creek and Warwick River surrounding Joint Base Langley-Eustis, Virginia; restricted areas and danger zones.

(a) The areas. The datum for the coordinates for the restricted areas and danger zones described in this section is NAD-83.

(1) Army Training and Small Craft Testing Area (restricted area). Beginning on the shore at latitude 37°09′53″ N, longitude 76°36′23″ W; thence westerly to latitude 37°09′53″ N, longitude 76°36′59″ W; thence westerly to latitude 37°09′50″ N, longitude 76°37′45″ W; thence southerly to latitude 37°09′00″ N, longitude 76°38′05″ W; thence southerly to latitude 37°08′22″ N, longitude 76°37′55″ W; thence due east to the shore at latitude 37°08′22″ N, longitude 76°37′20″ W; thence northerly following the shoreline to the point of beginning.

(2) 3rd Port Facility (restricted area). An area surrounding the 3rd Port facility, Fort Eustis, beginning at a point on the shoreline at latitude 37°09′53″ N, longitude 76°36′23″ W; thence northerly, following the shoreline to latitude 37°10′03″ N, longitude 76°36′25″ W; thence northerly, following the shoreline to latitude 37°10′19″ N, longitude 76°36′07″ W; thence northerly, across the mouth of Bailey's Creek to latitude 37°10′24″ N, longitude 76°36′02″ W; thence northerly, following the shoreline to latitude 37°10′29″ N, longitude 76°36′06″ W; thence westerly, across Skiffes Creek to latitude 37°10′33″ N, longitude 76°36′20″ W; thence southerly following the shoreline to latitude 37°10′13″ N, longitude 76°36′42″ W; thence southerly to latitude 37°09′53″ N, longitude 76°36′59″ W; thence to the point of beginning.

(3) Warwick River and any tributaries, creeks, estuaries, tidal areas, to include Butlers Gut and Jail Creek (restricted area). All navigable waters of the United States as defined in 33 CFR part 329 within the boundaries of Fort Eustis, westerly of a line connecting the following coordinates: Commencing from the shoreline at latitude 37°09′47″ N, longitude 76°33′52″ W; thence following the meanders of the installation boundary along the westerly mean low waterline of Warwick River, thence to a point on the installation boundary at latitude 37°04′35″ N, longitude 76°33′19″ W.

(4) James River and any tributaries, creeks, estuaries, tidal areas, to include Nells Creek, Locust Neck Creek, Dudleys Creek, Morrisons Creek, Morleys Gut, Blows Creek, and Milstead Creek (restricted area). Navigable waters of the United States as defined at 33 CFR part 329 within the boundaries of Fort Eustis, north/north-easterly of a line connecting the following coordinates: Commencing from the shoreline at latitude 37°04′35″ N, longitude 76°33′19″ W; thence following the meanders of the installation boundary along the northeasterly mean low waterline of the James River, thence to a point on the installation boundary at latitude 37°10′03″ N, longitude 76°36′25″ W at a point at the mouth of Skiffes Creek.

(5) Skiffes Creek and any tributaries, creeks, estuaries, tidal areas, to include Baileys Creek (restricted area). All navigable waters of the United States as defined at 33 CFR part 329 within the boundaries of Fort Eustis, easterly of a line connecting the following coordinates: Commencing from a point on the installation boundary at latitude 37°10′03″ N, longitude 76°36′25″ W; thence northerly, following the shoreline to latitude 37°10′19″ N, longitude 76°36′07″ W; thence northerly, across the mouth of Bailey's Creek to latitude 37°10′24″ N, longitude 76°36′02″ W; thence northerly, following the shoreline to latitude 37°10′29″ N, longitude 76°36′06″ W; thence northerly, following the meanders of the installation boundary to a point at the centerline of an unnamed tributary at latitude 37°10′36″ N, longitude 76°36′01″ W; thence southeasterly, following the centerline of the unnamed tributary to a point on the installation boundary at latitude 37°10′24″ N, longitude 76°35′32″ W.

(6) Danger Zone Warwick River. Navigable waters of the United States as defined at 33 CFR part 329 that encroach upon the boundaries of the Danger Zone of Fort Eustis, westerly of a line connecting the following coordinates: Commencing from the installation boundary at latitude 37°06′44″ N, longitude 76°34′04″ W; thence to a point at latitude 37°06′44″ N, longitude 76°34′02″ W; thence to a point at latitude 37°06′35″ N, longitude 76°33′56″ W; thence to a point at latitude 37°06′28″ N, longitude 76°33′57″ W; thence to a point at latitude 37°06′15″ N, longitude 76°33′30″ W; thence to a point at latitude 37°05′43″ N, longitude 76°33′13″ W; thence to a point at latitude 37°05′33″ N, longitude 76°33′17″ W; thence to a point at latitude 37°05′13″ N, longitude 76°32′53″ W; thence to a point at latitude 37°05′03″ N, longitude 76°33′09″ W; thence following the meanders of the installation boundary along the southwesterly mean low waterline of Warwick River, thence to a point at latitude 37°04′52″ N, longitude 76°33′13″ W; thence to a point at latitude 37°04′49″ N, longitude 76°33′11″ W; thence to a point at latitude 37°04′43″ N, longitude 76°33′28″ W; thence following the meanders of the installation boundary along the southwesterly mean low waterline of Warwick River, thence to a point at latitude 37°04′35″ N, longitude 76°33′19″ W.

(7) Danger Zone James River. Navigable waters of the United States as defined at 33 CFR part 329 that encroach upon the boundaries of the Danger Zone of Fort Eustis, north/north-easterly of a line connecting the following coordinates: Commencing from the installation boundary at latitude 37°04′35″ N, longitude 76°33′19″ W; thence following the meanders of the installation boundary along the easterly mean low waterline of James River to a point at latitude 37°04′39″ N, longitude 76°33′39″ W; thence to a point at latitude 37°04′33″ N, longitude 76°34′15″ W; thence to a point at latitude 37°04′52″ N, longitude 76°34′19″ W; thence to a point at latitude 37°04′52″ N, longitude 76°34′18″ W; thence to a point at latitude 37°04′60″ N, longitude 76°34′20″ W; thence to a point at latitude 37°05′19″ N, longitude 76°34′51″ W; thence to a point at latitude 37°05′53″ N, longitude 76°35′00″ W; thence to a point at latitude 37°06′03″ N, longitude 76°35′08″ W; thence following the meanders of the installation boundary along the easterly mean low waterline of James River, thence to a point at latitude 37°06′40″ N, longitude 76°35′52″ W; thence to a point at latitude 37°06′35″ N, longitude 76°36′19″ W; thence to a point on the installation boundary at latitude 37°06′50″ N, longitude 76°36′21″ W.

(b) The regulations. (1) For the restricted areas defined in paragraphs (a)(1) and (2) of this section:

(i) All vessels will contact the 3rd Port Harbor Master on marine channel 12 or 68 prior to entering or transiting these restricted areas.

(ii) The passage of fishing vessels to or from authorized traps, or the transit of commercial vessels, will be coordinated with the 3rd Port Harbor Master on marine channel 12 or 68.

(iii) The harvesting and cultivation of oyster beds or the setting of fish traps within these restricted areas will be allowed provided the commercial fisherman coordinate access to these areas with the 3rd Port Harbor Master on marine channel 12 or 68.

(iv) The Commander, Joint Base Langley-Eustis will, to the extent possible, give public notice from time to time through local news media and the Coast Guard's Local Notice to Mariners of the schedule of intended Department of Defense use of the restricted areas.

(2) For the restricted areas defined in paragraphs (a)(3), (4), and (5) of this section:

(i) Entry into these areas is for official government purposes only, or as authorized by the Commander, Joint Base Langley-Eustis.

(ii) Entry will be coordinated and conducted in accordance with the policies and procedures established by the Commander, Joint Base Langley-Eustis.

(3) For the danger zones defined in paragraphs (a)(6) and (7) of this section:

(i) Persons, vessels or other craft shall not enter or remain in the danger zone when firing is or will soon be in progress unless authorized to do so by the enforcing agency.

(ii) Advance notice of the schedule of small arms firing will be provided via the Joint Base Langley-Eustis web page.

(iii) All projectiles will be fired to land within the impact area on the Fort Eustis peninsula. Neither the Department of the Army nor the Department of the Air Force will be responsible for damages by such projectiles to nets, traps, buoys, pots, fishpounds, stakes, or other equipment which may be located within these danger zones.

(c) Enforcement. The regulations of this section shall be enforced by the Commander, Joint Base Langley-Eustis, Virginia, and such agencies as the commander may designate.

[84 FR 64201, Nov. 21, 2019]

§ 334.285 York River and the Naval Weapons Station Yorktown-Cheatham Annex, Yorktown, Virginia; danger zone.

(a) The area. The waters within an area beginning at mean high water on the shore at the facility located at latitude 37°17′33.10″ N, longitude 76°36′19.06″ W; then northeast to a point in the York River at latitude 37°18′36.65″ N, longitude 76°34′39.01″ W; thence south, southeast to latitude 37°17′59.37″ N, longitude 76°34′13.65″ W; then southwest to a point on the shore located at latitude 37°17′26.75″ N, longitude 76°36′14.89″ W.

(b) The regulations. (1) Vessels and persons may transit this area at any time. No vessel or persons shall anchor, fish or conduct any waterborne activities within the danger zone established in accordance with this regulation any time live firing exercises are being conducted.

(2) Anytime live firing is being conducted, the person or persons in charge shall display a red flag from a conspicuous location along the shore to signify the range is active and post lookouts to ensure the safety of all vessels passing through the area. At night, red lights will be displayed in lieu of flags.

(3) No firing activities shall be conducted when the visibility is less than the maximum range of the weapons being used at the facility or while a vessel is within the danger zone.

(4) Recreational and commercial activities may be conducted in this area anytime the range is inactive.

(c) Enforcement. The regulations in this section shall be enforced by the Commander, Naval Weapons Station, Yorktown, or such agencies as he or she may designate.

[79 FR 35050, June 19, 2014]

§ 334.290 Elizabeth River, Southern Branch, Va., naval restricted areas.

(a) The areas—(1) St. Helena Annex Area. Beginning at a point at St. Helena Annex of the Norfolk Naval Shipyard, on the eastern shore of Southern Branch of Elizabeth River, at latitude 36°49′43″, longitude 76°17′26.5″; thence in a southwesterly direction to a point on the eastern boundary of Norfolk Harbor 40-foot channel at latitude 36°49′42″, longitude 76°17′33″; thence in a southerly direction along the eastern boundary of Norfolk Harbor 40-foot channel to latitude 36°49′28″, longitude 76°17′27″; thence easterly to the shore at latitude 36°49′28″, longitude 76°17′22″; and thence, northerly along the shore to the point of beginning.

(2) Norfolk Naval Shipyard Area. Beginning at a point on the shore at the northeast corner of the Norfolk Naval Shipyard, at latitude 36°49′43.5″, longitude 76°17′41.5″; thence due east approximately 100 feet to the western boundary of Elizabeth River channel; thence in a southerly direction along the western boundary of the channel to the point where it passes through the draw of the Norfolk and Portsmouth Belt Line Railroad Bridge, thence in a southwesterly direction along the northerly side of the bridge to the western shore of Southern Branch of Elizabeth River; and thence along the shore in a northerly direction to the point of beginning.

(3) Southgate Terminal Area. Beginning at a point at the northeast corner of Southgate Terminal Annex of Norfolk Naval Shipyard, at latitude 36°48′23″, longitude 76°17′39″; thence east to latitude 36°48′23″, longitude 76°17′29″; thence southerly along the western boundary of Norfolk Harbor 35-foot channel to latitude 36°48′04″, longitude 76°17′33″; thence west to latitude 36°48′04″, longitude 76°17′41″; and thence along the shore in a northerly direction to the point of beginning.

(b) The regulations. (1) No vessels other than Naval vessels and other vessels authorized to move to and from piers at the Norfolk Naval Shipyard and its two annexes described in paragraph (a) (1) and (3) of this section, and no person other than persons embarked in such vessels, shall enter the restricted areas.

(2) This section shall be enforced by the Commander, Norfolk Naval Shipyard, Portsmouth, Va., and such agencies as he may designate.

[19 FR 2232, Apr. 17, 1954, as amended at 35 FR 2660, Feb. 6, 1970. Redesignated at 50 FR 42696, Oct. 22, 1985]

§ 334.293 Elizabeth River, Craney Island Refueling Pier Restricted Area, Portsmouth VA; naval restricted area.

(a) The area. (1) The waters within an area beginning at a point on the shore at latitude 36°53′17.4″ N, longitude 76°20′21″ W; thence easterly to latitude 36°53′16.8″ N, longitude 76°20′14.4″ W: thence southwesterly to latitude 36°53′00″ N, longitude 76°20′18″ W; thence southeasterly to latitude 36°52′55.2″ N, longitude 76°20′16.5″ W: thence southwesterly to latitude 36°52′52.2″ N, longitude 76°20′18″ W; thence southwesterly to latitude 36°52′49.8″ N, longitude 76°20′25.8″ W: thence northwesterly to latitude 36°52′58.2″ N, longitude 76°20′33.6″ W; thence northeasterly to a point on the shore at latitude 36°53′00″ N, longitude 76°20′30″ W; thence northerly along the shoreline to the point of beginning.

(b) The regulation. No vessel or persons may enter the restricted area unless specific authorization is granted by the Commander, Navy Region, Mid-Atlantic and/or other persons or agencies as he/she may designate.

(c) Enforcement. The regulation in this section, promulgated by the Corps of Engineers, shall be enforced by the Commander, Navy Region, Mid-Atlantic, and such agencies or persons as he/she may designate.

[67 FR 6654, Feb. 13, 2002]

§ 334.296 Elizabeth River, Deperming Station, Norfolk, VA, Restricted Area.

(a) The area. The waters within an area beginning at a point latitude 36°51′52″ N, longitude 76°20′04″ W; thence easterly to a point at latitude 36°51′52″ N, longitude 76°19′49″ W, thence northerly to latitude 36°52′06″ N, longitude 76°19′48″ W; thence northwesterly to latitude 36°52′12″ N, longitude 76°19′57″ W; thence northwesterly to a point at latitude 36°52′15″ N, longitude 76°19′59″ W; thence westerly to latitude 36°52′15″ N, longitude 76°20′04″ W, thence to the point of origin. The datum for these coordinates is WGS-84.

(b) The regulations. (1) No vessels other than vessels of the U.S. armed forces and other authorized vessels shall enter the restricted area. Other authorized vessels include vessels and personnel, including contractors and agents, acting on behalf of any federal or state agency or department performing specific work authorized as part of that agency's or department's statutory missions or to enforce their respective laws. Authorized vessels may enter anywhere in the restricted area at any time in the furtherance of their authorized operations. This includes, but is not limited to, vessels that are engaged in the following operations: law enforcement, servicing aids to navigation, and/or surveying, maintenance, or improvement of the federal navigational channel.

(2) There shall be no introduction of external magnetic field sources within the area.

(3) No person or vessel shall at any time, under any circumstances, anchor or fish or tow a drag of any kind in the restricted area due to the risk of damage to mission essential underwater equipment including an extensive cable system located therein.

(4) Orders and instructions issued by U.S. Navy patrol craft or other authorized representatives of the enforcing agency shall be carried out promptly by persons or vessels in or in the vicinity of the restricted area.

(c) Enforcement. The regulations in this section shall be enforced by the Commanding Officer, U.S. Naval Station, Norfolk, Virginia and such agencies as he/she may designate.

[87 FR 46889, Aug. 1, 2022]

§ 334.300 Hampton Roads and Willoughby Bay, Norfolk Naval Base, naval restricted area, Norfolk, Virginia.

(a) The area. (1) The waters within an area beginning at latitude 36°55′55″ N, longitude 76°20′02″ W; thence northwesterly to latitude 36°56′00″ N, longitude 76°20′08″ W; thence northerly along the eastern limit of Norfolk Harbor Channel to latitude 36°57′52″ N, longitude 76°20′00″ W; thence easterly to latitude 36°57′52″ N, longitude 76°19′35″ W; thence to latitude 36°57′47.7″ N, 76°18′57″ W; thence southeasterly to latitude 36°57′26″ N, longitude 76°18′42″ W; thence easterly to latitude 36°57′26.2″ N, longitude 76°17′55.2″ W; thence southerly to latitude 36°57′05″ N, longitude 76°17′52″ W; thence southeasterly to latitude 36°56′56.2″ N, longitude 76°17′27″ W; thence northeasterly to latitude 36°57′10″ N, latitude 76°16′29″ W; thence to the shoreline at latitude 36°57′18.8″ N, longitude 76°16′22″ W at the Naval Air Station.

(2) Beginning at a point on the Naval Station shore at latitude 36°56′37.5″ N, longitude 76°19′44″ W; thence westerly and northerly along the breakwater to its extremity at latitude 36°56′41.5″ N, longitude 76°19′54″ W; thence westerly to a point on the eastern limit of Norfolk Harbor Channel at latitude 36°56′41.5″ N, longitude 76°20′05.5″ W; thence northerly along the eastern limit of Norfolk Harbor Channel to latitude 36°57′52″ N, longitude 76°20′00″ W; thence easterly to latitude 36°57′52″ N, longitude 76°19′35″ W; thence to latitude 36°57′47.7″ N., longitude 73°18′57″ W; thence southeasterly to latitude 36°57′26″ N, longitude 76°18′42″ W; thence easterly to latitude 36°57′26.2″ N, longitude 76°17′55.2″ W; thence southerly to latitude 36°57′05″ N, longitude 76°17′52″ W; thence southeasterly to latitude 36°56′56.2″ N, longitude 76°17′27″ W; thence northeasterly to latitude 36°57′10″ N, longitude 76°16′29″ W; and thence to the shoreline at latitude 36°57′18.8″ N, longitude 76°16′22″ W, at the Naval Air Station.

(b) The regulation. No vessel or persons may enter the restricted area unless specific authorization is granted by the Commander, Navy Region, Mid-Atlantic and/or other persons or agencies as he/she may designate.

(c) Enforcement. The regulation in this section, promulgated by the United States Army Corps of Engineers, shall be enforced by the Commander, Navy Region, Mid-Atlantic, and/or such agencies or persons as he/she may designate.

[67 FR 10844, Mar. 11, 2002]

§ 334.305 Little Creek Harbor, Fisherman's Cove, Joint Expeditionary Base Little Creek-Fort Story, Little Creek, Virginia, Restricted Areas.

(a) The Little Creek Restricted Areas. The Little Creek Restricted Areas consist of two distinct areas: The Outer Harbor Restricted Area and the Inner Harbor Restricted Area. The datum for the coordinates in this section is NAD-83.

(1) The Outer Harbor Restricted Area. The waters within an area beginning at latitude 36°55′57.7″ N, longitude 76°10′35″ W; thence southwesterly to a point at latitude 36°55′53″ N, longitude 76°10′44″ W, thence southerly to latitude 36°55′21.2″ N, longitude 76°10′42″ W; thence southwesterly to latitude 36°55′18.3″ N, longitude 76°10′49″ W; thence northwesterly to a point in Fisherman's Cove at latitude 36°55′22″ N, longitude 76°11′15.5″ W; thence southerly to latitude 36°55′19.2″ N, longitude 76°11′16″ W, thence easterly near the southern shoreline of Fisherman's Cove, to latitude 36°55′15.8″ N, longitude 76°10′58.8″ W; and ending at latitude 36°55′18″ N, longitude 76°10′30″ W; thence to the point of origin.

(2) The Inner Harbor Restricted Area. The waters within Little Creek Harbor south of a line beginning at latitude 36°55′15.8″ N, longitude 76°10′58.8″ W; and ending at latitude 36°55′18″ N, longitude 76°10′30″ W.

(b) The regulations—(1) The Outer Harbor Restricted Area. (i) All privately owned vessels, properly registered and bearing identification in accordance with Federal and/or State laws and regulations, and all Government owned vessels (public vessels) may enter or exit the waters described in paragraph (a)(1) of this section at any time and transit inbound/outbound of the marked dredged channel leading to Little Creek Harbor between jetties 8 miles westward of Cape Henry Light. All vessels transiting inbound/outbound of the channel except for those vessels listed in paragraph (c)(2) of this section shall proceed at speeds commensurate with minimum wake. Any vessel equipped with a marine radio can monitor VHF-FM channel 12 for message traffic from Little Creek Port Control.

(ii) When Commanding Officer, Joint Expeditionary Base Little Creek-Fort Story is ordered to implement Force Protection Conditions (FPCONs) Charlie/Delta, or when specific authority is granted by the District Engineer, all vessel traffic movement can be restricted except for those vessels that meet the criteria in paragraph (c)(2) of this section. FPCONs are a system of protective measures used by the Department of Defense (DOD) installations to guard against and deter terrorist attack. Senior commanders assign the FPCONs for their region, and installation commanders may raise FPCONS and tighten security measures based on local conditions. In the event FPCONs Charlie/Delta is implemented by the Commanding Officer, Joint Expeditionary Base Little Creek, which requires the restriction of vessel traffic movement in the Outer Harbor Restricted Area, the installation will coordinate with the U.S. Coast Guard, Fifth District; Army Corps of Engineers, Norfolk District; and state and local law enforcement and governmental authorities. The installation will also disseminate information to the public and local news media outlets. Information on whether vessel traffic movement has been restricted in the Outer Harbor Restricted Area due to the implementation of FPCONs Charlie/Delta will also be published and disseminated by the U.S. Coast Guard.

(2) The Inner Harbor Restricted Area. All vessels or persons intending to transit inbound/outbound of the Inner Harbor Restricted Area shall request permission from Little Creek Harbor Port Control using VHF-FM channel 12 prior to transiting and will provide their destination/intentions with the exception of those vessels that meet the criteria in paragraph (c)(2) of this section. The Inner Harbor Restricted Area is limited to those privately owned vessels or persons calling upon the commercial/private piers located within the Inner Harbor and government owned vessels (public vessels) transiting to and from U.S. Navy or U.S. Coast Guard facilities and authorized DOD patrons of the U.S. Navy recreational marina. No other vessels or persons may enter or exit this area unless specific authorization is granted by Commanding Officer, Joint Expeditionary Base Little Creek-Fort Story, and/or other persons or agencies as he/she may designate.

(3) All vessels or persons transiting inbound/outbound of the Inner Harbor Restricted Area are subject to all applicable federal and state laws including laws or regulations designed to protect the naval facility and persons or vessels assigned therein. Federal and state law enforcement officials may at any time take action to ensure compliance with their respective laws. In addition, this regulation authorizes Navy security personnel, designated by Commander, Joint Expeditionary Base Little Creek-Fort Story or persons authorized to act in his/her behalf, the authority to ascertain the identity and intent of any vessels and/or persons transiting the restricted area that indicate by way of appearance or action they are a possible threat to government assets. If a determination is made that the vessel and/or persons are a threat to government assets located within the restricted area, Navy security units may take actions as provided by law or regulation that are deemed necessary to protect government personnel and assets located within the restricted area.

(c) Enforcement. (1) The regulation in this section shall be enforced by the Commanding Officer, Joint Expeditionary Base Little Creek-Fort Story, U.S. Coast Guard, local/state law enforcement, and/or persons or agencies as he/she may designate during emergency situations.

(2) Federal and state law enforcement vessels and personnel may enter anywhere in the restricted area at any time in the operation of their statutory missions or to enforce their respective laws.

(3) Nothing in this regulation is deemed to preempt 33 CFR 165.501.

(4) Vessels or persons calling upon the commercial/private piers located within the Inner Harbor with proper identification and clearance will be allowed entry subject to the same provisions described in paragraph (b) of this section. Commanding Officer, Joint Expeditionary Base Little Creek-Fort Story reserves the right to temporarily deny entry in emergency situations, elevated DOD Force Protection conditions in the Harbor, or other safety of navigation constraints.

[84 FR 38875, Aug. 8, 2019]

§ 334.310 Chesapeake Bay, Lynnhaven Roads; navy amphibious training area.

(a) The restricted area. Beginning at latitude 36°55′47″, longitude 76°11′04.5″; thence to latitude 36°59′04″, longitude 76°10′11″; thence to latitude 36°58′28.5″, longitude 76°07′54″; thence to latitude 36°55′27.5″, longitude 76°08′42″; thence westerly along the shore and across the mouth of Little Creek to the point of beginning.

(b) The regulations. (1) No fish-pound stakes or structures shall be allowed in the restricted area.

(2) No person or vessel shall approach within 300 yards of any naval vessel or within 600 yards of any vessel displaying the red “baker” burgee.

(3) This section shall be enforced by the Commandant, Fifth Naval District, and such agencies as he may designate.

[13 FR 6920, Nov. 24, 1948, as amended at 22 FR 5956, July 27, 1957. Redesignated at 50 FR 42696, Oct. 22, 1985, as amended at 62 FR 17553, Apr. 10, 1997; 62 FR 24034, May 2, 1997]

§ 334.320 Chesapeake Bay entrance; naval restricted area.

(a) The area. Beginning at a point on the south shore of Chesapeake Bay at longitude 76°03′06″; thence to latitude 37°01′18″, longitude 76°02′06″; thence to latitude 37°00′18″, longitude 75°55′54″; thence to latitude 36°58′00″, longitude 75°48′24″; thence to latitude 36°51′48″, longitude 75°51′00″; thence to the shore at longitude 75°58′48″, and thence northwesterly and southwesterly along the shore at Cape Henry to the point of beginning.

(b) The regulations. (1) Anchoring, trawling, crabbing, fishing, and dragging in the area are prohibited, and no object attached to a vessel or otherwise shall be placed on or near the bottom.

(2) This section shall be enforced by the Commandant, Fifth Naval District, Norfolk, Va.

[18 FR 8159, Dec. 12, 1953, as amended at 28 FR 349, Jan. 12, 1963. Redesignated at 50 FR 42696, Oct. 22, 1985]

§ 334.330 Atlantic Ocean and connecting waters in vicinity of Myrtle Island, Va.; Air Force practice bombing, rocket firing, and gunnery range.

(a) The danger zone. The waters of the Atlantic Ocean and connecting waters within an area described as follows: Beginning at latitude 37°12′18″, longitude 75°46′00″; thence southwesterly to latitude 37°08′21″, longitude 75°50′00″; thence northwesterly along the arc of a circle having a radius of three nautical miles and centered at latitude 37°11′16″, longitude 75°49′29″, to latitude 37°10′14″, longitude 75°52′57″; thence northeasterly to latitude 37°14′30″, longitude 75°48′32″; thence southeasterly to 37°13′38″, longitude 75°46′18″; and thence southeasterly to the point of beginning.

(b) The regulations. (1) No person or vessel shall enter or remain in the danger zone except during intervals specified and publicized from time to time in local newspapers or by radio announcement.

(2) This section shall be enforced by the Commanding General, Tactical Air Command, Langley Air Force Base, Virginia, and such agencies as he may designate.

[18 FR 8698, Dec. 24, 1953. Redesignated at 50 FR 42696, Oct. 22, 1985, as amended at 62 FR 17553, Apr. 10, 1997]

§ 334.340 Chesapeake Bay off Plumtree Island, Hampton, Va.; Air Force precision test area.

(a) The danger zone. The waters of Chesapeake Bay and connecting waters within an area bounded as follows: Beginning at latitude 37°08′12″, longitude 76°19′30″, which is a point on the circumference of a circle of 10,000-foot radius with its center on Plumtree Point at latitude 37°07′30″, longitude 76°17′36″; thence clockwise along the circumference of the circle to latitude 37°09′06″, longitude 76°18′00″; thence southeasterly to latitude 37°08′12″, longitude 76°17′48″; thence clockwise along the circumference of a circle of 4,000-foot radius (with its center at latitude 37°07′30″, longitude 76°17′36″) to latitude 37°07′48″, longitude 76°18′24″; thence northwesterly to the point of beginning.

(b) The regulations. (1) The danger zone will be in use not more than a total of 4 hours per month, which hours shall be during not more than any 2 days per month.

(2) No person or vessel shall enter or remain in the danger zone during periods of firing or bombing or when the zone is otherwise in use.

(3) The Commander, Tactical Air Command, Langley Air Force Base, Va., shall be responsible for publicizing in advance through the Coast Guard's “Local Notice to Mariners,” in the local press, and by radio from time to time the schedule of use of the area, and shall station patrol boats to warn vessels during periods of use.

(4) This section shall be enforced by the Commander, Tactical Air Command, Langley Air Force Base, Va., or such agency as he may designate.

(c) Disestablishment of danger zone. The danger zone will be disestablished not later than December 31, 1967, unless written application for its continuance shall have been made to and approved by the Secretary of the Army prior to that date.

[28 FR 1106, Feb. 5, 1963. Redesignated at 50 FR 42696, Oct. 22, 1985, as amended at 62 FR 17553, Apr. 10, 1997]

§ 334.350 Chesapeake Bay off Fort Monroe, Va.; firing range danger zone.

(a) The danger zone. All of the water area lying within a section extending seaward a distance of 4,600 yards between radial lines bearing 83° True and 115° True, respectively, from a point on shore at latitude 37°01′30″ N., longitude 76°17′54″ W.

(b) The regulations. (1) No weapon having a greater range than the 30-calibre carbine is to be fired into the firing range danger zone.

(2) During periods when firing is in progress, red flags will be displayed at conspicuous locations on the beach. Observers will be on duty and firing will be suspended as long as any vessel is within the danger zone.

(3) Passage of vessels through the area will not be prohibited at any time, nor will commercial fishermen be prohibited from working fish nets within the area. No loitering or anchoring for other purposes will be permitted during announced firing periods.

(4) No firing will be done during hours of darkness or low visibility.

(5) The Commander, Fort Monroe, Va., is responsible for furnishing in advance the firing schedule to the Commander, 5th Coast Guard District, for publication in his “Local Notice to Mariners” and to the local press at Norfolk and Newport News, Va.

(c) The regulations in this section shall be enforced by the Commanding Officer, Fort Monroe, Va., and such agencies as he may designate.

[35 FR 6575, Apr. 24, 1970. Redesignated at 50 FR 42696, Oct. 22, 1985]

§ 334.360 Chesapeake Bay off Fort Monroe, Virginia; restricted area, U.S. Naval Base and Naval Surface Weapon Center.

(a) The area. Beginning at latitude 37°01′03″, longitude 076°17′52″; thence to latitude 37°01′00″, longitude 076°16′11″; thence to latitude 36°59′43″, longitude 076°16′11″; thence to latitude 36°59′18″, longitude 076°17′52″; thence to latitude 37°00′05″, longitude 076°18′18″; thence north along the seawall to the point of beginning.

(b) The regulations. (1) Anchoring, trawling, fishing and dragging are prohibited in the restricted area, and no object, either attached to a vessel or otherwise, shall be placed on or near the bottom unless authorized by the Facility Manager, Naval Surface Warfare Center, Dahlgren Division Coastal Systems Station Detachment, Fort Monroe, Virginia.

(2) This section shall be enforced by the Commander, Naval Base, Norfolk, Virginia, and such agencies as he may designate.

[13 FR 6919, Nov. 24, 1948, as amended at 15 FR 2085, Apr. 13, 1950; 21 FR 421, Jan. 20, 1956; 21 FR 1593, Mar. 14, 1956. Redesignated at 50 FR 42696, Oct. 22, 1985, and further amended at 51 FR 4908, Feb. 10, 1986; 55 FR 45709, Oct. 31, 1990; 61 FR 34733, July 3, 1996]

§ 334.370 Chesapeake Bay, Lynnhaven Roads; danger zones, U.S. Naval Amphibious Base.

(a) Underwater demolitions area (prohibited)—(1) The area. A portion of the restricted area for Navy amphibious training operations described in Sec. 334.310 along the south shore of the Chesapeake Bay, bounded as follows: Beginning at a point at the mean high water line, latitude 36°55′26.5″, longitude 76°08′43″; thence 700 yards to latitude 36°55′48″, longitude 76°98′38″; thence 500 yards to latitude 36°55′46″, longitude 76°08′57″; thence 500 yards to latitude 36°55′37″, longitude 76°09′02″; thence 100 yards to latitude 36°55′36″, longitude 76°08′57″; thence 200 yards to the mean high water line at latitude 36°55′39.5″, longitude 76°08′59″; thence 400 yards along the mean high water line to the point of beginning. The area will be marked by range poles set on shore of the prolongation of the lines forming the eastern and western boundaries.

(2) The regulations. Persons or vessels, other than those vessels owned and operated by the United States, shall not enter the prohibited area at any time unless authorized to do so by the enforcing agency.

(b) Small-arms firing range—(1) The Area. Beginning at a point on the shore line at latitude 36°55′27″, longitude 76°08′38″; thence to latitude 36°55′50″, longitude 76°08′37″; thence to latitude 36°57′11″, longitude 76°08′11″; thence to latitude 36°56′53″, longitude 76°07′18″; thence to latitude 36°55′39″, longitude 76°07′46″; thence to latitude 36°55′22″, longitude 76°08′17″; thence along the shore line to the point of beginning.

(2) The regulations. (i) Passage of vessels through the area will not be prohibited at any time, nor will commercial fishermen be prohibited from working fish nets within the area. No loitering or anchoring for other purposes will be permitted.

(ii) A large red warning flag will be flown on shore during periods when firing is in progress. Observers will be on duty and firing will be suspended for the passage of vessels and for the placing and maintenance of fish nets within the area.

(c) This section shall be enforced by the Commanding Officer, U.S. Naval Amphibious Base, Little Creek, Norfolk, Virginia.

[19 FR 1246, Mar. 5, 1954, as amended at 28 FR 225, Jan. 9, 1963. Redesignated at 50 FR 42696, Oct. 22, 1985, and amended at 57 FR 40613, Sept. 4, 1992; 62 FR 17553, Apr. 10, 1997]

§ 334.380 Atlantic Ocean south of entrance to Chesapeake Bay off Dam Neck, Virginia; naval firing range.

(a) The danger zone. All of the water within a sector extending seaward a distance of 7,500 yards between radial lines bearing 35° true and 92° true, respectively, from a point on the shore at latitude 36 47′33″ N, longitude 75 58′23″ W.

(b) The regulations. (1) Vessels shall proceed through the area with caution and shall remain therein no longer than necessary for purpose of transit.

(2) When firing is in progress during daylight hours, red flags will be displayed at conspicuous locations on the beach. When firing is in progress during periods of darkness, red flashing lights will be displayed from conspicuous locations which are visible from the water a minimum distance of four (4) nautical miles.

(3) Firing on the ranges will be suspended as long as any vessel is within the danger zone.

(4) Lookout posts shall be manned by the activity or agency operating the firing range at Fleet Combat Center. After darkness, night vision systems will be utilized by lookouts to aid in locating vessels transiting the area.

(5) There shall be no firing on any ranges during the periods of low visibility which would prevent the recognition of a vessel (to a distance of 7,500 yards) which is properly displaying navigational lights, or which would preclude a vessel from observing the red range flags or lights.

(6) The regulations in this section shall be enforced by the Commanding Officer, Fleet Combat Training Center, Atlantic, Dam Neck, Virginia Beach, Virginia, and other such agencies as he/she may designate.

[58 FR 53428, Oct. 15, 1993]

§ 334.390 Atlantic Ocean south of entrance to Chesapeake Bay; firing range.

(a) The danger zone. (1) A section extending seaward for a distance of 12,000 yards between two radial lines bearing 030° True and 083° True, respectively, from a point on shore at latitude 36°46′48″ N, longitude 75°57′24″ W; and an adjacent sector extending seaward for a distance of 15 nautical miles between two radial lines bearing 083° True and 150° True, respectively, from the same shore position. The datum for these coordinates is WGS-1984.

(b) The regulation. (1) To accommodate ingress and egress within the southern approach to the Chesapeake Bay Federal navigation channels, no live fire exercise will take place within the area northeast of, and defined by a line intersecting points latitude 36°47′59″ N, longitude 75°46′05″ W and latitude 36°44′25″ N, longitude 75°38′57″ W, and this area is open to unrestricted surface navigation.

(2) Within the remainder of the danger zone vessels shall proceed through the area with caution and shall remain therein no longer than necessary for the purpose of transit.

(3) When firing is in progress during daylight hours, red flags will be displayed at conspicuous locations on the beach. When firing is in progress during periods of darkness, red flashing lights will be displayed from conspicuous locations on the beach which are visible from the water a minimum distance of four (4) nautical miles.

(4) Firing on the ranges will be suspended as long as any vessel is within the danger zone.

(5) Lookout posts will be manned by the activity or agency operating the firing range at the Naval Air Station Oceana, Dam Neck Annex, in Virginia Beach, Virginia. After darkness, night vision systems will be utilized by lookouts to aid in locating vessels transiting the area.

(6) There shall be no firing on the range during periods of low visibility which would prevent the recognition of a vessel (to a distance of 7,500 yards) which is properly displaying navigation lights, or which would preclude a vessel from observing the red range flags or lights.

(7) Throughout the entire danger zone anchoring, dredging, trawling and any bottom disturbing activities should be conducted with caution due to the potential of unexploded ordnance (UXO) and other munitions and explosives of concern (MEC) on the bottom.

(c) Enforcement. The regulation in this section shall be enforced by the Commander, Naval Air Force Atlantic, U.S. Fleet Forces Command, Norfolk, Virginia, and such agencies as he or she may designate.

[84 FR 33850, July 16, 2019]

§ 334.400 Atlantic Ocean south of entrance to Chesapeake Bay off Camp Pendleton, Virginia; naval restricted area.

(a) The area. Beginning at a point on the shore at Camp Pendleton at latitude 36°48′19″ N, longitude 75°57′49″ W; thence easterly 200 yards to latitude 36°48′20″ N, longitude 75°57′42″ W; thence northerly 400 yards to latitude 36°48′32″ N, longitude 75°57′45″ W; thence westerly 200 yards to latitude 36°48′31″ N, longitude 75°57′53″ W; and thence southerly 400 yards along the shore to the point of beginning.

(b) The regulations. (1) Persons or vessels, other than those vessels owned and operated by the United States shall not enter the area except by permission of the Commanding Officer, U.S. Naval Amphibious Base, Little Creek, Norfolk, Virginia.

(2) This section shall be enforced by the Commanding Officer, U.S. Naval Amphibious Base, Little Creek, Norfolk, Virginia, and such agencies as he may designate.

[22 FR 8957, Nov. 6, 1957. Redesignated at 50 FR 42696, Oct. 22, 1985, as amended at 58 FR 37608, July 12, 1993; 62 FR 17553, Apr. 10, 1997]

§ 334.405 South of entrance to Chesapeake Bay off Camp Pendleton, Virginia; firing range.

(a) The danger zone. An area directly from Camp Pendleton extending offshore as denied by lines drawn as follows: Beginning at latitude 36°49′00″ N., longitude 75°58′04″ W.; thence to latitude 36°49′19″ N., longitude 75°57′41″ W.; thence to latitude 36°49′21″ N., longitude 75°57′32″ W.; thence to latitude 36°49′13″ N., longitude 75°56′44″ W.; thence to latitude 36°49′22″ N., longitude 75°55′48″ W.; thence to latitude 36°49′12″ N., longitude 75°55′46″ W.; thence to latitude 36°49′02″ N., longitude 75°55′45″ W.; thence to latitude 36°48′52″ N., longitude 75°55′45″ W.; thence to latitude 36°48′54″ N., longitude 75°56′42″ W.; thence to latitude 36°48′41″ N., longitude 75°57′28″ W.; thence to latitude 36°48′41″ N., longitude 75°57′37″ W.; thence to latitude 36°48′57″ N., longitude 75°58′04″ W. The datum for these coordinates is WGS84.

(b) The regulations. (1) Persons and vessels shall proceed through the area with caution and shall remain therein no longer than necessary for purpose of transit.

(2) When firing is in progress during daylight hours, red flags will be displayed at conspicuous locations on the beach. No firing will be done during the hours of darkness or low visibility.

(3) Firing on the ranges shall be suspended as long as any persons or vessels are within the danger zone.

(4) Lookout posts shall be manned by the activity or agency operating the firing range State Military Reservation, Camp Pendleton.

(5) There shall be no firing on the range during periods of low visibility which would prevent the recognition of a vessel (to a distance of 7,500 yards) which is property displaying navigation lights, or which would preclude a vessel from observing the red range flags or lights.

(c) Enforcement. The regulations in this section shall be enforced by the Adjutant General of Virginia, and such agencies as he or she may designate.

[81 FR 10088, Feb. 29, 2016]

§ 334.410 Albemarle Sound, Pamlico Sound, and adjacent waters, NC; danger zones for naval aircraft operations.

(a) Target areas—(1) North Landing River (Currituck Sound). The waters of North Landing River within a radius of 1,000 yards from a target located at latitude 36°31′00″, longitude 76°01′40″.

(2) Northern part of Currituck Sound. Beginning at a point bearing 65°30′, 1,025 yards, from Currituck Sound Light 69; thence 86°, 6,000 yards; thence 193°, 4,425 yards; thence 267°30′, 2,775 yards; and thence to the point of beginning. The target is located at latitude 36°27′16″, longitude 75°56′30″.

Note:

All bearings in this section are referred to true meridian.

(b) Target and bombing area along south shore of Albemarle Sound. Beginning at latitude 36°00′43″, longitude 76°19′20″; thence to latitude 36°02′40″, longitude 76°04′26″, thence to latitude 36°00′12″, longitude 76°04′26″; thence to latitude 35°59′35″, longitude 76°19′20″, and thence to the point of beginning. This area is divided into three subareas A, B, and C as follows: Area A, beginning at latitude 36°00′43″, longitude 76°19′20″; thence to latitude 36°01′20″, longitude 76°14′30″; thence to latitude 35°59′45″, longitude 76°14′30″; thence to latitude 35°59′35″, longitude 76°19′20″, and thence to the point of beginning. Area B, beginning at latitude 36°01′20″, longitude 76°14′30″; thence to latitude 36°02′18″, longitude 76°07′15″; thence to latitude 36°00′05″, longitude 76°07′15″; thence to latitude 35°59′45″, longitude 76°14′30″; and thence to the point of beginning. Area C, beginning at latitude 36°02′18″, longitude 76°07′15″; thence to latitude 36°02′40″, longitude 76°04′26″; thence to latitude 36°00′12″, longitude 76°04′26″; thence to latitude 36°00′05″, longitude 76°07′15″; and thence to the point of beginning.

(c) Naval Aviation Ordnance test area in Pamlico Sound in vicinity of Long Shoal. A circular area with a radius of one and one-half miles having its center at latitude 35°32′18″, longitude 75°40′39″.

(d) The regulations—(1) Target areas. The area described in paragraph (a)(1) of this section will be used as a dive bombing target by naval aircraft. In peacetime, munitions will be limited to miniature bombs which contain only small explosive charges for producing smoke puffs to mark points of impact. All operations will be conducted during daylight hours, and the area will be open to navigation at night. No persons or vessels shall enter this area during the hours of daylight without special permission from the enforcing agency. The area will be patrolled and vessels will be warned not to enter. “Buzzing” by plane will warn vessels that they are in a danger zone, and upon being so warned vessels which have inadvertently entered the area shall immediately leave the area.

(2) Target and bombing area. The area described in paragraph (b) of this section will be used as a target and bombing area for both day and night operations. Dummy ammunition, waterfilled or smoke bombs and inert rockets will be used, except during wartime when live ammunition, bombs and rockets may be used. The area will be open to navigation except for periods when ordnance exercises are being conducted by naval aircraft. In area B described in paragraph (b) of the section the placing of nets, traps, buoys, pots, fishponds, stakes, or other equipment which may interfere with target vessels operating in the area shall not be permitted. The area will be patrolled and persons and vessels shall clear the area under patrol upon being warned by the surface patrol craft or when “buzzed” by patrolling aircraft. As a further means of warning vessels of naval aircraft operations in the area described in paragraph (b) of this section, a cluster of flashing red lights at night and a large red flag by day will be displayed from the range observation tower located in the approximate center of the shore side of this area.

(3) Naval Aviation Ordnance test area. The area described in paragraph (c) of this section shall be closed to persons and navigation except for such military personnel and vessels as may be directed by the enforcing agency to enter on assigned duties.

(4) Enforcing agency. The regulations in this section shall be enforced by the Commander, Naval Air Force, U.S. Atlantic Fleet, and such agencies as he/she shall designate.

(Sec. 7, 40 Stat. 266; 33 U.S.C. 1: Chap. XIX, 40 Stat. 892; 33 U.S.C. 3)

[16 FR 3131, Apr. 10, 1951, as amended at 16 FR 7460, July 31, 1951; 19 FR 479, Jan. 28, 1954; 31 FR 12436, Sept. 20, 1966; 33 FR 3218, Feb. 21, 1968; 40 FR 3993, Jan. 27, 1975. Redesignated at 50 FR 42696, Oct. 22, 1985, and amended at 53 FR 47953, Nov. 29, 1988; 61 FR 7215, Feb. 27, 1996; 62 FR 17553, Apr. 10, 1997]

§ 334.412 Albemarle Sound, Pamlico Sound, Harvey Point and adjacent waters, NC; restricted area.

(a) The area. Beginning on the north shore of Albemarle Sound and the easternmost tip of Harvey Point; thence southeasterly to Day Beacon number 3; thence southeasterly to latitude 36°03′06″, longitude 76°16′43″; thence southwesterly to latitude 36°02′18″, longitude 76°19′30″; thence northwesterly to latitude 36°04′18″, longitude 76°20′20″; thence 23°15′ True to the shore; and thence northeasterly along the shore to the point of beginning.

(b) The regulations. The restricted area described in this section is the inactive Harvey Point target range which was disestablished as a danger zone. The area will be open to public access for recreational and commercial uses, except that dredging, clamming, crabbing, seining, and anchoring of all vessels and any other activity which could result in disturbing or penetrating the bottom is prohibited.

(c) Enforcing agency. The regulations in this section shall be enforced by the Commander, Naval Air Force, U.S. Atlantic Fleet, and such agencies as he/she shall designate.

[61 FR 7215, Feb. 27, 1996; 61 FR 26107, May 24, 1996]

§ 334.420 Pamlico Sound and adjacent waters, N.C.; danger zones for Marine Corps operations.

(a) Bombing and rocket firing area in Pamlico Sound in vicinity of Brant Island—(1) The area. The waters within a circular area with a radius of 3.0 statute miles having its center on the southern side of Brant Island at latitude 35°12′30″, longitude 76°26′30″.

(2) The regulations. The area shall be closed to navigation and personnel at all times except for vessels engaged in operational and maintenance work as directed by the enforcing agency. Prior to bombing or firing operations the area will be “buzzed” by plane. Upon being so warned vessels working in the area shall leave the area immediately.

(b) Bombing, rocket firing, and strafing areas in Pamlico Sound and Neuse River—(1) The areas. (i) The waters within a circular area with a radius of 1.8 statute miles having its center at latitude 35°02′12″, longitude 76°28′00″.

(ii) The waters within a circular area with a radius of 0.5 statute mile having its center at latitude 35°04′12″, longitude 76°28′24″.

(iii) The waters within a circular area with a radius of 0.5 statute mile having its center at latitude 35°01′42″, longitude 76°25′48″.

(iv) The waters within a circular area with a radius of 0.5 statute mile having its center at latitude 34°58′48″, longitude 76°26′12″.

(v) The waters within a circular band with an inner radius of 1.8 statute miles and an outer radius of 2.5 statute miles having its center at latitude 35°02′12″, longitude -76°28′00″.

(2) The regulations. (i) The area described in paragraph (b)(1) of this section will be used as bombing, rocket firing, and strafing areas. Live and dummy ammunition will be used. The area shall be closed to navigation and all persons at all times except for such vessels as may be directed by the enforcing agency to enter on assigned duties. The area will be patrolled and vessels “buzzed” by the patrol plane prior to the conduct of operations in the area. Vessels or personnel which have inadvertently entered the danger zone shall leave the area immediately upon being so warned.

(ii) The areas described in paragraphs (b)(1) (ii), (iii) and (iv) of this section shall be used for bombing, rocket firing, and strafing areas. Practice and dummy ammunition will be used. All operations will be conducted during daylight hours, and the areas will be open to navigation at night. No vessel or person shall enter these areas during the hours of daylight without special permission from the enforcing agency. The areas will be patrolled and vessels “buzzed” by the patrol plane prior to the conduct of operations in the areas. Vessels or personnel which have inadvertently entered the danger zones shall leave the area immediately upon being warned.

(iii) The areas described in paragraph (b)(1)(v) of this section shall be used as a strafing area. Practice and dummy ammunition will be used. Operations will be conducted on five consecutive days (Monday through Friday) per month during the months of February through November between the hours of 4 p.m. to 11 p.m. The block training dates will be scheduled two weeks in advance of the actual training start date. Marine Corps Air Station Cherry Point will have a call-in number for public use to provide information on the current use of the training area. The Notification to Mariners System will also be utilized to inform the public on the status of the training area. No vessel or person shall enter the area during the scheduled block training session except for such vessels as may be directed by the enforcing agency to enter on assigned duties. The area will be patrolled and vessels “buzzed” by the patrol plane prior to the conduct of operations in the area. Vessels or personnel which have inadvertently entered the danger zone shall leave the area immediately upon being so warned.

(c) Enforcing agency. The regulations of this section shall be enforced by the Commander, Marine Corps Air Bases, East, Cherry Point, North Carolina, or his authorized representatives.

[26 FR 9673, Oct. 13, 1961. Redesignated at 50 FR 42696, Oct. 22, 1985, as amended at 61 FR 43970, Aug. 27, 1996; 76 FR 30023, May 24, 2011]

§ 334.430 Neuse River and tributaries at Marine Corps Air Station Cherry Point, North Carolina; restricted area and danger zone.

(a) The restricted area. That portion of Neuse River within 500 feet of the shore along the reservation of the Marine Corps Air Station, Cherry Point, North Carolina, extending from the mouth of Hancock Creek to a point approximately 6,800 feet west of the mouth of Slocum Creek, and all waters of Hancock and Slocum Creeks and their tributaries within the boundaries of the reservation.

(b) The danger zone. The waters within an area beginning at latitude 34.923425° N, longitude −76.853222° W; thence northeasterly across Hancock Creek to latitude 34.925258° N, longitude −76.849864° W; continuing northeasterly to latitude 34.933382° N, longitude −76.835081° W; thence northwesterly to the Neuse River shoreline at latitude 34.936986° N, longitude −76.841197° W, continuing northwesterly to latitude 34.943275° N, longitude −76.852169° W; thence southwesterly along the shorelines to latitude 34.935111° N, longitude −76.859078° W; thence southeasterly along Hancock Creek shoreline to the point of origin.

(c) The regulations. (1) Except in cases of extreme emergency, all persons or vessels, other than those operated by the United States Navy or United States Coast Guard, are prohibited from entering the restricted area without prior permission of the enforcing agency.

(2) Entry points into the danger zone will be prominently marked with signage indicating the boundary of the danger zone.

(3) Firing will take place both day and night at irregular periods throughout the year. Appropriate warnings will be issued through official government and civilian channels serving the region. Such warnings will specify the time and duration of operations and give such other pertinent information as may be required in the interest of safety. Upon completion of firing or if the scheduled firing is cancelled for any reason, the warning signals marking the danger zone will be removed.

(4) Except as otherwise provided in this section the danger zone will be open to general public access. Vessels, watercraft, and other vehicles may proceed through the danger zone.

(5) The regulation in this section shall be enforced by the Commanding Officer, Marine Corps Air Station Cherry Point, North Carolina, and/or persons or agencies as he/she may designate.

[73 FR 41265, July 18, 2008]

§ 334.440 New River, N.C., and vicinity; Marine Corps firing ranges.

(a) Atlantic Ocean east of New River Inlet. The waters of the Atlantic Ocean within a sector bounded on the north by a line bearing 105° from latitude 34°37′25″, longitude 77°10′35″; on the east and south by the arc of a circle having a radius of 25,000 yards centered at latitude 34°34′15″, longitude 77°16′10″; on the west by a line bearing 205° from latitude 34°32′37″, longitude 77°18′34″, and on the northwest by the shore.

Note:

All bearings in this section are referred to true meridian.

(b) New River. The firing ranges include all waters to the high waterline within eight sections described as follows:

(1) Trap Bay Sector. Bounded on the south by a line running from Cedar Point 280° to New River Light 70, thence 254° to Hatch Point; and on the northwest by a line running from Wilkins Bluff 232° to Hall Point.

(2) Courthouse Bay Sector. Bounded on the southeast by the northwest boundary of the Traps Bay Sector and on the west by Sneads Ferry Bridge.

(3) Stone Bay Sector. Bounded on the east by Sneads Ferry Bridge and on the north by a line running from a point on the east side of New River opposite the head of Sneads Creek 291°30′ to the south side of the mouth of Stone Creek.

(4) Stone Creek Sector. The northwest portion of Stone Bay, bounded on the south by the north boundary of the Stone Bay Sector; and on the east by longitude 77°26′.

(5) Grey Point Sector. Bounded on the south by the north boundary of the Stone Bay Sector; on the west by the east boundary of the Stone Creek Sector; and on the northeast by a line running from Town Point 113° to the south side of the mouth of French Creek.

(6) Farnell Bay Sector. Bounded on the south by the northeast boundary of the Grey Point Sector, including French Creek up to longitude 77°20′; and on the north by a line running from Hadnot Point 285°30′ to Holmes Point.

(7) Morgan Bay Sector. Bounded on the south by the north boundary of the Farnell Bay Sector, including Wallace Creek up to longitude 77°22′; and on the northwest by a line running from Paradise Point 243°30′ to Ragged Point.

(8) Jacksonville Sector. Bounded on the southeast by the northwest boundary of the Morgan Bay Sector, including Southwest Creek up to the point where it narrows to 200 feet in width, and Northeast Creek up to longitude 77°23′30″; and on the north by an east-west line passing through New River Day Beacon 41.

(c) The regulations. (1) No person shall enter or remain in the water in any closed section after notice of firing therein has been given. Sailing vessels and any watercraft having a speed of less than 5 knots shall keep clear of any closed sector at all times after notice of firing therein has been given. Vessels propelled by mechanical power at a speed greater than 5 knots may enter the sectors without restriction except when the firing signals are being displayed. When these signals are displayed, vessels shall clear the closed sectors immediately and no vessels shall enter such sectors until the signals indicate that firing has ceased.

(2) Firing will take place both day and night at irregular periods throughout the year. Insofar as training requirements will permit, underwater explosions will be restricted in the Atlantic Ocean sector (described in paragraph (a) of this section) during the periods May 1 and June 5, inclusive, and November 22 to December 15, inclusive.

(3) Two days in advance of the day when firing in any sector except the Stone Creek sector is scheduled to begin, the enforcing agency will warn the public of the contemplated firing, stating the sector or sectors to be closed, through the public press and the U.S. Coast Guard and, in the case of the Atlantic Ocean sector, the Cape Fear Pilots Association at Southport, and the Pilots Association at Moorehead City, North Carolina. The Stone Creek sector may be closed without advance notice.

(4) Towers at least 50 feet in height will be erected near the shore at the northeast and southwest limits of the Atlantic Ocean sector, and towers at least 25 feet in height will be erected near the easterly shore at the upper and lower limits of each New River sector. On days when firing is to take place a red flag will be displayed on each of the towers marking the sector or sectors to be closed. These flags will be displayed by 8:00 a.m., and will be removed when firing ceases for the day. Suitable range markers will be erected indicating the bearings of the north and west limits of the Atlantic Ocean sector.

(5) During the night firing, red lights will be displayed on the towers; and, in the case of the Atlantic Ocean sector, searchlights will be employed as barrier lights to enable safety observers to detect vessels which may attempt to enter the danger zone.

(6) No person shall enter or remain within a 2 acre area surrounding a waterborne refueling training operation, in either the Grey Point Sector, Farnell Bay Sector, or Morgan Bay Sector as described in paragraph (b) of this section, for the duration of the training operation after a notice to conduct a waterborne refueling training operation has been published in the local notice to mariners and has been broadcast over the Marine Band radio network. The 2 acre area surrounding a waterborne refueling training operation will be patrolled and persons and vessels shall clear the area under patrol upon being warned by the surface patrol craft.

(d) Target and bombing area in Atlantic Ocean in vicinity of Bear Inlet. (1) The water within an area described as follows: Beginning at latitude 34°37′32″, longitude 77°12′03″; thence to latitude 34°36′58″, longitude 77°11′25″; thence to latitude 34°37′44″, longitude 77°10′35″; thence to 34°32′27″, longitude 77°06′30″; thence to latitude 34°28′55″, longitude 77°15′05″; thence to latitude 34°34′50″, longitude 77°15′10″; thence to the point of beginning.

(2) The regulations. Vessels may proceed along established waterways except during military training periods. Warning of military training periods will be given through Notices to Mariners and by displaying one hour prior to commencement a red danger streamer during daylight hours or a red light at night, from a flag pole 40 feet in height located at the U.S. Coast Guard Life Boat Station, Bogue Inlet, Swansboro, North Carolina, and from observation tower 40 feet in height located at the northern end of Onslow (Hurst) Beach. Prior to bombing and firing operations, the area will be searched by plane. Watercraft in the area will be warned by aircraft “buzzing” of the impending target practice. Upon being so warned, all persons and vessels shall leave the area as quickly as possible by the most direct route.

(e) Inland waters in the Browns Inlet area between Bear Creek and Onslow Beach Bridge over the Atlantic Intracoastal Waterway—(1) The area. Navigable waters between Bear Creek and Onslow Beach Bridge to include all inlets, streams, bays, and water therein contained, bounded on the north by Bear Creek, on the east and south by the Atlantic Ocean, to the meridian 77°16′20″; thence by this meridian to latitude 34°34′31″; and thence by a line bearing 44° from this point until the line intersects Bear Creek.

(2) The regulations. (i) No person shall enter or remain in the waters of this area due the possibility of unexploded projectiles.

(ii) Vessels may proceed through the Atlantic Intracoastal Waterway in the area without stopping except in cases of extreme emergencies.

(iii) All navigable waters in the area between the south bank of Bear Creek and the north bank of the north connecting channel between the Atlantic Intracoastal Waterway and Browns Inlet shall be closed to navigation at all times. There are highly sensitive unexploded projectiles within the limits of this area.

(iv) Vessels may proceed through the north connecting channel and the south connecting channel (Banks Channel) in the area between the Atlantic Intracoastal Waterway and Browns Inlet to the Atlantic Ocean without stopping during periods of nonmilitary use. Caution should be used when proceeding through these waters due to the presence of unexploded projectiles lying in this area.

(v) Navigable waters in the area between the south connecting channel (Banks Channel) leading to Browns Inlet and Onslow Beach Bridge on both sides of the Atlantic Intracoastal Waterway are open to unrestricted navigation during periods of nonmilitary use. An unknown element of risk exists in this area due to the possible presence of unexploded projectiles.

(vi) Warning of impending military use of the area will be contained in weekly Notice to Mariners.

(vii) Vessels having specific authority from the Commanding General, Marine Corps Base, Camp Lejeune, North Carolina, may enter the area.

(f) Enforcing agency. The regulations of this section shall be enforced by the Commanding General, Marine Corps Base, Camp Lejeune, North Carolina, or his authorized representatives.

[26 FR 9673, Oct. 13, 1961, as amended at 48 FR 41160, Sept. 14, 1983. Redesignated at 50 FR 42696, Oct. 22, 1985, as amended at 62 FR 17553, Apr. 10, 1997; 66 FR 15799, Mar. 21, 2001]

§ 334.450 Cape Fear River and tributaries at Sunny Point Army Terminal, Brunswick County, NC; restricted area.

(a) The area. That portion of Cape Fear River due west of the main ship channel extending from U.S. Coast Guard buoy No. 35 (34°02′03.218″ N, 077°56′28.755″ W) at the north approach channel to Sunny Point Army Terminal to U.S. Coast Guard buoy No. 27 (33°58′16.12″ N, 077°56′59.736″ W) at the south approach channel to Sunny Point Army Terminal and all waters of its tributaries therein.

(b) Except in cases of extreme emergency, all persons or vessels of any size or rafts other than those authorized by the Commander, Sunny Point Army Terminal, are prohibited from entering this area without prior permission of the enforcing agency.

(c) The regulations in this section shall be enforced by the Commander, Sunny Point Army Terminal, Southport, North Carolina, and such agencies as he/she may designate.

[75 FR 53198, Aug. 31, 2010]

§ 334.460 Cooper River and tributaries at Charleston, SC.

(a) The areas:

(1) That portion of the Cooper River beginning on the west shore at latitude 32°52′37″, longitude 79°58′06″, thence to latitude 32°52′37″, longitude 79°58′03″, thence to latitude 32°52′27″, longitude 79°68′01″, thence to latitude 32°52′06″, longitude 79°57′54″ at the west channel edge, thence to latitude 32°51′48.5″, longitude 79°57′41.5″, thence to latitude 32°51′33″, longitude 79°57′27″, thence to latitude 32°51′19″, longitude 79°57′05″, thence to latitude 32°51′01″, longitude 79°56′07″, thence to latitude 32°50′50″, longitude 79°56′02″, thence to latitude 32°50′48″, longitude 79°56′07″ on the west shore, thence north along the shoreline including the reach of Noisett Creek to the eastern boundary of the Navy Base to the beginning point at the west shore at latitude 32°52′37″, longitude 79°58′06″.

(2) The reach of Shipyard Creek upstream from a line 300 feet from and parallel to the upstream limit of the Improved Federal Turning Basin.

(3) That portion of the interior Shipyard Creek commencing at latitude 32°49′50″, longitude 79°56′10″, being a point at the southern tip of the shoreline where the northern shore of Shipyard Creek joins the Cooper River, thence going along the northern shore of Shipyard Creek to the southern portion of the existing restructed area in paragraph (a)(2) of this section; thence along said line being 300 feet from and parallel to the upstream limit of the Improved Federal Turning Basin for a distance of 15 feet, thence to the most northerly point of the Improved Federal Turning Basin, thence along the northeastern edge for the Improved Turning Basin to the northeast edge of the main channel of Shipyard Creek to a point lying in the mouth of Shipyard Creek where it reaches the Cooper River at the northeast edge of the main channel of the Shipyard Creek and longitude 79°56′10″, thence to the beginning point at latitude 32°49′50″, longitude 79°56′10″.

(4) That portion of the Cooper River surrounding Pier Yankee beginning at a point on the west shore of the Cooper River at latitude 32°50′00″, longitude 79°56′10.5″, thence to latitude 32°50′00″, longitude 79°55′55″, thence to latitude 32°49′54″, longitude 79°55′55″, to latitude 32°49′50″, longitude 79°56′10″, thence north along the shore to the beginning point at the west shore of the Cooper River at latitude 32°50′00″, longitude 79°56′10.5″.

(5) That portion of the Cooper River beginning on the west channel edge at latitude 32°52′06″, longitude 79°57′54″, thence to the east shore at latitude 32°52′13″, longitude 79°57′30″, thence along the eastern shore to latitude 32°51′30″, longitude 79°56′15.5″, thence to latitude 32°51′01″, longitude 79°55′50″, thence to latitude 32°50′52″, longitude 79°56′03.5″, thence to latitude 32°51′01″, longitude 79°56′07″, thence to latitude 32°51′19″, longitude 79°57′05″, thence to latitude 32°51′33″, longitude 79°57′27″, thence to latitude 32°51′48.5″, longitude 79°57′41.5″, thence to the beginning point at the west channel edge at latitude 32°52′06″, longitude 79°57′54″.

(6) That portion of the Cooper River beginning on the west shore at latitude 32°50′48″, longitude 79°56′07″, thence to latitude 32°50′50″, longitude 79°56′02″, thence to latitude 32°50′32″, longitude 79°55′55″, thence to latitude 32°50′00″, longitude 79°55′55″, thence to latitude 32°50′00″, longitude 79°56′10.5″ on the west shore, thence along the shoreline to the beginning point on the west shore at latitude 32°50′48″, longitude 79°56′07″.

(7) That portion of Goose Creek beginning at a point on the west shore of Goose Creek at its intersection with the Cooper River at latitude 32°54′32″, longitude 79°57′04″; thence proceeding along the western shoreline of Goose Creek for approximately 6.9 miles to its intersection with the Seaboard Coastline Railroad at latitude 32°55′34″, latitude 79°59′30″; thence in a northwesterly direction along the Seaboard Coastline Railroad to latitude 32°55′37″, longitude 79°59′32″; thence proceeding along the eastern shoreline of Goose Creek in a southeasterly direction to latitude 32°54′33″ by 79°56′59″ thence back to 32°54′32″, longitude 79°57′04″.

(8) That portion of the Cooper River, extending from the mouth of Goose Creek, to a point approximately five-hundred (500) yards north of Red Bank Landing, a distance of approximately 4.8 miles, and the tributaries to the Cooper River within the area enclosed by the following arcs and their intersections:

(i) Radius = 8255′ center of radius, latitude 32°55′45″, longitude 79°45′23″.

(ii) Radius = 3790′ center of radius, latitude 32′55′00″, longitude 79°55′41″.

(iii) Radius = 8255′ center of radius, latitude 32°55′41″, longitude 79°56′15″.

(iv) Radius = 8255′ center of radius, latitude 32′56′09″, longitude 79°56′19″.

(9) That portion of the Cooper River beginning on the western shoreline at latitude 32°54′37″, longitude 79°57′01″; thence proceeding along the western shoreline in a northerly direction for approximately 4.8 miles to latitude 32°57′32″, longitude 79°55′27″; thence in a southerly direction for approximately 100 yards to latitude 32°57′29″, longitude 79°55′23″, thence in a southwesterly direction, paralleling the shoreline to latitude 32°56′48″, longitude 79°55′48″; thence in an easterly direction for approximately 50 yards to latitude 32°56′49″, longitude 79°55′46″, thence in a southerly direction, paralleling the shoreline, to latitude 32°56′40″, longitude 79°55′40″; thence in a westerly direction for approximately 50 yards to latitude 32°56′39″, longitude 79°55′42″; thence in a southwesterly direction, paralleling the shoreline, to latitude 32°56′15″, longitude 79°56′07″; thence in a southwesterly direction to latitude 32°56′05″, longitude 79°56′17″; thence in a westerly direction, for approximately 50 yards to latitude 32°56′05″, longitude 79°56′19″; thence in a southerly direction, paralleling the shoreline to latitude 32°55′45″, longitude 79°56′19″; thence in a southwesterly direction to latitude 32°55′42″, longitude 79°56′13″; thence in a southeasterly direction, parallel the shoreline, to latitude 32°55′18″, longitude 79°55′55″; thence in a southwesterly direction to latitude 32°55′16″, longitude 79°56′00″; thence in a southwesterly direction paralleling the shoreline to latitude 32°54′35″; longitude 79°56′57″, thence back to latitude 32°54′37″, and longitude 79°57′01″.

(10) That portion of the Cooper River beginning at a point near the center of the Cooper River at latitude 32°55′03″, longitude 79°55′42″; thence proceeding in an easterly direction to latitude, 32°55′03″; longitude 79°55′35″; thence in a southerly direction to latitude 32°54′52″, longitude 79°55′33″; thence in a westerly direction to latitude 32°54′53″, longitude 79°55′42″; thence in a northerly direction to latitude 32°55′03″, longitude 79°55′42″.

(11) That portion of Foster Creek beginning at a point on the southern shoreline of Foster Creek at its intersection with Back River at latitude 32°58′30″, longitude 79°56′33″; thence proceeding along the southern shoreline to the terminus of Foster Creek; thence back down its northern shoreline of Foster Creek to latitude 32°58′34″, longitude 79°56′34″; thence back to latitude 32°58′30″, longitude 79°56′33″.

(12) Danger zone. That portion of Foster Creek beginning at the point of the southern shoreline of an unnamed tributary of Foster Creek at its intersection with Foster Creek at latitude 32°59′16″ N, longitude 79°57′23″ W; thence back proceeding along the eastern shoreline to the terminus of the tributary at latitude 32°59′49″ N, longitude 79°57′29″ W; thence back down the western shoreline of the unnamed tributary to latitude 32°59′15″ N, longitude 79°57′26″ W. The waters and associated marshes in this danger zone area are subject to impact by rounds and ricochets originating from a small arms range when firing is in progress.

(13) Danger zone. Those portions of unnamed tributaries and associated marshes of Back River and Foster Creek that are generally described as lying south of the main shoreline and extending southward to the northern shoreline of Big Island (U.S. Naval Reservation). Specifically, the area beginning at a point on the main shoreline which is the northern shore of an unnamed tributary of Back River at latitude 32°59′19″ N, longitude 79°56′52″ W, southwesterly to a point on or near the northern shoreline of Big Island at latitude 32°59′11″ N, longitude 79°56′59″ W; thence northwesterly to a point on the main shoreline, which is the northern shore of an unnamed tributary of Foster Creek, at latitude 32°59′16″ N, longitude 79°57′11″ W; thence easterly along the main shoreline, which is the northern shore of the unnamed tributaries of Foster Creek and Back River, back to the point of beginning at latitude 32°59′19″ N longitude 79°56′52″ W. The waters and associated marshes in this danger zone area are subject to impact by rounds and ricochets originating from a small arms range when firing is in progress.

(b) The regulations: (1) Unauthorized personnel, vessels and other watercraft shall not enter the restricted areas described in paragraphs (a)(1), (a)(2), and (a)(4) of this section at any time.

(2) Personnel, vessels and other watercraft entering the restricted area described in paragraph (a)(5) of this section, shall proceed at normal speed and under no circumstances anchor, fish, loiter, or photograph until clear of the restricted area.

(3) Personnel, vessels and other watercraft may be restricted from using any or all of the area described in paragraphs (a)(3) and (a)(6) of this section without first obtaining an escort or other approval from Commander, Naval Base, Charleston, when deemed necessary and appropriately noticed by him/her for security purposes or other military operations.

(4) Personnel, vessels and other watercraft, other than those specifically authorized by Commanding Officer, U.S. Naval Weapons Station, Charleston, SC, entering the restricted area described in paragraph (a)(8) of this section shall proceed at normal speed, and under no circumstances anchor, fish, loiter, or photograph in any way until clear of the restricted area.

(5) Personnel, vessels and other watercraft, other than those specifically authorized by Commanding Officer, U.S. Naval Weapons Station, Charleston, SC, entering the areas described in paragraphs (a)(9) and (a)(10) of this section are prohibited from entering within one-hundred (100) yards of the west bank of the Cooper River, in those portions devoid of any vessels or manmade structures. In those areas where vessels or man-made structures are present, the restricted area will be 100 yards from the shoreline or 50 yards beyond those vessels or other man-made structures, whichever is the greater. This includes the area in paragraph (a)(10) of this section.

(6) In the interest of National Security, Commanding Officer, U.S. Naval Weapons Station, Charleston, SC, may at his/her discretion, restrict passage of persons, watercraft and vessels in the areas described in paragraphs (a)(7), (a)(8) and (a)(11) of this section until such time as he/she determines such restriction may be terminated.

(7) All restricted areas and all danger zones and the approaches leading to the danger zones will be marked with suitable warning signs.

(8) The regulations described in paragraphs (b) (1), (2) and (3) of this section shall be enforced by Commander, Naval Base, Charleston, and such agencies as he/she may designate.

(9) The regulations in this section for the danger zones described in paragraphs (a)(12) and (a)(13) of this section and the regulations described in paragraphs (b) (4), (5) and (6) of this section, shall be enforced by the Commanding Officer, Naval Weapons Station Charleston, SC, and such agencies as he/she may designate.

(10) It is understood that none of the restrictions herein will apply to properly marked Federal vessels performing official duties. It is further understood that Federal employees will not take photographs from within the above described restricted areas.

(11) The unauthorized entering or crossing of the danger zones described in paragraphs (a)(12) and (a)(13) of this section by all persons, watercraft and vessels is prohibited at all times unless specifically authorized by the Commanding Officer of the U.S. Naval Weapons Station Charleston, SC.

[55 FR 3591, Feb. 2, 1990, as amended at 59 FR 2916, Jan. 19, 1994; 61 FR 64997, Dec. 10, 1996; 62 FR 17553, Apr. 10, 1997; 68 FR 57624, Oct. 6, 2003]

§ 334.470 Cooper River and Charleston Harbor, S.C.; restricted areas.

(a) The restricted areas. (1) Area No. 1 is that portion of the Cooper River beginning near the westerly shore north of Shipyard Creek at “a” Latitude 32°50′14″, Longitude 79°56′11″; thence to “b” Latitude 32°50′14″, Longitude 79°55′37″; thence to “c” Latitude 32°49′41″, Longitude 79°55′37″; thence to “d” Latitude 32°49′41″, Longitude 79°55′52″; thence to “e” Latitude 32°49′47″, Longitude 79°56′09″; and thence returning to “a” Latitude 32°50′14″, Longitude 79°56′11″.

(2) Area No. 2 is that portion of the Cooper River beginning at a point west of Shutes Folly Island at “a” Latitude 32°46′27″, Longitude 79°55′31″; thence to “b” Latitude 32°46′39″, Longitude 79°55′11″; thence to “c” Latitude 32°46′39″, Longitude 79°54′51″; thence to “d” Latitude 32°46′28″, Longitude 79°54′47″; thence to “e” Latitude 32°46′17″, Longitude 79°54′51″; thence to “f” Latitude 32°46′17″, Longitude 79°55′11″; and thence returning to “a” Latitude 32°46′27″, Longitude 79°55′31″.

(b) The regulations. (1) There shall be no introduction of magnetic material or magneto-electric field sources with the area.

(2) No person shall enter or remain in the water within the restricted areas. Ships transiting the areas will proceed without delay and shall not, except as noted below, lie to or anchor within the areas.

(i) Pleasure craft under 50 feet LOA will not normally be affected; however, such craft may be required to stand clear upon notification, in the event they are interfering with range operation.

(ii) Anchored commercial ships will be allowed to swing into the restricted area at the Shutes Folly Island site when the range is not in use. Shutes Folly Island Range usage will be indicated by range house display of the international DELTA signal flag.

(iii) This section shall be enforced by the Commandant, Sixth Naval District, Charleston, South Carolina, and such agencies as he may designate.

[42 FR 38177, July 27, 1977. Redesignated at 50 FR 42696, Oct. 22, 1985, as amended at 62 FR 17553, Apr. 10, 1997]

§ 334.475 Brickyard Creek and tributaries and the Broad River at Beaufort, SC.

(a) The areas: (1) That section of the Atlantic Intracoastal Waterway (AIWW), beginning at the confluence of the AIWW and Albergottie Creek, being that point on the west side of the AIWW navigational channel at latitude 32.457226°, longitude 80.687770°, thence continuing in a northerly direction along the western channel edge of the AIWW to latitude 32.458580°, longitude 80.689181°, thence to latitude 32.460413°, longitude 80.689228°, thence to latitude 32.461459°, longitude 80.689418°, thence to latitude 32.464015°, longitude 80.690294°, thence to latitude 32.470255°, longitude 80.690965°, thence to latitude 32.471309°, longitude 80.691196°, thence to latitude 32.475084°, longitude 80.692455°, thence to latitude 32.478161°, longitude 80.691546°, thence to latitude 32.479191°, longitude 80.691486°, thence to latitude 32.481817°, longitude 80.691939°, thence to latitude 32.493001°, longitude 80.689835°, thence to latitude 32.494422°, longitude 80.688296°, thence to latitude 32.49727°, longitude 80.69172° on the east shore of the Marine Corps Air Station (MCAS), at its intersection with the Station's property boundary line, thence heading south along the eastern shoreline of the MCAS to a point along the northern shoreline of Mulligan Creek at latitude 32.48993°, longitude 80.69836°, thence southwesterly across Mulligan Creek to the shoreline of the MCAS, latitude 32.48771°, longitude 80.70424°, thence continuing along the eastern shoreline to its intersection with Albergottie Creek, latitude 32.45360°, longitude 80.70128, thence continuing along the southern shoreline of the MCAS to the intersection of Salt Creek with U.S. Highway 21, latitude 32.45047°, longitude 80.73153°, thence back down the southern creek edge of Salt and Albergottie Creeks, thence back to the starting point at the confluence of Albergottie Creek and the AIWW, latitude 32.457226°, longitude 80.687770°.

Note:

Situated within the boundaries of the area described in paragraph (a)(1) of this section are the areas described in paragraphs (a)(2), (a)(3), (a)(4), (a)(5) and the danger zone described in paragraph (a)(10) of this section. Since additional regulations apply to these sections, they are excluded from the area described in paragraph (a)(1) given that they are more strictly regulated.

(2) That portion of Mulligan Creek located on the southern side of the MCAS runway, beginning at a point on the eastern shoreline of Mulligan Creek at latitude 32.48993°, longitude 80.69836°, thence southwesterly across Mulligan Creek to the shoreline of the MCAS, latitude 32.48771°, longitude 80.70424°, thence continuing in a northerly direction along the eastern shoreline of the MCAS, thence in a northeasterly direction along the and southern side of the MCAS runway, thence back down the eastern shoreline of Mulligan Creek to its starting point, latitude 32.48993°, longitude 80.69836°.

(3) That area adjacent to the Atlantic Intracoastal Waterway (AIWW), situated within the boundaries of the area described in paragraph (a)(1) of this section, beginning at a point on the west side of the AIWW navigational channel at latitude 32.463732°, longitude 80.690208°, thence continuing in a northerly direction along the western channel edge of the AIWW to latitude 32.467999°, longitude 80.690749°, thence turning in a westerly direction and continuing to latitude 32.467834°, longitude 80.700080°, on the eastern shore of the MCAS, thence heading in a southward direction along the shoreline to latitude 32.463692°, longitude 80.698440°, thence turning in a westerly direction and returning back to the starting point on the west edge of the AIWW channel, latitude 32.463732°, longitude 80.690208°.

(4) That area contiguous to Albergottie Creek, situated within the boundaries of the area described in paragraph (a)(1) of this section, beginning at a point on the southern shoreline of the MCAS at latitude 32.452376°, longitude 80.708263°, thence continuing in a northerly direction along the shoreline, up to the shoreline adjacent to Kimes Avenue and back down the opposite shoreline in a southerly direction to a point at latitude 32.450643°, longitude 80.715653°, thence turning in an easterly direction and returning back to the starting point at latitude 32.452376°, longitude 80.708263°.

(5) That area contiguous to Salt Creek, situated within the boundaries of the area described in paragraph (a)(1) of this section, beginning at a point on the southern shoreline of the MCAS and the edge of Salt Creek at latitude 32.45194°, longitude 80.724473°, thence continuing in a northerly direction along the shoreline of the MCAS and continuing on to its intersection again with Salt Creek and adjacent to U.S. Highway 21, thence turning and continuing along the shoreline of Salt Creek in an easterly direction and returning back to the starting point at latitude 32.45194°, longitude 80.724473°.

(6) That section of the Atlantic Intracoastal Waterway (AIWW), beginning at the confluence of the AIWW and Albergottie Creek, being that point on the west side of the AIWW navigational channel at latitude 32.457226°, longitude 80.687770°, thence continuing in a northerly direction along the western channel edge of the AIWW to latitude 32.458580°, longitude 80.689181°, thence to latitude 32.460413°, longitude 80.689228°, thence to latitude 32.461459°, longitude 80.689418°, thence to latitude 32.464015°, longitude 80.690294°, thence to latitude 32.470255°, longitude 80.690965°, thence to latitude 32.471309°, longitude 80.691196°, thence to latitude 32.475084°, longitude 80.692455°, thence to latitude 32.478161°, longitude 80.691546°, thence to latitude 32.479191°, longitude 80.691486°, thence to latitude 32.481817°, longitude 80.691939°, thence to latitude 32.493001°, longitude 80.689835°, thence to latitude 32.494422°, longitude 80.688296°, thence crossing the AIWW channel in a southeasterly direction to a point on the east side of the AIWW and the marsh edge of bank, latitude 32.49343°, longitude 80.68699°, thence southward along the edge of the AIWW and the waterward marsh edge of Ladies Island to a point on the west shoreline of Pleasant Point Peninsular, latitude 32.45806°, longitude 80.68668°, thence back across the AIWW navigational channel to the point of beginning, latitude 32.457226°, longitude 80.687770°.

(7) That portion of Mulligan Creek, beginning at its northern mouth and confluence with McCalleys Creek, latitude 32.50763°, longitude 80.69337°, thence proceeding in a westerly direction along the northern shoreline of Mulligan Creek to its intersection with Perryclear Drive bridge crossing, latitude 32.50534°, longitude 80.69960°, thence back down the southern shoreline to its starting point at McCalleys Creek, latitude 32.50763°, longitude 80.69337°.

(8) That portion of Mulligan Creek, beginning at the Perryclear Drive bridge crossing, latitude 32.50534°, longitude 80.69960°, thence proceeding in a south westerly direction along the northern shoreline of Mulligan Creek to the terminus of its western tributary, thence back down its southern shoreline to the terminus of its eastern terminus located at the northern end on the MCAS runway, latitude 32.49531°, longitude 80.70658°, thence back down the southern shoreline to its starting point at Perryclear Drive bridge crossing, latitude 32.50534°, longitude 80.69960°.

(9) (Laurel Bay Military Family Housing Area, Broad River). That section of the Broad River, beginning on the western shoreline of Laurel Bay Military Family Housing Area boundary line, at latitude 32.449295°, longitude 80.803205°, thence proceeding in a northerly direction along the shoreline to the housing area northern boundary line at latitude 32.471172°, longitude 80.809795°, thence proceeding a distance of 500 feet into the Broad River, latitude 32.471185°, longitude 80.811440°, thence proceeding in a southerly direction and maintaining a distance of 500 feet from the shoreline to latitude 32.449222°, longitude 80.804825°, thence back towards the shoreline to the point of beginning at latitude 32.449295°, longitude 80.803205°.

(10) (Danger zone). That portion of Mulligan Creek located adjacent to the MCAS firing range and the restricted area described in paragraph (a)(2) of this section, beginning at a point on the western shoreline of Mulligan Creek at latitude 32.48771°, longitude 80.70424°, thence northeasterly across Mulligan Creek to the opposite shoreline at latitude 32.48993°, longitude 80.69836°, thence continuing in a southeasterly direction to an upland island bordering the northern shoreline of Mulligan Creek at latitude 32.48579°, longitude 80.69706°, thence turning in a southwesterly direction and crossing Mulligan Creek to a point on the eastern shoreline of the MCAS at latitude 32.48533°, longitude 80.70240°, thence continuing along the eastern shoreline of the MCAS to its starting point at latitude 32.48771°, longitude 80.70424°.

(b) The regulation: (1) Unauthorized personnel, vessels and other watercraft shall not enter the restricted areas described in paragraphs (a)(2), (a)(3), (a)(4), (a)(5) and (a)(8) of this section at any time.

(2) The public shall have unrestricted access and use of the waters described in paragraph (a)(6) of this section whenever the MCAS is in Force Protection Condition Normal, Alpha or Bravo. Whenever the facility is in Force Protection Condition Charlie or Delta, personnel, vessels and other watercraft entering the restricted area described in paragraph (a)(6) of this section shall proceed at normal speed and shall under no circumstances anchor, fish, loiter or photograph in any way until clear of the restricted area.

(3) The public shall have unrestricted access and use of the waters described in paragraphs (a)(1), (a)(7), and (a)(9) of this section whenever the MCAS is in Force Protection Condition Normal Alpha or Bravo. Whenever the facility is in Force Protection Condition Charlie or Delta, personnel, vessels and other watercraft are prohibited from entering the waters described in paragraphs (a)(1), (a)(7), and (a)(9) of this section, unless they first obtain an escort or other approval from the Commander, MCAS, Beaufort, South Carolina.

(4) Unauthorized personnel, vessels and other watercraft shall not enter the danger zone described in paragraph (a)(10) of this section at any time.

(5) All restricted areas and danger zones will be marked with suitable warning signs.

(6) It is understood that none of the restrictions herein will apply to properly marked Federal vessels performing official duties.

(7) It is further understood that unauthorized personnel will not take photographs from within the above described restricted areas.

(c) Enforcement: The regulation in this section, promulgated by the United States Army Corps of Engineers, shall be enforced by the Commanding Officer, MCAS Beaufort, or persons or agencies as he/she may authorize including any Federal Agency, State, Local or County Law Enforcement agency, or Private Security Firm in the employment of the facility, so long as the entity undertaking to enforce this Restricted Area has the legal authority to do so under the appropriate Federal, State or local laws.

[70 FR 43780, July 29, 2005]

§ 334.480 Archers Creek, Ribbon Creek, and Broad River; U.S. Marine Corps Recruit Depot, Parris Island, South Carolina; danger zones.

(a) The areas. (1) The danger zone on Archers Creek (between the Broad River and Beaufort River), Ribbon Creek, and the Broad River shall encompass all navigable waters of the United States, as defined at 33 CFR part 329, adjacent to the existing rifle range. This area is bounded by a line connecting the following coordinates: Commencing from the shoreline at the southernmost portion of the area, at latitude 32°19′59″ N, longitude 80°42′54″ W, thence to a point at latitude 32°20′05″ N, longitude 80°43′16″ W, thence to a point at latitude 32°21′40″ N, longitude 80°44′54″ W, thence to a point at latitude 32°22′20″ N, longitude 80°43′52″ W, thence to a point on the shoreline at latitude 32°21′34″ N, longitude 80°42′48″ W, thence follow the mean high water line southwesterly around Horse Island approximately 2.3 nautical miles to a point at latitude 32°21′22″ N, longitude 80°42′30″ W, thence to a point on the shoreline at latitude 32°20′56″ N, longitude 80°41′50″ W, thence follow the mean high water line southwesterly approximately 2.2 nautical miles to terminate at the southernmost portion of the area (the starting point).

(2) The danger zone on the Broad River shall encompass all navigable waters of the United States, as defined at 33 CFR part 329, adjacent to the existing pistol range. This area is bounded by a line connecting the following coordinates: Commencing from the shoreline at the easternmost portion of the area, at latitude 32°19′36″ N, longitude 80°42′34″ W, thence to a point at latitude 32°19′23″ N, longitude 80°42′50″ W, thence to a point at latitude 32°19′06″ N, longitude 80°43′31″ W, thence to a point at latitude 32°19′28″ N, longitude 80°43′54″ W, thence to a point at latitude 32°19′59″ N, longitude 80°43′28″ W, thence to a point on the shoreline at latitude 32°20′10″ N, longitude 80°43′10″ W, and thence follow the mean high water line southeasterly approximately 0.75 nautical miles to terminate at the easternmost portion of the area (the starting point).

(b) The regulations. (1) All persons, vessels, or other watercraft are prohibited from entering, transiting, anchoring, or drifting within the danger zones described in paragraph (a) of this section when the adjacent rifle or pistol ranges on U.S. Marine Corps Recruit Depot Parris Island are in use.

(2) Firing over these ranges will normally take place between the hours of 6 a.m. and 5 p.m., Monday through Friday, and from 6 a.m. to 12 p.m. on Saturday, National holidays excepted, and at other times as designated and properly published by the Commanding General, U.S. Marine Corps Recruit Depot Parris Island.

(3) Warning signs indicating the periods when the rifle range is in use will be posted by the entrances to Archers Creek and Ribbon Creek. In addition, warning signs will be placed along the shoreline on the Broad River near the upstream and downstream boundaries of both the rifle range and the pistol range.

(4) Warning flags shall be flown from the top of the lookout tower and on the rifle range and pistol range during actual firing. In addition, a sentry lookout will be on duty during actual firing and a patrol boat will be accessible for clearing the area and warning all approaching vessels of the danger zone and the schedule of firing.

(5) During storms or similar emergencies these areas shall be opened to vessels to reach safety without undue delay for the preservation of life and property.

(c) Enforcement. The regulations in this section shall be enforced by the Commanding General, U.S. Marine Corps Recruit Depot Parris Island and/or such persons or agencies as he/she may designate.

[76 FR 62631, Oct. 11, 2011]

§ 334.490 Atlantic Ocean off Georgia Coast; air-to-air and air-to-water gunnery and bombing ranges for fighter and bombardment aircraft, U.S. Air Force.

(a) The danger zones—(1) For fighter aircraft. An area approximately 30 miles offshore between Wassaw Sound and Brunswick, Georgia, described as follows: Beginning at latitude 31°55′30″, longitude 80°24′00″; thence 90° true to longitude 80°16′00″; thence southwesterly to latitude 31°10′00″, longitude 80°43′00″; thence 270° to longitude 80°51′00″; and then northeasterly to the point of beginning.

(2) For bombardment aircraft. An area approximately 70 miles off shore between Savannah Beach and Brunswick, Georgia, described as follows: Beginning at latitude 32°00′00″, longitude 79°43′00″; thence 90° true to longitude 79°07′00″; thence southwesterly to latitude 31°10′00″, longitude 79°24′00″; thence 270° true to longitude 80°00′00″; and thence northeasterly to the point of beginning.

(b) The regulations. (1) The danger zones shall be open to navigation except when aerial gunnery or bombing practice is being conducted.

(2) Prior to conducting each practice, the entire area will be patrolled by aircraft to warn any persons and watercraft found in the vicinity that such practice is about to take place. The warning will be by “buzzing,” (i.e., by flying low over the person or watercraft.) Any person or watercraft shall, upon being so warned, immediately leave the area designated and shall remain outside the area until practice has ceased.

(3) The regulations in this section shall be enforced by the Commanding Officer, 2d Bombardment Wing, Hunter Air Force Base, Savannah, Georgia, and such agencies as he may designate.

[16 FR 818, Jan. 30, 1951, as amended at 16 FR 2397, Mar. 14, 1951. Redesignated at 50 FR 42696, Oct. 22, 1985, as amended at 62 FR 17554, Apr. 10, 1997]

§ 334.500 St. Johns River, Atlantic Ocean, Sherman Creek; restricted areas and danger zone, Naval Station Mayport, Florida.

(a) The areas. (1) The St. Johns River restricted area and the Atlantic Ocean restricted area described in paragraphs (a)(2) and (a)(3) of this section, respectively, are contiguous but each area is described separately for clarification.

(2) St. Johns River restricted area. This restricted area shall encompass all navigable waters of the United States, as defined at 33 CFR 329, within the area bounded by a line connecting the following coordinates: Commencing from the shoreline at latitude 30°23′52.97″ N, longitude 081°25′36.51″ W; thence to latitude 30°23′56.71″ N, longitude 081°25′36.51″ W; then the line meanders irregularly, follow the shoreline at a distance of 380 feet seaward from the mean high water line to a point at latitude 30°23′54.20″ N, longitude 081°24′14.11″ W, thence proceed directly to latitude 30°23′46.33″ N, longitude 081°24′03.73″ W, then the line meanders irregularly, follow the shoreline at a distance of 380 feet seaward from the mean high water line to a point at latitude 30°23′53.08″ N, longitude 081°23′34.00″ W, thence follow the arc of a circle with a radius of 466 feet, centered at latitude 30°23′48.52″ N, longitude 081°23′33.30″ W, to a point on the jetty at latitude 30°23′50.06″ N, longitude 081°23′28.26″ W.

(3) Atlantic Ocean restricted area. From the last point identified in paragraph (a)(2) of this section, latitude 30°23′50.06″ N, longitude 081°23′28.26″ W, proceed to a point at latitude 30°23′49.12″ N, longitude 81°23′28.10″ W, then the line meanders irregularly, follow the shoreline at a distance of 380 feet seaward from the mean high water line to a point at latitude 30°22′54.37″ N, longitude 081°23′44.09″ W, thence proceed directly to shore to terminate at latitude 30°22′54.46″ N, longitude 081°23′48.44″ W.

(4) Sherman Creek restricted area. This restricted area shall encompass all navigable waters of the United States, as defined at 33 CFR part 329, to include Sherman Creek, its tributaries and associated tidal marshes located within the NAVSTA Mayport area boundaries described in this section. The restricted area is completely encircled by roadways and is bordered on the south by Wonderwood Expressway, on the west by SR A1A, on the north by Perimeter Road, and on the east by Mayport Road.

(5) Danger zone. The danger zone shall encompass all navigable waters of the United States, as defined at 33 CFR part 329, within the area bounded by a line connecting the following coordinates: Commencing from the shoreline at latitude 30°24′00.31″ N, longitude 081°25′06.02″ W; thence to latitude 30°24′11.16″ N, longitude 081°25′03.90″ W; thence to latitude 30°24′00.62″ N, longitude 081°24′10.13″ W; thence to a point on the shoreline riprap at latitude 30°23′41.26″ N, longitude 081°24′08.82″ W.

(b) The regulations—(1) St. Johns River restricted area. All persons, vessels, or other craft are prohibited from entering, transiting, drifting, dredging, or anchoring within the area described in paragraph (a)(2) of this section without the permission of the Commanding Officer, NAVSTA Mayport or his/her authorized representative. This restriction will be in place 24 hours a day, seven days a week. Warning signs notifying individuals of the restricted area boundary and prohibiting entry into the area will be posted at 500-foot intervals along the property boundary.

(2) Atlantic Ocean restricted area. All persons, vessels, or other craft are prohibited from entering, transiting, drifting, dredging, or anchoring within the area described in paragraph (a)(3) of this section without the permission of the Commanding Officer, NAVSTA Mayport or his/her authorized representative. This restriction will be in place 24 hours a day, seven days a week. Warning signs notifying individuals of the restricted area boundary and prohibiting entry into the area will be posted at 500-foot intervals along the property boundary.

(3) Sherman Creek restricted area. All persons, vessels, or other craft are prohibited from entering, transiting, drifting, dredging, or anchoring within the area described in paragraph (a)(4) of this section without the permission of the Commanding Officer, NAVSTA Mayport or his/her authorized representative. This restriction will be in place 24 hours a day, seven days a week. Warning signs notifying individuals of the restricted area boundary and prohibiting entry into the area will be posted at 500-foot intervals along the property boundary where practicable (e.g., not in the wetlands). In addition, a floating Small Craft Intrusion Barrier will be placed across Sherman Creek just east of the A1A bridge and another will be placed across tributaries to Sherman Creek just north of the Wonderwood Expressway.

(4) Danger zone. During periods of munitions movement at wharves Bravo and Charlie, no person or vessel shall be allowed to remain within the 1,250-foot Explosive Safety Quantity-Distance arcs generated by the activity. NAVSTA Mayport will not announce or publish notification prior to enforcing this regulation due to the unacceptable security threat posed by advance public notice of military munitions movements.

(c) Enforcement. The regulations in this section shall be enforced by the Commanding Officer, NAVSTA Mayport and/or such persons or agencies as he/she may designate. Military vessels will patrol the areas identified in this section 24 hours a day, 7 days a week. Any person or vessel encroaching within the areas identified in this section will be asked to immediately leave the area. Failure to do so will result in the forceful removal of the person or vessel from the area in question.

[75 FR 19885, Apr. 16, 2010]

§ 334.505 St. Johns River, U.S. Coast Guard Station Mayport, Sector Jacksonville, Florida; restricted area.

(a) The area. The restricted area encompasses all navigable waters of the United States as defined at 33 CFR part 329, within the area bounded by a line connecting the following coordinates: Commencing from the shoreline at latitude 30°23.315366′ N, longitude 081°26.056735′ W; thence directly to latitude 30°23.325775′ N, longitude 081°26.071548′ W; thence directly to latitude 30°23.266063′ N, longitude 081°26.132775′ W; thence to latitude 30°23.215082′ N, longitude 081°26.1287404′ W; thence proceed directly to a point on the shoreline at latitude 30°23.204522′ N, longitude 081°26.111753′ W thence following the mean high water line to the point of beginning. The datum for these coordinates is WGS84.

(b) The regulation. (1) The restricted area described in paragraph (a) of this section is only open to U.S. Government vessels. U.S. Government vessels include, but are not limited to, U.S. Coast Guard, U.S. Coast Guard Auxiliary, Department of Defense, National Oceanic and Atmospheric Administration, state and local law enforcement, emergency services and vessels under contract with the U.S. Government. Warning signs notifying individuals of the restricted area boundary and prohibiting all unauthorized entry into the area will be posted along the property boundary.

(2) All persons, vessels and other craft are prohibited from entering, transiting, drifting, dredging or anchoring within the restricted area described in paragraph (a) of this section without prior approval from the Commanding Officer, U.S. Coast Guard Station Mayport or his/her designated representative.

(3) Fishing, trawling, net-fishing and other aquatic activities are prohibited in the restricted area without prior approval from the Commanding Officer, U.S. Coast Guard Station Mayport or his/her designated representative.

(4) The restrictions described in paragraph (b) of this section are in effect 24 hours a day, 7 days a week.

(c) Enforcement. The regulations in this section shall be enforced by the Commanding Officer, U.S. Coast Guard Station Mayport and/or such persons or agencies as he/she may designate.

[80 FR 9386, Feb. 23, 2015]

§ 334.510 U.S. Navy Fuel Depot Pier, St. Johns River, Jacksonville, Fla.; restricted area.

(a) The area is described as:

(1) A line running at 238.5° true and paralleling the pier at 100 feet is extended from the eastern edge of the mooring platform #59 to the western edge of platform #65. From these points the boundaries are extended to the shoreline along lines running at 328.5°.

(2) The easterly waterward coordinate being:

30°23′58.0″ N 81°37′15.0″ W

(3) The westerly waterward coordinate being:

30°23′53.0″ N 81°37′24.4″ W

(b) The regulations. (1) The use of waters as previously described by private and/or commercial floating craft or persons is prohibited with the exception of vessels or persons that have been specifically authorized to do so by the Officer in Charge of the Navy Fuel Depot.

(2) This regulation shall be enforced by the Officer in Charge, U.S. Navy Fuel Depot, Jacksonville, Florida, and such agencies as the officer in charge may designate.

[44 FR 12192, Mar. 6, 1979, as amended at 45 FR 27755, Apr. 24, 1980. Redesignated at 50 FR 42696, Oct. 22, 1985, as amended at 62 FR 17554, Apr. 10, 1997]

§ 334.515 Blount Island Command and Marine Corps Support Facility-Blount Island; Jacksonville, Florida restricted areas.

(a) The areas. (1) The restricted areas shall encompass all navigable waters of the United States, as defined at 33 CFR 329, contiguous to the area identified as Blount Island Command and Marine Corps Support Facility-Blount Island (MCSF-BI). The three areas are contiguous but each area is described separately below for clarification.

(2) Area 1. Commencing from the shoreline at the northwest portion of the facility, at latitude 30°24′46.10″ N, longitude 81°32′19.01″ W, thence proceed 200 yards in a northwesterly direction to latitude 30°24′49.84″ N, longitude 81°32′23.12″ W. From this point the line meanders irregularly, following the shoreline at a distance of 200 yards from the mean high water line to a point at latitude 30°23′36.75″ N, longitude 81°30′26.42″ W, thence southwesterly to a point at latitude 30°23′34.44″ N, longitude 81°30′28.80″ W, thence west southwesterly to a point at latitude 30°23′33.68″ N, longitude 81°30′32.61″ W.

(3) Area 2. This includes all waters within the area generally identified as the U.S. Marine Corps Slipway but which is also known as the Back River area and the waters out to a distance of 100 yards from the entranceway. From the last point identified in paragraph (a)(2) of this section, latitude 30°23′33.68″ N, longitude 81°30′32.61″ W, proceed west southwesterly to a point at latitude 30°23′30.93″ N, longitude 81°30′57.14″ W.

(4) Area 3. From the last point identified in paragraph (a)(3) of this section, latitude 30°23′30.93″ N, longitude 81°30′57.14″ W, the line meanders irregularly in a westerly direction, following the shoreline at a distance of 100 yards from the mean high water line to a point at latitude 30°23′26.34″ N, longitude 81°31′49.73″ W, thence proceed north to terminate at a point on the shoreline at latitude 30°23′29.34″ N, longitude 81°31′49.79″ W.

(b) The regulations. (1) With the exception of local, State and federal law enforcement entities, all persons, vessels, and other craft are prohibited from entering, transiting, anchoring, or drifting within the areas described in paragraph (a) of this section for any reason without the permission of the Commanding Officer, Marine Corps Support Facility-Blount Island, Jacksonville, Florida, or his/her authorized representative.

(2) The restriction noted in paragraph (b)(1) of this section is in effect 24 hours a day, 7 days a week.

(3) Warning signs will be posted near the MCSF-BI shoreline advising boaters of the restrictions in this section.

(c) Enforcement. (1) The regulations in this section shall be enforced by the Commanding Officer, Marine Corps Support Facility-Blount Island, Jacksonville, Florida, and/or such persons or agencies as he/she may designate.

(2) Enforcement of the regulations in this section will be accomplished utilizing the Department of Defense Force Protection Condition (FPCON) System. From the lowest security level to the highest, Force Protection Conditions levels are titled Normal, Alpha, Bravo, Charlie and Delta. The regulations in this section will be enforced as noted in paragraph (b) of this section, or at the discretion of the Commanding Officer.

[73 FR 54073, Sept. 18, 2008]

§ 334.520 Lake George, Fla.; naval bombing area.

(a) The danger zone. An area in the eastern part of Lake George described as follows: Beginning at latitude 29°13′16″, longitude 81°34′28″; thence along a line parallel to the navigation channel to latitude 29°20′05″, longitude 81°36′15″; thence along a line about three-fifths mile southerly from the Putnam-Volusia County line to latitude 29°20′19″, longitude 81°35′12″; thence to latitude 29°18′36″, longitude 81°33′53″; thence to latitude 29°13′22″, longitude 81°32′38″; and thence to the point of beginning. The area will be marked by appropriate warnings signs at the five corners and at the midpoint of the longer side.

(b) The regulations. (1) Bombing operations will be confined, as nearly as practicable, to the north-south center line of the danger zone, keeping well clear of the navigation channel.

(2) Prior to each bombing operation the danger zone will be patrolled by naval aircraft which will warn all persons and vessels to leave the area by “zooming” a safe distance to the side and at least 500 feet above the surface. Upon being so warned, such persons and vessels shall leave the danger zone immediately and shall not re-enter the danger zone until bombing operations have ceased.

(3) At intervals of not more than three months, public notices will be issued that bombing operations are continuing. Such notices will appear in the local newspaper and in “Notice to Mariners”.

(4) The regulations in this section shall not deny passage through Lake George by regular cargo-carrying vessels proceeding along established lanes for such vessels. When any such vessel is within the danger zone the officer in charge of the bombing operations will cause the cessation or postponement of such operations until the vessel has cleared the area. The vessel shall proceed on its normal course and shall not delay its progress.

(5) The regulations in this section shall be enforced by the Commander, Naval Air Bases, Sixth Naval District, Naval Air Station, Jacksonville, Florida, and such agencies as he may designate.

[16 FR 10992, Oct. 30, 1951. Redesignated at 50 FR 42696, Oct. 22, 1985, as amended at 62 FR 17554, Apr. 10, 1997]

§ 334.525 Atlantic Ocean off John F. Kennedy Space Center, FL; restricted area.

(a) The area. The restricted area shall encompass all navigable waters of the United States, as defined at 33 CFR part 329, contiguous to the area offshore of the John F. Kennedy Space Center (KSC), Florida. The area is bounded by a line connecting the following coordinates: Commencing from the shoreline at the southwest portion of the area, at latitude 28°35.008′ N, longitude 80°34.448′ W, thence directly to latitude 28°35.716′ N, longitude 80°32.938′ W, thence follow the mean high water line northerly at a distance of 1.5 nautical miles to a point at latitude 28°43.566′ N, longitude 80°39.094′ W, thence proceed westerly to terminate at a point on the shoreline at latitude 28°43.566′ N, longitude 80°41.189′ W.

(b) The regulation. (1) The area described in paragraph (a) of this section will be closed when it is deemed necessary by the Director, KSC or his/her designee during launch operations or to address any perceived threat to the facilities. With the exception of local, State, and Federal law enforcement entities, all persons, vessels, and other craft are prohibited from entering, transiting, anchoring, or drifting within the restricted area when it is closed, unless they have the permission of the Director, KSC or his/her designee.

(2) Due to the nature of this restricted area, closures may occur with little advance notice. Closure of the area shall be noticed by warning statements displayed on the electronic marquee signs located at the gates of the KSC and on an electronic marquee sign located on the north side of the Port Canaveral ship channel between the Trident and Poseidon wharfs during the duration of the closure. If time permits, additional information will be published in area newspapers and announced on marine radio broadcast.

(c) Enforcement. The regulations in this section shall be enforced by the Director, KSC and/or such persons or agencies as he/she may designate.

[75 FR 34643, June 18, 2010]

§ 334.530 Canaveral Harbor adjacent to the Navy pier at Port Canaveral, Fla.; restricted area.

(a) The area. The waters of Canaveral Harbor within a line circumscribing the water approaches to the Navy pier along the northeasterly edge of the Canaveral Harbor turning basin at a distance of 200 feet from all portions of the pier including the dolphins 200 feet off the northwest end and 75 feet off the southeast end of the pier.

(b) The regulations. (1) All unauthorized vessels and personnel are prohibited from the area during specified periods.

(2) The area will be closed when a red square flag (bravo), and depending on the status of the hazardous operation, either an amber or red beacon, steady burning or rotating, day or night, when displayed from any of the three berths along the wharf.

(3) Lighted signs indicating the restricted area will be placed on the pier and adjacent thereto.

(4) The regulations in this section shall be enforced by the Commanding Officer, U.S. Naval Ordnance Test Unit, AFMTC, Patrick Air Force Base, Florida.

[25 FR 12244, Nov. 30, 1960. Redesignated at 50 FR 42696, Oct. 22, 1985, as amended at 61 FR 34733, July 3, 1996]

§ 334.540 Banana River at the Eastern Range, 45th Space Wing, Cape Canaveral Air Force Station, FL; restricted area.

(a) The area. The restricted area shall encompass all navigable waters of the United States, as defined at 33 CFR part 329, within the Banana River contiguous to the area offshore of Cape Canaveral Air Force Station, Florida. The area is bounded by a line connecting the following coordinates: Commencing from the shoreline at the southeast portion of the area, at approximately latitude 28°25.17′ N, longitude 80°36.24′ W, thence directly to latitude 28°25.18′ N, longitude 80°36.65′ W, thence directly to latitude 28°25.25′ N, longitude 80°36.66′ W, thence directly to latitude 28°25.22′ N, longitude 80°38.36′ W, thence directly to latitude 28°26.23′ N, longitude 80°38.25′ W, thence directly to latitude 28°26.23′ N, longitude 80°38.47′ W, thence to reach the south side of the Kennedy Space Center NASA Causeway East Roadway at approximately latitude 28°30.74′ N, longitude 80°36.63′ W.

(b) The regulation. (1) The area described in paragraph (a) of this section will be closed when it is deemed necessary by the Commander, 45th Space Wing or his/her designee to address any perceived threat to the local area. With the exception of local, State, and Federal law enforcement entities, all persons, vessels, and other craft are prohibited from entering, transiting, anchoring, or drifting within the restricted area when it is closed without the permission of the Commander, 45th Space Wing or his/her designee.

(2) Due to the nature of this restricted area, closures may occur with very little advance notice. Closure of the area shall be noticed by the display of a red beacon located at the southern entrance to Cape Canaveral Air Force Station. Information will be provided via marine radio broadcast during the duration of the area closure.

(c) Enforcement. The regulations in this section shall be enforced by the Commander, 45th Space Wing, Patrick Air Force Base, Florida and/or such persons or agencies as he/she may designate.

[74 FR 36401, July 23, 2009]

§ 334.560 Banana River at Patrick Air Force Base, Fla.; restricted area.

(a) The area. The waters within an area beginning at a point located at latitude 28°16′19″ N., longitude 80°36′28″ W.; proceed west to latitude 28°16′19″ N., longitude 80°36′35″ W.; thence, southwesterly to latitude 28°14′34″ N., longitude 80°37′08″ W.; thence, southerly to latitude 28°12′44″ N., longitude 80°37′18″ W.; thence, east to latitude 28°12′44″ N., longitude 80°37′11″ W. This encompasses an area reaching from the northern extent described to the southern extent described and extending from the mean high water line waterward a minimum distance of approximately 600 feet.

(b) The regulations. (1) All unauthorized persons and watercraft shall stay clear of the area at all times.

(2) The regulations in this section shall be enforced by the Commander, 45th Space Wing, Patrick Air Force Base, Florida, and such agencies as he/she may designate.

[29 FR 3702, Mar. 25, 1964. Redesignated at 50 FR 42696, Oct. 22, 1985, and amended at 58 FR 37609, July 12, 1993; 62 FR 17554, Apr. 10, 1997; 70 FR 67371, Nov. 7, 2005]

§ 334.570 Banana River near Orsino, Fla.; restricted area.

(a) The area. That part of Banana River N of the NASA Banana River Causeway near Orsino and extending above the head of said river to the N and westerly to Kennedy Parkway North.

(b) The regulations. (1) All unauthorized craft and personnel shall stay clear of the area at all times.

(2) The regulations in this section shall be enforced by the Director, John F. Kennedy Space Center, NASA, Cocoa Beach, Fla.

[30 FR 8831, July 14, 1965. Redesignated at 50 FR 42696, Oct. 22, 1985]

§ 334.580 Atlantic Ocean near Port Everglades, Fla.

(a) The area. Beginning at a point located at latitude 26°05′30″ N.—longitude 80°03′30″ W.; proceed west to latitude 26°05′30″ N.—longitude 80°06′30″ W.; Thence, southerly to latitude 26°03′00″ N.—longitude 80°06′42″ W.; Thence, east to latitude 26°03′00″ N.—longitude 80°05′44″ W.; Thence, south to latitude 26°01′36″ N.—longitude 80°05′44″ W.; Thence, east to latitude 26°01′36″ N.—longitude 80°03′30″ W.; Thence, north to the point of beginning.

(b) The regulations. (1) Anchoring, trawling, dredging, or attaching any object to the submerged sea bottom shall be prohibited in the above described area.

(2) The regulations of this section shall be enforced by the Facility Director, Naval Surface Warfare Center, Detachment Dania, Florida, and such agencies as he/she may designate.

[51 FR 1370, Jan. 13, 1986, as amended at 70 FR 67371, Nov. 7, 2005]

§ 334.590 Atlantic Ocean off Cape Canaveral, Fla.; Air Force missile testing area, Patrick Air Force Base, Fla.

(a) The danger zone. An area in the Atlantic Ocean immediately offshore from Cape Canaveral defined by a line 3 nautical miles from shore, said area terminating in the north at a line on a bearing of 70° from a point on shore at approximate latitude 28°35′ north and in the south at a line on a bearing of 115° from a point on the shore at approximate latitude 28°25′ north.

(b) The regulations. (1) All unauthorized persons and vessels are prohibited from operating within the danger zone during firing periods to be specified by the Commander, Air Force Missile Test Center, Patrick Air Force Base.

(2) Warning signals will be used to warn persons and vessels that the danger zone is active. These signals will be in the form of a large red ball and a red flashing high intensity beacon. One signal will be located on a 90-foot pole near the shoreline at the north end of the danger zone, and one signal will be located on a 90-foot pole near the shoreline about one-half mile north of the south limit of the danger zone. An amber rotating beacon and warning sign will be erected on the north side of the Port Canaveral ship channel to indicate to vessels about to leave the harbor that the danger zone is in use.

(3) When the signals in paragraph (b)(2) of this section are displayed, all persons and vessels, except those authorized personnel and patrol vessels, will immediately leave the danger zone by the most direct route and stay out until the signals are discontinued.

(4) The regulations in this paragraph shall be enforced by the Commander, Air Force Missile Test Center, Patrick Air Force Base, Fla., and such agencies as he may designate.

[22 FR 4814, July 9, 1957, as amended at 23 FR 3716, May 29, 1958; 27 FR 4778, May 19, 1962. Redesignated at 50 FR 42696, Oct. 22, 1985, as amended at 62 FR 17554, Apr. 10, 1997]

§ 334.595 Atlantic Ocean off Cape Canaveral; 45th Space Wing, Cape Canaveral Air Force Station, FL; restricted area.

(a) The area. The restricted area shall encompass all navigable waters of the United States, as defined at 33 CFR part 329, contiguous to the area offshore of Cape Canaveral Air Force Station, Florida. The area is bounded by a line connecting the following coordinates: Commencing from the shoreline at the northwest portion of the area, at latitude 28°35.008′ N, longitude 80°34.448′ W, thence directly to latitude 28°35.716′ N, longitude 80°32.938′ W, thence following the mean high water line at a distance of 1.5 nautical miles offshore proceed southerly to a point at latitude 28°24.187′ N, longitude 80°33.443′ W, thence proceeding westerly to terminate at a point on the shoreline at latitude 28°24.69′ N, longitude 80°35.05′ W.

(b) The regulation. (1) The area described in paragraph (a) of this section will be closed when it is deemed necessary by the Commander, 45th Space Wing or his/her designee to address any perceived threat to the local area. With the exception of local, State, and Federal law enforcement entities, all persons, vessels, and other craft are prohibited from entering, transiting, anchoring, or drifting within the restricted area when it is closed without the permission of the Commander, 45th Space Wing or his/her designee.

(2) Due to the nature of this restricted area, closures may occur with very little advance notice. Closure of the area shall be noticed by the display of a red ball and red beacon from a 90-foot pole near the shoreline at approximately latitude 28°35.0′ N, longitude 80°34.8′ W and from a 90-foot pole near the shoreline at approximately latitude 28°25.3′ N, longitude 80°35.0′ W. Information will be provided via marine radio broadcast and a warning statement displayed on an electronic marquee sign located on the north side of the Port Canaveral ship channel between the Trident and Poseidon Wharf during the duration of the area closure.

(c) Enforcement. The regulations in this section shall be enforced by the Commander, 45th Space Wing, Patrick Air Force Base, Florida and/or such persons or agencies as he/she may designate.

[74 FR 36401, July 23, 2009; 74 FR 58849, Nov. 16, 2009]

§ 334.600 TRIDENT Basin adjacent to Canaveral Harbor at Cape Canaveral Air Force Station, Brevard County, Fla.; danger zone.

(a) The danger zone. From the west side of the access channel at latitude 28°24′37″, longitude 80°35′35″ to the east side of the access channel at latitude 28°24′37″, longitude 80°35′26″ and the entire basin.

(b) Regulations. (1) No unauthorized person or vessel shall enter the area. The area will be used for loading and unloading explosives. The entrance to the basin will be marked by suitable boundary signs.

(2) The regulations will be enforced by the Commanding Officer, Naval Ordnance Test Unit, Patrick Air Force Base, Florida, or such agencies he may designate.

[41 FR 17898, Apr. 29, 1976. Redesignated at 50 FR 42696, Oct. 22, 1985, as amended at 62 FR 17554, Apr. 10, 1997]

§ 334.605 Meloy Channel, U.S. Coast Guard Base Miami Beach, Florida; restricted area.

(a) The area. The restricted area shall encompass all navigable waters of the United States as defined at 33 CFR part 329, within the area bounded by a line connecting the following coordinates: Commencing from the shoreline at latitude 25°46′20.07″ N, longitude 080°08′50.94″ W; thence to latitude 25°46′22.69″ N, longitude 080°08′44.01″ W; thence to latitude 25°46′22.02″ N, longitude 080°08′42.14″ W; thence to latitude 25°46′12.23″ N, longitude 080°08'35.33″ W; thence to latitude 25°46′09.13″ N, longitude 080°08′40.74″ W; thence to latitude 25°46'11.63″ N, longitude 080°08'43.36″ W; thence to latitude 25°46′17.22″ N, longitude 080°08′47.17″ W; thence to latitude 25°46′17.15″ N, longitude 080°08′47.62″ W; thence to latitude 25°46′17.63″ N, longitude 080°08′49.33″ W; thence to latitude 25°46′18.91″ N, longitude 080°08′50.24″ W; thence proceed directly to a point on the shoreline at latitude 25°46′18.76″ N, longitude 080°08′50.71″ W thence following the mean high water line to the point of beginning.

(b) The regulations. (1) The restricted area described in paragraph (a) of this section is only open to U.S. Government vessels. U.S. Government vessels include, but are not limited to, U.S. Coast Guard and Coast Guard Auxiliary vessels, Department of Defense vessels, state and local law enforcement and emergency services vessels, and vessels under contract with the U.S. Government. Warning signs notifying individuals of the restricted area boundary and prohibiting all unauthorized entry into the area will be posted along the property boundary and, as appropriate, on the piers of the MacArthur Causeway Bridge adjacent to the restricted area.

(2) All persons, vessels, and other craft are prohibited from entering, transiting, drifting, dredging, or anchoring within the restricted area described in paragraph (a) of this section without prior approval from the Base Commander, U.S. Coast Guard Base Miami Beach or his/her designated representative.

(3) Fishing, trawling, net-fishing, and other aquatic activities are prohibited in the restricted area without prior approval from the Base Commander, U.S. Coast Guard Base Miami Beach or his/her designated representative.

(4) The restrictions described in paragraph (b) of this section are in effect 24 hours a day, 7 days a week.

(c) Enforcement. The regulations in this section shall be enforced by the Base Commander, U.S. Coast Guard Base Miami Beach and/or such persons or agencies as he/she may designate.

[77 FR 42652, July 20, 2012]

§ 334.610 Key West Harbor, at U.S. Naval Base, Key West, Fla.; naval restricted areas and danger zone.

(a) The areas. (1) All waters within 100 yards of the south shoreline of the Harry S. Truman Annex, beginning at a point on the shore at Latitude 24°32′45.3″ N., Longitude 81°47′51″ W.; thence to a point 100 yards due south of the south end of Whitehead Street of Latitude 24°32′42.3″ N., Longitude 81°47′51″ W.; thence extending westerly, paralleling the southerly shoreline of the Harry S. Truman Annex, to Latitude 24°32′37.6″ N., Longitude 81°48′32″ W., thence northerly to the shore at Latitude 24°32′41″ N., Longitude 81°48′31″ W. (Area #1).

(2) All waters within 100 yards of the westerly shoreline of the Harry S. Truman Annex and all waters within a portion of the Truman Annex Harbor, as defined by a line beginning on the shore at Latitude 24°33′00″ N., Longitude 81°48′41.7″ W.; thence to a point 100 yards due west at Latitude 24°33′00″ N., Longitude 81°48′45″ W.; thence northerly, paralleling the westerly shoreline of the Harry S. Truman Annex, including a portion of the Truman Annex Harbor entrance, to Latitude 24°33′23″ N., Longitude 81°48′37″ W.; thence southeasterly to the shore (sea wall) at Latitude 24°33′19.3″ N., Longitude 81°48′28.7″ W. (Area #2).

(3) All waters within 100 yards of the U.S. Coast Guard Station and the westerly end of Trumbo Point Annex beginning at the shore at Latitude 24°33′47.6″ N., Longitude 81°47′55.6″ W.; thence westerly to Latitude 24°33′48″ N., Longitude 81°48′00.9″ W.; thence due south to Latitude 24°33′45.8″ N., Longitude 81°48′00.9″ W.; thence westerly to Latitude 24°33′47″ N., Longitude 81°48′12″ W.; thence northerly to Latitude 24°34′06.2″ N., Longitude 81°48′10″ W.; thence easterly to a point joining the restricted area around Fleming Key at Latitude 24°34′03.3″ N., Longitude 81°47′55″ W. (Area #3).

(4) Beginning at the last point designated in area 3 at Latitude 24°34.0550′ N., Longitude 81°47.9166′ W.; proceed in a northwesterly direction to a point at Latitude 24°34.2725′ N., Longitude 81°48.1304′ W.; thence proceed in a northeasterly direction to a point at Latitude 24°34.3562′ N., Longitude 81°48.0192′ W.; thence proceed in a northwesterly direction to a point at Latitude 24°34.4506′ N., Longitude 81°48.1444′ W.; thence proceed in a northwesterly direction to a point at Latitude 24°34.5619′ N., Longitude 81°48.1873′ W.; thence proceed in a northeasterly direction to a point at Latitude 24°34.9084′ N., Longitude 81°48.0945′ W.; thence proceed in a northeasterly direction to a point at Latitude 24°34.9809′ N., Longitude 81°47.9400′ W.; proceed in a general northerly direction maintaining a distance of 100 yards from the shoreline of Fleming Key, continue around Fleming Key to a point easterly of the southeast corner of Fleming Key at Latitude 24°34.0133′ N., Longitude 81°47.6250′ W.; thence easterly to Latitude 24°33.9600′ N., Longitude 81°47.3333′ W.; thence southerly to a point on the shore at Latitude 24°33.9117′ N., Longitude 81°47.3450′ W. The Department of the Navy plans to install buoys along that portion of the restricted area boundary which marks the outer edge of the explosive hazard safety distance requirements.

(5) All waters contiguous to the southwesterly shoreline of Boca Chica Key beginning at a point on the southwest shoreline at Latitude 24°33′24″ N., Longitude 81°42′30″ W.; proceed due south 100 yards to Latitude 24°33′20.4″ N., Longitude 81°42′30″ W.; thence, maintaining a distance of 100 yards from the shoreline, proceed westerly and northerly to Latitude 24°34′03″ N., Longitude 81°42′47″ W.; thence due north to a point at the easterly end of the U.S. Highway 1 (Boca Chica Channel) bridge at Latitude 24°34′39″ N., Longitude 81°42′47″ W. (Area #5).

(6) Danger zone. All waters within an area along the northeast side of the Naval Air Station on Boca Chica Key defined by a line beginning at latitude 24°35.472′ N., longitude 81°41.824′ W.; thence proceed in a northerly direction to a point at latitude 24°36.289′ N., longitude 81°41.437′ W.; thence proceed westerly to a point at latitude 24°36.392′ N., longitude 81°41.970′ W.; thence to a point on shore at latitude 24°35.698′ N., longitude 81°41.981′ W.

(b) The Regulations: (1) Entering or crossing Restricted Areas #1 and #4 and the Danger Zone (Area #6) described in paragraph (a) of this section, by any person or vessel, is prohibited.

(2) Privately owned vessels, properly registered and bearing identification in accordance with Federal and/or State laws and regulations may transit the following portions of restricted areas #2, #3 and #5. NOTE: All vessels entering the areas at night must display lights as required by Federal laws and Coast Guard regulations or, if no constant lights are required, then the vessel must display a bright white light showing all around the horizon,

(i) The channel, approximately 75 yards in width, extending from the northwest corner of Pier D-3 of Trumbo Point Annex, eastward beneath the Fleming Key bridge and along the north shore of Trumbo Point Annex (area #3).

(ii) A channel of 150 feet in width which extends easterly from the main ship channel into Key West Bight, the northerly edge of which channel passes 25 feet south of the Trumbo Point Annex piers on the north side of the Bight. While the legitimate access of privately owned vessels to facilities of Key West Bight is unimpeded, it is prohibited to moor, anchor, or fish within 50 feet of any U.S. Government-owned pier or craft (area #3).

(iii) The dredged portion of Boca Chica channel from its seaward end to a point due south of the east end of the Boca Chica Bridge (area #5).

(iv) All of the portion of Restricted Area No. 2 that lies between the Truman Annex Mole and the Key West Harbor Range Channel. The transit zone extends to the northeasterly corner of the Truman Annex Mole, thence to the northwesterly end of the breakwater at Latitude 24°33′21.3″ N, Longitude 81°48′32.7″ W.

(3) Stopping or landing by any person and/or any vessel, other than Government-owned vessels and specifically authorized private craft in any of the restricted areas or danger zone described in paragraph (a) of this section is prohibited.

(4) Vessels using the restricted channel areas described in paragraph (b)(2) (i), (ii), (iii), and (iv) of this section shall proceed at speeds commensurate with minimum wake.

(c) The regulations in this section shall be enforced by the Commanding Officer, Naval Air Station, Key West, Florida, and such agencies as he/she may designate.

[54 FR 7033, Feb. 16, 1989, as amended at 59 FR 48802, Sept. 23, 1994; 62 FR 17554, Apr. 10, 1997; 70 FR 67371, Nov. 7, 2005; 72 FR 44973, Aug. 10, 2007]

§ 334.620 Straits of Florida and Florida Bay in vicinity of Key West, Fla.; operational training area, aerial gunnery range, and bombing and strafing target areas, Naval Air Station, Key West, Fla.

(a) The danger zones—(1) Operational training area. Waters of the Straits of Florida and Gulf of Mexico southwest, west and northwest of Key West bounded as follows: Beginning at latitude 25°45′00″, longitude 82°07′00″; thence southeast to latitude 24°49′00″, longitude 81°55′00″; thence southwest to latitude 24°37′30″, longitude 82°00′30″; thence westerly to latitude 24°37′30″, longitude 82°06′00″; thence southerly to latitude 24°28′30″, longitude 82°06′00″; thence southerly to latitude 24°25′00″, longitude 82°06′30″; thence easterly to latitude 24°25′00″, longitude 81°57′00″; thence southwesterly to latitude 23°30′00″, longitude 82°19′00″; thence westerly to latitude 23°30′00″, longitude 82°46′00″; thence northwesterly to latitude 23°52′30″, longitude 83°11′00″; thence northerly to latitude 24°25′00″, longitude 83°11′00″; thence easterly to latitude 24°25′00″, longitude 83°08′00″; thence clockwise along the arc of a circle with a radius of 92 miles centered at latitude 24°35′00″, longitude 81°41′15″ to latitude 25°45′05″, longitude 82°23′30″; thence east to point of beginning.

(2) Bombing and strafing target areas. (i) A circular area immediately west of Marquesas Keys with a radius of two nautical miles having its center at latitude 24°33.4′ and longitude 82°10.9′, not to include land area and area within Marquesas Keys. The target located within this area, a grounded LSIL will be used for bombing and aircraft rocket exercises.

(ii) A circular area located directly west of Marquesas Keys with a radius of three statute miles having its center at latitude 24°35.6′ and longitude 82°11.6′, not to include land area within Marquesas Keys. The targets located within this area, pile-mounted platforms, will be used as high altitude horizontal bombing range utilizing live ordnance up to and including 1,800 pounds of high explosives. In general, these explosives will be of an air-burst type, above 1,500 feet.

(iii) A circular area located west of Marquesas Keys with a radius of two nautical miles having its center at latitude 24°34′30″ and longitude 82°14′00″.

(b) The regulations. (1) In advance of scheduled air or surface operations which, in the opinion of the enforcing agency, may be dangerous to watercraft, appropriate warnings will be issued to navigation interests through official government and civilian channels or in such other manner as the District Engineer, Corps of Engineers, Jacksonville, Florida, may direct. Such warnings will specify the location, type, time, and duration of operations, and give such other pertinent information as may be required in the interests of safety.

(2) Watercraft shall not be prohibited from passing through the operational training area except when the operations being conducted are of such nature that the exclusion of watercraft is required in the interest of safety or for accomplishment of the mission, or is considered important to the national security.

(3) When the warning to navigation interests states that bombing and strafing operations will take place over the designated target areas or that other operations hazardous to watercraft are proposed to be conducted in a specifically described portion of the overall area, all watercraft will be excluded from the target area or otherwise described zone of operations and no vessel shall enter or remain therein during the period operations are in progress.

(4) Aircraft and naval vessels conducting operations in any part of the operational training area will exercise caution in order not to endanger watercraft. Operations which may be dangerous to watercraft will not be conducted without first ascertaining that the zone of operations is clear. Any vessel in the zone of operations will be warned to leave and upon being so warned the vessel shall leave immediately.

(5) The regulations in this section shall be enforced by the Commandant, Sixth Naval District, Charleston, S.C., and such agencies as he may designate.

[26 FR 11197, Nov. 28, 1961, as amended at 27 FR 2508, Mar. 16, 1962; 31 FR 13129, Oct. 11, 1966. Redesignated at 50 FR 42696, Oct. 22, 1985]

§ 334.630 Tampa Bay south of MacDill Air Force Base, Fla.; small-arms firing range and aircraft jettison, U.S. Air Force, MacDill Air Force Base.

(a) The danger zone. Shoreward of a line beginning at latitude 27°49′27.38″, longitude 82°29′35.83″; thence to latitude 27°49′20.14″, longitude 82°29′42.78″; thence to latitude 27°48′44.82″, longitude 82°31′10.0″; thence to latitude 27°49′09.35″, longitude 82°32′24.56″; thence to latitude 27°49′38.62″, longitude 82°33′02.44″; and thence to a point on the shore line of MacDill Air Force Base at latitude 27°50′28.57″, longitude 82°32′15.0″. The area will be marked by suitable boundary signs or buoys.

(b) The regulations. (1) All persons, vessels and other watercraft are prohibited from entering the danger zone at all times.

(2) Advance notice will be given of the date on which the first firing practice shall begin. At intervals of not more than three months thereafter, notice will be sent out that firing practice is continuing. Such notices will appear in local newspapers and in “Notice to Mariners.”

(3) The regulations in the section shall be enforced by the proper Air Force Authority at MacDill Air Force Base.

[13 FR 9559, Dec. 31, 1948. Redesignated at 14 FR 4904, Aug. 9, 1949, and amended at 30 FR 884, Jan. 28, 1965. Redesignated at 50 FR 42696, Oct. 22, 1985, as amended at 62 FR 17554, Apr. 10, 1997]

§ 334.635 Hillsborough Bay and waters contiguous to MacDill Air Force Base, Fla.; restricted area.

(a) The area. The restricted area shall encompass all navigable waters of the United States, as defined at 33 CFR 329, within the following boundaries. Commencing from the shoreline at the northeast portion of the base at latitude 27°51′52.901″ N., longitude 82°29′18.329″ W., thence directly to latitude 27°52′00.672″ N., longitude 82°28′51.196″ W., thence directly to latitude 27°51′28.859″ N., longitude 82°28′10.412″ W., thence directly to latitude 27°51′01.067″ N., longitude 82°27′45.355″ W., thence directly to latitude 27°50′43.248″ N., longitude 82°27′36.491″ W., thence directly to latitude 27°50′19.817″ N., longitude 82°27′35.466″ W., thence directly to latitude 27°49′38.865″ N., longitude 82°27′43.642″ W., thence directly to latitude 27°49′20.204″ N., longitude 82°27′47.517″ W., thence directly to latitude 27°49′06.112″ N., longitude 82°27′52.750″ W., thence directly to latitude 27°48′52.791″ N., longitude 82°28′05.943″ W., thence directly to latitude 27°48′45.406″ N., longitude 82°28′32.309″ W., thence directly to latitude 27°48′52.162″ N., longitude 82°29′26.672″ W., thence directly to latitude 27°49′03.600″ N., longitude 82°30′23.629″ W., thence directly to latitude 27°48′44.820″ N., longitude 82°31′10.000″ W., thence directly to latitude 27°49′09.350″ N., longitude 82°32′24.556″ W., thence directly to latitude 27°49′38.620″ N., longitude 82°33′02.444″ W., thence directly to latitude 27°49′56.963″ N., longitude 82°32′45.023″ W., thence directly to latitude 27°50′05.447″ N., longitude 82°32′48.734″ W., thence directly to latitude 27°50′33.715″ N., longitude 82°32′45.220″ W., thence directly to a point on the western shore of the base at latitude 27°50′42.836″ N., longitude 82°32′10.972″ W. The restricted area will encompass an existing Danger Zone (§ 334.630).

(b) The regulations. (1) All persons, vessels, and other craft are prohibited from entering, transiting, anchoring, or drifting within the area described in paragraph (a) of this section for any reason without the permission of the Commander, MacDill Air Force Base, Florida, or his/her authorized representative.

(2) The restriction noted in paragraph (b)(1) of this section is in effect 24 hours a day, 7 days a week.

(c) Enforcement. The regulations in this section shall be enforced by the Commander, MacDill Air Force Base, Florida, and/or such persons or agencies as he/she may designate.

[70 FR 67371, Nov. 7, 2005]

§ 334.640 Gulf of Mexico south of Apalachee Bay, Fla.; Air Force rocket firing range.

(a) The danger zone. An area about 45 statute miles wide and 60 statute miles long, approximately parallel to and about 30 miles off the west coast of Florida, south of Apalachee Bay. The area is bounded as follows: Beginning at latitude 29°42′30″, longitude 84°40′00″; thence east along latitude 29°42′30″ to longitude 84°00′00″; thence southeast to latitude 28°56′00″, longitude 83°31′00″; thence southwest to latitude 28°37′00″, longitude 84°11′00″; thence northwest to latitude 29°17′30″, longitude 84°40′00″; thence northwest to latitude 29°32′00″, longitude 85°00′00″; thence northeast along a line three miles off the meanderings of the shore to the point of beginning.

(b) The regulations. (1) The fact that aerial rocket firing will be conducted over the danger zone will be advertised to the public through the usual media for the dissemination of information. Inasmuch as such firing is likely to be conducted during the day or night throughout the year without regard to season, such advertising of firing will be repeated at intervals not exceeding three months and at more frequent intervals when in the opinion of the enforcing agency, repetition is necessary in the interest of public safety.

(2) Prior to the conduct of rocket firing, the area will be patrolled by surface patrol boat and/or patrol aircraft to insure that no persons or watercraft are within the danger zone and to warn any such persons or watercraft seen in the vicinity that rocket firing is about to take place in the area. When aircraft is used to patrol the area, low flight of the aircraft across the bow will be used as a signal or warning.

(3) Any such person or watercraft shall, upon being so warned, immediately leave the area, and until the conclusion of the firing shall remain at such a distance that they will be safe from the fallout resulting from such rocket firing.

(4) The regulations in this section shall not deny access to or egress from harbors contiguous to the danger zone in the case of regular passenger or cargo carrying vessels proceeding to or from such harbors. In the case of the presence of any such vessel in the danger zone the officer in charge shall cause the cessation or postponement of fire until the vessel shall have cleared that part of the area in which it might be endangered by the fallout. The vessel shall proceed on its normal course and shall not delay its progress unnecessarily. Masters are requested to avoid the danger zone whenever possible so that interference with firing training may be minimized.

(c) The regulations in this section shall be enforced by the Commander, Moody Air Force Base, Valdosta, Georgia, and such agencies as he may designate.

[21 FR 2944, May 3, 1956, as amended at 22 FR 3755, May 29, 1957. Redesignated at 50 FR 42696, Oct. 22, 1985, as amended at 62 FR 17554, Apr. 10, 1997]

§ 334.650 Gulf of Mexico, south of St. George Island, Fla.; test firing range.

(a) The danger zone. A fan-shaped area bounded as follows:

Latitude | Longitude

NW corner— | 29°35′15″ | 85°03′12″

SW corner— | 29°31′18″ | 85°07′31″

SE corner— | 29°30′18″ | 84°59′18″

NE corner— | 29°35′09″ | 85°01′53″

The seaward end of the area is an arc with a 10,500 meter radius with its center located on the south shore line of St. George Island 1,500 feet east of Cape St. George Light.

(b) The regulations. (1) The area shall be used from sunrise to sunset daily Mondays through Fridays for test firing helicopter armament.

(2) During firing, the entire area plus 5 miles beyond in all directions shall be kept under surveillance by one control helicopter equipped with FM and UHF communications to the Safety Office at range control to insure cease fire if an aircraft or surface vessel is observed approaching the area.

(3) The regulations in this section shall be enforced by the Commanding Officer, U.S. Army Aviation Test Board, Fort Rucker, Ala., and such agencies as he may designate.

[33 FR 4464, Mar. 13, 1968, as amended at 36 FR 15528, Aug. 17, 1971. Redesignated at 50 FR 42696, Oct. 22, 1985]

§ 334.660 Gulf of Mexico and Apalachicola Bay south of Apalachicola, Fla., Drone Recovery Area, Tyndall Air Force Base, Fla.

(a) The restricted area. A rectangular area excluding St. George Island with the eastern boundary of the area west of the channel through St. George Island within the following co-ordinates: Beginning at a point designated as the northeast corner latitude 29°38′20″ N, longitude 84°58′30″ W; thence southeast to latitude 29°35′23″ N, longitude 84°56′54″ W; thence southwest to latitude 29°34′15″ N, longitude 85°00′35″ W; thence northwest to latitude 29°37′10″ N, longitude 85°02′00″ W; thence northeast to point of beginning.

(b) The regulations. (1) The area will be used twice daily and during usage will be restricted to navigation for a period of one hour. It may be used freely at all other times.

(2) Patrol boats and aircraft will warn all persons and navigation out of the area before each testing period.

(3) The federal regulations in this section shall be enforced by the Installation Commander, Tyndall Air Force Base, Florida, and such other agencies as he/she may designate.

[23 FR 5507, July 19, 1958, as amended at 23 FR 6555, Aug. 23, 1958. Redesignated at 50 FR 42696, Oct. 22, 1985, as amended at 62 FR 17555, Apr. 10, 1997; 82 FR 15639, Mar. 30, 2017]

§ 334.665 East Bay, St. Andrew Bay and St. Andrew Sound, enhanced threat restricted area, Tyndall Air Force Base, Florida.

(a) The area. (1) The coordinates provided herein are approximations obtained using a commercial mapping program which utilizes simple cylindrical projection with a WGS84 datum for its imagery base and imagery dated February 15 and May 3, 2014.

(2) Each portion of the temporary restricted area described in paragraphs (a)(4)(i) through (xxiii) of this section shall encompass all navigable waters of the United States as defined at 33 CFR part 329 within the area described and includes all contiguous inland navigable waters which lie within the land boundaries of Tyndall Air Force Base (AFB).

(3) Because of the dynamic nature of these geographic features near barrier islands, the coordinate points provided may not reflect the current situation regarding the location of a point at the mean high water line or 500 feet waterward of the mean high water line. Even if the landform has shifted through erosion or accretion, the intent of the area description will be enforced from the existing point at the mean high water line that is closest to the shoreline point provided herein out to a point located 500 feet waterward of the mean high water line.

(4) The restricted area will be partitioned using 23 pairs of coordinates to facilitate quick geographic recognition. The first point in each pair of coordinates is located on the shoreline, and the second point is a point 500 feet waterward of the shoreline. From the first point in each pair of coordinates, a line meanders irregularly following the shoreline and connects to the first point in the next pair of coordinates. From the second point in each pair of coordinates, a line beginning 500 feet waterward of the shoreline meanders irregularly following the shoreline at a distance of 500 feet waterward of the shoreline and connects to the second point in the next pair of coordinates. The restricted area shall encompass all navigable waters of the United States as defined at 33 CFR part 329 within the area bounded by lines connecting each of the following pairs of coordinates:

(i) Farmdale Bayou: 30°1.156′ N., 85°26.915′ W. to 30°1.238′ N., 85°26.915′ W.

(ii) Baker Bayou: 30°1.325′ N., 85°29.008′ W. to 30°1.402′ N., 85°28.977′ W.

(iii) Blind Alligator Bayou: 30°2.094′ N., 85°29.933′ W. to 30°2.151′ N., 85°29.864′ W.

(iv) Little Oyster Bay Point: 30°3.071′ N., 85°30.629′ W. to 30°3.133′ N., 85°30.568′ W.

(v) Goose Point South: 30°3.764′ N., 85°31.874′ W. to 30°3.719′ N., 85°31.795′ W.

(vi) Goose Point North: 30°4.599′ N., 85°31.577′ W. to 30°4.650′ N., 85°31.503′ W.

(vii) Little Cedar Bayou: 30°4.974′ N., 85°33.476′ W. to 30°5.024′ N., 85°33.401′ W.

(viii) Chatters on Bayou: 30°5.729′ N., 85°34.632′ W. to 30°5.811′ N., 85°34.625′ W.

(ix) Fred Bayou: 30°5.992′ N., 85°35.296′ W. to 30°6.071′ N., 85°35.325′ W.

(x) Pearl Bayou: 30°6.039′ N., 85°36.651′ W. to 30°6.043′ N., 85°36.557′ W.

(xi) Military Point: 30°7.394′ N., 85°37.153′ W. to 30°7.459′ N., 85°37.096′ W.

(xii) Freshwater Bayou: 30°7.425′ N., 85°38.655′ W. to 30°7.473′ N., 85°38.578′ W.

(xiii) Smack Bayou: 30°7.826′ N., 85°39.654′ W. to 30°7.838′ N., 85°39.560′ W.

(xiv) Redfish Point: 30°8.521′ N., 85°40.147′ W. to 30°8.598′ N., 85°40.113′ W.

(xv) Davis Point: 30°7.348′ N., 85°41.224′ W. to 30°7.364′ N., 85°41.317′ W.

(xvi) Tyndall Marina: 30°5.827′ N., 85°39.125′ W. to 30°5.762′ N., 85°39.184′ W.

(xvii) Heritage Bayou: 30°3.683′ N., 85°35.823′ W. to 30°3.743′ N., 85°35.887′ W.

(xviii) NCO Beach North: 30°4.209′ N., 85°37.430′ W. to 30°4.272′ N., 85°37.368′ W. The restricted Area will end on the west side of the land bridge that extends into Shell Island. The Restricted Area resumes on the east side of the land bridge that extends into St. Andrew Sound.

(xix) St. Andrew Sound west: 30°1.327′ N., 85°33.756′ W. to 30°1.377′ N., 85°33.681′ W.

(xx) St. Andrew Sound northwest: 30°1.921′ N., 85°33.244′ W. to 30°1.869′ N., 85°33.317′ W.

(xxi) St. Andrew Sound northeast: 30°0.514′ N., 85°31.558′ W. to 30°0.452′ N., 85°31.619′ W.

(xxii) Wild Goose Lagoon: 29°59.395′ N., 85°30.178′ W. to 29°59.319′ N., 85°30.216′ W.

(xxiii) Crooked Island North: 29°59.003′ N., 85°30.396′ W. to 29°59.082′ N., 85°30.371′ W.

(b) The regulations. (1) Unless one or more portions of the restricted area identified in paragraphs (a)(4)(i) through (xxiii) of this section is activated, all persons, vessels and other craft are permitted access to all of the navigable waters described in paragraph (a) of this section.

(2) During times when the restricted area defined in paragraphs (a)(4)(i) through (xxiii) of this section is not active, U.S. Air Force boat patrols may operate in the waters adjacent to Tyndall AFB's shoreline to observe the shoreline in order to identify any threats to the installation or personnel. U.S. Air Force personnel will not have any authority to enforce federal, state, or local laws on the water.

(3) Due to the nature of security threats, restricted area activation may occur with little advance notice. Activation will be based on local or national intelligence information related to threats against military installations and/or resources common to Tyndall AFB in concert with evaluations conducted by the Tyndall AFB Threat Working Group and upon direction of the Installation Commander, Tyndall AFB. The Installation Commander activates only those portions of the restricted area identified in paragraphs (a)(4)(i) through (xxiii) of this section that are necessary to provide the level of security required in response to the specific and credible threat(s) triggering the activation. The duration of activation for any portion(s) of the restricted area defined in paragraph (a) of this section, singularly or in combination, will be limited to those periods where it is warranted or required by security threats. Activated portions of the restricted area will be reevaluated every 48 hours to determine if the threat(s) triggering the activation or related threats warrant continued activation. The activated portion(s) of the restricted area expire if no reevaluation occurs or if the Installation Commander determines that activation is no longer warranted.

(4) Public notification of a temporary waterway restricted area activation by the Installation Commander will be made by the 325 Fighter Wing Public Affairs office using all available mediums (marine VHF broadcasts [channels 13 and 16], local notices to mariners, local news media releases, social media postings on both the Tyndall official Web page [www.tyndall.af.mil] and Facebook [www.facebook.com/325FWTyndall], radio beepers through locally broadcasting stations, and the Tyndall Straight Talk [recorded telephone line 1-478-222-0011]). These mediums will be updated should the waterway restriction be extended beyond the initial 48 hour activation and/or terminated upon direction of the Installation Commander.

(5) During times when the Installation Commander activates any portion(s) of the temporary restricted area defined in paragraph (a) of this section all entry, transit, drifting, anchoring or attaching any object to the submerged sea-bottom within the activated portion(s) of the restricted area is not allowed without the written permission of the Installation Commander, Tyndall AFB, Florida or his/her authorized representative. Previously affixed mooring balls established to support watercraft during intense weather conditions (i.e., tropical storms, hurricanes, etc.) may remain within the activated portion(s) of the restricted area, however watercraft should not be anchored to the mooring balls without the permission of the Installation Commander, Tyndall AFB, Florida or his/her authorized representative.

(c) Enforcement. The regulations in this section shall be enforced by the Installation Commander, Tyndall AFB and/or such persons or agencies as he/she may designate.

[82 FR 15639, Mar. 30, 2017]

§ 334.670 Gulf of Mexico south and west of Apalachicola, San Blas, and St. Joseph bays; air-to-air firing practice range, Tyndall Air Force Base, Fla.

(a) The danger zone. Beginning at latitude 29°40′00″, longitude 85°21′30″, in the vicinity of Cape San Blas; thence southeasterly to latitude 29°23′00″, longitude 84°39′00″; thence southwesterly to latitude 28°39′00″, longitude 84°49′00″; thence northwesterly to latitude 29°43′00″, longitude 85°53′00″; thence northeasterly to latitude 29°56′30″, longitude 85°38′30″; and thence southeasterly to the point of beginning.

(b) The regulations. (1) Air-to-air firing practice will ordinarily take place in the area during the hours of daylight, seven days per week. During periods of firing, passage through the area will not be denied to cargo-carrying or passenger-carrying vessels or tows proceeding on established routes. In case any such vessel is within the danger area, the officer in charge of firing practice operations will cause the cessation or postponement of fire until the vessel has cleared that part of the area within range of the weapons being used. The vessel shall proceed on its normal course and not delay its progress.

(2) All persons and vessels will be warned to leave the danger area during firing practice by surface patrol boat and/or patrol aircraft. When aircraft is used to patrol the area, low flight of the aircraft overhead and/or across the bow will be used as a signal or warning. Upon being so warned all persons and vessels shall clear the area immediately.

(3) The area will be open to all vessels whenever firing practice is not being conducted.

(4) The regulations in this section shall be enforced by the Commanding Officer, Tyndall Air Force Base, Florida, and such agencies as he may designate.

[16 FR 7460, July 31, 1951, as amended at 22 FR 3755, May 29, 1957. Redesignated at 50 FR 42696, Oct. 22, 1985, as amended at 62 FR 17555, Apr. 10, 1997; 62 FR 24034, May 2, 1997]

§ 334.680 Gulf of Mexico, southeast of St. Andrew Bay East Entrance, small-arms firing range, Tyndall Air Force Base, Fla.

(a) The danger zones—(1) Area No. 1. The waters of the Gulf of Mexico, southeast of St. Andrew Bay East Entrance within a rectangular area beginning at a point on shore at latitude 30°04′32″, longitude 85°37′07″; thence to latitude 30°03′03″, longitude 85°38′42″; thence to latitude 30°02′14″, longitude 85°37′15″; thence to a point on shore at latitude 30°04′13″, longitude 85°36′47″; thence along the shoreline to the point of beginning.

(2) Area No. 2. The waters of the Gulf of Mexico and St. Andrew Sound within an area described as follows, but excluding Crooked Island: Beginning at a point on shore at latitude 30°02′56″, longitude 85°34′35″; thence to latitude 30°02′18″, longitude 85°36′18″; thence to latitude 30°01′24″, longitude 85°35′40″; thence to latitude 30°00′45″, longitude 85°34′41″; thence to a point on shore at latitude 30°02′10″, longitude 85°33′42″; thence along the shore line to the point of beginning.

(b) The regulations. (1) No person, vessel or other watercraft shall enter or remain in the areas during periods of firing. Area No. 1 will be used for firing practice between 6:30 a.m. and 5:00 p.m., as scheduled, Monday through Friday, with possibly some sporadic firings on Saturdays and Sundays. A 10′ × 18′ red flag will be displayed on a pole at the shoreline whenever firing is in progress.

(2) Area No. 2 will be operated on a sporadic schedule, with firings likely each day including Saturdays, Sundays, and holidays, between the hours of 6:00 a.m. and 5:00 p.m. A 10′ × 18′ red flag will be displayed on a pole at the shore line whenever firing is in progress.

(3) The regulations in this section shall be enforced by the Commanding Officer, Tyndall Air Force Base, Florida, and such agencies as he may designate.

(Sec. 7, 40 Stat. 266, Chap. XIX, 40 Stat. 892; (33 U.S.C. 1, 3))

[28 FR 3394, Apr. 6, 1963, as amended at 30 FR 16267, Dec. 30, 1965; 39 FR 44752, Dec. 27, 1974. Redesignated at 50 FR 42696, Oct. 22, 1985, as amended at 62 FR 17555, Apr. 10, 1997]

§ 334.690 [Reserved]

§ 334.700 Choctawhatchee Bay, aerial gunnery ranges, Air Armament Center, Eglin Air Force Base, Fla.

(a) The danger zones—(1) Aerial gunnery range in west part of Choctawhatchee Bay. The danger zone shall encompass all navigable waters of the United States as defined at 33 CFR part 329, including the waters of Choctawhatchee Bay within an area bounded by a line connecting the following coordinates, excluding that part of the area included within the aerial gunnery range along the north shore of Choctawhatchee Bay as described in paragraph (a)(2) of this section: Commencing at the northeast shore at latitude 30°28′09.11″ N, longitude 086°29′02.30″ W; thence to latitude 30°25′30″ N, longitude 086°21′30″ W; thence to latitude 30°23′34.72″ N, longitude 086°23′00.22″ W; then following the shoreline at the mean high water line to latitude 30°24′09.45″ N, longitude 086°25′00.08″ W; thence to the southwest shore at latitude 30°27′54.18″ N, longitude 086°29′18.32″ W; then following the shoreline at the mean high water line easterly to point of origin.

(2) Aerial gunnery range along north shore of Choctawhatchee Bay. The danger zone shall encompass all navigable waters of the United States as defined at 33 CFR part 329, including the waters of Choctawhatchee Bay within an area bounded by a line connecting the following coordinates: Commencing at the northwest shore at latitude 30°27′26″ N, longitude 086°25′30″ W; thence to latitude 30°26′00″ N, longitude 086°25′30″ W; thence to latitude 30°26′57″ N, longitude 086°20′35″ W; thence to latitude 30°26′12″ N, longitude 086°20′35″ W; thence to latitude 30°26′29″ N, longitude 086°15′00″ W; thence to the northeast shore at latitude 30°29′08.7″ N, longitude 086°15′00″ W; then following the shoreline at the mean high water line easterly to point of origin.

(b) The regulations—(1) Aerial gunnery range in west part of Choctawhatchee Bay. The aerial gunnery range in the west part of Choctawhatchee Bay (as described in paragraph (a)(1) of this section) may be used by persons and watercraft except during periods when firing is conducted. Use of the area will be advertised in advance by Eglin AFB Public Affairs. During periods of firing, traverse of this area shall not be denied to regular cargo-carrying or passenger-carrying vessels or tows proceeding on established routes. In case any such vessel is within the area, the officer in charge of gunnery operations will cause the cessation or postponement of fire until the vessel has cleared that part of the area within the range of the weapons being used. The vessel shall proceed on its normal course and shall not delay its progress.

(2) Aerial gunnery range along north shore of Choctawhatchee Bay. No person, vessel or other craft shall enter or remain within the aerial gunnery range along the north shore of Choctawhatchee Bay (as described in paragraph (a)(2) of this section) during times the area is active. Activation of the area will be advertised in advance by Eglin AFB Public Affairs.

(c) Enforcement. (1) The regulations in this section shall be enforced by the Commander, 96 Air Base Wing, Eglin AFB, Florida and such agencies as he/she may designate.

(2) Enforcement of the regulations in this section will be accomplished in accordance with the active security level as defined by the Department of Defense Force Protection Condition (FPCON) System.

[76 FR 75455, Dec. 2, 2011]

§ 334.710 The Narrows and Gulf of Mexico adjacent to Santa Rosa Island, Headquarters Air Armament Center, Eglin Air Force Base, Fla.

(a) The restricted area. The restricted area shall encompass all navigable waters of the United States as defined at 33 CFR part 329, including the waters of The Narrows and the Gulf of Mexico easterly of the periphery of a circular area five nautical miles in radius, centered at latitude 30°23′10.074″ N, longitude 086°48′25.433″ W (USC&GS Station Tuck 3), within the segment of a circle, three nautical miles in radius, centered at latitude 30°24′00″ N, longitude 086°41′47″ W.

(b) The regulations. The area will be used intermittently during daylight hours. During periods of use the entry into the area will be prohibited to all persons and navigation. Notifications will be via Eglin AFB water patrol and published in local news media in advance.

(c) Enforcement. (1) The regulations in this section shall be enforced by the Commander, 96 Air Base Wing, Eglin AFB, Florida and such agencies as he/she may designate.

(2) Enforcement of the regulations in this section will be accomplished in accordance with the active security level as defined by the Department of Defense Force Protection Condition (FPCON) System.

[76 FR 75455, Dec. 2, 2011]

§ 334.720 Gulf of Mexico, south from Choctawhatchee Bay; Missile test area.

(a) The danger zone. The danger zone shall encompass all navigable waters of the United States as defined at 33 CFR part 329, including the waters of the Gulf of Mexico south from Choctawhatchee Bay within an area described as follows: Beginning at a point five nautical miles southeasterly from USC&GS Station Tuck 3, at latitude 30°23′10.074″ N, longitude 086°48′25.433″ W, three nautical miles offshore of Santa Rosa Island; thence easterly three nautical miles offshore and parallel to shore, to a point south of Apalachicola Bay, Florida at latitude 29°32′00″ N, longitude 085°00′00″ W; thence southeasterly to latitude 29°17′30″ N, longitude 084°40′00″ W; thence southwesterly to latitude 28°40′00″ N, longitude 084°49′00″ W; thence southeasterly to latitude 28°10′00″ N, longitude 084°30′00″ W; thence 270° true to longitude 086°48′00″ W; thence due north along longitude 086°48′00″ W to the intersection of the line with a circle of five nautical miles radius centered on USC&GS Station Tuck 3, at latitude 30°23′10.074″ N, longitude 086°48′25.433″ W, thence northeasterly along the arc of the circle to the point of beginning.

(b) The regulations. (1) The area will be used intermittently during daylight hours for a week or 10 days at a time. Firing will take place once or twice a day for periods ordinarily of not more than one hour. Advance notice of such firings will be published in local newspapers.

(2) During periods of firing, passage through the area will not be denied to cargo-carrying or passenger-carrying vessels or tows proceeding on established routes. In case any such vessel is within the danger zone, the officer in charge of firing operations will cause the cessation or postponement of fire until the vessel has cleared the portion of the danger area involved. The entire area involved will be under constant observation of both surface patrol vessels and air patrol planes prior to and during periods of firing and notice will be given to vessels and tows of intention to fire by buzzing low over the vessel, upon which signal vessels and tows shall proceed on their established course promptly and clear the area as soon as possible.

(3) All persons and vessels, except those identified in paragraph (b)(2) of this section, will be warned to leave the immediate danger area during firing periods by surface patrol craft. Upon being so warned, such persons and vessels shall clear the area immediately. Such periods normally will not exceed two hours.

(c) Enforcement. (1) The regulations in this section shall be enforced by the Commander, 96 Air Base Wing, Eglin AFB, Florida and such agencies as he/she may designate.

(2) Enforcement of the regulations in this section will be accomplished in accordance with the active security level as defined by the Department of Defense Force Protection Condition (FPCON) System.

[76 FR 75455, Dec. 2, 2011]

§ 334.730 Waters of Santa Rosa Sound and Gulf of Mexico adjacent to Santa Rosa Island, Armament Center, Eglin Air Force Base, Fla.

(a) The areas—(1) The danger zone. The danger zone shall encompass all navigable waters of the United States as defined at 33 CFR part 329, including the waters of Santa Rosa Sound and Gulf of Mexico within a circle one nautical mile in radius, centered at latitude 30°23′10.074″ N, longitude 086°48′25.433″ W (USC&GS Station Tuck 3). The portion of the area in Santa Rosa Sound includes the Gulf Intracoastal Waterway between miles 209.6 and 211.4 as measured from the Harvey Lock, Louisiana, “zero mile” location.

(2) The restricted areas—(i) Area 1. The restricted area shall encompass all navigable waters of the United States as defined at 33 CFR part 329, including the waters of Santa Rosa Sound and Gulf of Mexico, surrounding the danger zone described in paragraph (a)(1) of this section, within a circle five nautical miles in radius centered at latitude 30°23′10.074″ N, longitude 086°48′25.433″ W (USC&GS Station Tuck 3). The portion of the area in Santa Rosa Sound includes the Gulf Intracoastal Waterway between mile designation 204.6 and 216.4 as measured from the Harvey Lock, Louisiana, “zero mile” location.

(ii) Area 2. Santa Rosa Island, North Side. The restricted area shall encompass all navigable waters of the United States as defined at 33 CFR part 329 within the area bounded by a line connecting the following coordinates: Commencing from the shoreline at latitude 30°24′06.58″ N, longitude 086°40′25.00″ W; thence to latitude 30°24′08.08″ N, longitude 086°40′25.00″ W; then the line meanders irregularly, following the shoreline at a distance of 150 feet seaward from the mean high water line to a point at latitude 30°23′12.34″ N, longitude 086°50′57.62″ W, thence proceeding directly to a point on the shoreline at latitude 30°23′10.85″ N, longitude 086°50′57.62″ W. The area also includes all contiguous inland navigable waters which lie within the land boundaries of Eglin AFB.

(iii) Area 3. Choctawhatchee Bay, North side—Hurlburt Field. The restricted area shall encompass all navigable waters of the United States as defined at 33 CFR part 329 within the area bounded by a line connecting the following coordinates:

Commencing from the shoreline at latitude 30°24′28.30″ N, longitude 086°40′54.91″ W; thence to latitude 30°24′26.32″ N, longitude 086°40′54.91″ W; then the line meanders irregularly, following the shoreline at a distance of 200 feet seaward from the mean high water line to a point at latitude 30°24′20.92″ N, longitude 086°41′45.96″ W; thence directly to latitude 30°24′23.31″ N, longitude 086°42′00.20″ W; thence directly to latitude 30°24′28.83″ N, longitude 086°42′07.42″ W; thence directly to latitude 30°24′25.98″ N, longitude 086°42′17.12″ W; thence directly to longitude 30°24′26.31″ N, longitude 086°42′19.82″ W; then the line meanders irregularly following the shoreline at a distance of 200 feet seaward from the mean high water line to a point at latitude 30°24′28.80″ N, longitude 086°42′53.83″ W, thence proceeding directly to a point on the shoreline at latitude 30°24′30.79″ N, longitude 086°42′53.83″ W.

(b) The regulations—(1) The danger zone. (i) Experimental test operations will be conducted by the U.S. Air Force (USAF) within the danger zone. During periods when experimental test operations are underway, no person, vessel or other watercraft shall enter or navigate the waters of the danger zone.

(ii) The area identified in paragraph (a)(1) of this section and the associated restrictions described in paragraph (b)(1)(i) of this section are in effect 24 hours a day, 7 days a week. The area is used on an intermittent basis and, generally, any test operations shall not exceed one hour and shall not occur more than twice weekly.

(2) The restricted areas. (i) All persons, vessels and other craft are permitted access to the restricted areas described in paragraph (a)(2) of this section. Any person or vessel within the restricted areas will be subject to identification checks by USAF patrol boats. During times of high security threats against Eglin AFB or Hurlburt Field, all entry, transit, anchoring or drifting within the restricted areas described in paragraph (a)(2) of this section for any reason is not allowed without permission of Eglin AFB or the Hurlburt Field Commander or his/her authorized representative, except to navigate the Gulf Intracoastal Waterway. Such vessels and other watercraft shall confine their movements to the waters within the limits of the Intracoastal Waterway and shall make the passage as promptly as possible under normal vessel speed.

(ii) The areas identified in paragraph (a)(2) of this section and the associated restrictions described in paragraph (b)(2)(i) of this section are in effect 24 hours a day, 7 days a week.

(c) Enforcement. (1) The regulations in this section shall be enforced by the Commander, 96 Air Base Wing, Eglin AFB, Florida and such agencies as he/she may designate.

(2) Enforcement of the regulations in this section will be accomplished in accordance with the active security level as defined by the Department of Defense Force Protection Condition (FPCON) System.

[76 FR 75456, Dec. 2, 2011]

§ 334.740 North Shore Choctawhatchee Bay, Eglin Air Force Base, Fla.

(a) The area. The restricted area shall encompass all navigable waters of the United States as defined at 33 CFR part 329 within the area bounded by a line connecting the following coordinates: Commencing from the shoreline at latitude 30°28′59.90″ N, longitude 086°29′08.88″ W; thence to latitude 30°28′59.61″ N, longitude 086°29′01.81″ W; thence to latitude 30°29′08.01″ N, longitude 086°28′47.78″ W; then following the mean high water line at a distance of 1,000 feet to a point at latitude 30°26′48.60″ N, longitude 086°32′31.95″ W, thence proceeding directly to a point on the shoreline at latitude 30°26′53.58″ N, longitude 086°32′41.81″ W. The area also includes all contiguous inland navigable waters that lie within the land boundaries of Eglin AFB.

(b) The regulations. (1) All persons, vessels and other craft are permitted access to the restricted area described in paragraph (a) of this section. Any person or vessel within the restricted area will be subject to identification checks by U.S. Air Force patrol boats. During times of high security threats against Eglin AFB, all entry, transit, anchoring or drifting within the restricted area described in paragraph (a) of this section for any reason is not allowed without the permission of the Commander, 96 Air Base Wing, Eglin AFB, and his/her authorized representative.

(2) The area identified in paragraph (a) of this section and the associated restrictions described in paragraph (b)(1) of this section are in effect 24 hours a day, 7 days a week.

(c) Enforcement. (1) The regulations in this section shall be enforced by the Commander, 96 Air Base Wing, Eglin AFB, Florida and such agencies as he/she may designate.

(2) Enforcement of the regulations in this section will be accomplished in accordance with the active security level as defined by the Department of Defense Force Protection Condition (FPCON) System.

[76 FR 75456, Dec. 2, 2011]

§ 334.742 Eglin Camp Pinchot, Fla., at Eglin Air Force Base, Fla.; restricted area.

(a) The area. The restricted area shall encompass all navigable waters of the United States, as defined at 33 CFR part 329, within the area bounded by a line connecting the following coordinates: Commencing from the shoreline at latitude 30°28′18.68″ N, longitude 086°35′38.66″ W; thence to latitude 30°28′20.80″ N, longitude 086°35′36.25″ W; then the line meanders irregularly, following the shoreline at a distance of 300 feet seaward from the mean high water line to a point at latitude 30°28′06.02″ N, longitude 086°35′39.18″ W, thence proceeding directly to a point on the shoreline at latitude 30°28′07.47″ N, longitude 086°35′42.17″ W.

(b) The regulations. (1) All persons, vessels and other craft are permitted access to the restricted area described in paragraph (a) of this section. Any person or vessel within the restricted area will be subject to identification checks by U.S. Air Force patrol boats. During times of high security threats against Eglin AFB, all entry, transit, anchoring or drifting within the restricted area described in paragraph (a) of this section for any reason is not allowed without the permission of the Commander, Eglin AFB, Florida, or his/her authorized representative.

(2) The area identified in paragraph (a) of this section and the associated restrictions described in paragraph (b)(1) of this section are in effect 24 hours a day, 7 days a week.

(c) Enforcement. (1) The regulations in this section shall be enforced by the Commander, 96 Air Base Wing, Eglin AFB, Florida and such agencies as he/she may designate.

(2) Enforcement of the regulations in this section will be accomplished in accordance with the active security level as defined by the Department of Defense Force Protection Condition (FPCON) System.

[76 FR 75457, Dec. 2, 2011]

§ 334.744 Eglin Poquito Housing at Eglin Air Force Base, Fla.; restricted area.

(a) The area. The restricted area shall encompass all navigable waters of the United States, as defined at 33 CFR part 329, within the area bounded by a line connecting the following coordinates: Commencing from the shoreline at latitude 30°27′11.68″ N, longitude 086°34′32.87″ W; thence to latitude 30°27′11.86″ N, longitude 086°34′34.59″ W; then the line meanders irregularly, following the shoreline at a distance of 150 feet seaward from the mean high water line to a point at latitude 30°27′31.25″ N, longitude 086°34′38.56″ W, thence proceeding directly to a point on the shoreline at latitude 30°27′34.07″ N, longitude 086°34′35.67″ W.

(b) The regulations. (1) All persons, vessels and other craft are permitted access to the restricted area described in paragraph (a) of this section. Any person or vessel within the restricted area will be subject to identification checks by U.S. Air Force patrol boats. During times of high security threats against Eglin AFB, all entry, transit, anchoring or drifting within the restricted area described in paragraph (a) of this section for any reason is not allowed without the permission of the Commander, Eglin AFB, Florida, or his/her authorized representative.

(2) The area identified in paragraph (a) of this section and the associated restrictions described in paragraph (b)(1) of this section are in effect 24 hours a day, 7 days a week.

(c) Enforcement. (1) The regulations in this section shall be enforced by the Commander, 96 Air Base Wing, Eglin AFB, Florida and such agencies as he/she may designate.

(2) Enforcement of the regulations in this section will be accomplished in accordance with the active security level as defined by the Department of Defense Force Protection Condition (FPCON) System.

[76 FR 75457, Dec. 2, 2011]

§ 334.746 U.S. Coast Guard, Destin Station at Eglin Air Force Base, Fla.; restricted area.

(a) The area. The restricted area shall encompass all navigable waters of the United States, as defined at 33 CFR part 329, within the area bounded by a line connecting the following coordinates: Commencing from the shoreline at latitude 30°23′33.45″ N, longitude 86°31′37.51″ W; thence to latitude 30°23′35.67″ N, longitude 86°31′37.31″ W; thence to latitude 30°23′33.68″ N, longitude 86°31′30.98″ W; thence to latitude 30°23′32.00″ N, longitude 86°31′28.80″ W; thence proceeding directly to a point on the shoreline at latitude 30°23′30.14″ N, longitude 86°31′30.21″ W.

(b) The regulations. (1) No person or vessel shall enter the area without the permission of the Commander, U.S. Coast Guard, Destin Station, Florida, or his/her authorized representative.

(2) The area identified in paragraph (a) of this section and the associated restrictions described in paragraph (b)(1) of this section are in effect 24 hours a day, 7 days a week.

(c) Enforcement. The regulations in this section shall be enforced by the Commander, U.S. Coast Guard, Destin Station, and such agencies as he/she may designate.

[76 FR 75457, Dec. 2, 2011]

§ 334.748 Wynnhaven Beach, Fla., at Eglin AFB; restricted area.

(a) The area. The restricted area shall encompass all navigable waters of the United States, as defined at 33 CFR part 329, within the area bounded by a line connecting the following coordinates: Commencing from the shoreline at latitude 30°24′35.06″ N, longitude 086°46′20.31″ W; thence to latitude 30°24′33.57″ N, longitude 086°46′20.31″ W; then the line meanders irregularly, following the shoreline at a distance of 150 feet seaward from the mean high water line to a point at latitude 30°24′34.81″ N, longitude 086°46′09.19″ W, thence proceeding directly to a point on the shoreline at latitude 30°24′36.30″ N, longitude 086°46′09.19″ W.

(b) The regulations. (1) All persons, vessels and other craft are permitted access to the restricted area described in paragraph (a) of this section. Any person or vessel within the restricted area will be subject to identification checks by U.S. Air Force patrol boats. During times of high security threats against Eglin AFB, all entry, transit, anchoring or drifting within the restricted area described in paragraph (a) of this section for any reason is not allowed without the permission of the Commander, Eglin AFB, Florida, or his/her authorized representative.

(2) The area identified in paragraph (a) of this section and the associated restrictions described in paragraph (b)(1) of this section are in effect 24 hours a day, 7 days a week.

(c) Enforcement. (1) The regulations in this section shall be enforced by the Commander, 96 Air Base Wing, Eglin AFB, Florida and such agencies as he/she may designate.

(2) Enforcement of the regulations in this section will be accomplished in accordance with the active security level as defined by the Department of Defense Force Protection Condition (FPCON) System.

[76 FR 75457, Dec. 2, 2011]

§ 334.760 Naval Support Activity Panama City and Alligator Bayou, a tributary of St. Andrew Bay, Fla.; naval restricted area.

(a) The area. The waters within an area beginning at a point located along the shore at the southern end of the facility designated by latitude 30°09′45.6″ N., longitude 85°44′20.6″ W.; thence proceed 100 feet waterward of the mean high water line directly to a point at latitude 30°09′46.8″ N., longitude 85°44′20.6″ W. From this position the line meanders irregularly, following the shoreline at a minimum distance of 100 feet from the mean high water line to a point at latitude 30°10′16.7″ N., longitude 85°45′01.2″ W. located east of the south side of the entrance to Alligator Bayou; thence directly across the entrance to a point at latitude 30°10′23.4″ N., longitude 85°45′05.7″ W. located east of the north side of the entrance to Alligator Bayou; thence continuing the northerly meandering, following the shoreline at a minimum distance of 100 feet from the mean high water line to a point at latitude 30°11′11.3″ N., longitude 85°45′02.8″ W.; thence directly to the shoreline to a point at latitude 30°11′12.3″ N., longitude 85°45′03.2″ W. This encompasses an area reaching from the southern extent described to the northern extent described and extending from the mean high water line waterward a minimum distance of approximately 100 feet.

(b) The regulations. (1) No vessel, person, or other craft shall enter, transit, anchor, drift or otherwise navigate within the area described in paragraph (a) of this section for any reason without written permission from the Officer in Charge, Naval Support Activity Panama City, Panama City Beach, Florida, or his/her authorized representative.

(2) The restriction noted in paragraph (b)(1) of this section is in effect 24 hours a day, 7 days a week.

(3) The regulations in this section shall be enforced by the Officer in Charge, Naval Support Activity Panama City, Panama City Beach Florida, and such agencies as he/she may designate.

[70 FR 67372, Nov. 7, 2005]

§ 334.761 Naval Support Activity Panama City; St. Andrews Bay; restricted areas.

(a) The areas—(1) Area AP-1. The area is bounded by a line connecting the following coordinates (listed by latitude, then longitude): Northwest point—30°10′00″ N, 085°44′37″ W; Northeast point—30°10′00″ N, 085°43′17″ W; Southeast point—30°09′51″ N, 085°43′17″ W; Southwest point—30°09′50″ N, 085°44′32″ W; following mean high waterline to 30°09′57.5″ N, 085°44′37″ W; then northerly to point of origin.

(2) Area BA-1. The area is bounded by a line directly connecting the following coordinates (listed by latitude, then longitude): Northwest point—30°11′14″ N, 085°44′59″ W; Northeast point—30°11′13″ N, 085°44′32″ W; Southeast point—30°10′32″ N, 085°44′32″ W; Southwest point—30°10′32″ N, 085°44′59″ W, then northerly to point of origin.

(3) Area BA-2. The area is bounded by a line directly connecting the following coordinates (listed by latitude, then longitude): Northwest point—30°11′13″ N, 085°44′32″ W; Northeast point—30°11′07″ N, 085°44′01″ W; Southeast point—30°10′32″ N, 085°44′00″ W; Southwest point—30°10′32″ N, 085°44′32″ W, then northerly to point of origin.

(4) Area BA-3. The area is bounded by a line directly connecting the following coordinates (listed by latitude, then longitude): Northwest point—30°10′32″ N, 085°44′59″ W; Northeast point—30°10′32″ N, 085°44′09″ W; Southeast point—30°10′00″ N, 085°44′09″ W; Southwest point—30°10′01″ N, 085°44′41″ W, then northerly to point of origin.

(5) Area BA-4. The area is bounded by a line directly connecting the following coordinates (listed by latitude, then longitude): Northwest point—30°10′32″ N, 085°44′09″ W; Northeast point—30°10′32″ N, 085°42′35″ W; Southeast point—30°10′00″ N, 085°42′35″ W; Southwest point—30°10′00″ N, 085°44′09″ W, then northerly to point of origin.

(6) Area BA-5. The area is bounded by a line directly connecting the following coordinates (listed by latitude, then longitude): North point—30°08′41″ N, e 085°41′25″ W; East point—30°08′08″ N, 085°40′48″ W; South point—30°07′00″ N, 085°42′29″ W; West point—30°07′31″ N, 085°43′09″ W, then northerly to point of origin.

(b) The restrictions. (1) For the purposes of this section, “military security zones” are specific portion/s within any of the restricted areas identified in this section that are defined by the safety vessels accompanying each training exercise. The mission of the safety vessels is to maximize safety conditions for both military and civilian personnel during exercises conducted within the restricted area by intercepting any waterbased activity occurring within the active military security zone/s and offering navigational advice to ensure the activity remains clear of the exercise.

(2) All areas identified in this section have the potential to be active at any time. The normal/routine activation of any area will be noticed to the public via a General Local Notice to Mariners. Activation of any area for significant exercises and training events will be noticed, in advance and during the event, to the public via Notice to Mariners and Broadcast Notice to Mariners.

(3) Area AP-1. All persons, vessels, and other craft are prohibited from entering, transiting, anchoring, or drifting within the military security zone/s established in the restricted area during training events.

(4) Areas BA-1 through BA-5. All persons, vessels, and other craft are prohibited from entering, transiting, anchoring, or drifting within the military security zone/s established in the restricted area during training events.

(c) Enforcement. The regulations in this section shall be enforced by the Commanding Officer, Naval Support Activity, Panama City Florida, and such agencies as he/she may designate.

[73 FR 52927, Sept. 12, 2008, as amended at 74 FR 11481, Mar. 18, 2009]

§ 334.762 Naval Support Activity Panama City; North Bay and West Bay; restricted areas.

(a) The areas—(1) Area NB-1. The area is bounded by a line directly connecting the following coordinates (listed by latitude, then longitude): Northwest point—30°12′16″ N, 085°44′14″ W; Northeast point—30°12′16″ N, 085°43′01″ W; Southeast point—30°11′16″ N, 085°44′14″ W; Southwest point—30°11′17″ N, 085°44′49″ W, then northerly to point of origin.

(2) Area NB-2. The area is bounded by a line directly connecting the following coordinates (listed by latitude, then longitude): Northwest point—30°14′00″ N, 085°44′14″ W; Northeast point—30°14′00″ N, 085°41′51″ W; Southeast point—30°12′16″ N, 085°43′01″ W; Southwest point—30°12′16″ N, 085°44′14″ W, then northerly to point of origin.

(3) Area NB-3. The area is bounded by a line directly connecting the following coordinates (listed by latitude, then longitude): North point—30°17′02″ N, 085°45′34″ W; East point—30°14′56″ N, 085°43′45″ W; South point—30°14′01″ N, 085°44′59″ W; West point—30°16′10″ N, 085°46′52″ W, then northerly to point of origin.

(b) The restrictions. (1) For the purposes of this section, “military security zones” are specific portion/s within any of the restricted areas identified in this section that are defined by the safety vessels accompanying each training exercise. The mission of the safety vessels is to maximize safety conditions for both military and civilian personnel during exercises conducted within the restricted area by intercepting any waterbased activity occurring within the active military security zone/s and offering navigational advice to ensure the activity remains clear of the exercise.

(2) All areas identified in this section have the potential to be active at any time. The normal/routine activation of any area will be noticed to the public via a General Local Notice to Mariners. Activation of any area for significant exercises and training events will be noticed, in advance and during the event, to the public via Notice to Mariners and Broadcast Notice to Mariners.

(c) Enforcement. The regulations in this section shall be enforced by the Commanding Officer, Naval Support Activity, Panama City Florida, and such agencies as he/she may designate.

[73 FR 52927, Sept. 12, 2008]

§ 334.763 Naval Support Activity Panama City; Gulf of Mexico; restricted area.

(a) The area. The area is bounded by a line directly connecting the following coordinates (listed by latitude, then longitude): North point—30°10′29″ N, 085°48′20″ W; East point—30°07′58″ N, 085°44′44″ W; South point—30°05′24″ N, 085°47′29″ W; West point—30°07′55″ N, 085°51′05″ W, then northerly to point of origin.

(b) The restrictions. (1) For the purposes of this section, “military security zones” are specific portion/s within any of the restricted areas identified in this section that are defined by the safety vessels accompanying each training exercise. The mission of the safety vessels is to maximize safety conditions for both military and civilian personnel during exercises conducted within the restricted area by intercepting any waterbased activity occurring within the active military security zone/s and offering navigational advice to ensure the activity remains clear of the exercise.

(2) All areas identified in this section have the potential to be active at any time. The normal/routine activation of any area will be noticed to the public via a General Local Notice to Mariners. Activation of any area for significant exercises and training events will be noticed, in advance and during the event, to the public via Notice to Mariners and Broadcast Notice to Mariners.

(c) Enforcement. The regulations in this section shall be enforced by the Commanding Officer, Naval Support Activity, Panama City Florida, and such agencies as he/she may designate.

[73 FR 52928, Sept. 12, 2008]

§ 334.770 Gulf of Mexico and St. Andrew Sound, south of East Bay, Fla., Tyndall Drone Launch Corridor, Tyndall Air Force Base, Fla.; restricted area.

(a) The area. The waters of the Gulf of Mexico and St. Andrew Sound within an area described as follows, including Crooked Island: Beginning at a point on shore at latitude 30°01′30″, longitude 85°32′30″, thence to latitude 30°00′58″, longitude 85°33′38″, thence to latitude 29°56′38″, longitude 85°33′38″, thence to latitude 29°55′15″, longitude 85°31′21″, thence to a point on shore at latitude 30°00′58″, longitude 85°31′21″, thence northwest to the point of beginning. This area will be referred to as the “Tyndall Drone Launch Corridor.”

(b) The regulations. (1) Military usage of areas is Monday through Friday between the hours of 7 a.m. and 5 p.m.

(2) Vessels are allowed to enter and remain in this area provided they have operational communication equipment capable of monitoring VHF Marine frequency Channel 16, (156.80 MHz). In the event the Marine radio equipment is not installed on the vessel, CB equipment with Channel 13 (27.115 MHz) will be used as an alternate means of communications. Warnings will be broadcast by the Air Force on Channel 16 (156.80 MHz) and Channel 13 (27.115 MHz) using the following sequence:

(i) Announcement 90 minutes prior to drone launch.

(ii) Announcement 60 minutes prior to drone launch.

(iii) Announcement of drone launch or drone cancelled, and the expected time of the drone launch. Upon receipt of the drone warning on either Channel 16 (156.80 MHz) or Channel 13 (27.115 MHz), vessels will take the necessary action to vacate the drone launch corridor not later than 60 minutes prior to expected drone launch.

(3) Vessels are authorized direct movement without stopping through this area at any time unless warned by helicopter or patrol boat.

(4) The area will be patrolled by helicopter/vessels during periods of hazardous military activity. Verbal warnings or instructions issued by these craft will be strictly adhered to.

(5) The regulations in this section shall be enforced by the Commanding Officer, Tyndall Air Force Base, Florida, and such agencies as he may designate.

(Sec. 7, 40 Stat. 266; 33 U.S.C. 1)

[40 FR 8949, Mar. 4, 1975; 40 FR 10988, Mar. 10, 1975. Redesignated at 50 FR 42696, Oct. 22, 1985]

§ 334.775 Naval Air Station Pensacola, Pensacola Bay, Pensacola and Gulf Breeze, Fla.; naval restricted area.

(a) The areas. (1) Bounded by a line drawn in the direction of 180° T from the position latitude 30°20′44″ N., longitude 87°17′18″ W. (near the Naval Air Station, due south of the Officer′s Club) to position latitude 30°20′09″ N., longitude 87°17′18″ W. thence 94° T to position latitude 30°20′07″ N., longitude 87°16′41″ W., thence 49° T to position latitude 30°20′37″ N., longitude 87°16′01″ W. (southwest end of Lexington finger pier), thence along the shoreline to point of origin.

(2) The waters within an area enclosed by the following points: Beginning at latitude 30°21.58′ N., longitude 87°12.49′ W.; thence to latitude 30°20.25′ N., longitude 87°11.00′ W.; thence to latitude 30°20.28′ N., longitude 87°14.27′ W.; thence to the point of beginning. This encompasses a large triangular area north of Santa Rosa Island and west of the land area between Fair Point and Deer Point.

(b) The restrictions. (1) The area described in paragraph (a)(1) of this section will normally be in use Monday through Wednesday between 8 a.m. and 4 p.m. and one evening from 4 p.m. until 8 p.m., every other week.

(2) The area described in paragraph (a)(2) of this section will normally be utilized Wednesday through Friday between 8 a.m. and 4 p.m. for parasail operations.

(3) During those times that specific missions, exercises, or training operations are being conducted, the U.S. Navy vessels and/or crafts designated as essential to the operation(s) by proper U.S. Navy authority shall have the rights-of-way. All other vessels and crafts are required to keep clear of and remain 300 yards from all naval vessels engaged in said operations. Approaching within 300 yards of vessels and/or crafts while they are engaged in operations and/or training exercises is prohibited.

(4) Vessel traffic through the restricted area will remain open during operations and/or exercises; however, mariners shall exercise extreme caution and be on the lookout for swimmers, small craft and helicopters when transiting the area. It should be presumed by all mariners that Navy operations and/or exercises are being conducted whenever military craft and/or helicopters are operating within the restricted area.

(5) Any problems encountered regarding Navy operations/exercises within the restricted area should be addressed to “Navy Pensacola Command” on Channel 16 (156.6 MHz) for resolution and/or clarification.

(6) The regulations in this section shall be enforced by the Commander of the Naval Air Station, Pensacola, Florida, and such agencies as he/she may designate.

[70 FR 67372, Nov. 7, 2005]

§ 334.778 Pensacola Bay and waters contiguous to the Naval Air Station, Pensacola, FL; restricted area.

(a) The area: Beginning at a point on the northerly shoreline of Grande (Big Lagoon at Point 1, Latitude 30°19′42″ N., Longitude 87°21′06″ W., proceed southeasterly to Point 2, Latitude 30°19′27″ N., Longitude 87°21′03″ W.; thence, northeasterly, paralleling the shoreline at a minimum distance of 500 feet offshore, to Point 3, Latitude 30°19′48″ N., Longitude 87°19′35″ W.; thence, maintaining a minimum distance of 500 feet offshore or along the northerly edge of the Gulf Intracoastal Waterway Channel (whichever is less), continue to Point 4, Latitude 30°20′00″ N., Longitude 87°19′03″ W.; thence, maintaining a minimum distance of 500 feet offshore for the remainder of the area to: PT 5, Latitude 30°20′31″ N., Longitude 87°16′01″ W; Thence to PT 6, Latitude 30°21′11″ N., Longitude 87°15′29″ W; Thence to PT 7, Latitude 30°22′26″ N., Longitude 87°15′43″ W; Thence to PT 8, Latitude 30°22′39″ N., Longitude 87°16′08″ W; Thence to PT 9, Latitude 30°22′17″ N., Longitude 87°16′09″ W; Thence to PT 10, Latitude 30°22′18″ N., Longitude 87°16′35″ W; Thence to PT 11, Latitude 30°22′09″ N., Longitude 87°17′10″ W; Thence to PT 12, Latitude 30°22′15″ N., Longitude 87°17′19″ W; Thence to PT 13, Latitude 30°22′07″ N., Longitude 87°17′48″ W; Thence to PT 14, Latitude 30°22′25″ N., Longitude 87°17′53″ W; Thence to PT 15, Latitude 30°22′13″ N., Longitude 87°18′54″ W; Thence to PT 16, Latitude 30°21′57″ N., Longitude 87°19′22″ W; Thence to PT 17, Latitude 30°21′57″ N., Longitude 87°19′37″ W; Thence to PT 18, Latitude 30°21′49″ N., Longitude 87°19′49″ W; (a point on the southerly shoreline of Bayou Grande).

(b) The regulations. (1) All persons, vessels, and other craft are prohibited from entering the waters described in paragraph (a) of this section for any reason. All vessels and craft, including pleasure vessels and craft (sailing, motorized, and/or rowed or self-propelled), private and commercial fishing vessels, other commercial vessels, barges, and all other vessels and craft, except vessels owned or operated by the United States and/or a Federal, State, or local law enforcement agency are restricted from transiting, anchoring, or drifting within the above described area, or within 500 feet of any quay, pier, wharf, or levee along the Naval Air Station Pensacola shoreline abutting, nor may such vessels or crafts or persons approach within 500 feet of any United States owned or operated vessel transiting, anchored, or moored within the waters described in paragraph (a) of this section. The Commanding Officer, Naval Air Station Pensacola, or his/her designee, or the Commanding Officer of a vessel of the United States operating within the said area, may grant special permission to a person, vessel, or craft to enter upon the waters subject to the restrictions aforementioned.

(2) The existing “Navy Channel” adjacent to the north shore of Magazine Point, by which vessels enter and egress Bayous Davenport and Grande into Pensacola Bay shall remain open to all craft except in those extraordinary circumstances where the Commanding Officer, N.A.S. or his/her designee determines that risk to the installation, its personnel, or property is so great and so imminent that closing the channel to all but designated military craft is required for security reasons, or as directed by higher authority. This section will not preclude the closure of the channel as part of a security exercise; however, such closures of said channel will be limited in duration and scope to the maximum extent so as not to interfere with the ability of private vessels to use the channel for navigation in public waters adjacent thereto not otherwise limited by this regulation.

(3) The regulations in this section shall be enforced by the Commanding Officer of the Naval Air Station, Pensacola, Florida, and such agencies he/she may designate.

[53 FR 27682, July 22, 1988, as amended at 62 FR 17555, Apr. 10, 1997; 70 FR 67372, Nov. 7, 2005]

§ 334.780 Pensacola Bay, Fla.; seaplane restricted area.

(a) The area. Beginning at latitude 30°22′28″, longitude 87°16′00″; thence to latitude 30°21′02″, longitude 87°14′20″; thence to latitude 30°20′02″, longitude 87°15′16″; thence to latitude 30°20′11″; longitude 87°17′58″; and thence to 272° true to the shore.

(b) The regulations. (1) The area is established as a Naval Air Station small boat operations and training area.

(2) All persons, vessels, and other craft are prohibited from entering the waters described in paragraph (a) of this section for any reason. All vessels and craft, including pleasure vessels and craft (sailing, motorized, and/or rowed or self-propelled), private and commercial fishing vessels, other commercial vessels, barges, and all other vessels and craft, except vessels owned or operated by the United States and/or a Federal, State, or local law enforcement agency are restricted from entering, transiting, anchoring, drifting or otherwise navigating within the area described in paragraph (a) of this section.

(3) The regulations in this section shall be enforced by the Commanding Officer, Naval Air Station Pensacola and/or such persons or agencies he/she may designate.

[13 FR 9561, Dec. 31, 1948, as amended at 25 FR 2666, Mar. 30, 1960; 28 FR 349, Jan. 12, 1963. Redesignated at 50 FR 42696, Oct. 22, 1985, as amended at 62 FR 17555, Apr. 10, 1997; 70 FR 67372, Nov. 7, 2005]

§ 334.781 Supervisor of Shipbuilding, Conversion and Repair Gulf Coast, Pascagoula, Mississippi; naval restricted area.

(a) The area. The datum for all coordinates is in NAD83 in accordance with 33 CFR 334.6. The restricted area shall encompass all navigable waters of the United States, as defined at 33 CFR part 329, contiguous to the area identified as the Huntington Ingalls Incorporated/Ingalls Shipbuilding and Dry Dock (HII) facility and the mean high water level within an area contained in an “L” shaped area bounded by the shore on the west and north ends of the area and bounded by buoys on the east and south sides of the area starting at: Latitude N. 30°21.13′ longitude W. 88°34.13′, thence to Latitude N. 30°21.08′ longitude W. 88°34.13′, thence to Latitude N. 30°21.03′ longitude W. 88°34.13′, thence to Latitude N. 30°20.98′ longitude W. 88°34.13′, thence to Latitude N. 30°20.93′ longitude W. 88°34.13′, thence to Latitude N. 30°20.88′, longitude W. 88°34.13′, thence to Latitude N. 30°20.83′ longitude W. 88°34.13′, thence to Latitude N. 30°20.78′ longitude W. 88°34.13′, thence to Latitude N. 30°20.73′ longitude W. 88°34.13′, thence to Latitude N. 30°20.68′ longitude W. 88°34.13′, thence to Latitude N. 30°20.63′ longitude W. 88°34.13′, thence to Latitude N. 30°20.64′ longitude W. 88°34.10′, thence to Latitude N. 30°20.64′ longitude W. 88°34.25′, thence to Latitude N. 30°20.64′ longitude W. 88°34.33′, thence to Latitude N. 30°20.64′ longitude W. 88°34.41′, thence to Latitude N. 30°20.59′ longitude W. 88°34.47′, thence to Latitude N. 30°20.59′ longitude W. 88°34.51′, thence to Latitude N. 30°20.59′ longitude W. 88°34.57′, thence to Latitude N. 30°20.59′ longitude W. 88°34.63′, thence to Latitude N. 30°20.59′ longitude W. 88°34.70′, thence to Latitude N. 30°20.64′ longitude W. 88°34.75′, thence to Latitude N. 30°20.64′ longitude W. 88°34.82′, thence to Latitude N. 30°20.64′ longitude W. 88°34.87′, thence to Latitude N. 30°20.71′ longitude W. 88°34.87′. The datum for these coordinates is WGS84.

(b) The regulations. (1) All persons, swimmers, vessels and other craft, except those vessels under the supervision or contract to local military or Naval authority, vessels of the United States Coast Guard, and local or state law enforcement vessels, are prohibited from entering the restricted area without permission from the Supervisor of Shipbuilding, Conversion and Repair, USN, Gulfcoast or his/her authorized representative.

(2) The restricted area is in effect twenty-four hours per day and seven days a week (24/7).

(3) Should warranted access into the restricted navigation area be needed, all entities are to contact the Supervisor of Shipbuilding, Conversion and Repair, USN, Gulf Coast, Pascagoula, Mississippi, or his/her authorized representative on Marine Communication Channel 16.

(c) Enforcement. The regulation in this section shall be enforced by the Supervisor of Shipbuilding, Conversion and Repair, USN, Gulf Coast and/or such agencies or persons as he/she may designate.

[81 FR 90722, Dec. 15, 2016]

§ 334.782 SUPSHIP Gulf Coast, Pascagoula, Mississippi, Detachment Mobile, Alabama at AUSTAL, USA, Mobile, Alabama; restricted area.

(a) The area. The restricted area would encompass all navigable waters of the United States, as defined at 33 CFR part 329, contiguous to the area identified as AUSTAL, USA and the mean high water level within a rectangular shaped area on the east side of the Mobile River beginning at latitude 30°41′36.46″, longitude—88°2′2.70″; thence westerly to latitude 30°41′35.85″, longitude—88°2″; 5.12″; thence southerly to latitude 30°41′26.67″, longitude—88°2′3.62″; thence easterly to latitude 30°41′26.98″, longitude—88°2′1.81″ ; thence northerly along the easterly shoreline to the point of origin.

(b) The regulations. (1) All persons, swimmers, vessels and other craft, except those vessels under the supervision or contract to local military or Naval authority, vessels of the U.S. Coast Guard and local or State law enforcement vessels are prohibited from entering the restricted area without permission from the Supervisor of Shipbuilding, Conversion and Repair, USN, Gulf Coast, Pascagoula, Mississippi or his/her authorized representative.

(2) The restricted area is in effect twenty four hours per day and seven days a week.

(3) Should warranted access into the restricted navigation area be needed, all entities are to contact the Supervisor of Shipbuilding, Conversion and Repair, USN, Gulf Coast, Pascagoula, Mississippi, or his/her authorized representative on Marine Communication Channel 16.

(c) Enforcement. The regulation in this section shall be enforced by the Supervisor of Shipbuilding, Conversion and Repair, USN, Gulf Coast, Pascagoula, Mississippi, and/or such agencies or persons as he/she may designate.

[74 FR 48152, Sept. 22, 2009, as amended at 77 FR 42653, July 20, 2012]

§ 334.783 Arlington Channel, U.S. Coast Guard Base Mobile, Mobile, Alabama, Coast Guard restricted area.

(a) The area. The waters of Arlington Channel west of a line from latitude 30°-39′—09″ N, longitude 088°-03′-24″ W to latitude 30°-38′-54″ N., longitude 088′-03°-17′′ W.

(b) The regulations. The restricted area is open to U.S. Government vessels and transiting vessels only. U.S. Government vessels include U.S. Coast Guard vessels, Department of Defense vessels, state and local law enforcement and emergency services vessels and vessels under contract with the U.S. Government. Vessels transiting the restricted area shall proceed across the area by the most direct route and without unnecessary delay. Fishing, trawling, net-fishing and other aquatic activities are prohibited in the restricted area without prior approval from the Commanding Officer, U.S. Coast Guard Group Mobile or his designated representative.

(c) Enforcement. The regulations in this section shall be enforced by the Commanding Officer, U.S. Coast Guard Group Mobile or his designated representative.

[69 FR 45259, July 29, 2004]

§ 334.784 East Pearl River, within the acoustic buffer area of the John C. Stennis Space Center, and adjacent to lands, in Hancock County, Mississippi; danger zone.

(a) The area. A danger zone is established in and to the extent of waters of the United States, as defined in 33 CFR part 329, in the following reaches of the East Pearl River south of a point located at latitude 30.4030° N., longitude −89.6815° W., to a point below the confluence of Mikes River, located at latitude 30.3561° N., longitude −89.6514° W. The datum for these coordinates is NAD 1983.

(b) The regulation. (1) No person, vessel, or other watercraft, other than a vessel owned and operated by the United States, shall enter or remain in the danger zone, or within a portion or portions thereof, when closed to public access, as provided in paragraph (b)(2) of this section, except by permission of the Commanding Officer, Naval Construction Battalion Center, Gulfport or such other person(s) as he or she may designate.

(2) The danger zone, or a portion or portions thereof, will be closed, for riverine, weapons, or other dangerous naval training, by placement of Government picket boats at the northern and southern boundaries in the East Pearl River, or at such other location(s) within the danger zone as may be determined to be sufficient to protect the public. Prior to closure, picket boats will transit the area(s) to be closed, to ensure that no persons, vessels, or other watercraft are present. Once the danger zone, or location(s) within the danger zone, has been cleared, picket boats will remain in position, upstream and downstream, until it is safe to re-open the area(s) to public access.

(3) Riverine, weapons, and other dangerous naval training may occur on any day of the week, typically, but not exclusively, in periods of two to eight hours, between 6 a.m. and 6 p.m. Training may occur at night, in darkness.

(c) Enforcement. The restrictions on public access in this section shall be enforced by the Commanding Officer, Naval Construction Battalion Center, Gulfport or by such other person(s) as he or she may designate.

[82 FR 49114, Oct. 24, 2017]

§ 334.787 81st Security Forces Anti-Terrorism Office, Keesler Air Force Base, Biloxi, Mississippi; no anchorage restricted area.

(a) The area. The restricted area shall encompass all navigable waters of the United States, as defined at 33 CFR part 329, contiguous to the area identified as Keesler Air Force Base (KAFB) and the mean high water level within an area bounded by the shore and buoys from the east to the west of the area starting at: Latitude 30°25′11.73″ N, longitude 88°54′57.69″ W, thence to latitude 30°25′11.85″ N, longitude 88°55′3.46″ W, thence to latitude 30°25′8.00″ N, longitude 88°55′10.10″ W, thence to latitude 30°25′4.15″ N, longitude 88°55′16.74″ W, thence to latitude 30°25′6.96″ N, longitude 88°55′24.12″ W, thence to latitude 30°25′1.83″ N, longitude 88°55′30.01″ W, thence to latitude 30°24′56.15″ N, longitude 88°55′34.16″ W, thence to latitude 30°24′51.14″ N, longitude 88°55′39.56″ W, thence to latitude 30°24′47.48″ N, longitude 88°55′46.64″ W, thence to latitude 30°24′51.08″ N, longitude 88°55′53.46″ W, thence to latitude 30°24′55.30″ N, longitude 88°55′59.91″ W, thence to latitude 30°24′56.87″ N, longitude 88°56′7.40″ W. The datum is NAD-83.

(b) The regulations. (1) All persons, swimmers, vessels and other craft, except those vessels under the supervision or contract to local military or USAF authority, vessels of the United States Coast Guard, and local or state law enforcement vessels, are prohibited from entering the restricted area without permission from the USAF 81st Security Forces Anti-Terrorism Office, KAFB or its authorized representative.

(2) The restricted area is in effect twenty-four hours per day and seven days a week (24/7).

(3) Should warranted access into the restricted navigation area be needed, all entities are required to contact the USAF 81st Security Forces Anti-Terrorism Office, KAFB, Biloxi, Mississippi, or its authorized representative.

(c) Enforcement. The regulation in this section shall be enforced by the USAF 81st Security Forces Anti-Terrorism Office, KAFB and/or such agencies or persons as that office may designate.

[83 FR 16784, Apr. 17, 2018]

§ 334.790 Sabine River at Orange, Tex.; restricted area in vicinity of the Naval and Marine Corps Reserve Center.

(a) The area. The berthing area of the Naval and Marine Corps Reserve Center and the waters adjacent thereto from the mean high tide shoreline to a line drawn parallel to, and 100 feet channelward from lines connecting the pier head of Pier 10 and from a line drawn parallel to, and 200 feet upstream from, Pier 10 to a line drawn parallel to, and 100 feet downstream from Pier 10.

(b) The regulations. (1) No person, vessel or other craft, except personnel and vessels of the U.S. Government or those duly authorized by the Commanding Officer, Naval and Marine Corps Reserve Center, Orange, Texas, shall enter, navigate, anchor or moor in the restricted area.

(2) The regulations of this section shall be enforced by the Commanding Officer, Naval and Marine Corps Reserve Center, Orange, Texas, and such agencies as he may designate.

[44 FR 42968, July 23, 1979. Redesignated at 50 FR 42696, Oct. 22, 1985, as amended at 62 FR 17556, Apr. 10, 1997]

§ 334.800 Corpus Christi Bay, Tex.; seaplane restricted area, U.S. Naval Air Station, Corpus Christi.

(a) The area. The waters of Corpus Christi Bay within the area described as follows: Beginning at a point on the south shore of Corpus Christi Bay at the “North Gate” of the U.S. Naval Air Station at longitude 97°17′15.0″ W.; thence through points at:

North latitude | West longitude

27°42′34.9″ | 97°17′09.6″

27°41′46.8″ | 97°14′23.8″

27°41′15.1″ | 97°14′35.4″

27°41′27.0″ | 97°15′16.7″

27°40′41.6″ | 97°15′33.3″

thence to a point on shore at latitude 27°40′44.9″ N.; thence along the shore to the point of beginning.

(b) The regulations. (1) No person, vessel or watercraft shall enter or remain in the area at any time, day or night, except with express written approval of the enforcing agency or as a result of force majeure.

(2) The regulations in this section shall be enforced by the Chief of Naval Air Training, U.S. Naval Air Station, Corpus Christi, Tex., and such agencies as he may designate.

[43 FR 30054, July 13, 1978. Redesignated at 50 FR 42696, Oct. 22, 1985, as amended at 62 FR 17556, Apr. 10, 1997]

§ 334.802 Ingleside Naval Station, Ingleside, Texas; restricted area.

(a) The area. The waters of Corpus Christi Bay beginning at a point at latitude 27°49′15.0″ N, longitude 97°12′6.0″ W, thence southerly to latitude 27°49′7.3″ N, longitude 97°12′5.4″ W, thence south-southwesterly to latitude 27°49′01″ N, longitude 97°12′39.4″ W, thence west-northwesterly to latitude 27°49′02.4″ N, longitude 97°12′48.3″ W, thence north-northeasterly to latitude 27°49′16.5″ N, longitude 97°12′41.5″, thence easterly to latitude 27°49′17.0″ N, longitude 97°12′27.5″ W, thence easterly along the shoreline to the point of beginning.

(b) The regulations. Mooring, anchoring, fishing, recreational boating or any activity involving persons in the water shall not be allowed within the restricted area. Commercial vessels at anchor will be permitted to swing into the restricted area while at anchor and during tide changes.

(c) Enforcement. The regulations in this section shall be enforced by the Commanding Officer, Naval Station, Ingleside and such agencies as he/she shall designate.

[57 FR 46303, Oct. 8, 1992; 58 FR 6718, Feb. 2, 1993, as amended at 62 FR 17556, Apr. 10, 1997]

§ 334.810 Holston River at Holston Ordnance Works, Kingsport, Tenn.; restricted area.

(a) The area. That portion of Holston River within the boundaries of the Government reservation.

(b) The regulations. (1) Except in cases of extreme emergency, all vessels other than those owned or controlled by the U.S. Government and any activity involving persons in the water, are prohibited from entering the area without prior permission of the enforcing agency.

(2) The regulations in this section shall be enforced by the Commanding Officer of the Holston Ordnance Works, Kingsport, Tennessee, and such agencies as he may designate.

[20 FR 7075, Sept. 30, 1955. Redesignated at 50 FR 42696, Oct. 22, 1985, as amended at 62 FR 17556, Apr. 10, 1997]

§ 334.815 Menominee River, at the Marinette Marine Corporation Shipyard, Marinette, Wisconsin; naval restricted area.

(a) The area. The waters adjacent to Marinette Marine Corporation's pier defined by a rectangular shape on the south side of the river beginning on shore at the eastern property line of Marinette Marine Corporation at latitude 45°05′58.70″ N., longitude 87°36′55.90″ W.; thence northerly to latitude 45°05′59.72″ N., longitude 87°36′55.61″ W.; thence westerly to latitude 45°06′03.22″ N., longitude 87°37′09.75″ W.; thence westerly to latitude 45°06′03.78″ N., longitude 87°37′16.40″ W.' thence southerly to latitude 45°06′2.80″ N., longitude 87°37′16.56″ W.; thence easterly along the Marinette Marine Corporation pier to the point of origin. The datum for these geographic coordinates is the World Geodetic System 1984 (WGS 84). The restricted area will be marked by a lighted and signed floating buoy line.

(b) The regulation. All persons, swimmers, vessels and other craft, except those vessels under the supervision or contract to local military or Naval authority, vessels of the United States Coast Guard, and local or state law enforcement vessels, are prohibited from entering the restricted area when marked by signed floating buoy line without permission from the Supervisor of Shipbuilding, Conversion and Repair, USN, Bath, ME or his/her authorized representative.

(c) Enforcement. The regulation in this section shall be enforced by the Supervisor of Shipbuilding, Conversion and Repair, USN, Bath, ME and/or such agencies or persons as he/she may designate.

(d) Disestablishment of restricted area. The restricted area will be disestablished not later than November 17, 2025, unless written application for its continuance is made to and approved by the Secretary of the Army prior to that date.

[82 FR 53423, Nov. 16, 2017]

§ 334.820 Lake Michigan; naval restricted area, U.S. Naval Training Center, Great Lakes, Ill.

(a) The area. An area extending in a north and south direction from the Great Lakes, Illinois, south breakwater to an east-west line projecting eastward from the shore termination of the north fence of the U.S. Naval Training Center, Great Lakes, Illinois, and extending into Lake Michigan for a distance of one mile from the shoreline.

(b) The regulations. No person or vessel of any kind, except those engaged in naval operations, shall enter, navigate, anchor, or moor in the restricted area without first obtaining permission to do so from the Commander, U.S. Naval Training Center, Great Lakes, Illinois, or his authorized representative.

[28 FR 319, Jan. 11, 1963. Redesignated at 50 FR 42696, Oct. 22, 1985, as amended at 62 FR 17556, Apr. 10, 1997]

§ 334.830 Lake Michigan; small-arms range adjacent to U.S. Naval Training Center, Great Lakes, Ill.

(a) The danger zone. An area bounded on the north by latitude 42°20′30″; on the east by longitude 87°47′30″; on the south by latitude 42°18′45″; and on the west by the shoreline.

(b) The regulations. (1) When firing affecting the danger zone is in progress, the enforcing agency will post guards at such locations that the waters in the danger zone may be observed and arrange signals whereby these guards may stop the firing should any person or vessel be seen in the waters of the danger zone. When firing is in progress, the enforcing agency will cause red flags to be displayed on shore near the rifle butts, which may be readily discernible to a person in a vessel within the danger zone.

(2) The enforcing agency is hereby authorized to use such agencies as shall be necessary to prohibit all persons and vessels from entering the area until such time as shall be convenient.

(3) If such flags are displayed it will indicate that firing is in progress, and that the waters in the danger zone are subject to impact by rounds missing or ricocheting off the impact berm and should not be entered until the flags are lowered.

(4) Wherever possible, the enforcing agency will warn the public of the contemplated times of firing and the areas involved two days in advance of the scheduled date, through the public press and the U.S. Coast Guard. The danger zone may, however, be closed without advance notice.

(5) [Reserved]

(6) The regulations in this section shall be enforced by the Commander, U.S. Naval Training Center, Great Lakes, Illinois, and such agencies as he may designate.

[13 FR 9560, Dec. 31, 1948. Redesignated at 14 FR 4904, Aug. 9, 1949, and amended at 28 FR 319, Jan. 11, 1963; 45 FR 13072, Feb. 28, 1980. Redesignated at 50 FR 42696, Oct. 22, 1985, as amended at 62 FR 17556, Apr. 10, 1997]

§ 334.840 Waters of Lake Michigan south of Northerly Island at entrance to Burnham Park Yacht Harbor, Chicago, Ill.; danger zone adjacent to airport on Northerly Island.

(a) Danger zone—(1) Zone A. Beginning at a point 250 feet west of the center line of the runway at the south end of the air strip on Northerly Island; thence 183°, 500 feet; thence 90°, 600 feet; and thence northerly to a point 250 feet east of the center line of the runway at the south end of said air strip. During the navigation season, the southeast and southwest corners of Zone A will be marked with spar buoys colored and lettered as prescribed by the U.S. Coast Guard.

(2) Zone B. Beginning at the southwest corner of Zone A; thence 183°, 500 feet; thence 90°, 700 feet; thence northerly to the southeast corner of Zone A; and thence 270° to the point of beginning. During the navigation season, the southeast and southwest corners of Zone B will be marked with spar buoys colored and lettered as prescribed by the U.S. Coast Guard.

(b) Regulations. (1) During daylight hours (from one-half hour before sunrise to one-half hour after sunset), and when the airport on Northerly Island is in operation, no vessel or other watercraft any part of which extends more than 15 feet above the water surface shall enter or remain in Zone A, and no vessel or other watercraft any part of which extends 30 feet or more above the water surface shall enter or remain in Zone B.

(2) When the airport is in operation a red ball, at least three feet in diameter, shall be continuously displayed at the northeast and northwest corners of Zone A. These balls shall not be displayed when the airport is not in operation.

[12 FR 6665, Oct. 9, 1947. Redesignated at 14 FR 4904, Aug. 9, 1949, and amended at 15 FR 5022, Aug. 4, 1950; 36 FR 5911, Mar. 31, 1971. Redesignated at 50 FR 42696, Oct. 22, 1985]

§ 334.845 Wisconsin Air National Guard, Volk Field military exercise area located in Lake Michigan offshore from Manitowoc and Sheboygan Counties; danger zone.

(a) The area. (1) The waters within an area beginning at a point at latitude 43°19′00″ N., longitude 87°41′00″ W.; to latitude 44°05′30″ N., longitude 87°29′45″ W.; to latitude 44°02′00″ N., longitude 87°02′30″ W.; to latitude 43°15′30″ N., longitude 87°14′00″ W.; thence to the point of beginning, as shown on NOAA Chart 14901 (1999) and existing aeronautical charts.

(b) The regulation. (1) During specific, infrequent periods when Military exercises will be conducted, as promulgated in the Local Notice to mariners published by the United States Coast Guard (USCG), all vessels entering the danger zone are advised to proceed across the area by the most direct route and without unnecessary delay.

(2) During specific, infrequent periods when Military exercises will be conducted, as promulgated in the Local Notice to mariners published by the USCG, no vessel or craft of any size shall lie-to or anchor in the danger zone, other than a vessel operated by or for the USCG, or any other authorized agency.

(c) Normal use. At all other times, nothing in this regulation shall prohibit any lawful uses of this area.

(d) Enforcement. The regulation in this section shall be enforced by the Commanding Officer, VOLK Field, WI, and/or persons or agencies as he/she may designate.

[69 FR 45591, July 30, 2004]

§ 334.850 Lake Erie, west end, north of Erie Ordnance Depot, Lacarne, Ohio.

(a) The danger zone: Consists of the waters of Lake Erie within:

(1) Danger Area I. The sector of a circle with a radius of 6,500 yards centered at latitude 41°32′30″ N., longitude 33°01′00″ W., and intersecting the southwest boundary of Area II at latitude 41°35′00″ N., longitude 83°03′22″ W., and the southeast boundary of Area II at latitude 41°34′20″ N., longitude 82°57′10″ W.

(2) Danger Area II (Includes Area I). The area bounded as follows: Beginning at latitude 41°32′30″ N., longitude 83°01′00″ W.; thence to latitude 41°35′00″ N., longitude 83°03′22″ W.; thence to latitude 41°36′00″ N., longitude 83°03′24″ W.; thence to latitude 41°41′30″ N., longitude 83°07′30″ W.; thence to latitude 41°41′30″ N., longitude 83°00′00″ W.; thence to latitude 41°35′40″ N., longitude 82°54′50″ W.; and thence to the point of beginning.

(b) Types of firing—(1) Danger Area I. Small arms impact area.

(2) Danger Area II. Ground-based artillery, antiaircraft artillery and automatic weapons impact area.

(c) Authorized dates and hours of firing:

(1) Danger Area I. 6 a.m. to 6 p.m., e.s.t./e.d.t., daily; actual firing dates and hours within the authorized period to be announced in advance in special firing notices.

(2) Danger Area II. 8 a.m. to 5 p.m., e.s.t./e.d.t., daily except on Saturdays, Sundays, and holidays; actual firing dates and hours scheduled within authorized period to be announced in advance in special firing notices.

(d) Restrictions. (1) No person or vessel shall enter or remain in a danger zone during a scheduled firing period announced in a special firing notice unless specific permission is granted in each instance by a representative of the enforcing officer.

(2) The danger areas within the danger zone shall be open to the public for navigation, fishing and other public use when firing and/or bombing is not scheduled.

(e) Enforcing agencies. The regulations in this section shall be enforced for the respective danger areas by the following commanders and such agencies as each may designate for his assigned areas. He will be responsible for proving the prescribed control, signals, and special firing notices.

(1) Danger Area I. Adjutant General, State of Ohio.

(2) Danger Area II. Adjutant General, State of Ohio.

(f) Control and signals—(1) Danger Area I. When firing into Area I, red flags will be flown from the safety tower at Camp Perry, and from flag poles in the butts of the ranges being used.

(2) Danger Area II. During all types of firing into Area II, red flags will be displayed, one from the safety tower at Camp Perry and one from the safety tower at the Erie Proof Front. During firing into Area II, patrol boats will police and maintain surveillance of the area, and will be in constant radio communication with the shore station controlling the firing.

(3) [Reserved]

(4) The appropriate enforcing officer has authority to suspend any scheduled firing for reasonable periods during regattas and immediately after fishing nets are destroyed or dislocated by severe storms.

(5) The special firing notices which will include schedules of use will be published by the enforcing officer indicated in paragraph (e) of this section, in sufficient time to permit circularization to interested parties and posting on the bulletin boards of post offices in surrounding localities. Special notices will also be furnished the District Engineer, Corps of Engineers, Detroit, Mich.; the Commander, Ninth Coast Guard District, Cleveland, Ohio; the Regional Manager, Federal Aviation Administration, Chicago, Ill.; and each of the enforcing agencies listed in paragraph (e) of this section. Users of the waterway shall familiarize themselves with the current special firing notices. If in doubt, inquiry should be made to the enforcing officer indicated in paragraph (e) of this section.

(6) Agencies desiring to use the areas shall present their requirements to the respective enforcing officer who is responsible for, and is granted authority to, coordinate the firing and established priorities, for the using agencies.

(g) Fishing permits. Fishermen desiring to set fixed nets within the danger zone are required in every instance to have written permits. Permits for placing nets within Areas I and II may be obtained by written application to the Adjutant General, State of Ohio. Applicants for permits must state the location at which they desire to set fixed nets and the period of time which they desire the permit to cover.

(h) Injurious chemicals. No phosphorus or other poisonous chemicals injurious to wild fowl or fish will be discharged into the waters of the areas.

(i) The regulations in this section shall be reviewed annually by the Department of the Army to determine whether further limitations of the danger zone shall be considered.

[35 FR 17178, Nov. 7, 1970, as amended at 37 FR 20026, Sept. 23, 1972. Redesignated at 50 FR 42696, Oct. 22, 1985, as amended at 62 FR 17556, Apr. 10, 1997]

§ 334.855 Salt River, Rolling Fork River, Otter Creek; U.S. Army Garrison, Fort Knox Military Reservation; Fort Knox, Kentucky; danger zone.

(a) The area. Salt River from Point A (latitude 37°59′31.72″ N; longitude 85°55′32.98″ W) located approximately 1.2 miles southeast of West Point, Kentucky; southward to its confluence with the Rolling Fork River. Salt River from Point B (latitude 37°57′51.32″ N; longitude 85°45′37.14″ W) located approximately 2.8 miles southwest of Shepherdsville, Kentucky; southward to its confluence with the Rolling Fork River. Rolling Fork River from Point C (latitude 37°49′59.27″ N; longitude 85°45′37.74″ W) located approximately 1.6 miles southwest of Lebanon Junction, Kentucky northward to its confluence with the Salt River. Otter Creek from Point D (latitude 37°51′31.77″ N; longitude 86°00′03.79″ W) located approximately 3.4 miles north of Vine Grove, Kentucky to Point E (latitude 37°55′21.95″ N; longitude 86°01′47.38″ W) located approximately 2.3 miles southwest of Muldraugh.

(b) The regulation. All persons, swimmers, vessels and other craft, except those vessels under the supervision or contract to local military or Army authority, vessels of the United States Coast Guard, and federal, local or state law enforcement vessels, are prohibited from entering the danger zones without permission from the Commanding General, U.S. Army Garrison, Fort Knox Military Reservation, Fort Knox, Kentucky or his/her authorized representative.

(c) Enforcement. The regulation in this section, promulgated by the United States Army Corps of Engineers, shall be enforced by the Commanding General, U.S. Army Garrison, Fort Knox Military Reservation, Fort Knox, Kentucky and/or other persons or agencies as he/she may designate.

[70 FR 15228, Mar. 25, 2005]

§ 334.860 San Diego Bay, Calif., Naval Amphibious Base; restricted area.

(a) The Area. The water of the Pacific Ocean in Middle San Diego Bay in an area extending from the northern and eastern boundary of the Naval Amphibious Base about 0.1 nautical miles and 0.6 nautical miles from the southern shoreline and basically outlined as follows:

Station | Latitude | Longitude

1 | 32°40′33.0″ N | 117°10′02.4″ W

2 | 32°40′34.7″ N | 117°09′54.0″ W

3 | 32°40′46.0″ N | 117°09′44.2″ W

4 | 32°41′00.0″ N | 117°09′24.6″ W

5 | 32°40′20.0″ N | 117°08′36.7″ W

6 | 32°40′00.0″ N | 117°09′00.0″ W

7 | 32°39′18.0″ N | 117°08′45.0″ W

8 | 32°39′16.0″ N | 117°08′48.5″ W

(b) The regulations. (1) Swimming, fishing, waterskiing, mooring or anchoring shall not be allowed within the restricted area.

(2) A portion of the restricted area extending 120 feet from pierheads and from the low water mark on shore where piers do not exist is closed to all persons and vessels except those owned by, under hire to, or performing work for, the Naval Amphibious Base.

(3) All vessels entering the restricted area shall proceed across the area by the most direct route and without unnecessary delay. For vessels under sail, necessary tacking shall constitute a direct route.

(4) The regulations in this section shall be enforced by the Commanding Officer, Naval Amphibious Base, Coronado, California, and such agencies as he/she shall designate. Organized activities (such as sail races and regattas) within the restricted area may be allowed providing that a request has been made to the Commanding Officer, Naval Amphibious Base, Coronado, San Diego, California 92155 or by calling, telephone number (619) 522-4833 at least 10 days prior to the event.

[49 FR 49453, Dec. 20, 1984. Redesignated at 50 FR 42696, Oct. 22, 1985]

§ 334.865 Naval Air Station North Island, San Diego, California, restricted area.

(a) The area. The waters within an area beginning at 32°42′55.0″ N, 117°11′30.5″ W; thence running easterly to 32°42′57.0″ N, 117°11′22.5″ W; thence running easterly to 32°42′56.0″ N, 117°11′19.0″ W; thence running southeasterly to 32°42′49.0″ N, 117°11′08.5″ W; thence running southeasterly to 32°42′44.5″ N, 117°11′06.5″ W; thence running southerly to 32°42′40.0″ N, 117°11′06.5″ W.

(b) The regulation. (1) The restricted area shall not be open to swimming, fishing, water-skiing, mooring or anchorage.

(2) Dragging, seining, other fishing operations, and other activities not under the direction of the United States, which might foul underwater installations within the restricted area, are prohibited.

(3) All tows entering the restricted area shall be streamed and shortened to the seaward of the area and towing appendages and catenaries shall not be dragged along the bottom while proceeding through the area.

(4) All vessels entering the restricted area shall proceed across the area by the most direct route and without unnecessary delay.

(5) No vessel or craft of any size shall lie-to or anchor in the restricted area at any time other than a vessel operated by or for components, or other vessels authorized by Commander, Navy Region Southwest, or his/her designee.

(6) When security conditions dictate, Naval security forces may impose strict enforcement of stand-off distances within the restricted area. This enforcement will not prevent utilization of navigable channels, but will serve to control its use in order to protect vital National interests.

(c) Enforcement. The regulation in this section, promulgated by the United States Army Corps of Engineers, shall be enforced by the Commander, Navy Region Southwest, and such agencies or persons as he/she may designate.

[68 FR 37972, June 26, 2003]

§ 334.866 Pacific Ocean at Naval Base Coronado, in the City of Coronado, San Diego County, California; naval danger zone.

(a) The area. A fan-shaped area extending westerly into the waters of the Pacific Ocean from a point on the beach of Naval Base Coronado, Coronado, California beginning at latitude 32°41′13″ N, longitude 117°12′45″ W; thence easterly, along the mean high water mark, to latitude 32°41′14″ N, longitude 117°12′32″ W; thence southerly to latitude 32°40′31″ N, longitude 117°12′12″ W; thence westerly to latitude 32°40′25″ N, longitude 117°12′43″ W; thence northerly, landward, to the point of origin.

(b) The regulations. (1) Range live firing on the Naval Base Coronado, Coronado, California small arms range may occur at any time. Information on live firing schedules and coordination for community concerns can be obtained by calling the Naval Base Coronado Small Arms Range Safety Officer at 619-545-8413 during normal working hours. Assistance is also available via the Naval Base Coronado Hotline at 619-545-7190 or the Naval Base Coronado operator at 619-545-1011. If the phone numbers are changed, they will be updated on the Naval Base Coronado Web site http://www.cnic.navy.mil/Coronado.

(2) The danger zone will be open to fishing and general navigation when no weapons firing is scheduled, which will be indicated by the absence of any warning flags or flashing lights on land in the locations specified in paragraphs (b)(3) and (b)(4) of this section.

(3) When live firing is about to be undertaken or is in progress during daylight hours, three (3) large red warning flags will be displayed at the top of the flag poles on the southern berm of the small arms range, so as to be clearly visible from all points of entry into the danger zone. The west flag pole is located on the southern berm at latitude 32°41′21.5″ N, longitude 117°12′42.8″ W, the middle flag pole is located at latitude 32°41′21.7″ N, longitude 117°12′40.9″ W, and the east flag pole is located at latitude 32°41′22.4″ N, longitude 117°12′38.7″ W.

(4) When live firing is about to be undertaken or is in progress during periods of darkness, three (3) red flashing warning lights will be displayed at the top of the flag poles on the southern berm of the small arms range at the locations described in paragraph (b)(3) of this section, so as to be clearly visible from all points of entry into the danger zone.

(5) The danger zone is not considered safe for vessels or individuals when live firing is in progress. When live firing is about to begin or is scheduled as indicated by the warning flags or flashing warning lights described in paragraphs (b)(3) and (b)(4) of this section, all vessels will be required to expeditiously vacate the danger zone.

(6) Anchoring by any vessel within the danger zone is prohibited.

(7) Prior to conducting live firing, Navy personnel will visually scan the danger zone to ensure that no vessels or individuals are located within it. Any vessels or individuals in the danger zone will be notified by the Navy Range Safety Officer using a marine VHF-FM marine radio and by other means as necessary, to exit the danger zone and remain outside the area until conclusion of live firing. As new technology becomes available, the VHF-FM marine radio communications system may be updated.

(8) Safety observers will be posted in accordance with range standard operating procedures at all times when the warning flags or flashing lights described in paragraphs (b)(3) and (b)(4) of this section are displayed. Operation of the small arms range will only occur when visibility is sufficient to maintain visual surveillance of the danger zone and vicinity. In the event of limited visibility due to rain, fog or other conditions, live firing will be postponed until the danger zone can be confirmed clear of all vessels and individuals.

(9) Naval Base Coronado will maintain a schedule of live firing at the small arms range on its Web site, http://www.cnic.navy.mil/Coronado, which will be accessible to the public, mariners, and recreationists. The Navy will maintain the Web site on a year round basis and update information as needed for public safety.

(c) Enforcement. The regulation in this section will be enforced by the Commanding Officer, Naval Base Coronado, and such agencies and persons as he/she may designate.

[75 FR 26102, May 11, 2010]

§ 334.870 San Diego Harbor, Calif.; restricted area.

(a) Restricted area at Bravo Pier, Naval Air Station—(1) The area. The water of the Pacific Ocean in North San Diego Bay in an area extending from the western boundary of North Island about 0.2 nautical miles bayward and basically outlined as follows:

Station | Latitude | Longitude

1 | 32°41′51.3″ N | 117°13′34.0″ W

2 | 32°41′51.3″ N | 117°13′46.6″ W

3 | 32°41′43.3″ N | 117°13′50.0″ W

4 | 32°41′35.8″ N | 117°13′48.0″ W

5 | 32°41′35.8″ N | 117°13′35.0″ W

(2) The regulations. (i) The restricted area shall not be open to swimming, fishing, mooring or anchorage.

(ii) Transit will be allowed through the restricted area except that no transit will be allowed within 100 feet of the ammunition pier (Bravo Pier). All unauthorized vessels entering the restricted area shall proceed across the area by the most direct route and without unnecessary delay. Only vessels owned by, under hire to, or performing work for the Naval Air Station or the Naval Weapons Station may operate within 100 feet of the ammunition pier.

(b) Restricted area at U.S. Naval Degaussing Station—(1) The area. That portion of San Diego Bay near Point Loma, inclosed by lines connecting the following points, which are rectangular coordinates and are referred to U.S. Coast and Geodetic Survey station “Old Town” as their origin:

“a” S. 18,738.80, W. 16,299.50. “b” S. 18,817.60, W. 15,791.30. “c” S. 19,376.09, W. 14,270.73. “d” S. 20,023.15, W. 14,462.94. “e” S. 21,080.24, W. 14,333.14. “f” S. 22,074.40, W. 16,371.48.

(2) The regulations. (i) There shall be no introduction of external magnetic field sources within the area.

(ii) Craft of any size shall not be excluded from transiting the area. However, they shall proceed through the area by the most direct route without delay or loitering. On occasion, access to the bait barges may be delayed for intermittent periods not exceeding 30 minutes.

(iii) No craft of any size shall lay-to or anchor within the area except on prior permission granted by the Officer in Charge, U.S. Naval Degaussing Station.

(c) Restricted area between Ballast Point and Zuniga Point—(1) The area. An area in San Diego Bay between Ballast Point and Zuniga Point inclosed by lines connecting the following stations:

Station | Latitude | Longitude

A | 32°41′17″ | 117°13′58″

B | 32°41′19″ | 117°13′36.5″

C | 32°41′01″ | 117°13′34″

D | 32°40′59″ | 117°13′55″

E | 32°41′03″ | 117°13′56″

A | 32°41′17″ | 117°13′58″

(2) The regulations. (i) No vessel shall anchor within the restricted area at any time.

(ii) Dredging, dragging, seining, other fishing operations, and other activities not under the direction of the United States, which might foul underwater installations within the restricted area, are prohibited.

(iii) All tows entering the restricted area shall be streamed and shortened to the seaward of the area and towing appendages and catenaries shall not be dragged along the bottom while proceeding through the area.

(iv) All vessels entering the restricted area shall proceed across the area by the most direct route and without unnecessary delay.

(d) Restricted area at the Naval Supply Center Pier—(1) The area. The waters of San Diego Bay extending approximately 100 feet out from the north, west and south sides of the Naval Supply Center Pier enclosed by lines connecting the following stations:

Station | Latitude | Longitude

A | 32°42′50″ N | 117°10′25″ W

B | 32°42′50″ N | 117°10′38″ W

C | 32°42′54″ N | 117°10′38″ W

D | 32°42′54″ N | 117°10′25″ W

(2) The regulations. (i) No vessel or craft of any size shall lie-to or anchor in the restricted area at any time other than a vessel operated by or for the U.S. Navy, U.S. Coast Guard, other authorized military components, or other vessels authorized by Commander Naval Base, San Diego or his designee.

(ii) Loitering, dredging, dragging, seining, fishing and similar activities within the restricted area are prohibited.

(e) Enforcement. The regulations in this section shall be enforced by the Commander, Naval Base, San Diego, California, and such agencies as he/she may designate.

[17 FR 5951, July 2, 1952, as amended at 29 FR 9710, July 18, 1964; 35 FR 16370, Oct. 20, 1970; 49 FR 33646, Aug. 24, 1984. Redesignated at 50 FR 42696, Oct. 22, 1985, as amended at 55 FR 27102, June 29, 1990; 55 FR 31689, Aug. 3, 1990]

§ 334.880 San Diego Harbor, Calif.; naval restricted area adjacent to Point Loma.

(a) The area. That portion of San Diego Bay southerly of Ballast Point, exclusive of the southwesterly portion of the restricted area described in § 334.612(b) located westerly of the entrance channel, bounded on the west by the shoreline at Point Loma, on the east by the entrance channel west project line, and on the south by latitude 32°40′.

(b) The regulations. (1) The area is reserved for anchorage of vessels of the U.S. Government and authorized harbor pilot and patrol boats. All other craft may navigate and operate through the area, and temporary mooring of vessels (not to exceed 24 hours) is permissible.

(2) No other vessels shall anchor or moor permanently in the area except by special permission obtained in advance from the Commander, Naval Base, San Diego, Calif.

(3) The regulations in this section shall be enforced by the Commandant, 11th Naval District, San Diego, Calif., and such agencies as he may designate.

[30 FR 4756, Apr. 14, 1965. Redesignated at 50 FR 42696, Oct. 22, 1985]

§ 334.890 Pacific Ocean off Point Loma, Calif.; naval restricted area.

(a) The area. The waters of the Pacific Ocean within an area extending southerly from Point Loma, California, described as follows: Beginning at latitude 32°39′54″, longitude 117°13′18″; thence southeasterly to latitude 32°34′31″, longitude 117°09′41″; thence 270° true to longitude 117°16′40″; thence due north to latitude 32°39′54″; and thence 90° true to the point of beginning.

(b) The regulations. (1) No vessel shall anchor within the restricted area at any time without specific permission of the enforcing agency.

(2) Dredging, dragging, seining, and other similar operations within the restricted area are prohibited.

(3) The regulations in this section shall be enforced by the Commandant, Eleventh Naval District, San Diego, California, and such agencies as he may designate.

[17 FR 4346, May 13, 1952. Redesignated at 30 FR 4756, Apr. 14, 1965. Redesignated at 50 FR 42696, Oct. 22, 1985]

§ 334.900 Pacific Ocean, U.S. Marine Corps Base, Camp Pendleton, Calif.; restricted area.

(a) The area. Beginning at the shoreline north of the boat basin, latitude 33°13′10″, longitude 117°24′19″; thence westward to latitude 33°12′48″, longitude 117°24′56″; thence southward to latitude 33°12′32″, longitude 117°24′44″; thence eastward to latitude 33°12′47″, longitude 117°24′17″ (a point on the breakwater); thence northeastward along breakwater to latitude 33°12′58″, longitude 117°24′09″; thence northward along shoreline to point of beginning.

(b) The regulations. (1) No vessels shall anchor within the restricted area at any time.

(2) Dredging, dragging, seining, fishing operations, and other activities, which might foul underwater installations within the restricted area, are prohibited.

(3) All vessels entering the restricted area shall proceed across the area by the most direct route and without unnecessary delay.

(4) The regulations in this section shall be enforced by the Commanding General, U.S. Marine Corps Base, Camp Pendleton, California, and such agencies as he may designate.

[24 FR 1214, Feb. 17, 1959. Redesignated at 50 FR 42696, Oct. 22, 1985]

§ 334.905 Pacific Ocean, offshore of Camp Pendleton, California; Fallbrook restricted area.

(a) The area. The waters of the Gulf of Santa Catalina, offshore of Camp Pendleton in the Pacific Ocean, San Diego County, California. The center of the restricted area is located at 33°18.6′ N. latitude, 117°32.0′ W. longitude, with a radius of 9,000 feet.

(b) The regulations. (1) No vessel or craft of any size shall lie-to or anchor in the restricted area at any time other than a vessel operated by or for the U.S. Coast Guard, local, State or Federal law enforcement agencies.

(2) Loitering, dredging, dragging, anchoring, seining, fishing, and similar activities within the restricted area during vertical replenishment operations use is prohibited.

(c) Enforcement. The regulations in this section shall be enforced by the U.S. Coast Guard, local, State, or Federal law enforcement agencies.

[58 FR 53427, Oct. 15, 1993]

§ 334.910 Pacific Ocean, Camp Pendleton Boat Basin, U.S. Marine Corps Base, Camp Pendleton, Calif.; restricted area.

(a) The area. All of the waters of Camp Pendleton Boat Basin entrance channel lying northerly of a line between a light on the north Camp Pendleton jetty at latitude 33°12′22″, longitude 117°24′07″, and a light on the north Oceanside Harbor groin at latitude 33°12′29″, longitude 117°23′55″.

(b) The regulations. (1) The area is reserved exclusively for use by vessels owned or operated by the Federal Government. Permission to enter the area must be obtained from the enforcing agency.

(2) The regulations in this section shall be enforced by the Commanding General, U.S. Marine Corps Base, Camp Pendleton, California, or such agencies as he may designate.

[28 FR 13784, Dec. 19, 1963. Redesignated at 50 FR 42696, Oct. 22, 1985]

§ 334.920 Pacific Ocean off the east coast of San Clemente Island, Calif.; naval restricted area.

(a) The area. The waters of the Pacific Ocean within an area extending easterly from the east coast of San Clemente Island, California, described as follows: The northerly boundary to be a continuation, to seaward of the existing southerly boundary of the restricted anchorage area, as described in 110.218 of this chapter, to latitude 33°00.3′ N., longitude 118°31.1′ W.; thence to latitude 32°58.6′ N., longitude 118°30.0′ W.; thence to latitude 32°57.9′ N., longitude 118°31.3′ W on the shoreline; thence northerly along the shoreline to the point of beginning.

(b) The regulations. (1) No person or vessels, other than Naval Ordnance Test Station craft, and those cleared for entry by the Naval Ordnance Test Station, shall enter the area at any time except in an emergency, proceeding with extreme caution.

(2) Dredging, dragging, seining or other fishing operations within these boundaries are prohibited.

(3) No seaplanes, other than those approved for entry by Naval Ordnance Test Station, may enter the area.

(4) The regulations in this section shall be enforced by security personnel attached to the U.S. Naval Ordnance Test Station, China Lake, California, and by such agencies as may be designated by the Commandant, Eleventh Naval District, San Diego, California.

[23 FR 2098, Mar. 29, 1958, as amended at 48 FR 6708, Feb. 15, 1983; 48 FR 8273, Feb. 28, 1983. Redesignated at 50 FR 42696, Oct. 22, 1985, as amended at 62 FR 17556, Apr. 10, 1997]

§ 334.921 Pacific Ocean at San Clemente Island, Calif.; naval restricted area.

(a) The area. All waters between the northern and southern boundaries of the area known as West Cove seaward approximately four miles. The northern boundary is defined by the coordinates:

33°00′52″ N. 118°36′18″ W. 32°59′30″ N. 118°37′30″ W. 32°59′20″ N. 118°38′38″ W.

The southern boundary is defined by the coordinates:

33°00′40″ N. 118°35′27″ W. 32°58′30″ N. 118°36′40″ W. 32°57′45″ N. 118°38′38″ W.

(b) The regulation. (1) The use of this area for anchorage is prohibited to all craft at all times.

(2) The regulations in this section shall be enforced by the Commander, Naval Base, San Diego, and such agencies as he/she shall designate.

[50 FR 50297, Dec. 10, 1985]

§ 334.930 Anaheim Bay Harbor, Calif.; Naval Weapons Station, Seal Beach.

(a) The restricted area. The water of Anaheim Bay Harbor between the east and west jetties at the United States Naval Weapons Station, Seal Beach, California, and the contiguous tidal channel and basin as far east as the Anaheim Bay bridge.

(b) The regulation. (1) The authority of the Naval Weapons Station Commanding Officer in this area extends to restricting and disallowing the navigating or anchorage of craft during such times as the Commanding Officer determines that considerations of national security or safety warrant such action(s).

(2) All craft authorized transit of this area shall stay within the limits of the entrance channel in the Outer Harbor, and confine their movement to within the limits of the marked small craft channel at the southern portion of the Inner Harbor.

(3) Recreational craft, such as water skis, jet skis (personal water craft), row boats, canoes, kayaks, wind surfers, sail boards, surf boards, etc., and any activity involving persons in the water, are specifically prohibited within the restricted area.

(4) Boats unable to throttle down or to maintain steerage way at 5 miles per hour speed shall proceed at the minimum speed consistent with seamanship in an area regularly subject to waterborne explosive handling operations. In case of doubt, boat operators of inbound boats will remain in the west end of the basin and outbound boats in the east end of the basin until informed by a representative of the Naval Weapons Station or U.S. Coast Guard of the completion of the waterborne explosive handling hazard.

(5) Smoking, open flames and barbecues in boats are prohibited during the transit of this area.

(6) Nothing in the regulations in this section shall be construed as relieving the owner or persons in command of any vessels or plant from the penalties of the law for obstructing navigation or for not complying with the navigation laws in regard to lights or signals or for otherwise violating law.

(7) All vessel operators shall heed and obey all posted signs and/or instructions issued by security personnel of the U.S. Naval Weapons Station.

(8) The regulations in this section shall be enforced by the Commanding Officer, U.S. Naval Weapons Station, Seal Beach, California, and such agencies as he/she may designate. For clarification or other information, the U.S. Naval Weapons Station Command Duty Officer should be contacted at (213) 594-7101.

[53 FR 6942, Mar. 3, 1988, as amended at 62 FR 17556, Apr. 10, 1997]

§ 334.938 Federal Correctional Institution, Terminal Island, San Pedro Bay, California; restricted area.

(a) The area. The waters of San Pedro Bay on the east side of Reservation Point extending 150 feet (50 yards), from the Federal Correctional Institution fence along the shore to the following stations:

Station | Latitude | Longitude

1 | 33°43′45.5″ N | 118°16′2.0″ W

2 | 33°43′37.0″ N | 118°15′58.0″ W

3 | 33°43′27.5″ N | 118°15′54.5″ W

The stations will be marked by three special purpose buoys (white with an orange diamond in the center).

(b) The regulations. No person or vessel of any kind shall enter, navigate, anchor or moor within the restricted area without first obtaining the permission of the Warden, Federal Correctional Institution, Terminal Island. The regulations in this section shall be enforced by the U.S. Coast Guard, the Warden of the Federal Correctional Institution, Terminal Island, and such agencies and he/she may designate.

[57 FR 58098, Dec. 8, 1992; 58 FR 42237, Aug. 9, 1993, as amended at 62 FR 17556, Apr. 10, 1997]

§ 334.940 Pacific Ocean in vicinity of San Pedro, Calif.; practice firing range for U.S. Army Reserve, National Guard, and Coast Guard units.

(a) The danger zone. (1) [Reserved]

(2) Zone B. An area extending southwest and northwest from Point Vicente, described as follows: Beginning at Point Vicente Light, latitude 33°44′30″, longitude 118°24′36″; thence southwesterly to latitude 33°43′42″, longitude 118°25′24″; thence northwesterly to latitude 33°46′30″, longitude 118°27′06″; thence southeasterly to the shore, latitude 33°44′54″, longitude 118°24′42″; and thence southerly along the shore to the point of beginning.

(b) The regulations. (1) Intermittent firing may take place in the danger zone on any day from sunrise to sunset.

(2) Except as otherwise provided in this paragraph, the danger zone will be open to fishing and general navigation. When firing is not scheduled the danger zone may be occupied without restriction. When firing is in progress safety observers will be maintained to warn all vessels. Notice to vacate the area, or to stop at the boundaries, will be given by siren, patrol vessel, or other effective means, and such notice shall be promptly obeyed. All vessels permitted to enter the danger zone during a firing period, other than those owned by and operated by or under the direction of the U.S. Government, shall proceed across the area by the most direct route and clear the area with the greatest possible dispatch. No person shall enter the water and no vessel, fishing boat, or recreational craft shall anchor in the danger zone during an actual firing period.

(3) Nothing in this section shall be construed as relieving the owner or person in charge of a vessel from any penalties for obstructing navigation, or for obstructing or interfering with range lights, or for not complying with the navigation laws in regard to lights and fog signals, or for otherwise violating any law or regulations.

(4) The regulations in this section shall be enforced by the Commanding Officer, Fort MacArthur, California, and such agencies as he may designate.

[19 FR 3795, June 22, 1954, as amended at 27 FR 2465, Mar. 15, 1962. Redesignated at 50 FR 42696, Oct. 22, 1985, as amended at 62 FR 17556, Apr. 10, 1997]

§ 334.950 Pacific Ocean at San Clemente Island, California; Navy shore bombardment areas.

(a) The danger zones. (1) The waters of the Pacific Ocean within an area beginning at China Point Light; extending in a direction of 181 degrees true, 2.0 nautical miles; thence 072.5 degrees true, 5.375 nautical miles; thence 313 degrees true to Pyramid Head Light.

(2) The waters of the Pacific Ocean within an area beginning at China Point Light; extending in a direction of 181 degrees true, 2.0 nautical miles; thence 303 degrees true, 5.35 nautical miles; thence 040.4 degrees true to the beach.

(3) The waters of the Pacific Ocean within an area beginning at Pyramid Head Light; extending in a direction of 133 degrees true, 2.0 nautical miles; thence 024 degrees true, 2.14 nautical miles, thence 313 degrees true, 7.6 nautical miles; thence 220 degrees true to the beach.

(b) The regulations. (1) All persons and all vessels shall promptly vacate the areas when ordered to do so by the Navy or the Coast Guard. Persons and vessels shall not enter the areas during periods scheduled for firing. These areas are used for various surface and air gunnery and aerial bombing exercises by the United States Navy, Coast Guard and Marine Corps. Hazardous conditions exist during shore bombardment by naval ships in the area seaward of that described in paragraphs (a)(1) and (a)(2) of this section between the firing vessel and the shore. The area described in paragraph (a)(3) of this section is hazardous due to the possibility of rounds landing in the waters east of San Clemente Island.

(2) All persons in the area are warned that unexploded ordinance exists within the shore bombardment area on San Clemente Island and in the surrounding waters. All persons should exercise extreme caution when operating in the area.

(3) Information about scheduled exercises will be published in the Local Notice to Mariners and also may be obtained by calling the shore bombardment area scheduler at (619) 437-2231. Vessels in the vicinity of San Clemente Island may obtain information on the status of the range by contacting the Navy Observation Post by marine radio on channel 16. However, the Navy Observation Post is normally manned only during firing exercises. In addition, since the Navy Observation Post may not be able to receive radio transmissions or answer a vessel calling from the area described in paragraph (A)(3) of this section due to interference from the land mass, it is recommended that callers position their craft for line-of-sight transmission with the Navy Observation Posts near Pyramid Cove prior to assuming that the range is not in use.

(4) Except in an emergency, no vessel shall anchor in these areas without first obtaining permission from the Commander, Naval Base, San Diego or from the senior officer present in the area who may grant permission to anchor not exceeding the period of time that he, himself, is authorized to remain there. The senior officer present shall advise the Commander, Naval Base, San Diego when and to whom a berth is assigned.

(5) The regulations in this section shall be enforced by the Commander, Naval Base, San Diego, and such agencies as he/she shall designate.

[55 FR 30907, July 30, 1990, as amended at 62 FR 17556, Apr. 10, 1997]

§ 334.960 Pacific Ocean, San Clemente Island, Calif.; naval danger zone off West Cove.

(a) The danger zone. The waters of the Pacific Ocean in an area about one-half mile off the west coast of San Clemente Island basically outlined as follows:

Latitude | Longitude

33°00′40″ | 118°35′45″

32°57′40″ | 118°34′25″

32°57′10″ | 118°35′40″

33°00′10″ | 118°37′00″

33°00′40″ | 118°35′45″

(b) The regulations. (1) Intermittent firing may take place in the danger zone on any day from 8:00 a.m. until 1:00 p.m.

(2) Except as otherwise provided in this section, the danger zone will be open to fishing and general navigation.

(3) The operations officer, Naval Ordnance Test Station, Pasadena Annex, Pasadena, California, will announce firing schedules. Each week, public notices will be issued giving advance firing schedules. Such notices will appear in the local newspapers and in local “Notice to Mariners” and “Notice to Airmen.” For the benefit of the fishermen and small-craft operators, announcements will be made on the marine radio.

(4) When a scheduled firing is about to be undertaken, fishing boats and other small craft will be contacted by surface patrol boats or aircraft equipped with a loudspeaker system. When so notified, all persons and vessels shall leave the area immediately by the shortest route. Upon completion of firing or if the scheduled firing is cancelled for any reason, fishermen and small-boat operators will be notified as far in advance as possible by Marine Radio Broadcast.

(5) The regulations in this section shall be enforced by security personnel attached to the Naval Ordnance Test Station, Pasadena Annex, and by such agencies as may be designated by the Commandant, Eleventh Naval District, San Diego.

[27 FR 6829, July 19, 1962. Redesignated at 50 FR 42696, Oct. 22, 1985, as amended at 62 FR 17557, Apr. 10, 1997; 62 FR 24034, May 2, 1997]

§ 334.961 Pacific Ocean, San Clemente Island, California, naval danger zone off the northwest shore.

(a) The danger zone: The waters of the Pacific Ocean adjacent to San Clemente Island, California, bounded by the following coordinates and San Clemente Island:

Point A—33°01′38″ N 118°36′20″ W Point B—33°01′11″ N 118°37′25″ W Point C—33°00′11″ N 118°37′00″ W Point D—33°00′05″ N 118°38′53″ W Point E—33°02′55″ N 118°39′05″ W Point F—33°04′25″ N 118°37′41″ W Point G—33°02′02.5″ N 118°35′53″ W

(b) The regulations: (1) No person shall enter this area during closure periods unless authorized to do so by the enforcing agency. No vessel or other craft, except vessels of the U.S. Government or vessels duly authorized by the enforcing agency shall enter this area during closure periods.

(2) The regulations in this section shall be enforced by the commander, Naval Base, San Diego, California, and such agencies as he/she shall designate.

[55 FR 41522, Oct. 12, 1990, as amended at 62 FR 17557, Apr. 10, 1997]

§ 334.980 Pacific Ocean, around San Nicholas Island, Calif., naval restricted area.

(a) The area. (1) Perimeter (restricted). The waters of the Pacific Ocean around San Nicholas Island, Calif., extending about 3 miles seaward from the shoreline, described as follows:

Latitude | Longitude

Point A | 33°10′10″ | 119°24′20″

Point C | 33°10′10″ | 119°31′10″

Point D | 33°12′00″ | 119°35′30″

Point E | 33°14′20″ | 119°37′40″

Point F | 33°16′40″ | 119°38′10″

Point G | 33°19′10″ | 119°37′10″

Point I | 33°20′10″ | 119°31′10″

Point K | 33°17′40″ | 119°24′50″

Point L | 33°13′50″ | 119°21′50″

(2) Sections of area.

(i) ALPHA section is the northerly section of the area, and is described as follows:

Latitude | Longitude

Point H | 33°20′01″ | 119°32′02″

Point I | 33°20′10″ | 119°31′10″

Point K | 33°17′40″ | 119°24′50″

Point L | 33°13′50″ | 119°21′50″

Point O | 33°13′50″ | 119°26′02″

Thence northwesterly along shoreline to Point N

Point N | 33°17′04″ | 119°32′02″

Point H | 33°20′01″ | 119°32′02″

(ii) BRAVO section is the westerly section of the area, and is described as follows:

Latitude | Longitude

Point N | 33°17′04″ | 119°32′02″

Thence westerly, southerly and easterly along the shoreline to Point M

Point M | 33°13′10″ | 119°29′40″

Point B | 33°10′10″ | 119°29′40″

Point C | 33°10′10″ | 119°31′10″

Point D | 33°12′00″ | 119°35′30″

Point E | 33°14′20″ | 119°37′40″

Point F | 33°16′40″ | 119°38′10″

Point G | 33°19′10″ | 119°37′10″

Point H | 33°20′01″ | 119°32′02″

Point N | 33°17′04″ | 119°32′02″

(iii) CHARLIE section is the southerly section of the area, and is described as follows:

Latitude | Longitude

Point L | 33°13′50″ | 119°21′50″

Point O | 33°13′50″ | 119°26′02″

Thence southerly and westerly along the shoreline to Point M

Point M | 33°13′10″ | 119°29′40″

Point B | 33°10′10″ | 119°29′40″

Point A | 33°10′10″ | 119°24′20″

Point L | 33°13′50″ | 119°21′50″

(b) The regulations. (1) Except during closure periods or as otherwise provided in this section, the restricted area will be open to all vessels.

(2) Boats must remain at least 300 yards from the shoreline of San Nicolas Island at all times. Nothing in this provision shall be construed as authorization to anchor within 300 yards or to land on San Nicolas Island, except in an emergency.

(3) No person, vessel or other craft shall enter the restricted area or designated section(s) during closure periods unless authorized to do so by the Commanding Officer, Naval Base Ventura County or the Officer in Charge, San Nicolas Island.

(4) Submarine cables within the restricted area post a risk to the equipment of vessels engaged in dredging, dragging, seining, anchoring and other bottom contact operations. Appropriate care must be taken to avoid damage.

(5) Closure periods. Notice that the restricted area or section(s) ALPHA, BRAVO, or CHARLIE are closed to entry shall be given by radio broadcast Monday through Friday at 0900 and 1200 on 2638 kHz and 2738 kHz or by contacting “PLEAD CONTROL” on VHF-FM radio channel 11 or 16. Closure information may also be requested by telephone between 0600 and 1800 Monday through Friday at (805) 989-8841 or via recorded message at (805) 989-1470.

(6) The regulations in this section shall be enforced by personnel attached to Naval Base Ventura County, Point Mugu, Calif., and by such agencies as may be designated by the Commandant, 11th Naval District, San Diego, Calif.

[79 FR 18451, Apr. 2, 2014]

§ 334.990 Long Beach Harbor, Calif.; naval restricted area.

(a) The area. All the waters between the Navy mole and Terminal Island to the westward of longitude 118°13′10″.

(b) The regulations. (1) The area is reserved exclusively for use by naval vessels. Permission for any person or vessel to enter the area must be obtained from the enforcing agency.

(2) The regulations in this section shall be enforced by the Commander, U.S. Naval Base Los Angeles, Long Beach, California, and such agencies as he may designate.

[19 FR 891, Feb. 17, 1954, as amended at 27 FR 12368, Dec. 13, 1962. Redesignated at 50 FR 42696, Oct. 22, 1985, as amended at 62 FR 17557, Apr. 10, 1997]

§ 334.1010 San Francisco Bay in vicinity of Hunters Point; naval restricted area.

(a) The area. Bounded by the shore of the San Francisco Naval Shipyard and the following lines: Beginning at a point on the northerly shore of the Shipyard bearing 292°40′, 950 yards, from Hunters Point Light; thence 35°27′, 730 yards to the U.S. Pierhead Line; thence 142°55′, 1,300 yards, along the Pierhead Line; thence 180°, 2,450 yards, to the San Francisco-San Mateo County Line; thence 270°, 430 yards, along the County Line; thence 305°27′, 1,313 yards, to and along the southwesterly side of South Basin; and thence due north, 413 yards, to the southwesterly shore of the Shipyard.

Note:

All bearings in this section are referred to true meridian.

(b) The regulations. No person may enter the area and no vessel or other craft, except vessels of the U.S. Government or vessels duly authorized by the Commander, San Francisco Naval Shipyard, shall navigate, anchor or moor in this area.

[26 FR 11201, Nov. 28, 1961. Redesignated at 50 FR 42696, Oct. 22, 1985; 51 FR 25198, July 11, 1986, as amended at 62 FR 17557, Apr. 10, 1997]

§ 334.1020 San Francisco Bay and Oakland Inner Harbor; restricted areas in vicinity of Naval Air Station, Alameda.

(a) The areas. (1) The waters of San Francisco Bay bounded by the shore of Naval Air Station, Alameda, and a line beginning at a point on the north side of Oakland Inner Harbor Entrance Channel at approximately: 37°47′57″ N, 122°19′43″ W; WSW to 37°47′53″ N, 122°19′57″ W; SE to 37°47′46″ N, 122°20′00″ W; SE to 37°47′41″ N, 122°19′52″ W; S to 37°46′49″ N, 122°19′52″ W; E to 37°46′49″ N, 122°19′28″ W; SE to 37°46′46″ N, 122°19′21″ W; E to 37°46′45″ N, 122°19′05″ W; SE to 37°46′38″ N, 122°18′59″ W; SSW to 37°46′18″ N, 122°19′05″ W; SE to 37°46′00″ N, 122°18′28″ W; E to 37°46′00″ N, 122°18′22″ W; N to 37°46′03″ N, 122°18′22″ W; E to 37°46′00″ N, 122°17′28″ W; NE to 37°46′03″ N, 122°17′26″ W; where it joins the Naval Air Station, Alameda, Breakwater.

(2) The waters of the entrance channel to Oakland Inner Harbor (San Antonio Estuary) between the westerly end of the rock wall on the south side of the channel and the easterly boundary of the Naval Air Station.

(b) The regulations. (1) No person shall enter this area and no vessel or other craft, except vessels of the U.S. Government or vessels duly authorized by the Commanding Officer, U.S. Naval Air Station, Alameda, California, shall navigate, anchor or moor in the area described in paragraph (a)(1) of this section.

(2) No person shall enter this area and no vessel without special authorization of the Commander, Twelfth Coast Guard District, shall lie, anchor or moor in the area described in paragraph (a)(2) of this section. Vessels may proceed through the entrance channel in process of ordinary navigation or may moor alongside wharves on the Oakland side of the channel.

[26 FR 11201, Nov. 28, 1961, as amended at 27 FR 10484, Oct. 27, 1962. Redesignated at 50 FR 42696, Oct. 22, 1985, and amended at 51 FR 25198, July 11, 1986; 55 FR 3056, Jan. 30, 1990; 62 FR 17557, Apr. 10, 1997]

§ 334.1030 Oakland Inner Harbor adjacent to Alameda Facility, Naval Supply Center, Oakland; restricted area.

(a) The area. Within 100 feet of the Alameda Facility wharf.

(b) The regulations. No persons and no vessels or other craft, except vessels of the United States Government or vessels duly authorized by the Commanding Officer, Naval Supply Center, Oakland, shall enter this area.

[26 FR 11201, Nov. 28, 1961, as amended at 31 FR 6590, May 3, 1966. Redesignated at 50 FR 42696, Oct. 22, 1985; 51 FR 25198, July 11, 1986, as amended at 62 FR 17557, Apr. 10, 1997]

§ 334.1040 Oakland Harbor in vicinity of Naval Supply Center, Oakland; restricted area and navigation.

(a) The area. Bounded by the shore of the Naval Supply Center and the following lines: Beginning at a point on the north shore located at about latitude 37°48′26″, longitude 122°19′34″; thence 225°12′, 290 yards; and thence 173°10′, 620 yards to a point on the south shore at about latitude 37°48′02″, longitude 122°19′39″.

(b) The regulations. (1) No persons and no vessels or other craft, except vessels of the U.S. Government or vessels duly authorized by the Commanding Officer, Naval Supply Center, Oakland, shall enter this area.

(2) All vessels over 1,000 tons displacement, bound for the Naval Supply Center, Oakland, shall use a qualified pilot regularly licensed for the waters of Oakland Harbor.

[26 FR 11201, Nov. 28, 1961, as amended at 31 FR 6590, May 3, 1966. Redesignated at 50 FR 42696, Oct. 22, 1985; 51 FR 25198, July 11, 1986, as amended at 62 FR 17557, Apr. 10, 1997]

§ 334.1050 Oakland Outer Harbor adjacent to the Military Ocean Terminal, Bay Area, Pier No. 8 (Port of Oakland Berth No. 10); restricted area.

(a) The area. Within 100 feet of the pier.

(b) The regulations. No persons and no vessels or other craft, except vessels of the U.S. Government or vessels duly authorized by the Commander, Oakland Army Base, shall enter this area.

[26 FR 11201, Nov. 28, 1961, as amended at 31 FR 6590, May 3, 1966. Redesignated at 50 FR 42696, Oct. 22, 1985; 51 FR 25198, July 11, 1986, as amended at 62 FR 17557, Apr. 10, 1997]

§ 334.1060 Oakland Outer Harbor adjacent to the Oakland Army Base; restricted area.

(a) The area. Within 100 feet of the wharves, piers or shore.

(b) The regulations. No persons and no vessels or other craft, except vessels of the U.S. Government or vessels duly authorized by the Commander, Oakland Army Base, shall enter this area.

[26 FR 11201, Nov. 28, 1961, as amended at 31 FR 6590, May 3, 1966. Redesignated at 50 FR 42696, Oct. 22, 1985; 51 FR 25198, July 11, 1986, as amended at 62 FR 17557, Apr. 10, 1997]

§ 334.1065 U.S. Coast Guard Station, San Francisco Bay, Yerba Buena Island, San Francisco Bay, California; restricted area.

(a) The area. San Francisco Bay on the east side of Yerba Buena Island: From a point along the southeastern shore of Yerba Buena Island at latitude 37°48′27″ North, longitude 122°21′44″ West; east to latitude 37°48′27″ North, longitude 122°21′35″ West; north to latitude 37°48′49″ North, longitude 122°21′35″ West, a point on the northeastern side of Yerba Buena Island.

(b) The regulation. (1) All persons and vessels are prohibited from entering the waters within the Restricted Area for any reason without prior written permission from the Commanding Officer of the Coast Guard Group San Francisco on Yerba Buena Island.

(2) Mooring, anchoring, fishing, transit and/or swimming shall not be allowed within the Restricted Area without prior written permission from the Commanding Officer of the Coast Guard Group San Francisco on Yerba Buena Island.

(c) Enforcement. The regulation in this section shall be enforced by the Commanding Officer of the Coast Guard Group San Francisco on Yerba Buena Island, and such agencies and persons as he/she shall designate.

[69 FR 20547, Apr. 16, 2004]

§ 334.1070 San Francisco Bay between Treasure Island and Yerba Buena Island; naval restricted area.

(a) The area. All the water of the cove bounded by the south shore of Treasure Island, the north shore of Yerba Buena Island, and the connecting causeway, west of a line extending from the southeast corner of the most southerly of the four finger piers along the east side of Treasure Island, at about latitude 37°49′11″, longitude 122°21′40″, approximately 153°20′ to the northeasterly point of Yerba Buena Island, at about latitude 37°48′55″, longitude 122°21′30″.

(b) The regulations. No person and no vessel or other craft, except vessels owned and operated by the U.S. Government or vessels duly authorized by the Commanding Officer, Naval Station, Treasure Island, shall enter the restricted area.

[26 FR 11201, Nov. 28, 1961. Redesignated at 50 FR 42696, Oct. 22, 1985; 51 FR 25198, July 11, 1986, as amended at 62 FR 17557, Apr. 10, 1997]

§ 334.1080 San Francisco Bay adjacent to northeast corner of Treasure Island; naval restricted area.

(a) The area. Beginning at the intersection of Pier 21 and the bulkhead line, thence northwesterly along the bulkhead to the northernmost point of Treasure Island; thence 288° true, 290 yards; thence 26° true, 475 yards; thence 115° 30′ true, 520 yards; thence 152° true, 500 yards to Pier 21; thence along the pier to the point of beginning.

(b) The regulations. No person shall enter the restricted area. No vessels, except those engaged in naval operations, shall lie, anchor, moor or unnecessarily delay in the area. Vessels may pass through the area in the process of ordinary navigation except as directed by patrol boats. The regulations in this paragraph shall be enforced by the Commandant, Twelfth Naval District, and such agencies as he may designate.

[26 FR 11201, Nov. 28, 1961. Redesignated at 50 FR 42696, Oct. 22, 1985; 51 FR 25198, July 11, 1986, as amended at 62 FR 17557, Apr. 10, 1997]

§ 334.1090 San Francisco Bay in vicinity of the NSC Fuel Department, Point Molate restricted area.

(a) The area. Bounded by the easterly shore of upper San Francisco Bay and the following lines: Beginning at a point on shore bearing 17° 800 yards, from “Tree” at Molate Point thence 270°, 870 yards; thence 189° 1,100 yards; and thence 123° to the shore.

(b) The regulations. Persons and vessels not operating under supervision of the local military or naval authority or public vessels of the United States, shall not enter this area except by specific permission of the Commanding Officer, Naval Supply Center.

[26 FR 11201, Nov. 28, 1961, as amended at 42 FR 17120, Mar. 31, 1977. Redesignated at 50 FR 42696, Oct. 22, 1985; 51 FR 25198, July 11, 1986, as amended at 62 FR 17558, Apr. 10, 1997]

§ 334.1100 San Pablo Bay, Carquinez Strait, and Mare Island Strait in vicinity of U.S. Naval Shipyard, Mare Island; restricted area.

(a) The area. The waters of San Pablo Bay, Carquinez Strait, and Mare Island Strait, within 100 yards of the shore of that part of the Navy Yard, Mare Island, south of the causeway between the City of Vallejo and Mare Island and extending continuously therefrom southeasterly, southwesterly, and northwesterly around the Navy Yard to its northwesterly limit on the waters of San Pablo Bay, and the waters within 50 yards of any part of the berthing piers at the Navy Yard.

(b) The regulations. No persons shall enter this area and no vessels or other craft, except vessels of the U.S. Government or vessels duly authorized by the Commander, Mare Island Naval Shipyard, Vallejo, California, shall navigate, anchor or moor in this area.

[26 FR 11201, Nov. 28, 1961, as amended at 27 FR 10484, Oct. 27, 1962. Redesignated at 50 FR 42696, Oct. 22, 1985; 51 FR 25198, July 11, 1986, as amended at 62 FR 17558, Apr. 10, 1997]

§ 334.1110 Military Ocean Terminal Concord; restricted area.

(a) The area. (1) Beginning at point A on the shore west of the mouth of a small slough (known as Hastings Slough) and passing east of buoy R “6” bearing 60°30′ for 2,860 yards, through Point B on the eastern end of the two Seal Islands, to point C on the southern edge of the Roe Island Channel near buoy R “16A”; thence in a generally easterly direction running along the southern edge of the Roe Island Channel, Port Chicago Reach and Middle Ground West Reach (points D and E) to point F directly north of the eastern shore boundary (point G); thence 180° to point G on the shore line; thence following the high water shore line in a general westerly direction to the point of beginning. The coordinates for the points in paragraph (a)(1) of this section are provided in Table 1.

Table 1 to Paragraph (a)(1)

Latitude | Longitude

Point A (shoreline) | 38.0513 | −122.0576

Point B | 38.0579 | −122.0430

Point C | 38.0630 | −122.0307

Point D | 38.0611 | −122.0205

Point E | 38.0593 | −122.0010

Point F | 38.0594 | −121.9882

Point G (shoreline) | 38.0521 | −121.9882

(2) The datum for these coordinates is NAD-83.

(b) The regulations. (1) No person, vessel, watercraft, conveyance or device shall enter or cause to enter or remain in this area. No person shall refuse or fail to remove any person or property in his custody or under his control from this area upon the request of the Commanding Officer of Military Ocean Terminal Concord or his/her authorized representative.

(2) The regulations in this section shall be enforced by the Commanding Officer, Military Ocean Terminal Concord, and such agencies as he/she shall designate.

[26 FR 11201, Nov. 28, 1961, as amended at 42 FR 17120, Mar. 31, 1977. Redesignated at 50 FR 42696, Oct. 22, 1985, as amended at 61 FR 43970, Aug. 27, 1996; 83 FR 64026, Dec. 13, 2018; 89 FR 20319, Mar. 22, 2024]

§ 334.1120 Pacific Ocean in the vicinity of Point Mugu, Calif.; naval small arms firing range.

(a) The danger zone. A triangular area extending westerly into the waters of the Pacific Ocean from a point on the beach north of Point Mugu, California, described as follows: Beginning at latitude 34°05′32″, longitude 119°03′57″; thence southwesterly approximately 4,000 yards to latitude 34°04′22″, longitude 119°05′55″; thence northwesterly approximately 1,500 yards to latitude 34°05′01″, longitude 119°06′17″; thence northeasterly to the point of beginning.

(b) The regulations. (1) Range firing will normally take place between 6 a.m. and 6 p.m., Thursday through Monday, and between 6 a.m. and 11:30 p.m., Tuesday and Wednesday of each week. Within the above periods, firing will be conducted as determined by the Commanding Officer, U.S. Naval Construction Battalion Center, Port Hueneme, Calif.

(2) Except as otherwise provided in this section, the danger zone will be open to fishing and general navigation.

(3) The Commanding Officer, U.S. Naval Construction Battalion Center, Port Hueneme, California, will announce firing schedules. Each week, public notices will be issued giving advance firing schedules. Such notices will appear in the local newspapers and in local “Notice to Mariners,” and “Notice to Airmen.” For the benefit of fishermen and smallcraft operators, announcements will be made on the marine radio.

(4) When a scheduled firing is about to be undertaken or is in progress, a large red flag will be displayed from the control tower situated at latitude 34°05′32″, longitude 119°03′57″, so as to be clearly visible for a distance of at least three (3) miles offshore. Safety observers will be on duty at all times when the warning flag is being displayed from the tower. Upon completion of firing, or if the scheduled firing is canceled for any reason, fishermen and small-boat operators will be notified as far in advance as possible by Marine Radio Broadcast.

(5) Persons, vessels or other craft shall not enter or remain in the danger zone when the warning flag is being displayed unless authorized to do so by the range officer in the control tower.

(6) The regulations in this section shall be enforced by the Commandant, Eleventh Naval District, San Diego, California, and such agencies as he may designate.

[28 FR 4785, May 14, 1963; 29 FR 1318, Jan. 25, 1964, as amended at 32 FR 5834, Apr. 12, 1967. Redesignated at 50 FR 42696, Oct. 22, 1985, as amended at 62 FR 17558, Apr. 10, 1997]

§ 334.1125 Pacific Ocean Naval Air Weapons Station, Point Mugu, Small Arms Range, Ventura County, California; danger zone.

(a) The area. A triangular area extending southerly into the waters of the Pacific Ocean from a point on the beach north of Point Mugu, California, as follows:

Station | Latitude | Longitude

1 | 34°05′48″ N | 119°07′03″ W.

2 | 34°03′20″ N | 119°08′16″ W.

3 | 34°03′11″ N | 119°07′39″ W.

4 | 34°05′42″ N | 119°06′59″ W.

5 | 34°05′41″ N | 119°06′51″ W.

6 | 34°05′45″ N | 119°06′52″ W.

(b) The regulations. (1) Range firing will normally take place between 7 a.m. and 5 p.m. Monday through Friday.

(2) The danger zone may be used at all times for navigation and fishing, except when advance notice of intention to use this area has been given by the enforcing agency by one or more of the following means:

(i) Notice published in Ventura County daily newspaper, at least two days in advance of the date of said use and in the local “Notice to Mariners.”

(ii) Display of red flag from the tower at 34°05′53″ N., 119°06′59″ W; or display of red flashing beacons in the case of night firing.

(iii) Radio broadcast on VHF-FM channel 16.

(iv) Notice to individual craft by visit of United States vessel.

(v) Telephone advice to such fisherman's organizations as may request, in writing, that such advice be given.

(3) Safety observers will be on duty at all times when the range is in use. Upon completion of firings, or if the scheduled firing is canceled for any reason, fishermen and small boat operators will be notified as far in advance as possible by Marine Radio Broadcast.

(4) Persons, vessels or other craft shall not enter or remain in the danger zone when the warning flag or beacon is being displayed unless authorized to do so by the range officer in the control tower.

(5) The regulations in this section shall be enforced by personnel attached to the Naval Air Weapons Station, Point Mugu, California, and by such other agencies as the Commandant, Eleventh Naval District, San Diego, California, may designate.

[62 FR 40278, July 28, 1997]

§ 334.1126 Naval Base Ventura County, Point Mugu, California; restricted area.

(a) The area. The restricted area at Naval Base Ventura County Point Mugu incorporates its shoreline and connects the following points: latitude 34°7′9.9″, longitude 119°9′35.6″ (up-coast shoreline point); latitude 34°7′0.0″, longitude 119°9′46.7″ latitude 34°6′44.9″, longitude 119°9′22.5″; latitude 34°6′30.2″, longitude 119°8′59.0″; latitude 34°6′20.5″, longitude 119°8′46.7″; latitude 34°6′8.4″, longitude 119°8′25.2″; latitude 34°5′53.7″; longitude 119°7′59.5″; latitude 34°5′45.9″, longitude 119°7′41.5″; latitude 34°5′40.1″, longitude 119°7′21.0″; latitude 34°5′33.6″, longitude 119°6′58.1″; latitude 34°5′31.2″, longitude 119°6′37.9″; latitude 34°5′31.0″, longitude 119°6′22.2″; latitude 34°5′32.9″, longitude 119°6′14.4″; latitude; 34°5′44.7″, longitude 119°5′54.0″; latitude 34°5′45.2″, longitude 119°5′43.5″; latitude 34°5′41.0″, longitude 119°5′21.2″; latitude 34°5′42.2″, longitude 119°5′13.3″; latitude 34°5′27.8″, longitude 119°4′49.5″; latitude 34°5′17.9″, longitude 119°4′27.9″; latitude 34°5′5.7″, longitude 119°3′59.90″; latitude; 34°5′17.9″, longitude 119°3′55.4″ (down-coast shoreline point).

(b) The regulation. No vessels may enter the restricted area unless permission is obtained in advance from the Commanding Officer of Naval Base Ventura County. Contact Naval Base Ventura County Security at (805) 989-7907.

(c) Enforcement. The regulation in this section, promulgated by the United States Army Corps of Engineers, shall be enforced by the Commanding Officer of Naval Base Ventura County, and such agencies or persons as he/she may designate.

[69 FR 20546, Apr. 16, 2004]

§ 334.1127 Naval Base Ventura County, Port Hueneme, California; restricted area.

(a) The area. The waters within Port Hueneme Harbor, beginning at the seaward ends of the two Port Hueneme Harbor entrance jetties, with the northwestern entrance jetty end occurring at latitude 34°8′37.0″ N., longitude 119°12′58.8″ W. and the southeastern entrance jetty occurring at latitude 34°8′34.8″ N, longitude 119°12′43.2″ W., and extending northeasterly to the shoreline.

(b) The regulation. No vessels or persons may enter the restricted area unless permission is obtained in advance from the Commanding Officer of Naval Base Ventura County. Commercial vessels that are required to make Advanced Notifications of Arrival shall continue to do so. All vessels must obtain clearance from “Control 1” over marine radio channel 06 VHF-FM prior to crossing the COLREGS (Collision Regulations) demarcation line. Vessels without marine radio capability must obtain clearance in advance by contacting “Control 1” via telephone at (805) 982-3938 prior to crossing the COLREGS demarcation line. The COLREGS demarcation line is defined as a line approximately 1,500 feet in length connecting the seaward limits or ends of the two Port Hueneme Harbor entrance jetties, with the northwestern jetty end occurring at latitude 34°8′37.0″ N., longitude 119°12′58.8″ W., and the southeastern entrance jetty occurring at latitude 34°8′34.8″ N., longitude 119°12′43.2″ W. (NAD83).

(c) Enforcement. The regulation in this section, promulgated by the United States Army Corps of Engineers, shall be enforced by the Commanding Officer of Naval Base Ventura County, and such agencies or persons as he/she may designate.

[69 FR 20545, Apr. 16, 2004]

§ 334.1130 Pacific Ocean, Western Space and Missile Center (WSMC), Vandenberg AFB, Calif.; danger zones.

(a) The Area. (1) The waters of the Pacific Ocean in an area extending seaward from the shoreline a distance of about three nautical miles and basically outlined as follows:

Station | Latitude | Longitude

Point Sal | 34°54′08″ | 120°40′15″

1 | 34°54′08″ | 120°44′00″

2 | 34°52′48″ | 120°44′00″

3 | 34°50′00″ | 120°40′30″

4 | 34°44′50″ | 120°42′15″

5 | 34°41′50″ | 120°40′12″

6 | 34°35′12″ | 120°42′45″

7 | 34°33′00″ | 120°41′05″

8 | 34°30′40″ | 120°37′29″

9 | 34°24′18″ | 120°30′00″

10 | 34°23′34″ | 120°27′05″

11 | 34°24′21″ | 120°24′40″

12 | 34°27′20″ | 120°24′40″

Point Sal | 34°54′08″ | 120°40′15″

(2) The danger area described in paragraph (a)(1) of this section will be divided into zones in order that certain firing tests and operations, whose characteristics as to range and reliability permit, may be conducted without requiring complete evacuation of the entire area. These zones are described as follows:

(i) Zone 1. An area extending seaward about three nautical miles from the shoreline beginning at Point Sal, latitude 34°54′08″, longitude 120°40′15″; thence due west to latitude 34°54′08″, longitude 120°44′00″; thence to latitude 34°52′48″, longitude 120°44′00″; thence to latitude 34°50′00″, longitude 120°40′30″; thence due east to the shoreline at latitude 34°50′00″, longitude 120°36′30″.

(ii) Zone 2. An area extending seaward about three nautical miles from the shoreline beginning at latitude 34°50′00″, longitude 120°36′30″; thence due west to latitude 34°50′00″, longitude 120°40′30″, thence to latitude 34°45′28″, longitude 120°42′05″; thence due east to the shoreline at Purisima Point, latitude 34°45′28″, longitude 120°38′15″.

(iii) Zone 3. An area extending seaward about three nautical miles from the shoreline beginning at Purisima Point latitude 34°45′28″, longitude 120°38′15″; thence due west to latitude 34°45′28″, longitude 120°42′05″; thence to latitude 34°44′50″, longitude 120°42′15″; thence to latitude 34°41′50″, longitude 120°40′12″; thence due east to the shoreline at the mouth of the Santa Ynez River, latitude 34°41′50″, longitude 120°36′20″.

(iv) Zone 4. An area extending seaward about three nautical miles from the shoreline beginning at the mouth of the Santa Ynez River latitude 34°41′50″, longitude 120°36′20″; thence due west to latitude 34°41′50″, longitude 120°40′12″; thence to latitude 34°35′12″; longitude 120°42′45″; thence latitude 34°34′32″, longitude 120°42′15″, thence due east to the shoreline at Point Arguello, latitude 34°34′32″, longitude 120°39′03″.

(v) Zone 5. An area extending seaward about three nautical miles from the shoreline beginning at Point Arguello, latitude 34°34′32″, longitude 120°39′03″; thence due west to latitude 34°34′32″, longitude 120°42′15″; thence to latitude 34°33′00″, longitude 120°41′05″; thence to latitude 34°30′40″, longitude 120°37′29″; thence due north to the shoreline at latitude 34°33′15″, longitude 120°37′29″.

(vi) Zone 6. An area extending seaward about three nautical miles from the shoreline beginning at latitude 34°33′15″, longitude 120°37′29″; thence due south to latitude 34°30′40″, longitude 120°37′29″; thence due east to the shoreline at latitude 34°30′40″, longitude 120°30′10″.

(vii) Zone 7. An area extending seaward about three nautical miles from the shoreline beginning at latitude 34°30′40″, longitude 120°30′10″; thence due west to latitude 34°30′40″, longitude 120°37′29″; thence to latitude 34°26′56″, longitude 120°33′06″; thence due east to the shoreline at Point Conception, latitude 34°26′56″, longitude 120°28′10″.

(viii) Zone 8. An area extending seaward about three nautical miles from the shoreline beginning at Point Conception, latitude 34°26′56″, longitude 120°28′10″; thence due west to latitude 34°26′56″, longitude 120°33′06″; thence to latitude 34°24′18″, longitude 120°30′00″; thence to latitude 34°23′34″, longitude 120°27′05″; thence shoreward to Point Conception, latitude 34°26′56″, longitude 120°28′10″.

(ix) Zone 9. An area extending seaward about three nautical miles from the shoreline beginning at Point Conception, latitude 34°26′56″, longitude 120°28′10″; thence seaward to latitude 34°23′34″, longitude 120°27′05″; thence to latitude 34°24′21″, longitude 120°24′40″; thence due north to the shoreline at latitude 34°27′20″, longitude 120°24′40″.

(b) The regulations. (1) Except as prescribed in this section or in other regulations, the danger zone will be open to fishing, location of fixed or movable oil drilling platforms and general navigation without restrictions.

(2) The stopping or loitering by any person or vessel is expressly prohibited within Danger Zone 4, between the mouth of the Santa Ynez River and Point Arguello, unless prior permission is obtained from the Commander, Western Space and Missile Center (WSMC) at Vandenberg AFB, California.

(3) The impacting of missile debris from launch operations will take place in any one or any group of zones in the danger areas at frequent and irregular intervals throughout the year. The Commander, WSMC, will announce in advance, the closure of zones hazarded by missile debris impact. Such advance announcements will appear in the weekly “Notice to Mariners.” For the benefit of fishermen, small craft operators and drilling platform operators, announcements will also be made on radio frequency 2182 kc, 2638 kc, VHF channel 6 (156.30 MHZ), VHF channel 12 (156.60 MHZ), and VHF channel 16 (156.80 MHZ) for daily announcements. Additionally, information will be posted on notice boards located outside Port Control Offices (Harbormasters) at Morro Bay, Port San Luis, Santa Barbara, Ventura, Channel Islands, and Port Hueneme Harbors, and any established harbor of refuge between Santa Barbara and Morro Bay.

(4) All fishing boats, other small craft, drilling platforms and shipping vessels with radios are requested to monitor radio frequency 2182 kc, 2638 kc, VHF channel 6 (156.30 MHZ), VHF channel 12 (156.60 MHZ), or channel 16 (156.80 MHZ) while in these zones for daily announcements of zone closures.

(5) When a scheduled launch operation is about to begin, radio broadcast notifications will be made periodically, starting at least 24 hours in advance. Additional contact may be made by surface patrol boats or aircraft equipped with a loudspeaker system. When so notified, all persons and all vessels shall leave the specified zone or zones immediately by the shortest route.

(6) The Commander, WSMC, will extend full cooperation relating to the public use of the danger area and will fully consider every reasonable request for its use in light of requirements for national security and safety of persons and property.

(7) Where an established harbor of refuge exists, small craft may take shelter for the duration of zone closure.

(8) Fixed or movable oil drilling platforms located in zones identified as hazardous and closed in accordance with this regulation shall cease operations for the duration of the zone closure. The zones shall be closed continuously no longer than 72 hours at any one time. Such notice to evacuate personnel shall be accomplished in accordance with procedures as established by the Commander, WSMC, the U.S. Department of the Interior, Minerals Management Service and the oil industry in the adjacent waters of the outer continental shelf.

(9) No seaplanes, other than those approved by the Commander, WSMC, may enter the danger zones during launch closure periods.

(10) The regulations in this section shall be enforced by personnel attached to WSMC and by such other agencies as may be designated by the Commander, WSMC.

(11) The regulations in this section shall be in effect until further notice. They shall be reviewed again during August 1994.

(33 U.S.C. 1, 3)

[48 FR 19025, Apr. 27, 1983. Redesignated at 50 FR 42696, Oct. 22, 1985, and amended at 54 FR 31142, July 26, 1989; 62 FR 17558, Apr. 10, 1997]

§ 334.1140 Pacific Ocean at San Miguel Island, Calif.; naval danger zone.

(a) The area. The waters around San Miguel Island, extending about 3 miles seaward from the shoreline within the following points:

Latitude (N) | Longitude (W)

Point A | 34°01′32″ | 120°23′17″

Point B | 33°58′48″ | 120°23′17″

Point C | 33°58′48″ | 120°15′00″

Point D | 34°02′50″ | 120°15′00″

Point E | 34°05′45″ | 120°17′25″

Point F | 34°07′00″ | 120°20′05″

Point G | 34°09′18″ | 120°23′17″

Point H | 34°03′09″ | 120°23′17″

(b) Markers. Range markers, as delineated below, are installed at points A and H for navigational purposes for both surface vessels and aircraft:

(1) At point A two triangular markers are installed facing southward, 10 feet in length on each side, with red and white diagonal stripes, each marker mounted atop 80-foot poles spaced 100 yards apart, each pole being placed on the line of longitude 120°23′17″ W. and near the southerly shoreline at latitude 34°01′32″ N. The southernmost marker is 20 feet below the other.

(2) At point H two triangular markers are installed facing true north 10 feet in length on each side, with red and white diagonal stripes, each marker mounted atop 80-foot poles spaced 100 yards apart, each pole being placed on the line of longitude 120°23′17″ W. and near the northwesterly shoreline at latitude 34°03′09″ N. The northernmost marker is 20 feet below the other.

(c) The regulations. (1) Except as prescribed in this section or in other regulations, the danger zone will be open to fishing and general navigation. Bomb drops between designated hours are expected to be intermittent, and when safe to do so, commercial fishing boats and other small craft will be granted permission to proceed through the danger zone. All vessels permitted to enter the zone during a scheduled bomb drop period, other than those owned or operated by the U.S. Government, shall proceed across the zone by the most direct route and clear the area as soon as possible. When bomb drops are not scheduled, the zone may be occupied without restriction.

(2) The anchoring, stopping or loitering by any person, vessel, fishing boat or recreational craft within the danger zone during scheduled firing/drop hours is expressly prohibited.

(3) The bomb drops will take place in the danger zone at frequent and irregular intervals throughout the year. Danger zone usage demands are identified in the Eleventh Coast Guard District, “Local Notice of Mariners.” Announcements will also be made on marine radio channel 16, at 0800 local time, 1200 local time and/or 1 hour prior to bomb drop operations. Status of the zone and/or permission to enter, may be requested by calling “Plead Control” on marine channel 16 or by calling the Pacific Missile Test Center (PMTC) on telephone number (805) 982-8280 or 982-8841.

(4) The Commander, PMTC will extend full cooperation relating to the public use of the danger zone area and will fully consider every reasonable request for its use in light of requirements for national security and safety of persons and property.

(5) No seaplanes, other than those approved for entry by the Commander, PMTC, may enter the danger zone during firing periods.

(6) Landing by any vessel or going ashore by any person on San Miguel Island is specifically prohibited without prior permission of the Superintendent, Channel Islands National Park. Applications for such permission should be made to: Superintendent, Channel Islands National Park, 1699 Anchors Way Drive, Ventura, California 93003.

(7) The regulations in this section shall be enforced by personnel attached to the Pacific Missile Test Center, Point Mugu, California, and by such other agencies as the Commandant, 11th Naval District, San Diego, California, may designate.

(8) The regulations in this section shall be in effect until further notice. They shall be reviewed in 1986.

(Sec. 7, 40 Stat. 266, Chap. XIX, 40 Stat. 892; 33 U.S.C. 1, 3)

[31 FR 816, Jan. 21, 1966, as amended at 47 FR 4990, Feb. 3, 1982. Redesignated at 50 FR 42696, Oct. 22, 1985, as amended at 62 FR 17558, Apr. 10, 1997]

§ 334.1150 Monterey Bay, Calif.

(a) Firing range, Fort Ord, Calif.—(1) The danger zone. (i) A rectangular area in Monterey Bay, the southerly limit of which is an extension seaward of the southerly line of the Fort Ord Military Reservation boundary and bears 307° true, 8,000 yards from a point on the shore at latitude 36°37′47″, longitude 121°50′28″, and the northerly limit of which is a line bearing 307° true, 8,000 yards, from a point on the shore at latitude 36°41′57″, longitude 121°48′30″, opposite Marina, Monterey County, California. The seaward boundary is a straight line joining the outer ends of the southerly and the northerly boundaries at the 8,000 yard range and is approximately parallel to the shore.

(ii) The danger zone is divided into a short range area, extending seaward from the shore a distance of 5,000 yards measured along the southerly and northerly boundaries, and a long range area embracing the entire danger zone.

(2) The regulations. (i) The 5,000 yard short range is prohibited to all persons, vessels and craft, except those authorized by the enforcing agency, each week, between dawn and midnight from Monday through Friday and between dawn and dusk on Saturday and Sunday.

(ii) The area between the 5,000 yard short range and the 8,000 yard seaward boundary of the danger zone may be used at all times for navigation and fishing, except when advance notice of intention to use this area has been given by the enforcing agency by one or more of the following means.

(a) Notice published in Monterey County and Santa Cruz County daily newspapers, at least two days in advance of the date of said use.

(b) Display of red flags at Indian Head Beach and near the Point Pinos Lighthouse.

(c) Radio Broadcast.

(d) Notice to individual craft by a visit of a U.S. vessel.

(e) Telephone advice to such fishermen's organizations as may request, in writing, that such advice be given.

(iii) The regulations in this paragraph will be enforced by the Commanding General, Fort Ord, California.

(b) Navy mining operations area—(1) The danger zone. Shoreward of a line beginning at the stack at about latitude 36°58′06″, longitude 121°54′06″; thence 230° true, 6.0 miles; thence 140° true, 7.5 miles; thence 50° true to the shore.

(2) The regulations. The danger zone will be used for training in various phases of mine warfare operations. During the period from August 1 to February 15, inclusive, each year, no operations will be carried on which will involve placing any obstructions in the water nor will any operations be carried on at night. During the period from February 16 to July 31, inclusive, each year, operations may be carried on which will involve laying exercise mines and other moored or bottom obstructions. In each case when moored or bottom obstructions are laid a notice to mariners will be issued giving notice of their approximate location within the danger zone and all persons and vessels shall keep clear.

[13 FR 8301, Dec. 24, 1948. Redesignated at 14 FR 4904, Aug. 9, 1949, and amended at 17 FR 4665, May 22, 1952; 19 FR 96, Jan. 7, 1954. Redesignated at 50 FR 42696, Oct. 22, 1985, as amended at 62 FR 17558, Apr. 10, 1997]

§ 334.1160 San Pablo Bay, Calif.; target practice area, Mare Island Naval Shipyard, Vallejo.

(a) The danger zone. A sector in San Pablo Bay adjacent to the westerly shore of Mare Island with a radius of 4,700 yards, centered at a point bearing 316° true, 3,605 yards, from Mare Island Strait Light 1, with limiting true bearings from that center of 266°30′ and 222°.

(b) The regulations. The Commander, Mare Island Naval Shipyard, Vallejo, California, will conduct target practice in the area at intervals of which the public will be duly notified. At such times all persons and vessels shall stay clear.

[13 FR 8302, Dec. 24, 1948. Redesignated at 14 FR 4904, Aug. 9, 1949, and amended at 27 FR 10484, Oct. 27, 1962; 37 FR 9995, May 18, 1972. Redesignated at 50 FR 42696, Oct. 22, 1985, as amended at 62 FR 17558, Apr. 10, 1997]

§ 334.1170 San Pablo Bay, Calif.; gunnery range, Naval Inshore Operations Training Center, Mare Island, Vallejo.

(a) The Danger Zone. A sector in San Pablo Bay delineated by lines joining the following points:

Latitude | Longitude

38°02′08″ | 122°25′17″

38°02′21″ | 122°22′55″

38°05′48″ | 122°19′34″

38°07′46″ | 122°23′23″

Note:

The danger zone shall be used until September 30, 1982, after which it shall be subject to review to determine the further need thereof.

(b) The regulations. The Commanding Officer, Coastal River Division Eleven, Department of the Navy, Mare Island, Vallejo, California, will conduct gunnery practice in the area during the period April 1 through September 30, between the hours of 10 a.m. and 3 p.m. on the first Wednesday of each month and the third full weekend (Saturday and Sunday) of June. No persons or vessels shall enter or remain in the danger zone during the above stated periods except those persons and vessels connected with the gunnery practice operations. All firing will be from the southerly portion of the danger zone in a northerly direction, and only during good visibility. The public will be notified prior to each firing by a Notice to Mariners issued by the U.S. Coast Guard and the area will be patrolled by boat and searched by radar to insure a clear range. A safety officer will always be aboard the firing boat to guarantee that all safety precautions are observed. The regulations in this section will be enforced by the Commandant, 12th Naval District and such agencies as he may designate.

[31 FR 13992, Nov. 2, 1966, as amended at 34 FR 5723, Mar. 27, 1969; 35 FR 9279, June 13, 1970; 42 FR 40196, Aug. 9, 1977. Redesignated at 50 FR 42696, Oct. 22, 1985, as amended at 62 FR 17558, Apr. 10, 1997]

§ 334.1175 Pacific Ocean, at Camp Rilea, Clatsop County, Oregon; danger zone.

(a) The danger zone. The danger zone shall encompass all navigable waters of the United States, as defined at 33 CFR part 329, within an area bounded as follows: Beginning at latitude 46°09′00.32″ N, longitude 123°57′52.57″ W; thence to latitude 46°09′00.32″ N, longitude 124°01′03.92″ W; thence to latitude 46°05′25.38″ N, longitude 124°01′03.92″ W; thence to latitude 46°05′25.38″ N, longitude 123°56′23.19″ W. The datum for these coordinates is WGS84.

(b) The regulations. (1) No person or vessel shall enter or remain in the danger zone when restrictions are in force during weapons range training activities. At all other times, nothing in this regulation prohibits any lawful uses of this area.

(2) A schedule for proposed closures of the danger zone will be furnished to the Coast Guard, Astoria Command Center one week in advance of range training activities to provide local notice to mariners. Changes to the schedule made less than one week in advance of the event will be transmitted to the Command Center on the day the change is made.

(3) At least 30 minutes prior to restricting navigation in the danger zone, red flags will be raised on wooden poles immediately next to the beach at the north and south boundaries of Camp Rilea. The red flags will remain flying while the ranges are in use. During night weapons training activities, red lights will be substituted for the flags. Closure announcements will be broadcast over marine VHF Channel 16/19. When range training activities are completed, the red flags will be removed and an announcement made over marine VHF Channel 16/19 that restrictions are lifted.

(4) When restrictions are in force, Camp Rilea will visually monitor the danger zone using radar and guards, equipped with binoculars and two-way radios, posted on the beach near the north and south boundaries of the Camp. If a vessel is detected in the danger zone, a cease fire will be called on all active weapons ranges and Camp Rilea will attempt to contact the vessel using marine VHF radio. Cease fire will be maintained until the vessel leaves the danger zone.

(c) Enforcement. The regulations in this section shall be enforced by the Commanding Officer, Camp Rilea, Oregon and such agencies as he/she may designate.

[80 FR 9385, Feb. 23, 2015]

§ 334.1180 Strait of Juan de Fuca, Wash.; air-to-surface weapon range, restricted area.

(a) The restricted area. A circular area immediately west of Smith Island with a radius of 1.25 nautical miles having its center at latitude 48°19′11″ North and longitude 122°54′12″ West. In the center of the area will be located a lighted and radar reflective buoy to serve as a navigational aid to mariners. The area will be used for air-to-surface target practice using non-explosive training devices.

(b) The regulations. (1) No person, vessel or other watercraft shall enter or remain within the designated restricted area between 0700 and 1200 hours daily, local time except as authorized by the enforcing agency and as follows: The area will be open to commercial gill net fishing during scheduled fishing periods from June 15 to October 15 annually. The October 15 closure date will be extended by the enforcing agency if determined as advantageous to the commercial gill net fishing by the Washington State Department of Fisheries.

(2) Prior to each target practice operation the restricted area will be patrolled by naval aircraft. Those persons and vessels found within the restricted area will be overflown by the aircraft at an altitude of not less than 300′ in the direction in which the unauthorized person and vessel are to proceed to clear the area.

(c) The regulations in this section shall be enforced by the Commandant, Thirteenth Naval District, Seattle, Washington, and such agencies as he may designate.

(Sec. 7, 40 Stat. 266, Chap. XIX)

[39 FR 44753, Dec. 27, 1974; 40 FR 6502, Feb. 12, 1975. Redesignated at 50 FR 42696, Oct. 22, 1985, as amended at 62 FR 17558, Apr. 10, 1997]

§ 334.1190 Hood Canal and Dabob Bay, Wash.; naval non-explosive torpedo testing area.

(a) Hood Canal in vicinity of Bangor—(1) The area. All waters of Hood Canal between latitude 47°46′00″ and latitude 47°42′00″, exclusive of navigation lanes one-fourth nautical mile wide along the west shore and along the east shore south from the town of Bangor (latitude 47°43′28″).

(2) The regulations. (i) The area will be used intermittently by the Navy for non-explosive torpedo ranging. Launching will be conducted only between 8:00 a.m., and sunset on days other than Saturdays, Sundays, and holidays. At no time will the navigation lanes generally paralleling the shore be closed to navigation.

(ii) Navigation will be permitted within the area at all times except when naval exercises are in progress. No vessel shall enter or remain in the area when such exercises are in progress. Prior to commencement of an exercise, the Navy will make an aerial or surface reconnaissance of the area. Vessels under way and laying a course through the area will not be interfered with, but they shall not delay their progress. Vessels anchored or cruising in the area and vessels unobserved by the Navy reconnaissance which enter or are about to enter the area while a torpedo is in the water will be contacted by a Navy patrol boat and advised to steer clear. Torpedos will be tested only when all vessels or other craft have cleared the area.

(iii) When operations are in progress, use of the area will be indicated by the presence of Naval vessels flying a “Baker” (red) flag.

(iv) Notices of temporary suspension and revival of operations will be published in local newspapers and in Notice to Mariners published by the U.S. Coast Guard.

(b) Dabob Bay in the vicinity of Quilcene—(1) The area. All waters of Dabob Bay beginning at latitude 47°39′27″, longitude 122°52′22″; thence northeasterly to latitude 47°40′19″, longitude 122°50′10″; thence northeasterly to a point on the mean high water line at Takutsko Pt.; thence northerly along the mean high water line to latitude 47°48′00″; thence west on latitude 47°48′00″ to the mean high water line on the Bolton Peninsula; thence southwesterly along the mean high water line of the Bolton Peninsula to a point on longitude 122°51′06″; thence south on longitude 122°51′06″ to the mean high water line at Whitney Pt.; thence along the mean water line to a point on longitude 122°51′15″; thence southwesterly to the point of beginning.

(2) The regulations. (i) Propeller-driven or other noise-generating craft shall not work their screws or otherwise generate other than incidental noise in the area during periods of actual testing, which will be indicated by flashing red beacons at strategic locations, and all craft shall keep well clear of vessels engaged in such testing.

(ii) No vessel shall trawl or drag in the area.

(iii) No vessel shall anchor in the area except between the shore and the 10-fathom depth line.

(iv) Operations will normally be confined to the period from about 9:30 a.m., to 2:30 p.m., on Mondays through Fridays, and will normally consist of intermittent tests of less than 30 minutes duration, with boat passage permitted between tests. Transits of log-tows and other slow-moving traffic will be arranged on a mutually satisfactory individual basis as appropriate. Emergencies or high-priority projects may occasionally cause operations outside the periods specified above. No operations will be conducted on Sundays.

(c) The regulations in this section shall be enforced by the Commandant, Thirteenth Naval District, and such agencies as he may designate.

[26 FR 6515, July 20, 1961. Redesignated at 50 FR 42696, Oct. 22, 1985]

§ 334.1200 Strait of Juan de Fuca, eastern end; off the westerly shore of Whidbey Island; naval restricted areas.

(a) Area No. 1. Bounded by a line commencing at latitude 48°20′57″ N., longitude 122°40′39″ W.; thence to latitude 48°20′40″ N., longitude 122°42′59″ W.; thence to latitude 48°21′19″ N., longitude 122°43′02″ W.; thence to latitude 48°21′13″ N., longitude 122°40′26″ W.; and thence along the shore line to the point of beginning.

(b) Area No. 2. Bounded by a line commencing at latitude 48°21′53″ N., longitude 122°40′00″ W.; thence to latitude 48°23′12″ N., longitude 122°41′17″ W.; thence to latitude 48°23′29″ N., longitude 122°40′22″ W.; thence to latitude 48°22′21″ N., longitude 122°39′50″ W.; and thence along the shore line to the point of beginning.

(c) The regulations. (1) Persons and vessels shall not enter these areas except at their own risk.

(2) All persons and vessels entering these areas shall be obliged to comply with orders received from naval sources pertaining to their movements while in the areas.

(3) The regulations in this paragraph shall be enforced by the Commander, Naval Base, Seattle, and such agencies as he/she may designate.

[26 FR 11203, Nov. 28, 1961. Redesignated at 50 FR 42696, Oct. 22, 1985]

Editorial Note:For Federal Register citations affecting § 334.1200, see the List of CFR Sections Affected, which appears in the Finding Aids section of the printed volume and at www.govinfo.gov.

§ 334.1210 Admiralty Inlet, entrance; naval restricted area.

(a) Admiralty Inlet, entrance; naval restricted area—(1) The area. Beginning at Point Wilson Light thence southwesterly along the coast line to latitude 48°07′ N.; thence northwesterly to a point at latitude 48°15′ N. longitude 123°00′ W.; thence due east to Whidbey Island; thence southerly along the coast line to latitude 48°12.5′ N.; thence southerly to the point of beginning.

(2) The regulations. (i) Use of any equipment such as anchors, fishing gear, grapnels, etc., which may foul underwater installations within the restricted area, is prohibited. Dumping of any non-buoyant objects in this area is prohibited.

(ii) The regulations in this paragraph shall be enforced by the Commander, Naval Base, Seattle, and such agencies as he/she may designate.

[26 FR 11203, Nov. 28, 1961. Redesignated at 50 FR 42696, Oct. 22, 1985]

Editorial Note:For Federal Register citations affecting § 334.1210, see the List of CFR Sections Affected, which appears in the Finding Aids section of the printed volume and at www.govinfo.gov.

§ 334.1215 Port Gardner, Everett Naval Base, naval restricted area, Everett, Washington.

(a) The area. The waters of Port Gardner and East Waterway surrounding Naval Station Everett beginning at Point 1, a point near the northwest corner of Naval Station Everett at latitude 47°59′40″ North, longitude 122°13′23.5″ West and thence to latitude 47°59′40″ North, longitude 122°13′30″ West (Point 2); thence to latitude 47°59′20″ North, longitude 122°13′33″ West (Point 3); thence to latitude 47°59′13″ North, longitude 122°13′38″ West (Point 4); thence to latitude 47°59′05.5″ North, longitude 122°13′48.5″ West (Point 5); thence to latitude 47°58′51″ North, longitude 122°14′04″ West (Point 6); thence to latitude 47°58′45.5″ North, longitude 122°13′53″ West (Point 7); thence to latitude 47°58′45.5″ North, longitude 122°13′44″ West (Point 8); thence to latitude 47°58′48″ North, longitude 122°13′40″ West (Point 9); thence to latitude 47°58′59″ North, longitude 122°13′30″ West (Point 10); thence to latitude 47°59′14″ North, longitude 122°13′18″ West (Point 11); thence to latitude 47°59′13″ North, longitude 122°13′12″ West (Point 12); thence to latitude 47°59′20″ North, longitude 122°13′08″ West (Point 13); thence to latitude 47°59′20″ North, longitude 122°13′02.5″ West (Point 14), a point upon the Naval Station's shore in the northeast corner of East Waterway.

(b) The regulation. (1) All persons and vessels are prohibited from entering the waters within the restricted area for any reason without prior written permission from the Commanding Officer of the Naval Station Everett.

(2) Mooring, anchoring, fishing and/or recreational boating shall not be allowed within the restricted area without prior written permission from the Commanding Officer, Naval Station Everettt.

(c) Enforcement. The regulation in this section, promulgated by the United States Army Corps of Engineers, shall be enforced by the Commanding Officer, Naval Station Everett and such agencies and persons as he/she shall designate.

[67 FR 36525, May 24, 2002]

§ 334.1220 Hood Canal, Bangor; naval restricted areas.

(a) Hood Canal, Bangor; Naval restricted areas—(1) Area No. 1. That area bounded by a line commencing on the east shore of Hood Canal at latitude 47 deg.46′18″ N, longitude 122 deg.42′18″ W; thence latitude 47 deg.46′32″ N, longitude 122 deg.42′20″ W; thence to latitude 47 deg.46′38″ N, longitude 122 deg.42′52″ W; thence to latitude 47 deg.44′15″ N, longitude 122 deg.44′50″ W; thence to latitude 47 deg.43′53″ N, longitude 122 deg.44′58″ W; thence to latitude 47 deg.43′17” N, longitude 122 deg.44′49″ W.

(2) Area No. 2. Waters of Hood Canal within a circle of 1,000 yards diameter centered on a point located at latitude 47 deg.46′26″ N, longitude 122 deg.42′49″ W.

(3) The regulations—(i) Area No. 1. No person or vessel shall enter this area without permission from the Commander, Naval Submarine Base Bangor, or his/her authorized representative.

(ii) Area No. 2. (A) The area will be used intermittently by the Navy for magnetic silencing operations.

(B) Use of any equipment such as anchors, grapnels, etc., which may foul underwater installations within the restricted area, is prohibited at all times.

(C) Dumping of any nonbuoyant objects in this area is prohibited.

(D) Navigation will be permitted within that portion of this circular area not lying within Area No. 1 at all times except when magnetic silencing operations are in progress.

(E) When magnetic silencing operations are in progress, use of the area will be indicated by display of quick flashing red beacons on the pier located in the southeast quadrant of the area.

(4) Enforcement. The regulations in this subsection shall be enforced by the Commander, Naval Submarine Base Bangor, or his/her authorized representative.

[69 FR 272, Jan. 5, 2004]

§ 334.1230 Port Orchard; naval restricted area.

(a) Port Orchard; naval restricted area—(1) The area. Shoreward of a line beginning at a point on the west shoreline of Port Orchard bearing 90° from stack (at latitude 47°42′01″, longitude 122°36′54″); thence 90°, approximately 190 yards, to a point 350 yards from stack; thence 165°, 6,000 yards, to a point bearing 179°, 1,280 yards, from Battle Point Light; thence westerly to the shoreline at latitude 47°39′08″ (approximate location of the Brownsville Pier).

(2) The regulations. (i) No vessel shall, at any time, anchor or tow a drag of any kind in this area.

(ii) The regulations in this paragraph shall be enforced by the Commander, Naval base, Seattle, and such agencies as he/she may designate.

[26 FR 11203, Nov. 28, 1961. Redesignated at 50 FR 42696, Oct. 22, 1985]

Editorial Note:For Federal Register citations affecting § 334.1230, see the List of CFR Sections Affected, which appears in the Finding Aids section of the printed volume and at www.govinfo.gov.

§ 334.1240 Sinclair Inlet; naval restricted areas.

(a) Sinclair Inlet: naval restricted areas—(1) Area No. 1. All the waters of Sinclair Inlet westerly of a line drawn from the Bremerton Ferry Landing at latitude 47°33′48″ North, longitude 122°37′23″ West on the north shore of Sinclair Inlet; and latitude 47°32′52″ North, longitude 122°36′58″ West, on the south shore of Sinclair Inlet.

(2) Area No. 2. That area of Sinclair Inlet to the north and west of an area bounded by a line commencing at latitude 47°33′40″ North, longitude 122°37′32″ West (Point A); thence south to latitude 47°33′36″ North, longitude 122°37′30″ West (Point B); thence southwest to latitude 47°33′23″ North, longitude 122°37′45″ West (Point C); thence southwest to latitude 47°33′19″ North, longitude 122°38′12″ West (Point D); thence southwest to latitude 47°33′10″ North, longitude 122°38′19″ West (Point E); thence southwest to latitude 47°33′07″ North, longitude 122°38′29″ West (Point F); thence southwest to latitude 47°33′04″ North, longitude 122°39′07″ West (Point G); thence west to the north shore of Sinclair Inlet at latitude 47°33′04.11″ North, longitude 122°39′41.92″ West (Point H).

(3) The regulations. (i) Area No. 1. No vessel of more than, or equal to, 100 gross tons shall enter the area or navigate therein without permission from the enforcing agency, except Washington State Ferries on established routes.

(ii) Area No. 2. This area is for the exclusive use of the United States Navy. No person, vessel, craft, article or thing, except those under supervision of military or naval authority shall enter this area without permission from the enforcing agency.

(b) Enforcement. The regulation in this section shall be enforced by the Commander, Navy Region Northwest, and such agencies and persons as he/she shall designate.

[73 FR 78635, Dec. 23, 2008]

§ 334.1244 Puget Sound, Manchester Fuel Depot, Manchester, Washington; naval restricted area.

(a) The area. The waters of Puget Sound surrounding the Manchester Fuel Depot Point A, a point along the northern shoreline of the Manchester Fuel Depot at latitude 47°33′55″ North, longitude 122°31′55″, West; thence to latitude 47°33′37″ North, longitude 122°31′50″, West (Point B); thence to latitude 47°33′32″ North, longitude 122°32′06″, West (Point C); thence to latitude 47°33′45.9″ North, longitude 122°32′16.04″, West (Point D), a point in Puget Sound on the southern shoreline of the Manchester Fuel Depot.

(b) The regulations. No person, vessel, craft, article or thing except those under the supervision of the military or naval authority shall enter the area without the permission of the enforcing agency or his/her designees. The restriction shall apply during periods when a ship is loading and/or pier operations preclude safe entry. The restricted periods will be identified by the use of quick-flashing beacon lights, which are mounted on poles at the end of the main fuel pier on the south side of Orchard Point at the entrance of Rich Passage. Entry into the area is prohibited when the quick-flashing beacons are in a flashing mode.

(c) Enforcement. The regulation in this section shall be enforced by the Commander, Navy Region Northwest, and such agencies and persons as he/she shall designate.

[73 FR 78636, Dec. 23, 2008]

§ 334.1250 Carr Inlet, naval restricted areas.

(a) Carr Inlet, naval restricted areas—(1) The area. The Waters of Carr Inlet bounded on the southeast by a line running from Gibson Point on Fox Island to Hyde Point on McNeil Island, on the northwest by a line running from Green Point (at latitude 47°16′54″ N, longitude 122°41′33″ W) to Penrose Point; plus that portion of Pitt Passage extending from Carr Inlet to Pitt Island, and that portion of Hale Passage extending from Carr Inlet southeasterly to a line drawn perpendicular to the channel 500 yards northwesterly of the Fox Island Bridge.

(2) The regulations. (i) The area shall be used as an acoustic range for research studies and special noise trials. No explosive shall be used.

(ii) No marine craft of any type shall at anytime approach or remain within one hundred yards of the hydrophone buoys. The hydrophone buoys will be anchored in Carr Inlet on a line perpendicular to the course line opposite Ketner's Point, and about one mile from the Fox Island shore. The course line, or range, will bear 134°38′21″ (314°38′21″) true, and will be marked by range beacons erected near the shoreline approximately one mile north-northeast of of Steilacoom and approximately two miles north-northeast of Home.

(iii) Buoy Testing Area. No vessel shall, at anytime, anchor or tow a drag of any kind within 1,000 yards of the buoy testing area.

(iv) The remainder of the area shall be open to navigation at all times except when the range is in use or when hydrophones are being calibrated. When the range is in use or hydrophones are being calibrated, quick flashing beacon lights will be displayed on signal towers located at Gibson Point, Green Point, Penrose Point, Pitt Island and Hyde Point. These beacon lights will be either red or green. The beacon lights will show quick flashing every two seconds. The ranging of vessels or calibration of hydrophones requiring retrictions will be conducted 24 hours per day for up to 5 days consecutively, and will total approximately 150 days spread throughout the year. Shutting off of beacon lights will indicate termination of use of the range. Insofar as possible, the schedule of operations giving the days the range will be in use for each forthcoming month will be published in local newspapers and in the local U.S. Coast Guard Notice to Mariners.

(v) When the red beacon lights are displayed, indicating that the range is in use or hydrophones are being calibrated, navigation within the area will be restricted as follows:

(a) As used in this section, the words “operate, power vessel, and non-power vessel” are defined as follows:

(1) “Operate”: To be physically present in the designated area.

(2) “Power vessel”: A vessel propelled principally by a mechanical propulsion system (i.e., gasoline, diesel, steam or electric drive to a propeller, pump jet, paddle wheel or other device), and being propelled by that means.

(3) “Non-power vessel”: A vessel not equipped with a mechanical propulsion system, such as a rowboat, canoe, or sailboat propelled by oars, paddles, or sails, respectively.

(b) Power vessels shall not operate within the area, except that traffic in either direction between Hale Passage and upper Carr Inlet, within 200 yards of the low water mark off Green Point, will be cleared by signal for approximately 15 minutes total time within this area at the termination of individual ranging runs, while the vessel being ranged takes position for the next run. Clearance to traverse the area around Green Point will be indicated by extinguishing the red flashing beacon lights and displaying the green flashing beacon lights on all signal towers.

(c) Non-powered marine craft shall not operate within one mile of the course line bearing 134°38′21″ (314°38′21″) true, and within two miles to the southeast and two miles to the northwest of the hydrophone buoys situated in Carr Inlet opposite Ketner's Point; provided, however, non-powered craft may operate within four hundred yards of the low water mark on the northeast side of McNeil Island, within two hundred yards of the low water mark at Green Point, and within two hundred yards of the low water mark on the southwest shore of Fox Island.

(d) Towboats shall have free access and egress to designated tow havens within Carr Inlet, as follows: The Navy will establish and maintain suitable mooring buoys for the use of tugs and their tows at the following points: (1) approximately 1,500 yards northwest of Gibson Point Light and approximately 400 yards offshore from the low water mark on the Fox Island shore; (2) approximately 1,500 yards northwest of Hyde Point, and approximately 400 yards offshore from the low water mark on McNeil Island shore; and (3) approximately 1,500 yards east of Wyckoff Shoal. Towboats will signal by radio (Marine Band Channel 14, 13, 12, or 6) or telephone as far in advance as possible of the time they enter the tow haven, such signals to be directed to “Carr Inlet Range Control” at the range instrument laboratory building located on Fox Island. The Navy shall promptly suspend operations when necessary to permit the access and egress of such tow traffic, and Carr Inlet Range Control shall signal the tows when the area is clear.

(e) Through commercial traffic, including tows, to points within Carr Inlet, and through Carr Inlet, Pitt Passage, and Hale Passage to adjacent waters will be permitted free access and egress, as follows: Such traffic will signal by radio (Marine Band Channel 14, 13, 12, or 6) or telephone as far in advance as possible of the time they enter the area, such signals to be directed to “Carr Inlet Range Control” at the range instrument laboratory located on Fox Island. The Navy shall promptly suspend operations when necessary to permit the passage of such traffic, and Carr Inlet Range Control shall signal when the area is clear for passage.

(f) The Warden of the McNeil Island penitentiary and his authorized representatives shall be permitted to operate within the area at any time, as may be necessary, for the patrol and search of escaped convicts.

(g) Red or green signal flags will be displayed on the signal towers in case of failure of the red or green beacon lights. The display or the signal flags at the top of the flag masts will have the same significance as the beacon lights.

(3) The regulations in this paragraph shall be enforced by the Commander, Naval Base, Seattle, and such agencies as he/she may designate.

(b) [Reserved]

[26 FR 11203, Nov. 28, 1961. Redesignated at 50 FR 42696, Oct. 22, 1985]

Editorial Note:For Federal Register citations affecting § 334.1250, see the List of CFR Sections Affected, which appears in the Finding Aids section of the printed volume and at www.govinfo.gov.

§ 334.1260 Dabob Bay, Whitney Point; naval restricted area.

(a) Dabob Bay, Whitney Point, naval restricted area—(1) The area. Beginning at the high water line along the westerly shore of Dabob Bay, 100 yards northerly of the Naval control building located at approximately N. latitude 47°45′36″ and W. longitude 122°51′00″, thence S. 89°59′ E. 2000 yards, thence to S. 00°01′ W. 200 yards, thence N. 89°59′ W. approximately 2000 yards to the high water line 100 yards southerly of the control building.

(2) The regulations. (i) No vessel shall, at any time, anchor or tow a drag of any kind in this area.

(ii) The regulations in this paragraph shall be enforced by the Commander, Naval Base, Seattle, or his/her authorized representative.

(b) [Reserved]

[26 FR 11203, Nov. 28, 1961. Redesignated at 50 FR 42696, Oct. 22, 1985]

Editorial Note:For Federal Register citations affecting § 334.1260, see the List of CFR Sections Affected, which appears in the Finding Aids section of the printed volume and at www.govinfo.gov.

§ 334.1270 Port Townsend, Indian Island, Walan Point; naval restricted area.

(a) The area. The waters of Port Townsend Bay bounded by a line commencing on the north shore of Walan Point at latitude 48°04′42″ North, longitude 122°44′30″ West (Point A); thence to latitude 48°04′50″ North, longitude 122°44′38″ West (Point B); thence to latitude 48°04′52″ North, longitude 122°44′57″ West (Point C); thence to latitude 48°04′44″ North, longitude 122°45′12″ West (Point D); thence to latitude 48°04′26″ North, longitude 122°45′21″ West (Point E); thence to latitude 48°04′10″ North, longitude 122°45′15″ West (Point F); thence to latitude 48°04′07″ North, longitude 122°44′49″ West (Point G); thence to a point on the Walan Point shoreline at latitude 48°04′16″ North, longitude 122°44′37″ West (Point H).

(b) The regulations. This area is for the exclusive use of the U.S. Navy. No person, vessel, craft, article or thing shall enter the area without permission from the enforcing agency. The restriction shall apply during periods when ship loading and/or pier operations preclude safe entry. The periods will be identified by flying a red flag from the ship and/or pier.

(c) Enforcement. The regulation in this section shall be enforced by Commander, Navy Region Northwest and such agencies and persons as he/she shall designate.

[73 FR 78634, Dec. 23, 2008]

§ 334.1275 West Arm Behm Canal, Ketchikan, Alaska, restricted areas.

(a) The area—Area No. 1. The waters of Behm Canal bounded by a circle 2,000 yards in diameter, centered on 55°36′ N latitude, 131°49.2′ W longitude.

Area No. 2. The waters of Behm Canal bounded by a circle 2,000 yards in diameter, centered at 55°34′ N latitude, 131°48′ W longitude.

Area No. 3. The waters of Behm Canal excluding those areas designated as areas Nos. 1 and 2 above, bounded by an irregular polygon beginning at the shoreline on Back Island near 55°32.63′ N latitude, 131°45.18′ W longitude, then bearing about 350° T to 55°38.06′ N latitude, 131°46.75′ W longitude then bearing about 300° T to 55°38.52′ N latitude, 131°48.15′ W longitude, then bearing about 203° T to 55°33.59′ N latitude, 131°51.54′ W longitude, then bearing about 112° T to the intersection of the shoreline at Back Island near 55°32.53′ N latitude, 131°45.77′ W longitude, then northeast along the shoreline to the point of beginning.

Area No. 4. The waters of Clover Passage bounded by an irregular polygon beginning at the shoreline on Back Island near 55 32.63′ N latitude, 131°45.18′ W longitude, then bearing 150° T. to the intersection of the shoreline on Revillagegedo Island near 55°30.64′ N latitude, 131°43.64′ W longitude, then southwest along the shoreline to near 55°30.51′ N latitude, 131°43.88′W longitude, then bearing 330° T to the intersection of the shoreline on Back Island near 55°32.16′ N. latitude, 131°45.20′ W longitude, and from there northeast along the shoreline to the point of beginning.

Area No. 5. The waters of Behm Canal bounded to the north by a line starting from Point Francis on the Cleveland Peninsula to Escape Point on Revillagegedo Island then south along the shoreline to Indian Point, then south to the Grant Island Light at 55°33.3′ N latitude, 131°43.62′ W longitude then bearing 218° T. to the south end of Back Island and continuing to the intersection of the shoreline on Betton Island at about 55°31.55′ N latitude, 131°45.98′ W longitude, then north along the shoreline of Betton Island to the western side below Betton Head at about 55°30.83′ N latitude, 131°50′ W longitude, then bearing 283° T. across Behm Canal to the intersection of shoreline near the point which forms the southeast entrance of Bond Bay at about 55°31.60′ N latitude, 131°56.58′ W longitude, then northeast to Helm Point on the Cleveland Peninsula, then northeast along the shoreline to the point of beginning at Point Francis.

(b) The regulations—(1) Area No. 1. Vessels are allowed to transit the area at any time. No vessel may anchor within the restricted area or tow a drag of any kind, deploy a net or dump any material within the area.

(2) Area No. 2. Vessels are allowed to transit the area at any time. No vessel may anchor within the restricted area or tow a drag of any kind, deploy a net or dump any material within the area. Vessels are also prohibited from mooring or tying up to, loitering alongside or in the immediate vicinity of naval equipment and barges in the restricted area.

(3) Area No. 3. Vessels are allowed to transit the area at any time. Due to the presence of underwater cables and instrumentation, anchoring is prohibited and the towing of a drag or any object within 100 feet of the bottom is also prohibited. Anchoring is allowed within 100 yards of the shore of Back Island except within 100 yards of each side of the area where electrical and other cables are brought ashore. The termination location of the cables on the land is marked with a warning sign that is visible from the water.

(4) Area No. 4. Due to the presence of communication and power cables crossing from Revillagegedo Island to Back Island no anchoring or towing of a drag is allowed. Anchoring is allowed within 100 yards of the shore of Back Island except within 100 yards of each side of the area where the cables are brought ashore. The termination location of the cables on the land is marked with a warning sign that is visible from the water.

(5) Area No. 5. (i) The area will be open unless the Navy is actually conducting operations. To ensure safe and timely passage through the restricted area vessel operators are required to notify the Facility Control Officer of their expected time of arrival, speed and intentions. For vessels not equipped with radio equipment, the Navy shall signal with flashing beacon lights whether passage is prohibited and when it is safe to pass through the area. A flashing amber beacon means that the area is closed to all vessels and to await a clear signal. The flashing amber beacon not lighted is the clear signal and indicates that vessels may proceed through the area. Each closure of the area by the Navy will normally not exceed 20 minutes.

(ii) When Area No. 5 restrictions are in place, vessels may operate within 1000 yards of the shoreline at speeds no greater than 5 knots in accordance with the restriction in effect in Area No. 3.

(c) Vessels will be allowed to transit Area No. 5 within 20 minutes of marine radio or telephone notification to the Navy Facility Control Officer.

(d) Enforcement. The regulations in this section shall be enforced by the Commander, Naval Surface Warfare Center, Carderock Division, and such agencies he/she may designate.

[55 FR 2586, Jan. 25, 1990, as amended at 55 FR 10237, Mar. 20, 1990; 58 FR 6718, Feb. 2, 1993; 80 FR 75948, Dec. 7, 2015]

§ 334.1280 Bristol Bay, Alaska; air-to-air weapon range, Alaskan Air Command, U.S. Air Force.

(a) The danger zone. An area in Bristol Bay beginning at latitude 58°24′ N., longitude 159°10′ W.; thence to latitude 57°58′ N., longitude 158°30′ W.; thence to latitude 57°07′ N., longitude 160°20′ W.; thence to latitude 58°02′ N., longitude 161°40′ W.; and thence to the point of beginning.

(b) The regulations. (1) Intermittent firing will be conducted over two to three day periods about 2 hours a day between the hours of 10:00 a.m. and 4:00 p.m. during the months of May through August.

(2) The fact that practice firing is to take place over the designated area shall be advertised to the public 72 hours in advance through the usual media for the dissemination of such information. Notice to the U.S. Coast Guard and NOTAM shall be issued at least 48 hours before firing is to be conducted on the range. Information as to the dates, time, and characteristics of the firing shall be advertised in advance of each session of firing.

(3) Prior to conducting each practice firing, the danger zone shall be patrolled by aircraft to note the location of all vessels within the area. The practice firing exercise shall be conducted in the portion of the danger zone not occupied by surface craft.

(4) This section shall be enforced by the Commander, Alaskan Air Command, U.S. Air Force, Seattle, Washington, or such agencies as he may designate.

[29 FR 5947, May 6, 1964, as amended at 36 FR 6422, Apr. 3, 1971. Redesignated at 50 FR 42696, Oct. 22, 1985]

§ 334.1300 Blying Sound area, Gulf of Alaska, Alaska; air-to-air gunnery practice area, Alaskan Air Command, U.S. Air Force.

(a) The danger zone. A rhomboidal area beginning at latitude 59°51′30″ N., longitude 148°42′00″ W.; thence to latitude 59°22′30″ N., longitude 147°00′00″ W.; thence to latitude 58°52′00″ N., longitude 148°03′00″ W.; thence to latitude 59°20′00″ N., longitude 149°45′00″ W., and thence to point of beginning.

(b) The regulations. (1) 20-mm. cannon will be fired at towed targets in the air. One firing mission will be conducted every 2 weeks during daylight hours only and weather permitting.

(2) The fact that practice firing is to take place over the designated area shall be advertised to the public 7 days in advance through the usual media for the dissemination of such information. Notice to the U.S. Coast Guard and NOTAM shall be issued at least 48 hours before firing is to be conducted on the range. Information as to the dates, time, and characteristics of the firing shall be advertised in advance of each session of firing.

(3) Prior to conducting each practice firing, the danger zone shall be patrolled by aircraft to note the location of all vessels within the area. The practice firing exercise shall be conducted in the portion of the danger zone not occupied by surface craft.

(4) The regulations in this section shall be enforced by the Commander, Alaskan Air Command, U.S. Air Force, Anchorage, Alaska, or such agencies as he may designate.

(Sec. 7, 40 Stat. 266; 33 U.S.C. 1)

[37 FR 527, Jan. 13, 1972. Redesignated at 50 FR 42696, Oct. 22, 1985]

§ 334.1303 Navigable waters of Knik Arm within the explosive arc of the Six Mile Munitions Storage Area off the northeastern side of Joint Base Elmendorf-Richardson; restricted area.

(a) The area. The restricted area consists of the waters with an area defined as beginning at a point on shore at latitude 61°17′35″ N, longitude 149°50′3″ W; thence northward in an arc to the mid-arc point at latitude 61°18′19″ N, longitude 149°50′6″ W; continuing northward in an arc to the end point on shore at latitude 61°18′36″ N, longitude 149°49′1″ W. The datum for these coordinates is NAD-83.

(b) The regulation. The restricted area described in paragraph (a) of this section is permanently closed for public use at all times. No persons, watercrafts, or vessels shall enter, or remain, in the area except for those authorized by the enforcing agency.

(c) Enforcement. This regulation will be enforced by USAF PACAF 673rd Air Base Wing.

[88 FR 18052, Mar. 27, 2023]

§ 334.1305 Eagle River from Bravo Bridge to its mouth at Eagle Bay in Knik Arm, Richardson Training Area on Joint Base Elmendorf-Richardson, Alaska; restricted area.

(a) Restricted area. The restricted area consists of navigable waters within an area defined as beginning a point on shore at latitude 61°19′40.1″ N, longitude 149°44′20.336″ W; thence easterly to latitude 61°19′41.59″ N, longitude 149°44′6.825″ W; 3.06 nautical miles southerly along the river to latitude 61°18′40.13″ N, longitude 149°41′16.12″ W; thence southerly to latitude 61°18′38.404″ N, to longitude 149°41′14.73″ W. The datum for these coordinates is North American Datum of 1983 (NAD-83).

(b) The regulation. The restricted area is permanently closed for public use at all times. No persons, watercraft, or vessels shall enter or remain in the area except for those authorized by the enforcing agency.

(c) Enforcement. The regulations in this section will be enforced by the Commander, United States Army-Alaska.

[87 FR 58453, Sept. 27, 2022]

§ 334.1310 Lutak Inlet, Alaska; restricted areas.

(a) The areas—(1) Army POL dock restricted area. (i) The waters of Lutak Inlet bounded as follows: Beginning at the water's edge 900 feet northwest of the centerline of the landward end of the POL dock; thence 800 feet, 51° true; thence 1,400 feet, 113° true; thence 450 feet, 211° true to the water's edge at a point approximately 720 feet from the most southwest corner of the seaward end of the POL dock; thence along the water's edge to the point of beginning.

(ii) The area will be marked at points approximately 200 feet apart along the shore by white signs containing the word “Warning.” The signs will not be lighted.

(2) Dry Cargo dock mooring area. (i) The waters within 60 feet off the face of the dock.

(b) The regulations. (1) No person, vessel or other watercraft shall enter or remain in the Army POL dock restricted area when tankers are engaged in discharging oil at the dock.

(2) The dropping and dragging of anchors, weights, or other ground tackle within the Dry Cargo dock mooring area is prohibited.

(3) The regulations in this section shall be enforced by the District Engineer, U.S. Army Engineer District, Anchorage, Alaska, and such agencies as he may designate.

[33 FR 7723, May 25, 1968. Redesignated at 50 FR 42696, Oct. 22, 1985, as amended at 62 FR 17559, Apr. 10, 1997]

§ 334.1320 Kuluk Bay, Adak, Alaska; naval restricted area.

(a) The area. The northwest portion of Kuluk Bay bounded as follows: Beginning on shore at latitude 51°55′00″ N, longitude 176°33′09″ W; thence due east to latitude 51°55′00″ N, longitude 176°33′09″ W; thence due south to latitude 51°51′55″ N longitude 176°31′09″ W; thence due west to the shore at latitude 51°51′00″ N, longitude 176°37′43″ W; thence along the shoreline to the point of beginning.

(b) The regulations. (1) Except in great emergency, no vessel shall anchor in the restricted area described above.

(2) The dragging of anchors in or across the restricted area is prohibited and no object attached to a vessel shall be placed on or near the bottom.

(3) Fishing and trawling activities in the restricted area are prohibited.

(4) The regulation of this restricted area shall be enforced by the Commander, Patrol Wing, U.S. Pacific Fleet, Naval Air Station Moffett Field, California, and such agencies and he/she may designate.

[58 FR 26046, Apr. 29, 1993]

§ 334.1325 United States Army Restricted Area, Kuluk Bay, Adak, Alaska.

(a) The area. The area within a radius 1,000 yards around the Sea Base Radar mooring site in all directions from latitude 51°53′05.4″ N, longitude 176°33′47.4″ W (NAD 83).

(b) The regulation. (1) No vessel, person, or other craft shall enter or remain in the restricted area except as may be authorized by the enforcing agency.

(2) A ring of eight lighted and marked navigation buoys marking the perimeter of the mooring anchor system will provide a visible distance reference at a radius of approximately 800 yards from latitude 51°53′05.4″ N, longitude 176°33′47.4″ W (NAD 83). Each buoy has a white light, flashing at 3 second intervals with a 2 nautical mile range. Vessels, persons or other craft must stay at least 200 yards outside the buoys.

(3) The regulation in this section shall be enforced by personnel attached to the Missile Defense Agency and/or by such other agencies as the Director, MDA-AK, Fort Richardson, Alaska, may designate.

[72 FR 65669, Nov. 23, 2007]

§ 334.1330 Bering Strait, Alaska; naval restricted area off Cape Prince of Wales.

(a) The area. An area 2,000 feet wide extending from a point on Cape Prince of Wales marked by a triangular cable marker located approximately midway between the village of Wales and Cape Prince of Wales Light to a point four statute miles due west of the cable marker with the axis of the area passing through the two points.

(b) The regulations. (1) No vessel shall anchor in the restricted area described in paragraph (a) of this section.

(2) Dragging of anchors in or across the restricted area is prohibited and no object attached to a vessel shall be placed on or near the bottom.

(3) The regulations in this section shall be enforced by the Commander, Third Fleet, Pearl Harbor, Hawaii and such agencies as he may designate.

[18 FR 8117, Dec. 10, 1953, as amended at 33 FR 5875, Apr. 17, 1968; 42 FR 58519, Nov. 10, 1977. Redesignated at 50 FR 42696, Oct. 22, 1985]

§ 334.1340 Pacific Ocean, Hawaii; danger zones.

(a) Danger zones—(1) Aerial bombing and strafing target surrounding Kaula Rock, Hawaii. The waters within a circular area with a radius of three (3) miles having its center on Kaula Rock at latitude 21°39′30″, longitude 160°32′30″.

(2) Submerged unexploded ordnance danger zone, Kahoolawe Island, Hawaii. The waters adjacent to Kahoolawe Island within the area encompassed by the following coordinates beginning at latitude 20°37′30″, longitude 156°32′48″; thence to latitude 20°34′48″, longitude 156°30′24″; thence to latitude 20°28′54″, longitude 156°30′30″; thence to latitude 20°28′06″, longitude 156°41′48″; thence to latitude 20°30′30″, longitude 156°44′12″; thence to latitude 20°33′12″, longitude 156°44′30″; thence to latitude 20°37′30″, longitude 156°36′24″; thence to the beginning coordinates.

(b) The regulations. No person, vessel or other craft shall enter or remain in any of the areas at any time except as authorized by the enforcing agency.

(c) Enforcing agency. The regulations in this section shall be enforced by Commander, Naval Base, Pearl Harbor, Hawaii 96860-5020, and such agencies as he/she may designated.

[20 FR 4129, June 11, 1955, as amended at 25 FR 4749, May 28, 1960; 31 FR 14255, Nov. 4, 1966; 45 FR 57126, Aug. 27, 1980. Redesignated at 50 FR 42696, Oct. 22, 1985, and amended at 58 FR 53427, Oct. 15, 1993; 61 FR 34733, July 3, 1996; 62 FR 17559, Apr. 10, 1997]

§ 334.1350 Pacific Ocean, Island of Oahu, Hawaii; danger zone.

(a) The danger zone. Beginning at point of origin at Kaena Point Light in latitude 21°34′42″ N., longitude 158°16′54″ W.; thence on a bearing of 282°30′ True to latitude 21°38′ N., longitude 158°33′ W.; thence along the arc of a circle centered at Kaena Point Light to latitude 21°42′30″ N., longitude 158°03′ W.; thence on a bearing of 228° true to latitude 21°35′33″ N., longitude 158°11′30″ W.; thence to point of origin.

(b) The regulations. (1) The area will be closed to the public and all shipping on specific dates to be designated for actual firing and no person, vessel or other craft shall enter or remain in the area during the times designated for firing except as may be authorized by the enforcing agency. Notification to maritime interests of specific dates of firing will be disseminated through the U.S. Coast Guard media of the Local Notice to Mariners and the NOTAMS published by the Corps of Engineers. On dates not specified for firing, the area will be open to normal maritime traffic.

(2) The regulations of this section shall be enforced by the Commanding General, U.S. Army, Hawaii/25th Infantry Division, APO 957, and such agencies as he may designate.

[24 FR 5999, July 28, 1959. Redesignated at 50 FR 42696, Oct. 22, 1985, as amended at 62 FR 17559, Apr. 10, 1997]

§ 334.1360 Pacific Ocean at Barber's Point, Island of Oahu, Hawaii; danger zone.

(a) The danger zone. The waters within a rectangular area beginning at a point in latitude 21°17′56″ N., longitude 158°05′21″ W., thence to latitude 21°17′30″ N., longitude 158°05′21″ W.; thence to latitude 21°17′58″ N., longitude 158°02′49″ W., thence to latitude 21°18′24″ N., longitude 158°02′49″ W.; thence along the shoreline at the highwater mark along the southerly boundary of Naval Air Station, Barber's Point, to the point of beginning.

(b) The regulations. (1) The area is closed to all surface craft, swimmers, divers and fishermen except to craft and personnel authorized by the enforcing agency.

(2) The regulations in this section shall be enforced by the Commanding Officer, Naval Air Station, Barber's Point, Hawaii, 96862, and such agencies as he/she may designate.

[31 FR 8129, June 9, 1966, as amended at 45 FR 57126, Aug. 27, 1980. Redesignated at 50 FR 42696, Oct. 22, 1985]

§ 334.1370 Pacific Ocean at Keahi Point, Island of Oahu, Hawaii; danger zone.

(a) The danger zone. The waters within an area beginning at a point in latitude 21°18′21.4″ N., longitude 157°59′14.2″ W.; thence to latitude 21°18′11″ N., longitude 158°00′17.5″ W.; thence to latitude 21°17′11.8″ N., longitude 158°00′06.5″ W.; and thence to latitude 21°17′22.5″ N., longitude 157°59′03.1″ W.

(b) The regulations. (1) The area is closed to all surface craft, swimmers, divers, and fishermen except to craft and personnel authorized by the enforcing agency.

(2) The regulations in this section shall be enforced by the Commanding Officer, Explosive Ordnance Disposal Training and Evaluation Unit One, Barbers Point, Hawaii 96862-5600.

[31 FR 12437, Sept. 20, 1966, as amended at 45 FR 57126, Aug. 27, 1980. Redesignated at 50 FR 42696, Oct. 22, 1985, and amended at 58 FR 53427, Oct. 15, 1993]

§ 334.1380 Marine Corps Base Hawaii (MCBH), Kaneohe Bay, Island of Oahu, Hawaii—Ulupau Crater Weapons Training Range; danger zone.

(a) The danger zone. The area within a sector extending seaward a distance of 3.8 nautical miles between radial lines bearing 357.1° true and 124.9° true, respectively, from a starting point on Mokapu Peninsula at latitude 21°27′11.84″ N, longitude 157°43′53.83″ W, and overlapping the existing 500-yard wide prohibited area. The danger zone is defined as a pie-shaped area bounded by the landward starting point on Mokapu Peninsula and the three seaward points forming an arc with a 3.8 nautical-mile radius at its center (Point B) with a radial line bearing 56.9° true. The three seaward points have the following coordinates:

Point A: Latitude 21°30′59.66″ N, Longitude 157°44′05.97″ W Point B: Latitude 21°29′16.58″ N, Longitude 157°40′30.19″ W Point C: Latitude 21°25′01.79″ N, Longitude 157°40′33.70″ W

(b) The regulations. (1) Weapons firing at the Ulupau Crater Weapons Training Range may occur at any time between 6:00 a.m. and 2:00 a.m., Monday through Sunday. Specific dates and hours for weapons firing, along with information regarding onshore warning signals, will be promulgated by the U.S. Coast Guard's Local Notice to Mariners. Information on weapons firing schedules may also be obtained by calling the MCBH Range Manager, AC/S G-3 (telephone number 808-257-8816/17).

(2) Whenever live firing is in progress during daylight hours, two large red triangular warning pennants will be flown at each of two highly visible and widely separated locations on the shore at Ulupau Crater.

(3) Whenever any weapons firing is scheduled and in progress during periods of darkness, flashing red warning beacons will be displayed on the shore at Ulupau Crater.

(4) Boaters will have complete access to the danger zone whenever there is no weapons firing scheduled, which will be indicated by the absence of any warning flags, pennants, or beacons displayed ashore.

(5) The danger zone is not considered safe for boaters whenever weapons firing is in progress. Boaters shall expeditiously vacate the danger zone at best speed and by the most direct route whenever weapons firing is scheduled. Passage of vessels through the danger zone when weapons firing is in progress will be permitted, but boaters shall proceed directly through the area at best speed. Weapons firing will be suspended as long as there is a vessel in the danger zone. Whenever a boater disregards the publicized warning signals that hazardous weapons firing is scheduled, the boater will be personally requested to expeditiously vacate the danger zone by MCBH Kaneohe Bay military personnel utilizing by hailing the vessel on VHF channel 16 or contacting directly by U.S. Navy surface craft.

(6) Observation posts will be manned whenever any weapons firing is scheduled and in progress. Visibility will be sufficient to maintain visual surveillance of the entire danger zone and for an additional distance of 5 miles in all directions whenever weapons firing is in progress.

(c) The enforcing agency. The regulations shall be enforced by the Commanding Officer, MCB Hawaii, Kaneohe Bay and such agencies as he/she may designate.

[74 FR 58848, Nov. 16, 2009, as amended at 91 FR 51595, Aug. 11, 2026]

§ 334.1390 Pacific Ocean off the Pacific Missile Range Facility at Barking Sands, Island of Kauai, Hawaii; danger zone.

(a) The danger zone. All navigable waters within an area beginning at a point on the shore at latitude 22°04′13.65″ N, longitude 159°46′30.76″ W; and continue south along the shoreline to latitude 21°58′42.77″ N, and longitude 159°45′26.35″ W. Thence extending southwest to latitude 21°56′6.00″ N, and longitude 159°46′55.91″ W extending northwest to latitude 21°58′59.81″ N and longitude 159°50′51.42″ W, continuing north to latitude 22°02′28.09″ N, and longitude 159°51′28.15″ W, and continuing northeast to latitude 22°06′ 30.71″ N, longitude 159°49′20.43″ W; and thence to point of beginning. All coordinates reference 1983 North American Datum (NAD 83).

(b) The regulations. (1) Dredging, dragging, seining, and other similar operations within the danger zone are prohibited.

(2) All persons, boats, vessels, or other craft are prohibited from entering, transiting, or remaining within the danger zone during range operations, test and training activities, or increases in force protection that pose a hazard to the general public, as determined by the enforcing agency. The enforcing agency's determination of the necessity of closing the danger zone due to increases in force protection will be based on the Department of Defense Force Protection Condition (FPCON) System. From the lowest security level to the highest, FPCON levels are titled Normal, Alpha, Bravo, Charlie and Delta.

(3) Closure of the danger zone will be indicated by Notice to Mariners, the presence of Pacific Missile Range Facility range boats, beach markings including beach signs along the north and south beach borders alerting shoreline foot traffic, security patrols, and radio transmissions on common ocean frequencies to include Marine band channel 6 (156.300 Mhz), Marine band channel 16 (156.800 Mhz), and CB channel 22. The enforcing agency will post the danger zone closure schedule on its official Navy Web site, http://www.cnic.navy.mil/PMRF/, and Facebook page, http://www.facebook.com/PacificMissileRangeFacility. The danger zone closure schedule may also be obtained by calling the following phone numbers: 808-335-4301, 808-335-4388, and 808-335-4523.

(4) Consistent with paragraph (b)(2) of this section, the enforcing agency is authorized to prohibit access into the danger zone by anyone, and all willful violations of the enforcing agency's prohibitions are punishable under 33 U.S.C. 3.

(c) The enforcing agency. The regulations in this section shall be enforced by the Commanding Officer, Pacific Missile Range Facility, Hawaii and such agencies or persons as he or she may designate.

[78 FR 76061, Dec. 16, 2013]

§ 334.1400 Pacific Ocean, at Barbers Point, Island of Oahu, Hawaii; restricted area.

(a) The area. That portion of the Pacific Ocean lying offshore of Oahu between Ewa Beach and Barbers Point, basically outlined as follows:

Station | Latitude | Longitude

A (shoreline) | 21°18′06″ | 158°04′24″

B | 21°17′00″ | 158°03′30″

C | 21°15′00″ | 158°03′18″

D | 21°15′36″ | 158°01′06″

E (shoreline) | 21°18′30″ | 158°02′00″

(b) The regulations. (1) Vessels shall not anchor within the area at any time.

(2) Dredging, dragging, seining, or other fishing operations which might foul underwater installations within the area are prohibited.

(3) Use of the restricted area for boating, fishing (except as prohibited in paragraph (b)(2) of this section) and other surface activities is authorized.

(4) The regulations in this section shall be enforced by the Officer in Charge, Fleet Area Control and Surveillance Facility, Pearl Harbor, Hawaii 96860-7625, and such agencies as he/she may designate.

(Sec. 3012, 70A Stat. 157; 10 U.S.C. 3012)

[36 FR 14186, July 31, 1971, as amended at 45 FR 57126, Aug. 27, 1980. Redesignated at 50 FR 42696, Oct. 22, 1985, and amended at 58 FR 53427, Oct. 15, 1993]

§ 334.1410 Pacific Ocean, at Makapuu Point, Waimanalo, Island of Oahu, Hawaii, Makai Undersea Test Range.

(a) The restricted area. The waters within an area beginning at a point in latitude 21°18′50″ N., longitude 157°39′07″ W.; thence to latitude 21°20′33″ N., longitude 157°38′00″ W.; thence to latitude 21°22′02″ N., longitude 157°39′07″ W.; and thence to latitude 21°19′35″ N., longitude 157°40′46″ W.

(b) The regulations. (1) During critical testing phases of surface and submerged units, the operating officials of the Makai Test Range will mark in a conspicuous manner the location of the equipment which might be subject to damage from navigation and fishing activities or might represent a hazard to persons or property in the vicinity. During the display of signals in the restricted area, all persons and surface craft will remain away from the area until such time as the signals are withdrawn. At all other times the area is open to unrestricted fishing, boating and general navigation.

(2) Operating officers and personnel of the Makai Test Range will be responsible for marking in a conspicuous manner the location of surface and underwater equipment which is subject to damage from navigation and fishing activities in the vicinity or represents a hazard to persons or property in the vicinity, and the location of the work area during critical testing phases. Surface communication by boat will be provided by the Makai Test Range during testing phases.

[34 FR 7964, May 21, 1969. Redesignated at 50 FR 42696, Oct. 22, 1985, as amended at 62 FR 17559, Apr. 10, 1997; 62 FR 24034, May 2, 1997]

§ 334.1415 Pacific Ocean, adjacent to the Finegayan Small Arms Range at Naval Base Guam Telecommunication Site, on the northwestern coast of Guam; danger zone.

(a) The area. Coordinates are bounded by the following four points: Point A (13°34′57″ N; 144°49′53″ E) following the high tide line to Point B (13°35′49″ N; 144°47′59″ E), Point C (13°34′57″ N; 144°47′45″ E), and Point D (13°34′48″ N; 144°49′50″ E). The datum for these coordinates is NAD-83.

(b) The regulation. (1) Vessels or persons shall expeditiously transit through the danger zone when the small arms range is in use. Vessels shall not be permitted to anchor or loiter within the danger zone while the range is in use. Range activities shall be halted until all vessels are cleared from the danger zone. When the range is not in use, the danger zone shall be open to normal maritime traffic and all activities to include anchoring and loitering.

(2) When the range is in use, the person(s) or officer(s) in charge shall display a red flag from a conspicuous and easily-seen location along the nearby shore to signify that the range is in use and will post lookouts to ensure the safety of all vessels transiting through the area. If the range is in use at night, a strobe light shall be displayed from the same conspicuous and easily-seen location in lieu of flags. The range shall not be used when visibility is equal to or less than the maximum range of the weapons being used at the facility.

(c) Enforcement. The restrictions on public access in this section shall be enforced by the Commander, Joint Region Marianas, and such agencies as the Commander may designate in writing.

[85 FR 43692, July 20, 2020]

§ 334.1420 Pacific Ocean off Orote Point, Apra Harbor, Island of Guam, Marianas Islands; small arms firing range.

(a) The danger zone. The waters within an area delineated by a line joining the following positions:

Latitude | Longitude

13°26′03.9″ | 144°37′38.3″

13°25′26.0″ | 144°36′14.2″

13°24′51.2″ | 144°36′31.9″

13°25′28.7″ | 144°37′59.1″

13°25′43.2″ | 144°38′09.5″

(b) The regulations. (1) The danger zone shall be closed to the public and shipping on specific dates to be designated for actual firing and no person, vessel or other craft shall enter or remain in the danger zone designated for firing except as may be authorized by the enforcing agency. Notification to maritime interests of specific dates of firing will be disseminated by the enforcing agency. On dates not specified for firing, the danger zone shall be open to normal maritime traffic.

(2) The regulations in this section shall be enforced by the Commanding Officer, U.S. Naval Station, Guam, Marianas Islands and such agencies as he may designate.

[28 FR 5377, May 30, 1963. Redesignated at 50 FR 42696, Oct. 22, 1985, as amended at 62 FR 17559, Apr. 10, 1997]

§ 334.1425 Pacific Ocean adjacent to the Mason Live-Fire Training Range Complex located at U.S. Marine Corps Base, Camp Blaz, on the northwestern coast of Guam; danger zone.

(a) The areas. The danger zone will consist of two areas: An outer area (Area 1) for larger caliber weapons and a smaller area (Area 2) for smaller caliber weapons that is set within Area 1. The datum for the coordinates in this section is NAD-83.

(1) Area 1. The waters bounded by the following seven points: Point A (13°38′59.443″ N; 144°51′11.522″ E) following the mean high water line to Point B (13°38′36.722″ N; 144°52′50.256″ E), following the mean high water line to Point C (13°38′33.936″ N; 144°52′53.031″ E), Point D (13°40′8.336″ N; 144°53′44.876″ E), Point E (13°40′56.842″ N; 144°53′42.808″ E), Point F (13°41′28.434″ N; 144°52′37.582″ E), and Point G (13°41′3.344″ N; 144°51′53.652″ E).

(2) Area 2. A subset of waters within Area 1 bounded by the following six points: Point A (13°39′7.432″ N; 144°52′8.210″ E) following the mean high water line to Point B (13°38′36.722″ N; 144°52′50.256″ E), following the mean high water line to Point C (13°38′33.936″ N; 144°52′53.031″ E), Point D (13°39′54.724″ N; 144°53′37.400″ E), Point E (13°40′25.737″ N; 144°52′43.157″ E), and Point F (13°40′6.494″ N; 144°52′7.349″ E).

(b) The regulation. (1) The enforcing agency will designate which area will be closed for use on dates designated for live fire. No persons, watercraft, or vessels shall enter or remain in the area during the times designated for live fire except those authorized by the enforcing agency. All live-fire training will cease if a person, watercraft, or vessel inadvertently enters the designated area and may resume once they have cleared the danger zone. The Installation Range Control Officer will be responsible for submitting all local Notices to Mariners for specific dates of firing, which will be disseminated through the U.S. Coast Guard and on the Marine Corps Base Camp Blaz website. The area will be open to normal maritime traffic when the range is not in use.

(2) When the range is in use red flags will be displayed from conspicuous and easily seen locations on the east and west boundaries of the danger zone to signify that the range is in use. These flags will be removed when firing ceases for the day.

(3) During the night firing, red lights will be displayed on the east and west sides of the danger zone to enable safety observers to detect vessels that may attempt to enter the danger zone. All range flags and red lights will be visible from 360 degrees. Due to the depth of the ocean the danger zone will not be marked with buoys.

(c) Enforcement. The restrictions on public access through the danger zone shall be enforced by the Commander, Marine Corps Base, Camp Blaz, and such agencies as the Commander may designate in writing.

[86 FR 56213, Oct. 8, 2021]

§ 334.1430 Apra Inner Harbor, Island of Guam; restricted area.

(a) The restricted area. The waters within Apra Inner Harbor and adjacent waters of Apra Outer Harbor inclosed by a line beginning at the northeast corner of a pier at latitude 13°26′32.1″ N., longitude 144°39′02.8″ E.; thence to the northern tip of a small island at latitude 13°26′40.2″ N., longitude 144°39′28.1″ E., and thence to the northwest corner of the point of land at latitude 13°26′28.1″ N., longitude 144°39′52.5″ E.

(b) The regulations. (1) All swimmers and all vessels and craft except public vessels of the United States are prohibited from entering this area without prior permission of the enforcing agency.

(2) The regulations in this section shall be enforced by Commander Naval Forces Marianas and such agencies as he may designate.

(3) The water areas of the outer boundaries of the restricted area will not be marked but signs will be posted at the designated boundary coordinates to warn against trespassing in the restricted area.

[37 FR 8525, Apr. 28, 1972, as amended at 37 FR 11058, June 2, 1972. Redesignated at 50 FR 42696, Oct. 22, 1985]

§ 334.1440 Pacific Ocean at Kwajalein Atoll, Marshall Islands; missile testing area.

(a) The warning area. The waters within a circular area with a radius of 200 nautical miles having its center at latitude 8°43′00″ N., longitude 167°43′00″ E. Intermittent hazardous missile operations will be conducted within the area 24 hours daily, on a permanent basis.

(b) Advisory instructions. (1) Kwajalein Test Site will coordinate safe passage of surface shipping through the area.

(2) All ships are advised to contact Kwajalein Control (2716 KC for voice, 500 KC for CW initial contact, and 468 KC for CW working) before entering the area.

[31 FR 9850, July 21, 1966. Redesignated at 50 FR 42696, Oct. 22, 1985]

§ 334.1450 Atlantic Ocean off north coast of Puerto Rico; practice firing areas, U.S. Army Forces Antilles.

(a) The danger zones—(1) Westerly small-arms range. The waters within the sector of a circle bounded by radii of 10,000 yards bearing 279° and 315° respectively, from latitude 18°28′31″, longitude 66°25′37″, and the included arc.

Note:

All bearings in this section are referred to true meridian.

(2) Camp Tortuguero artillery range. The waters within the quadrant of a circle bounded by radii of 20,000 yards bearing 315° and 45°, respectively, from latitude 18°28′31″, longitude 66°25′37″, and the included arc.

(3) Easterly small-arms range. The waters within the sector of a circle bounded by radii of 7,210 yards bearing 45° and 70°, respectively, from a point on the southeast boundary of the artillery range 2,790 yards from its southerly end, and the included arc.

Note:

The outer boundaries of the danger zones will not be marked, but signs will be posted along shore to warn against trespassing in the firing areas.

(b) The regulations. (1) The danger zones shall be open to navigation at all times except when practice firing is being conducted. When practice firing is being conducted, no person, vessel or other craft except those engaged in towing targets or patrolling the area shall enter or remain within the danger zones: Provided, that any vessel propelled by mechanical power at a speed greater than five knots may proceed through the Camp Totuguero artillery range at any time to and from points beyond, but not from one point to another in the danger zone between latitudes 18°31′ and 18°32′, at its regular rate of speed without stopping or altering its course, except when notified to the contrary.

(2) The fact that practice firing is to take place over the designated area will be advertised to the public through the usual media for the dissemination of such information. Factual information as to the dates, time, and characteristics of the firing will be advertised in advance of each session of firing but in no case less than one week nor more than four weeks before such firing is scheduled to take place.

(3) Prior to conducting each practice firing, the entire danger zone will be patrolled by aircraft or surface vessels to insure that no watercraft are within the danger zone. Any watercraft in the vicinity will be warned that practice firing is about to take place. Any such watercraft shall, upon being so warned, leave the danger zone immediately and shall not return until such practice shall have been terminated and notification to that effect shall have been given by the patrol craft, except that vessels proceeding on a regular course through the area will be allowed to proceed out of the area without warning, and firing will not commence until such vessels are clear of the area.

(4) This section shall be enforced by the Commanding General, U.S. Army Forces Antilles, and such agencies as he may designate.

[14 FR 4552, July 21, 1949. Redesignated at 14 FR 5593, Sept. 13, 1949, and amended at 15 FR 6758, Oct. 6, 1950. Redesignated at 50 FR 42696, Oct. 22, 1985, as amended at 62 FR 17559, Apr. 10, 1997; 62 FR 24034, May 2, 1997]

§ 334.1460 Atlantic Ocean and Vieques Sound, in vicinity of Culebra Island; bombing and gunnery target area.

(a) The danger zone. From Punta Resaca on the north coast of Culebra at latitude 18°20′12″, longitude 65°17′29″ to latitude 18°25′07″, longitude 65°12′07″; thence to latitude 18°26′31″, longitude 65°16′45″; thence to latitude 18°23′00″, longitude 65°24′30″; thence to the charted position of nun buoy “2” at latitude 18°20′19″, longitude 65°24′51″; thence to latitude 18°18′47″, longitude 65°24′35″; thence to latitude 18°15′30″, longitude 65°21′30″; thence to a point on the southeast coast of Cayo de Luis Pena at latitude 18°17′51″, longitude 65°19′41″; and thence to Punta Tamarindo on the west coast of Culebra at latitude 18°19′12″ longitude 65°19′22″.

(b) The regulations. (1) The danger zone is subject to use as a target area for bombing and gunnery practice. It will be open to navigation at all times except when firing is being conducted. At such times, no person or surface vessels, except those patrolling the area, shall enter or remain within the danger area. Prior to conducting each firing or dropping of ordnance the danger area will be patrolled to insure that no watercraft are within the danger area. Any watercraft in the vicinity will be warned that practice firing is about to take place and advised to vacate the area.

(2) The regulations in this section shall be enforced by the Commander, Caribbean Sea Frontier, San Juan, Puerto Rico, and such agencies as he may designate.

(Sec. 7, 40 Stat. 266, (33 U.S.C. 1))

[13 FR 9530, Dec. 31, 1948. Redesignated at 14 FR 4904, Aug. 9, 1949, and amended at 28 FR 349, Jan. 12, 1963; 39 FR 27133, July 25, 1974; 44 FR 69298, Dec. 3, 1979. Redesignated at 50 FR 42696, Oct. 22, 1985, as amended at 62 FR 17559, Apr. 10, 1997]

§ 334.1470 Caribbean Sea and Vieques Sound, in vicinity of Eastern Vieques; bombing and gunnery target area.

(a) The danger zone. From Punta Conejo on the south coast of Vieques at latitude 18°06′30″, longitude 65°22′33″; thence to latitude 18°03′00″, longitude 65°21′00″; thence to latitude 18°03′00″, longitude 65°15′30″; thence to latitude 18°11′30″, longitude 65°14′30″; thence to latitude 18°12′00″, longitude 65°20′00″; and thence to Cabellos Colorados on the north coast of Vieques at latitude 18°09′49″, longitude 65°23′27″.

(b) Regulations. (1) It will be open to navigation at all times except when firing is being conducted. At such times, no persons or surface vessels, except those patrolling the area, shall enter or remain within the danger area. Prior to conducting each firing or dropping of ordnance the danger area will be patrolled to insure that no watercraft are within the danger area. Any watercraft in the vicinity will be warned that practice firing is about to take place and advised to vacate the area.

(2) The regulations will be enforced by the Commander, U.S. Naval Forces Caribbean, U.S. Naval Station, Roosevelt Roads, Puerto Rico, and such agencies and subordinate commands as he/she may designate.

(Sec. 7, 40 Stat. 266, (33 U.S.C. 1))

[39 FR 27133, July 25, 1974, as amended at 46 FR 29935, June 4, 1981. Redesignated at 50 FR 42696, Oct. 22, 1985, as amended at 62 FR 17559, Apr. 10, 1997]

§ 334.1480 Vieques Passage and Atlantic Ocean, off east coast of Puerto Rico and coast of Vieques Island; naval restricted areas.

(a) The restricted areas. (1) A strip, 1,500 yards wide, off the naval reservation shoreline along the east coast of Puerto Rico extending from Point Figuera south to Point Puerca, and thence west to Point Cascajo and the mouth of the Daguada River.

(2) A strip, 1,500 yards wide, off the naval reservation shoreline along the west end of Vieques Island extending from Caballo Point on the north shore, west around the breakwater to Point Arenas, and thence south and east to a point on the shoreline one mile east of the site of the abandoned central at Playa Grande.

(3) A strip, 1,500 yards wide, off the south coast of Vieques Island extending from the entrance to Port Mosquito east to Conejo Point.

(4) An area inclosed by an arc with a radius of 3,000 yards centered on Cabras Island Lighthouse and extending from Point Puerca to Point Cascajo.

(b) The regulations. No person or vessel shall enter or remain within the restricted areas at any time unless on official business. Fishing vessels are permitted to anchor in Playa Blanca, passing through the restricted area described in paragraph (a)(1) of this section, to and from anchorage on as near a north-south course as sailing conditions permit. Under no conditions will swimming, diving, snorkeling, other water related activities or fishing, be permitted in the restricted area.

[13 FR 9564, Dec. 31, 1948. Redesignated at 50 FR 42696, Oct. 22, 1985, as amended at 62 FR 17559, Apr. 10, 1997]

§ 334.1490 Caribbean Sea, at St. Croix, V.I.; restricted areas.

(a) The areas—(1) Area “A”. A triangular area bounded by the following coordinates:

Latitude | Longitude

17°44′42″ N. | 64°54′18″ W.

17°43′06″ N. | 64°54′18″ W.

17°44′30″ N. | 64°53′30″ W.

(2) Area “B”. A rectangular area bounded by the following coordinates:

Latitude | Longitude

17°41′42″ N. | 64°54′00″ W.

17°41′42″ N. | 64°54′18″ W.

17°41′18″ N. | 64°54′00″ W.

17°41′18″ N. | 64°54′18″ W.

(b) The regulations. (1) Anchoring in the restricted areas is prohibited with the exception of U.S. Government owned vessels and private vessels that have been specifically authorized to do so by the Commanding Officer, Atlantic Fleet Range Support Facility.

(2) The regulations in this paragraph shall be enforced by the Commanding Officer, Atlantic Fleet Range Support Facility, Roosevelt Roads, P.R., and such agencies as he may designate.

[34 FR 19030, Nov. 29, 1969. Redesignated at 50 FR 42696, Oct. 22, 1985]

§ 335.1 Purpose.

This regulation prescribes the practices and procedures to be followed by the Corps of Engineers to ensure compliance with the specific statutes governing Army Civil Works operations and maintenance projects involving the discharge of dredged or fill material into waters of the U.S. or the transportation of dredged material for the purpose of disposal into ocean waters. These practices and procedures should be employed throughout the decision/management process concerning methodologies and alternatives to be used to ensure prudent operation and maintenance activities.

§ 335.2 Authority.

Under authority delegated from the Secretary of the Army and in accordance with section 404 of the Clean Water Act of 1977 (CWA) and section 103 of the Marine Protection, Research, and Sanctuaries Act of 1972, hereinafter referred to as the Ocean Dumping Act (ODA), the Corps of Engineers regulates the discharge of dredged or fill material into waters of the United States and the transportation of dredged material for the purpose of disposal into ocean waters. Section 404 of the CWA requires public notice with opportunity for public hearing for discharges of dredged or fill material into waters of the U.S. and that discharge sites can be specified through the application of guidelines developed by the Administrator of the Environmental Protection Agency (EPA) in conjunction with the Secretary of the Army. Section 103 of the ODA requires public notice with opportunity for public hearing for the transportation for disposal of dredged material for disposal in ocean waters. Ocean disposal of dredged material must be evaluated using the criteria developed by the Administrator of EPA in consultation with the Secretary of the Army. Section 103(e) of the ODA provides that the Secretary of the Army may, in lieu of permit procedures, issue regulations for Federal projects involving the transportation of dredged material for ocean disposal which require the application of the same criteria, procedures, and requirements which apply to the issuance of permits. Similarly, the Corps does not issue itself a CWA permit to authorize Corps discharges of dredged material or fill material into U.S. waters, but does apply the 404(b)(1) guidelines and other substantive requirements of the CWA and other environmental laws.

§ 335.3 Applicability.

This regulation (33 CFR parts 335 through 338) is applicable to the Corps of Engineers when undertaking operation and maintenance activities at Army Civil Works projects.

§ 335.4 Policy.

The Corps of Engineers undertakes operations and maintenance activities where appropriate and environmentally acceptable. All practicable and reasonable alternatives are fully considered on an equal basis. This includes the discharge of dredged or fill material into waters of the U.S. or ocean waters in the least costly manner, at the least costly and most practicable location, and consistent with engineering and environmental requirements.

§ 335.5 Applicable laws.

(a) The Clean Water Act (33 U.S.C. 1251 et seq.) (also known as the Federal Water Pollution Control Act Amendments of 1972, 1977, and 1987).

(b) The Marine Protection, Research, and Sanctuaries Act of 1972 (33 U.S.C. 1401 et seq.) (commonly referred to as the Ocean Dumping Act (ODA)).

§ 335.6 Related laws and Executive Orders.

(a) The National Historic Preservation Act of 1966 (16 U.S.C. 470a et seq.), as amended.

(b) The Reservoir Salvage Act of 1960 (16 U.S.C. 469), as amended.

(c) The Endangered Species Act (16 U.S.C. 1531 et seq.), as amended.

(d) The Estuary Protection Act (16 U.S.C. 1221).

(e) The Fish and Wildlife Coordination Act (16 U.S.C. 661 et seq.), as amended.

(f) The National Environmental Policy Act (42 U.S.C. 4341 et seq.), as amended.

(g) The Wild and Scenic Rivers Act (16 U.S.C. 1271 et seq.) as amended.

(h) Section 307(c) of the Coastal Zone Management Act of 1976 (16 U.S.C. 1456 (c)), as amended.

(i) The Water Resources Development Act of 1976 (Pub. L. 94-587).

(j) Executive Order 11593, Protection and Enhancement of the Cultural Environment, May 13, 1971, (36 FR 8921, May 15, 1971).

(k) Executive Order 11988, Floodplain Management, May 24, 1977, (42 FR 26951, May 25, 1977).

(l) Executive Order 11990, Protection of Wetlands, May 24, 1977, (42 FR 26961, May 25, 1977).

(m) Executive Order 12372, Intergovernmental Review of Federal Programs, July 14, 1982, (47 FR 3959, July 16, 1982).

(n) Executive Order 12114, Environmental Effects Abroad of Major Federal Actions, January 4, 1979.

§ 335.7 Definitions.

The definitions of 33 CFR parts 323, 324, 327, and 329 are hereby incorporated. The following terms are defined or interpreted from parts 320 through 330 for purposes of 33 CFR parts 335 through 338.

Beach nourishment means the discharge of dredged or fill material for the purpose of replenishing an eroded beach or placing sediments in the littoral transport process.

Emergency means a situation which would result in an unacceptable hazard to life or navigation, a significant loss of property, or an immediate and unforeseen significant economic hardship if corrective action is not taken within a time period less than the normal time needed under standard procedures.

Federal standard means the dredged material disposal alternative or alternatives identified by the Corps which represent the least costly alternatives consistent with sound engineering practices and meeting the environmental standards established by the 404(b)(1) evaluation process or ocean dumping criteria.

Navigable waters of the U.S. means those waters of the U.S. that are subject to the ebb and flow of the tide shoreward to the mean high water mark, and/or are presently used, have been used in the past, or may be susceptible to use with or without reasonable improvement to transport interstate or foreign commerce. A more complete definition is provided in 33 CFR part 329. For the purpose of this regulation, the term also includes the confines of Federal navigation approach channels extending into ocean waters beyond the territorial sea which are used for interstate or foreign commerce.

Practicable means available and capable of being done after taking into consideration cost, existing technology, and logistics in light of overall project purposes.

Statement of Findings (SOF) means a comprehensive summary compliance document signed by the district engineer after completion of appropriate environmental documentation and public involvement.

Territorial sea means the belt of the seas measured from the line of ordinary low water along that portion of the coast which is in direct contact with the open sea and the line marking the seaward limit of inland waters, extending seaward a distance of three miles as described in the convention on the territorial sea and contiguous zone, 15 U.S.T. 1606.

§ 336.0 General.

Since the jurisdiction of the CWA extends to all waters of the U.S., including the territorial sea, and the jurisdiction of the ODA extends over ocean waters including the territorial sea, the following rules are established to assure appropriate regulation of discharges of dredged or fill material into waters of the U.S. and ocean waters.

(a) The disposal into ocean waters, including the territorial sea, of dredged material excavated or dredged from navigable waters of the U.S. will be evaluated by the Corps in accordance with the ODA.

(b) In those cases where the district engineer determines that the discharge of dredged material into the territorial sea would be for the primary purpose of fill, such as the use of dredged material for beach nourishment, island creation, or construction of underwater berms, the discharge will be evaluated under section 404 of the CWA.

(c) For those cases where the district engineer determines that the materials proposed for discharge in the territorial sea would not be adequately evaluated under the section 404(b)(1) guidelines of the CWA, he may evaluate that material under the ODA.

§ 336.1 Discharges of dredged or fill material into waters of the U.S.

(a) Applicable laws. Section 404 of the CWA governs the discharge of dredged or fill material into waters of the U.S. Although the Corps does not process and issue permits for its own activities, the Corps authorizes its own discharges of dredged or fill material by applying all applicable substantive legal requirements, including public notice, opportunity for public hearing, and application of the section 404(b)(1) guidelines.

(1) The CWA requires the Corps to seek state water quality certification for discharges of dredged or fill material into waters of the U.S.

(2) Section 307 of the Coastal Zone Management Act (CZMA) requires that certain activities that a Federal agency conducts or supports be consistent with the Federally-approved state management plan to the maximum extent practicable.

(b) Procedures. If changes in a previously approved disposal plan for a Corps navigation project warrant re-evaluation under the CWA, the following procedures should be followed by district engineers prior to discharging dredged material into waters of the U.S. except where emergency action as described in § 337.7 of this chapter is required.

(1) A public notice providing opportunity for a public hearing should be issued at the earliest practicable time. The public notification procedures of § 337.1 of this chapter should be followed.

(2) The public hearing procedures of 33 CFR part 327 should be followed.

(3) As soon as practicable, the district engineer will request from the state a 401 water quality certification and, if applicable, provide a coastal zone consistency determination for the Corps activity using the procedures of § 336.1(b) (8) and (9), respectively, of this part.

(4) Discharges of dredged material will be evaluated using the guidelines authorized under section 404(b)(1) of the CWA, or using the ODA regulations, where appropriate. If the guidelines alone would prohibit the designation of a proposed discharge site, the economic impact on navigation and anchorage of the failure to use the proposed discharge site will also be considered in evaluating whether the proposed discharge is to be authorized under CWA section 404(b)(2).

(5) The EPA Administrator can prohibit or restrict the use of any defined area as a discharge site under 404(c) whenever he determines, after notice and opportunity for public hearing and after consultation with the Secretary of the Army, that the discharge of such materials into such areas will have an unacceptable adverse effect on municipal water supplies, shellfish beds and fishery areas, wildlife, or recreation areas. Upon notification of the prohibition of a discharge site by the Administrator the district engineer will complete the administrative processing of the proposed project up to the point of signing the Statement of Findings (SOF) or Record of Decision (ROD). The unsigned SOF or ROD along with a report described in § 337.8 of this chapter will be forwarded through the appropriate Division office to the Dredging Division, Office of the Chief of Engineers.

(6) In accordance with the National Environmental Policy Act (NEPA), and the regulations of the Council on Environmental Quality (40 CFR parts 1500-1508), an Environmental Impact Statement (EIS) or Environmental Assessment (EA) will be prepared for all Corps of Engineers projects involving the discharge of dredged or fill material, unless such projects are included within a categorical exclusion found at 33 CFR part 230 or addressed within an existing EA or EIS. If a proposed maintenance activity will result in a deviation in the operation and maintenance plan as described in the EA or EIS, the district engineer will determine the need to prepare a new EA, EIS, or supplement. If a new EA, EIS, or supplement is required, the procedures of 33 CFR part 230 will be followed.

(7) If it can be anticipated that related work by other Federal or non-Federal interests will occur in the same area as Corps projects, the district engineer should use all reasonable means to include it in the planning, processing, and review of Corps projects. Related work normally includes, but is not necessarily limited to, maintenance dredging of approach channels and berthing areas connected to Federal navigation channels. The district engineer should coordinate the related work with interested Federal, state, regional, and local agencies and the general public at the same time he does so for the Corps project. The district engineer should ensure that related work meets all substantive and procedural requirements of 33 CFR parts 320 through 330. Documents covering Corps maintenance activities normally should also include an appropriate discussion of ancillary maintenance work. District engineers should assist local interests to obtain from the state any necessary section 401 water quality certification and, if required, the section 307 coastal zone consistency concurrence. The absence of such certification or concurrence by the state or the denial of a Corps permit for related work shall not be cause for delay of the Federal project. Local sponsors will be responsible for funding any related work. If permitting of the related work complies with all legal requirements and is not contrary to the public interest, section 10, 404, and 103 permits normally will be issued by the district engineer in a separate SOF or ROD. Authorization by nationwide or regional general permit may be appropriate. If the related work does not receive a necessary state water quality certification and/or CZMA consistency concurrence, or are determined to be contrary to the public interest the district engineer should re-examine the project viability to ensure that continued maintenance is warranted.

(8) State water quality certification: Section 401 of the CWA requires the Corps to seek state water quality certification for dredged material disposal into waters of the U.S. The state certification request must be processed to a conclusion by the state within a reasonable period of time. Otherwise, the certification requirements of section 401 are deemed waived. The district engineer will request water quality certification from the state at the earliest practicable time using the following procedures:

(i) In addition to the Corps section 404 public notice, information and data demonstrating compliance with state water quality standards will be provided to the state water quality certifying agency along with the request for water quality certification. The information and data may be included within the 404(b)(1) evaluation. The district engineer will request water quality certification to be consistent with the maintenance dredging schedule for the project. Submission of the public notice, including information and data demonstrating compliance with the state water quality standards, will constitute a valid water quality certification request pursuant to section 401 of the CWA.

(ii) If the proposed disposal activity may violate state water quality standards, after consideration of disposal site dilution and dispersion, the district engineer will work with the state to acquire data to satisfy compliance with the state water quality standards. The district engineer will use the technical manual “Management Strategy for Disposal of Dredged Material: Contaminant Testing and Controls” or its appropriate updated version as a guide for developing the appropriate tests to be conducted on such dredged material.

(iii) If the state does not take final action on a request for water quality certification within two months from the date of the initial request, the district engineer will notify the state of his intention to presume a waiver as provided by section 401 of the CWA. If the state agency, within the two-month period, requests an extension of time, the district engineer may approve one 30-day extension unless, in his opinion, the magnitude and complexity of the information contained in the request warrants a longer or additional extension period. The total period of time in which the state must act should not exceed six months from the date of the initial request. Waiver of water quality certification can be conclusively presumed after six months from the date of the initial request.

(iv) The procedures of § 337.2 will be followed if the district engineer determines that the state data acquisition requirements exceed those necessary in establishment of the Federal standard.

(9) State coastal zone consistency: Section 307 of the CZMA requires that activities subject to the CZMA which a Federal agency conducts or supports be consistent with the Federally approved state management program to the maximum extent practicable. The state is provided a reasonable period of time as defined in § 336.1(b)(9)(iv) to take final action on Federal consistency determinations; otherwise state concurrence can be presumed. The district engineer will provide the state a consistency determination at the earliest practicable time using the following procedures:

(i) The Corps section 404 public notice and any additional information that the district engineer determines to be appropriate will be provided the state coastal zone management agency along with the consistency determination. The consistency determination will consider the maintenance dredging schedule for the project. Submission of the public notice and, as appropriate, any additional information as determined by the district engineer will constitute a valid coastal zone consistency determination pursuant to section 307 of the CZMA.

(ii) If the district engineer decides that a consistency determination is not required for a Corps activity, he may provide the state agency a written determination that the CZMA does not apply.

(iii) The district engineer may provide the state agency a general consistency determination for routine or repetitive activities.

(iv) If the state fails to provide a response within 45 days from receipt of the initial consistency determination, the district engineer will presume state agency concurrence. If the state agency, within the 45-day period, requests an extension of time, the district engineer will approve one 15-day extension unless, in his opinion, the magnitude and complexity of the information contained in the consistency determination warrants a longer or additional extension period. The longer or additional extension period shall not exceed six months from the date of the initial consistency determination.

(v) If the district engineer determines that the state recommendations to achieve consistency to the maximum degree practicable exceed either his authority or funding for a proposed dredging or disposal activity, he will so notify the state coastal zone management agency indicating that the Corps has complied to the maximum extent practicable with the state's coastal zone management program. If the district engineer determines that state recommendations to achieve consistency to the maximum degree practicable do not exceed his authority or funding but, nonetheless, are excessive, he will follow the procedures of § 337.2.

(c) Evaluation factors. The following factors will be used, as appropriate, to evaluate the discharge of dredged material into waters of the U.S. Other relevant factors may also be evaluated, as needed.

(1) Navigation and Federal standard. The maintenance of a reliable Federal navigation system is essential to the economic well-being and national defense of the country. The district engineer will give full consideration to the impact of the failure to maintain navigation channels on the national and, as appropriate, regional economy. It is the Corps' policy to regulate the discharge of dredged material from its projects to assure that dredged material disposal occurs in the least costly, environmentally acceptable manner, consistent with engineering requirements established for the project. The environmental assessment or environmental impact statement, in conjunction with the section 404(b)(1) guidelines and public notice coordination process, can be used as a guide in formulating environmentally acceptable alternatives. The least costly alternative, consistent with sound engineering practices and selected through the 404(b)(1) guidelines or ocean disposal criteria, will be designated the Federal standard for the proposed project.

(2) Water quality. The 404(b)(1) guidelines at 40 CFR part 230 and ocean dumping criteria at 40 CFR part 220 implement the environmental protection provisions of the CWA and ODA, respectively. These guidelines and criteria provide general regulatory guidance and objectives, but not a specific technical framework for evaluating or managing contaminated sediment that must be dredged. Through the section 404(b)(1) evaluation process (or ocean disposal criteria for the territorial sea), the district engineer will evaluate the water quality impacts of the proposed project. The evaluation will include consideration of state water quality standards. If the district engineer determines the dredged material to be contaminated, he will follow the guidance provided in the most current published version of the technical manual for contaminant testing and controls. This manual is currently cited as: Francingues, N.R., Jr., et al. 1985. “Management Strategy for Disposal of Dredged Material: Contaminant Testing and Controls,” Miscellaneous Paper D-85-1, U.S. Army Waterways Experiment Station, Vicksburg, Mississippi. The procedures of § 336.1(b)(8) will be followed for state water quality certification requests.

(3) Coastal zone consistency. As appropriate, the district engineer will determine whether the proposed project is consistent with the state coastal zone management program to the maximum extent practicable. The procedures of § 336.1(b)(9) will be followed for coastal zone consistency determinations.

(4) Wetlands. Most wetland areas constitute a productive and valuable public resource, the unnecessary alteration or destruction of which should be discouraged as contrary to the public interest. The district engineer will, therefore, follow the guidance in 33 CFR 320.4(b) and EO 11990, dated May 24, 1977, when evaluating Corps operations and maintenance activities in wetlands.

(5) Endangered species. All Corps operations and maintenance activities will be reviewed for the potential impact on threatened or endangered species, pursuant to the Endangered Species Act of 1973. If the district engineer determines that the proposed activity will not affect listed species or their critical habitat, a statement to this effect should be included in the public notice. If the proposed activity may affect listed species or their critical habitat, appropriate discussions will be initiated with the U.S. Fish and Wildlife Service or National Marine Fisheries Service, and a statement to this effect should be included in the public notice. (See 50 CFR part 402).

(6) Historic resources. Archeological, historical, or architectural resource surveys may be required to locate and identify previously unrecorded historic properties in navigation channels and at dredged or fill material disposal sites. If properties that may be historic are known or found to exist within the navigation channel or proposed disposal area, field testing and analysis may sometimes be necessary in order to evaluate the properties against the criteria of the National Register of Historic Places. Such testing should be limited to the amount and kind needed to determine eligibility for the National Register; more detailed and extensive work on a property may be prescribed later, as the outcome of review under section 106 of the National Historic Preservation Act. Historic properties are not normally found in previously constructed navigation channels or previously used disposal areas. Therefore, surveys to identify historic properties should not be conducted for maintenance dredging and disposal activities proposed within the boundaries of previously constructed navigation channels or previously used disposal areas unless there is good reason to believe that historic properties exist there.

(i) The district engineer will establish whether historic properties located in navigation channels or at disposal sites are eligible for inclusion in the National Register of Historic Places in accordance with applicable regulations of the Advisory Council on Historic Preservation and the Department of the Interior.

(ii) The district engineer will take into account the effects of any proposed actions on properties included in or eligible for inclusion in the National Register of Historic Places, and will request the comments of the Advisory Council on Historic Preservation, in accordance with applicable regulations of the Advisory Council on Historic Preservation.

(7) Scenic and recreational values. (i) Maintenance dredging and disposal activities may involve areas which possess recognized scenic, recreational, or similar values. Full evaluation requires that due consideration be given to the effect which dredging and disposal of the dredged or fill material may have on the enhancement, preservation, or development of such values. Recognition of these values is often reflected by state, regional, or local land use classification or by similar Federal controls or policies. Operations and maintenance activities should, insofar as possible, be consistent with and avoid adverse effects on the values or purposes for which such resources have been recognized or set aside, and for which those classifications, controls, or policies were established. Special consideration must be given to rivers named in section 3 of the Wild and Scenic Rivers Act and those proposed for inclusion as provided by section 4 and 5 of the Act, or by later legislation.

(ii) Any other areas named in Acts of Congress or Presidential Proclamations, such as National Rivers, National Wilderness Areas, National Seashores, National Parks, and National Monuments, should be given full consideration when evaluating Corps operations and maintenance activities.

(8) Fish and wildlife. (i) In those cases where the Fish and Wildlife Coordination Act (FWCA) applies, district engineers will consult, through the public notification process, with the Regional Directors of the U.S. Fish and Wildlife Service and the National Marine Fisheries Service and the head of the agency responsible for fish and wildlife for the state in which the work is to be performed, with a view to the conservation of fish and wildlife resources by considering ways to prevent their direct and indirect loss and damage due to the proposed operation and maintenance activity. The district engineer will give full consideration to these views on fish and wildlife conservation in evaluating the activity. The proposed operations may be modified in order to lessen the damage to such resources. The district engineer should include such justifiable means and measures for fish and wildlife resources that are found to be appropriate. Corps funding of Fish and Wildlife Service activities under the Transfer of Funds Agreement between the Fish and Wildlife Service and the Corps is not applicable for Corps operation and maintenance projects.

(ii) District engineers should consider ways of reducing unavoidable adverse environmental impacts of dredging and disposal activities. The determination as to the extent of implementation of such measures will be done by the district engineer after weighing the benefits and detriments of the maintenance work and considering applicable environmental laws, regulations, and other relevant factors.

(9) Marine sanctuaries. Operations and maintenance activities involving the discharge of dredged or fill material in a marine sanctuary established by the Secretary of Commerce under authority of section 302 of the ODA should be evaluated for the impact on the marine sanctuary. In such a case, certification should be obtained from the Secretary of Commerce that the proposed project is consistent with the purposes of Title III of the ODA and can be carried out within the regulations promulgated by the Secretary of Commerce to control activities within the marine sanctuary.

(10) Other state requirements. District engineers will make all reasonable efforts to comply with state water quality standards and Federally approved coastal zone programs using the procedures of §§ 336.1(b) (8), (9), and 337.2. District engineers should not seek state permits or licenses unless authorized to do so by a clear, explicit, and unambiguous Congressional waiver of Federal sovereign immunity, giving the state authority to impose that requirement on Federal activities (e.g., CWA sections 401 and 404(t), and CZMA section 307 (c)(1) and (c)(2)).

(11) Additional factors. In addition to the factors described in paragraphs (c)(1) through (9) of this section, the following factors should also be considered.

(i) The evaluation of Corps operations and maintenance activities involving the discharge of dredged or fill material into waters of the U.S. is a continuing process and should proceed concurrently with the processing of state water quality certification and, if required, the provision of a coastal zone consistency determination to the state. If a local agency having jurisdiction over or concern with the particular activity comments on the project through the public notice coordination, due consideration should be given to those official views as a reflection of local factors.

(ii) Where officially adopted state, regional, or local land use classifications, determinations, or policies are applicable, they normally will be presumed to reflect local views and will be considered in addition to other national factors.

§ 336.2 Transportation of dredged material for the purpose of disposal into ocean waters.

(a) Applicable law. Section 103(a) of the ODA provides that the Corps of Engineers may issue permits, after notice and opportunity for public hearing, for the transportation of dredged material for disposal into ocean waters.

(b) Procedures. The following procedures will be followed by district engineers for dredged material disposal into ocean waters except where emergency action as described in § 337.7 of this chapter is required.

(1) In accordance with the provisions of section 103 of the ODA, the district engineer should issue a public notice giving opportunity for public hearing, following the procedures described in § 337.1 of this chapter for Corps operation and maintenance activities involving disposal of dredged material in ocean waters, as well as dredged material transported through the territorial sea for ocean disposal.

(2) The public hearing procedures of 33 CFR part 327 should be followed.

(c) State permits and licenses. The terms and legislative history of the ODA leave some doubt regarding whether a state has legal authority to exert control over ocean dumping activities of the Corps in the territorial sea covered under the Act (see section 106(d)). Notwithstanding this legal question, the Corps will voluntarily as a matter of comity apply for state section 401 water quality certification and determine consistency with a Federally-approved coastal zone management plan for Corps ocean disposal of dredged material within the three-mile extent of the territorial sea. Moreover, the Corps will attempt to comply with any reasonable requirement imposed by a state in the course of the 401 certification process or the CZMA consistency determination process. Nevertheless, the Corps reserves its legal rights regarding any case where a state unreasonably denies or conditions a 401 water quality certification for proposed Corps ocean disposal of dredged material within the limits of the territorial sea, or asserts that such disposal would not be consistent with an approved state CZMA plan. If such a circumstance arises, the district engineer shall so notify the division engineer who then decides on consultation with CECW-D, CECW-Z, and CECC-E for purposes of determining the Corps of Engineers' appropriate response and course of action.

(d) Evaluation factors. (1) In addition to the appropriate evaluation factors of § 336.1(c), activities involving the transportation of dredged material for the purpose of disposal in ocean waters will be evaluated by the Corps to determine whether the proposed disposal will unreasonably degrade or endanger human health, welfare, or amenities, or the marine environment, ecological systems or economic potentialities. In making this evaluation, the district engineer, in addition to considering the criteria developed by EPA on the effects of the dumping, will also consider navigation, economic and industrial development, and foreign and domestic commerce, as well as the availability of alternatives to ocean disposal, in determining the need for ocean disposal of dredged material. Where ocean disposal is determined to be appropriate, the district engineer will, to the extent feasible, specify disposal sites which have been designated by the Administrator pursuant to section 102(c) of the ODA.

(2) As provided by the EPA regulations at 40 CFR 225.2(b-e) for implementing the procedures of section 102 of the ODA, the regional administrator of EPA may make an independent evaluation of dredged material disposal activities regulated under section 103 of the ODA related to the effects of dumping. The EPA regulations provide that the regional administrator make said evaluation within 15 days after receipt of all requested information. The regional administrator may request from the district engineer an additional 15-day period for a total of to 30 days. The EPA regulations provide that the regional administrator notify the district engineer of non-compliance with the environmental impact criteria or with any restriction relating to critical areas on the use of an EPA recommended disposal site designated pursuant to section 102(c) of the ODA. In cases where the regional administrator has notified the district engineer in writing that the proposed disposal will not comply with the criteria related to the effects of dumping or related to critical area restriction, no dredged material disposal may occur unless and until the provisions of 40 CFR 225.3 are followed and the Administrator grants a waiver of the criteria pursuant to section 103(d) of the ODA.

(3) If the regional administrator advises the district engineer that the proposed disposal will comply with the criteria, the district engineer will complete the administrative record and sign the SOF.

(4) In situations where an EPA-designated site is not feasible for use or where no site has been designated by the EPA, the district engineer, in accordance with the ODA and in consultation with EPA, may select a site pursuant to section 103. Appropriate NEPA documentation should be used to support site selections. District engineers should address site selection factors in the NEPA document. District engineers will consider the criteria of 40 CFR parts 227 and 228 when selecting ocean disposal sites, as well as other technical and economic considerations. Emphasis will be placed on evaluation to determine the need for ocean disposal and other available alternatives. Each alternative should be fully considered on an equal basis, including the no dredging option.

(5) If the regional administrator advises the district engineer that a proposed ocean disposal site or activity will not comply with the criteria, the district engineer should proceed as follows.

(i) The district engineer should determine whether there is an economically feasible alternative method or site available other than the proposed ocean disposal site. If there are other feasible alternative methods or sites available, the district engineer will evaluate the engineering and economic feasibility and environmental acceptability of the alternative sites.

(ii) If the district engineer makes a determination that there is no economically feasible alternative method or site available, he will so advise the regional administrator of his intent to proceed with the proposed action setting forth his reasons for such determination.

(iii) If the regional administrator advises, within 15 days of the notice of the intent to issue, that he will commence procedures specified by section 103(c) of the ODA to prohibit use of a proposed disposal site, the case will be forwarded through the respective Division office and CECW-D to the Secretary of the Army or his designee for further coordination with the Administrator of EPA and final resolution. The report forwarding the case should be in the format described in § 337.8 of this chapter.

(iv) The Secretary of the Army or his designee will evaluate the proposed project and make a final determination on the proposed disposal. If the decision of the Secretary of the Army or his designee is that ocean disposal at the proposed site is required because of the unavailability of economically feasible alternatives, he will seek a waiver from the Administrator, EPA, of the criteria or of the critical site designation in accordance with section 103(d) of the ODA.

§ 337.0 Purpose.

The practices and procedures part of this regulation apply to all Corps operations and maintenance activities involving the discharge of dredged or fill material in waters of the U.S. and ocean waters and related activities of local interests accomplished to ensure continued functions of constructed Corps projects.

§ 337.1 Public notice.

Presently, public notification of proposed discharges of dredged or fill material is required by the provisions of section 103 of the ODA and sections 401 and 404 of the CWA. District engineers are encouraged to develop procedures to avoid unnecessary duplication of state agency procedures. Joint public notification procedures should be a primary factor in the development of Memoranda of Agreement with the states as described in § 337.4.

(a) With the possible exception of emergency actions as discussed in § 337.7, the district engineer should issue a public notice for projects involving the discharge of dredged or fill material into waters of the U.S. or ocean waters unless the project is authorized by a general permit. Public notices for Corps operation and maintenance activities are normally issued for an indefinite period of time and are not reissued unless changes in the disposal plan warrant re-evaluation under section 404 of the CWA or section 103 of the ODA. The public notice is the primary method of advising all interested parties of Federal projects and of soliciting comments and information necessary to evaluate the probable impact of the discharge of dredged or fill material into waters of the U.S. or ocean waters. The notice should, therefore, include sufficient information to provide a clear understanding of the nature of the activity and related activities of local interests in order to generate meaningful comments. A single public notice may be used for more than one project in appropriate cases. The notice normally should include the following items:

(1) The name and location of the project and proposed disposal site.

(2) A general description of the project and a description of the estimated type, composition, and quantity of materials to be discharged, the proposed time schedule for the dredging activity, and the types of equipment and methods of dredging and conveyance proposed to be used.

(3) A sketch showing the location of the project, including depth of water in the area and all proposed discharge sites.

(4) The nature, estimated amount, and frequency of known and anticipated related dredging and discharge to be conducted by others.

(5) A list of Federal, state, and local environmental agencies with whom the activity is being coordinated.

(6) A statement concerning a preliminary determination of the need for and/or availability of an environmental impact statement.

(7) Any other available information which may assist interested parties in evaluating the likely impact of the proposed activity, if any.

(8) A reasonable period of time, normally thirty days but not less than fifteen days from date of mailing except in emergency situations where the procedures of § 337.7 will be followed, within which interested parties may express their views concerning the proposed project.

(9) If the proposed Federal project would occur in the territorial seas or ocean waters, a description of the project's relationship to the baseline from which the territorial sea is measured.

(10) A statement on the status of state water quality certification under section 401 of the CWA.

(11) For activities requiring a determination of consistency with an approved state coastal zone management plan, the following information will be included in the notice:

(i) A statement on whether or not the proposed activity will be undertaken in a manner consistent to the maximum extent practicable with the state management program.

(ii) Sufficient information to support the consistency determination to include associated facilities and their coastal zone effect.

(iii) Data and supporting information commensurate with the expected effects of the activity on the coastal zone.

(12) A statement on historic resources, state of present knowledge, likelihood of damage or other adverse effect on such resources, etc.

(13) A statement on endangered species.

(14) A statement on evaluation factors to be considered, adapted from that presented at 33 CFR 325.3(b).

(15) The name, address, and telephone number of the Corps employee from whom additional information concerning the project may be obtained.

(16) The signature of the district engineer or his designee on all maintenance dredged material disposal public notices.

(17) For activities regulated under section 103 of the ODA, the following additional information should be integrated into the public notice:

(i) A statement on the designation status of the disposal site.

(ii) If the proposed disposal site is not a designated site, a description of the characteristics of the proposed disposal site and an explanation as to why no previously designated disposal site is feasible.

(iii) A brief description of known dredged material discharges at the proposed disposal site.

(iv) Existence and documented effects of other authorized disposals that have been made at the disposal area.

(v) An estimated length of time during which disposal would continue at the proposed site.

(vi) Information on the characteristics and composition of the dredged material, and the following paragraph:

The proposed transportation of this dredged material for disposing of it in ocean waters is being evaluated to determine that the proposed disposal will not unreasonably degrade or endanger human health, welfare, or amenities or the marine environment, ecological systems, or economic potentialities. In making this determination, the criteria established by the Administrator, EPA pursuant to section 102(a) of the ODA, will be applied. In addition, based upon an evaluation of the potential effect which the failure to utilize this ocean disposal site will have on navigation, economic and industrial development, and foreign and domestic commerce of the United States, an independent determination will be made of the need to dispose of the dredged material in ocean waters, other possible methods of disposal, and other appropriate locations.

(b) The following statement should be included in the public notices:

Any person who has an interest which may be affected by the disposal of this dredged material may request a public hearing. The request must be submitted in writing to the district engineer within the comment period of this notice and must clearly set forth the interest which may be affected and the manner in which the interest may be affected by this activity.

(c) Public notices should be distributed as described in 33 CFR 325.3(c). In addition, public notices should be sent to CECW-D, Office of the Chief of Engineers, Washington, DC 20314, if the project involves the discharge of dredged material in waters of the U.S. or ocean waters. District engineers should also develop, as appropriate, regional mailing lists for Corps maintenance dredging and disposal activities to the extent that property owners adjacent to the navigation channel and disposal area are notified of the proposed activity. In order to effect compliance with Executive Order 12372, district engineers should provide copies of public notices to concerned state and local elected officials.

(d) The district engineer should consider all comments received in response to the public notice in his subsequent actions. All comments expressing objections to or raising questions about the project should be acknowledged. Comments received as form letters or petitions, however, may be acknowledged as a group to the person or organization responsible for the form letter or petition. If comments are received which relate to matters within the special expertise of another agency, the district engineer may seek the advice of that agency. The receipt of comments as a result of the public notice normally should not extend beyond the stated comment period; however, at his discretion, the district engineer may provide an extension.

(e) Notices sent to several agencies within the same state may result in conflicting comments from those agencies. Many states have designated a state agency or individual to provide a single and coordinated state position regarding Federal activities. Where a state has not so designated a single source, the district engineer, as appropriate, may seek from the Governor an expression of his views and desires concerning the proposed and subsequent similar projects.

(f) All comments received from the public notice coordination should be considered in the public interest review process. Comments received from Federal or state agencies which are within the area of expertise of another agency will be communicated with that other agency if the district engineer needs the information to make a final determination on the proposed project.

§ 337.2 State requirements.

The procedures of this section should be followed in implementing state requirements.

(a) District engineers should cooperate to the maximum extent practicable with state agencies to prevent violation of Federally approved state water quality standards and to achieve consistency to the maximum degree practicable with an approved coastal zone management program.

(b) If the state agency imposes conditions or requirements which exceed those needed to meet the Federal standard, the district engineer should determine and consider the state's rationale and provide to the state information addressing why the alternative which represents the Federal standard is environmentally acceptable. The district engineer will accommodate the state's concerns to the extent practicable. However, if a state agency attempts to impose conditions or controls which, in the district engineers opinion, cannot reasonably be accommodated, the following procedures will be followed.

(1) In situations where an agency requires monitoring or testing, the district engineer will strive to reach an agreement with the agency on a data acquisition program. The district engineer will use the technical manual “Management Strategy for Disposal of Dredged Material: Contaminant Testing and Controls” or its appropriate updated version as a guide for developing the appropriate tests to be conducted. If the agency insists on requirements which, in the opinion of the district engineer, exceed those required in establishment of the Federal standard, the agency will be asked to fund the difference in cost. If the agency agrees to fund the difference in cost, the district engineer will comply with the request. If the agency does not fund the additional cost, the district engineer will follow the guidance in paragraph (b) (3) of this section.

(2) When an agency requires special conditions or implementation of an alternative which the Federal standard does not, district engineers will proceed as follows: In those cases where the project authorization requires a local sponsor to provide suitable disposal areas, disposal areas must be made available by a sponsor before dredging proceeds. In other cases where there are no local sponsor requirements to provide disposal areas, the state or the prospective local sponsor will be advised that, unless the state or the sponsor provides suitable disposal areas, the added Federal cost of providing these disposal areas will affect the priority of performing dredging on that project. In either case, states will be made aware that additional costs to meet state standards or the requirements of the coastal zone management program which exceed those necessary in establishment of the Federal standard may cause the project to become economically unjustified.

(3) If the state denies or notifies the district engineer of its intent to deny water quality certification or does not concur regarding coastal zone consistency, the project dredging may be deferred. A report pursuant to § 337.8 of this section will be forwarded to CECW-D, Office of the Chief of Engineers, Washington, DC 20314-1000 for resolution.

§ 337.3 Transfer of the section 404 program to the states.

Section 404(g-1) of the CWA allows the Administrator of the EPA to transfer to qualified states administration of the section 404 permit program for discharges into certain waters of the U.S. Once a state's 404 program is approved, the district engineer will follow state procedures developed in accordance with section 404(g-1) of the CWA for all on-going Corps projects involving the discharge of fill material in transferred waters to the state agency responsible for administering the program. Corps projects involving the discharge of dredged or fill material in waters not transferred to the state will be processed in accordance with this regulation.

§ 337.4 Memoranda of Agreement (MOA).

The establishment of joint notification procedures for Corps projects involving disposal of dredged or fill material should be actively pursued through the development of MOAs with the state. The MOAs may be used to define responsibilities between the state and the Corps district involved. The primary purpose of MOAs will be to avoid or eliminate administrative duplication, when such duplication does not contribute to the overall decision-making process. MOAs for purposes of this regulation will not be used to implement provisions not related to the maintenance or enforcement of Federally-approved state water quality standards or coastal zone management programs. District engineers are authorized and encouraged to develop MOAs with states and other Federal agencies for Corps projects involving the discharge of dredged or fill material. Copies of all MOAs will be forwarded to CECW-D, Office of the Chief of Engineers, Washington, DC 20314-1000 for approval.

§ 337.5 General authorizations.

Under the provisions of sections 404(e) of the CWA and 104(c) of the ODA certain categories of activities may be authorized on a regional, statewide, or nationwide basis. General authorizations can be a useful mechanism for implementation of the procedural provisions of the CWA, CZMA, and ODA while avoiding unnecessary duplication and paperwork. Through the general authorization process, compliance with all environmental laws and regulations including coastal zone consistency, if applicable, and water quality certification can be accomplished in a single process for a category of activities. Since the emphasis of particular environmental issues for most Corps projects is more regional than nationwide, district engineers are encouraged to develop general authorizations for routine Civil Works activities involving the discharge of dredged or fill material to address the specific requirements of a particular geographic region. When evaluating general categories of activities, the district engineer should follow the same procedure as outlined for individual Federal activities including the water quality certification and/or coastal zone consistency requirements of part 336 of this chapter. General authorizations should include related activities of local interests. Additionally, district engineers should use existing general permits authorized on a statewide or regional basis and the nationwide permits at 33 CFR part 330 for Federal projects involving the disposal of dredged material. The development of new statewide or regional general authorizations for Federal activities should be in accordance with the requirements of §§ 336.1 and 336.2 of this chapter. General permits for related activities of local interests should be developed using the procedures of 33 CFR parts 320 through 330.

§ 337.6 Statement of Findings (SOF).

Upon completion of the evaluation process including required coordination, receipt or waiver of required state certifications, and completion of the appropriate environmental documents, an SOF will be prepared. In cases involving an EIS, a ROD will be prepared in accordance with 33 CFR part 230 and should be used in lieu of the SOF, providing the substantive parts of this section are included in the ROD. The SOF need not duplicate information contained in supporting environmental documents but rather may incorporate it by reference. The SOF should include a comprehensive summary and record of compliance and should be prepared in the following format except that the procedures of 33 CFR 325.2 should be followed for related activities of local interests.

(a) The SOF should identify the name of the preparer, date (which may not necessarily correspond to the date signed), and name of waterway.

(b) The proposed action for which the findings are made should be described.

(c) A coordination section should be provided. The coordination section should reference the public notice number and date. The letters of comment and appropriate responses should be summarized. Any coordination undertaken by local or state agencies should also be discussed.

(d) An environmental effects and impacts section should be used to document compliance with the applicable environmental laws. This section should include the views and/or conditions of the state concerning water quality certification and, if required, the results of the coastal zone consistency process.

(e) A determinations section should reference the results of the EA and/or EIS and any conditions necessary to meet the state's water quality standards or coastal zone management program. Appropriate conditions or modifications should be included in the project specifications. This section should also contain a subsection on consideration of alternatives and cumulative impacts.

(f) A section on the district engineer's findings and conclusions concerning the proposed project should be included.

(g) The SOF should be dated and signed by the district engineer or his designee except in those cases requiring referral to higher authority.

(h) In accordance with the provisions of section 104(g) of the ODA, the district engineer will forward a copy of the SOF to the District Commander, U.S. Coast Guard, if the activity involves the ocean disposal of dredged material.

(i) The Findings of No Significant Impact or ROD, as appropriate, required by 33 CFR part 230 may be incorporated into the SOF, as appropriate.

§ 337.7 Emergency actions.

After obtaining approval from the division engineer, the district engineer will respond to emergency situations on an expedited basis, complying with the procedures of this regulation to the maximum degree practicable. The district engineer will issue a public notice describing the emergency in accordance with § 337.1, if such a notice is practicable in view of the emergency situation; such a public notice should be forwarded to all appropriate Federal and state agencies. The district engineer should prepare a section 404(b)(1) evaluation report and, as necessary, an environmental assessment, if this is practicable in view of the emergency situation. If comments are received from the public notice which, in the judgment of the district engineer, reveal the necessity of modifying the emergency operation, the district engineer should take appropriate measures to modify the emergency operation to reduce, avoid, or minimize adverse environmental impacts. If the district engineer, after receiving comments from the public notice, determines that the emergency action would constitute a major Federal action significantly affecting the quality of the human environment, he should, after consultation with the division engineer, coordinate with the Council on Environmental Quality about alternative arrangements for compliance with the NEPA in accordance with 40 CFR 1506.11 to the extent that it is practicable in view of the emergency situation. District engineers should consult with the appropriate state officials to seek water quality certification or waiver of certification, and should certify that the Federal action is consistent to the maximum extent practicable with an approved coastal zone management plan for emergency activities, to the extent that is practicable in view of the emergency.

§ 337.8 Reports to higher echelons.

(a) Certain activities involving the discharge of dredged or fill material require action by the division engineer or Chief of Engineers. Such reports should be prepared in the format described in paragraph (b) of this section. Reports may be necessary in the following situations:

(1) When there is substantial doubt as to the authority, law, regulations, or policies applicable to the Federal project;

(2) When higher authority requests the case be forwarded for decision;

(3) When the state does not concur in a coastal zone consistency determination or attempts to concur with conditions or controls;

(4) When the state denies or unreasonably delays a water quality certification or issues the certification with conditions or controls not related to maintenance or enforcement of state water quality standards or significantly exceeding the Federal standard;

(5) When the regional administrator has advised the district engineer, pursuant to section 404(c) of the CWA, of his intent to prohibit or restrict the use of a specified discharge site; or notifies the district engineer that the discharge of dredged material in ocean waters or territorial seas will not comply with the criteria and restrictions on the use of the site established under the ODA; and the district engineer determines that the proposed disposal cannot be reasonably modified to alleviate the regional administrator's objections; and

(6) When the state fails to grant water quality certification or a waiver of certification or concurrence or waiver of coastal zone consistency for emergency actions.

(b) Reports. The report of the district engineer on a project requiring action by higher authority should be in letter form and contain the following information:

(1) Justification showing the economic need for dredging.

(2) The impact on states outside the project area if the project is not dredged.

(3) The estimated cost of agency requirements which exceed those necessary in establishment of the Federal standard.

(4) The relative urgency of dredging based on threat to national security, life or property.

(5) Any other facts which will aid in determining whether to further defer the dredging and seek Congressional appropriations for the added expense or the need to exercise the authority of the Secretary of the Army to maintain navigation as provided by sections 511(a) and 404(t) of the CWA if the disagreement concerns water quality certification or other state permits.

(6) If the disagreement concerns coastal zone consistency, the district engineer will follow the reporting requirement of this section and § 336.1(b)(9) of this chapter.

§ 337.9 Identification and use of disposal areas.

(a) District engineers should identify and develop dredged material disposal management strategies that satisfy the long-term (greater than 10 years) needs for Corps projects. Full consideration should be given to all practicable alternatives including upland, open water, beach nourishment, within banks disposal, ocean disposal, etc. Within existing policy, district engineers should also explore beneficial uses of dredged material, such as marsh establishment and dewatering techniques, in order to extend the useful life of existing disposal areas. Requests for water quality certification and/or coastal zone consistency concurrence for projects with identified long-term disposal sites should include the length of time for which the certification and/or consistency concurrence is sought. The section 404(b)(1) evaluation and environmental assessment or environmental impact statement should also address long-term maintenance dredging and disposal. District engineers should use the guidance at 40 CFR 230.80 to shorten environmental compliance processing time. The Corps of Engineers will be responsible for accomplishing or assuring environmental compliance requirements for all disposal areas. This does not preclude the adoption of other agencies NEPA documents in accordance with 40 CFR parts 1500 through 1508.

(b) The identification of disposal sites should include consideration of dredged material disposal needs by project beneficiaries. District engineers are encouraged to require local interests, where the project has a local sponsor, to designate long-term disposal areas.

§ 337.10 Supervision of Federal projects.

District engineers should assure that dredged or fill material disposal activities are conducted in conformance with current plans and description of the project as expressed in the SOF or ROD. Conditions and/or limitations required by a state (e.g., water quality certification), as identified through the coordination process, should be included in the project specifications. Contracting officers should assure that contractors are aware of their responsibilities for compliance with the terms and conditions of state certifications and other conditions expressed in the SOF or ROD.

§ 338.1 Purpose.

(a) The procedures of this part, in addition to the provisions of 33 CFR parts 335 through 337, should be followed when undertaking Corps operations and maintenance activities involving the discharge of fill material into waters of the U.S., except that the procedures of part 336 of this chapter will be used in those cases where the discharge of fill material is also the discharge of dredged material, i.e., beach nourishment, within banks disposal for erosion control, etc.

(b) After construction of Corps Civil Works water resource projects, certain operations and maintenance activities involving the discharge of fill material require evaluation under the CWA. These activities generally include lakeshore management, installation of boat ramps, erosion protection along the banks of navigation channels, jetty maintenance, remedial erosion control, etc. While these activities are normally addressed in the existing environmental impact statement for the project, new technology or unexpected events such as storms or high waters may require maintenance or remedial work not fully addressed in existing environmental documents or state permits. In determining compliance with the applicable environmental laws and regulations the district engineer should use the CWA exemptions at 404(f) and NEPA categorical exclusions to the maximum extent practicable. If the district engineer decides that the changes have not been adequately addressed in existing environmental documentation, the procedures of this part should be followed.

[53 FR 14920, Apr. 26, 1988]

§ 338.2 Activities involving the discharge of dredged or fill material into waters of the U.S.

(a) Generally, fill activities conducted by the Corps for operations and maintenance of existing Civil Works water resource and navigation projects are routine and have little, if any, potential for significant degradation of the environment. District engineers are encouraged to develop general authorizations in accordance with section 404 of the CWA and 104 of the ODA following the procedures of § 337.5 of this chapter for categories of such routine activities. The general authorization should satisfy all compliance requirements including water quality certifications and, if applicable, coastal zone consistency determinations. For activities which are not conducive to the development of general authorizations or are more appropriately evaluated on an individual basis, the following procedures should be followed.

(b) A public notice should be issued using the procedures § 337.1 of this chapter.

(c) Water quality certifications should be requested and, if applicable, coastal zone consistency determinations should be provided using the procedures of § 336.1(b) (8) and (9) of this chapter.

(d) The discharge site should be specified through the application of the section 404(b)(1) guidelines.

(e) The procedures of 40 CFR part 230 should be used to determine the NEPA compliance requirements.

(f) The factors of § 336.1(c) of this chapter should be followed when evaluating fill activities.

(g) Upon completion of all required coordination and after receipt of the necessary state certifications, the district engineer should prepare an SOF in accordance with § 337.6.

[53 FR 14920, Apr. 26, 1988]

§ 384.1 What is the purpose of these regulations?

(a) The regulations in this part implement Executive Order 12372, “Intergovernmental Review of Federal Programs,” issued July 14, 1982 and amended on April 8, 1983. These regulations also implement applicable provisions of section 401 of the Intergovernmental Cooperation Act of 1968.

(b) These regulations are intended to foster an intergovernmental partnership and a strengthened Federalism by relying on state processes and on state, areawide, regional and local coordination for review of proposed federal financial assistance and direct federal development.

(c) These regulations are intended to aid the internal management of the Corps of Engineers, and are not intended to create any right or benefit enforceable at law by a party against the Corps of Engineers or its officers.

§ 384.2 What definitions apply to these regulations?

Order means Executive Order 12372, issued July 14, 1982, and amended April 8, 1983 and titled “Intergovernmental Review of Federal Programs.”

Responsible Corps official means a District Engineer, Division Engineer, or the Chief of Engineers, or a designated representative, who is considering a decision or recommendation on a proposed Federal action and is responsible for coordinating such action with the state process under the provisions of this regulation.

State means any of the 50 states, the District of Columbia, the Commonwealth of Puerto Rico, the Commonwealth of the Northern Mariana Islands, Guam, American Samoa, the U.S. Virgin Islands, or the Trust Territory of the Pacific Islands.

§ 384.3 What programs and activities of the Corps of Engineers are subject to these regulations?

The Chief of Engineers publishes in the Federal Register a list of the Corps of Engineers Civil Works programs and activities that are subject to these regulations.

§ 384.4 [Reserved]

§ 384.5 What is the Corps of Engineers' obligation with respect to Federal interagency coordination?

Responsible Corps officials, to the extent practicable, consult with and seek advice from all other substantially affected Federal departments and agencies in an effort to assure full coordination between such agencies and the Corps of Engineers regarding programs and activities covered under these regulations.

§ 384.6 What procedures apply to the selection of programs and activities under these regulations?

(a) A state may select any program or activity published in the Federal Register in accordance with § 384.3 of this part for intergovernmental review under these regulations. Each state, before selecting programs and activities shall consult with local elected officials.

(b) Each state that adopts a process shall notify the appropriate Division Engineer of the programs and activities selected for that process.

(c) A state may notify the appropriate Division Engineer of changes in its selections at any time. For each change, the state shall submit to the Division Engineer an assurance that the state has consulted with local elected officials regarding the change. The Division Engineer may establish deadlines by which states are required to inform the Corps of Engineers of changes in their program selections.

(d) The Corps of Engineers uses a state's process as soon as feasible, depending on individual programs and activities, after the Division Engineer is notified of its selections.

§ 384.7 How does the Corps of Engineers communicate with state and local officials concerning its programs and activities?

(a) For those programs and activities covered by a state process under § 384.6, the responsible Corps official, to the extent permitted by law:

(1) Uses the state process to determine views of state and local elected officials; and

(2) Communicates with state and local elected officials, throught the state process, as early in a program planning cycle as is reasonably feasible to explain specific plans and actions.

(b) The District Engineer provides notice to directly affected state, areawide, regional, and local entities in a state of proposed Federal financial assistance or direct Federal development if:

(1) The state has not adopted a process under the Order; or

(2) The assistance or development involves a program or activity not selected for the state process.

This notice may be made by publication in the Federal Register or other appropriate means, which the District Engineer in his discretion deems appropriate.

§ 384.8 How does the Corps of Engineers provide states an opportunity to comment on proposed Federal financial assistance and direct Federal development?

(a) Except in unusual circumstances, the responsible Corps official gives state processes or directly affected state, areawide, regional and local officials and entities at least 60 days from the date established by such official to comment on proposed direct Federal development or Federal financial assistance.

(b) This section also applies to comments in cases in which the review, coordination, and communication with the Corps of Engineers have been delegated.

§ 384.9 How does the Corps of Engineers receive and respond to comments?

(a) The responsible Corps official follows the procedures in § 384.10 if:

(1) A state office or official is designated to act as a single point of contact between a state process and all federal agencies, and

(2) That office or official transmits a state process recommendation for a program selected under § 384.6.

(b)(1) The single point of contact is not obligated to transmit comments from state, areawide, regional or local officials and entities where there is no state process recommendation.

(2) If a state process recommendation is transmitted by a single point of contact, all comments from state, areawide, regional, and local officials and entities that differ from it must also be transmitted.

(c) If a state has not established a process, or is unable to submit a state process recommendation, state, areawide, regional and local officials and entities may submit comments to the responsible Corps official.

(d) If a program or activity is not selected for a state process, state, areawide, regional and local officials and entities may submit comments to the responsible Corps official. In addition, if a state process recommendation for a nonselected program or activity is transmitted to the responsible Corps official by the single point of contact, such official follows the procedures of § 384.10 of this part.

(e) The responsible Corps official considers comments which do not constitute a state process recommendation submitted under these regulations and for which such official is not required to apply the procedures of § 384.10 of this part, when such comments are provided by a single point of contact or directly to such official by a commenting party.

§ 384.10 How does the Corps of Engineers make efforts to accommodate intergovernmental concerns?

(a) If a state process provides a state process recommendation to the Corps of Engineers through its single point of contact, the responsible Corps official either:

(1) Accepts the recommendation;

(2) Reaches a mutually agreeable solution with the state process; or

(3) Provides the single point of contact with a written explanation of the decision in such form as such Corps official in his or her discretion deems appropriate. The Corps official may also supplement the written explanation by providing the explanation to the single point of contact by telephone, other telecommunication, or other means.

(b) In any explanation under paragraph (a)(3) of this section, the responsible Corps official informs the single point of contact that:

(1) The Corps of Engineers will not implement its decision for at least 10 days after the single point of contact receives the explanation; or

(2) The Assistant Secretary of the Army (Civil Works), or the next higher level responsible Corps official, has reviewed the case and determined that, because of unusual circumstances, the waiting period of at least 10 days is not feasible.

(c) For purposes of computing the waiting period under paragraph (b)(1) of this section, a single point of contact is presumed to have received written notification 5 days after the date of mailing of such notification.

§ 384.11 What are the Corps of Engineers obligations in interstate situations?

(a) The responsible Corps official is responsible for:

(1) Identifying proposed federal financial assistance and direct federal development that have an impact on interstate areas;

(2) Notifying appropriate officials and entities in states which have adopted a process and which select the Corps of Engineers program or activity.

(3) Making efforts to identify and notify the affected state, areawide, regional, and local officials and entities in those states that have not adopted a process under the Order or do not select the Corps of Engineers program or activity;

(4) Responding pursuant to § 384.10 of this part if the responsible Corps official receives a recommendation from a designated areawide agency transmitted by a single point of contact, in cases in which the review, coordination, and communication with the Corps of Engineers has been delegated.

(b) The responsible Corps official uses the procedures in § 384.10 if a state process provides a state process recommendation to such official through a single point of contact.

§ 384.12 [Reserved]

§ 384.13 May the Corps of Engineers waive any provision of these regulations?

(a) Emergency and disaster recovery actions performed under Pub. L. 99, 84th Congress, are excluded from the requirements of the Order and this regulation.

(b) In other emergencies, the Division Engineer may waive any provision of these regulations.

§ 385.1 Purpose of the programmatic regulations.

(a) The programmatic regulations of this part implement the provisions of section 601(h)(3) of the Water Resources Development Act of 2000, Public Law 106-541, 114 Stat. 2688 (hereinafter “WRDA 2000”), which was enacted on December 11, 2000.

(b) The purpose of the programmatic regulations of this part is to ensure that the goals and purposes of the Comprehensive Everglades Restoration Plan (the Plan) are achieved and to establish the processes necessary for implementing the Plan. Some of these processes are project specific, including, but not limited to, development of Project Implementation Reports, Project Cooperation Agreements, plans and specifications, Pilot Project Technical Data Reports, and Operating Manuals. Other processes are of more general applicability, including, but not limited to, development of program-wide guidance memoranda, interim goals, interim targets, and the Master Implementation Sequencing Plan. Taken together, these processes will ensure that the restoration purposes and other goals of the Plan are achieved. The regulations of this part also describe the relationship among the various entities responsible for implementation of the Plan.

(c) Section 601(h) of WRDA 2000 establishes an integrated framework for assuring that the goals and purposes of the Plan are achieved. This framework includes tools for planning, implementation, and evaluation; a process for developing these tools in an open public process, with input from other Federal, State, and local agencies; and an enforcement mechanism to ensure that the requirements of the statute are carried out.

(1) Tools. (i) The specific planning tool established by section 601(h) is the Project Implementation Report.

(ii) The specific implementation tools established by section 601(h) are Project Cooperation Agreements and Operating Manuals.

(iii) The specific evaluation tool established by section 601(h) is the interim goals for evaluating the restoration success of the Plan.

(iv) In addition to the specific planning, implementation, and evaluation tools established by section 601(h), the regulations of this part establish additional tools, including but not limited to, Project Management Plans, Program Management Plans, Comprehensive Plan Modification Reports, the Master Implementation Sequencing Plan, and interim targets for evaluating progress towards achieving the other water related needs of the region.

(2) Processes. The regulations of this part establish the processes for developing these tools. Consistent with section 601(h), these regulations have been developed, after notice and opportunity for public content, with the concurrence of the Secretary of the Interior and the Governor, and in consultation with the Seminole Tribe of Florida, the Miccosukee Tribe of Indians of Florida, the Administrator of the Environmental Protection Agency, the Secretary of Commerce, the Florida Department of Environmental Protection, and other Federal, State, and local agencies.

(3) Enforcement mechanism. The specific enforcement mechanism established by Section 601(h) is the “Comprehensive Everglades Restoration Plan Assurance of Project Benefits Agreement,” dated January 9, 2002, between the President and the Governor, under which the State shall ensure, by regulation or other appropriate means, that water made available by each project in the Plan shall not be permitted for a consumptive use or otherwise made unavailable by the State until such time as sufficient reservations of water for the restoration of the natural system are made under State law in accordance with the project implementation report and consistent with the Plan.

(4) Public information. The Secretary of the Army shall ensure that the public understands the linkage between the processes, tools, and enforcement mechanism and can monitor the effectiveness of this integrated framework in assuring that the goals and purposes of the Plan are achieved, as provided for in the regulations of this part, by:

(i) Providing for public notice and comment in the development of planning, implementation, and evaluation tools;

(ii) Providing notice of final action on planning, evaluation, and implementation tools;

(iii) Making available to the public on a web site or by other appropriate means final, and where appropriate draft, copies of all planning, evaluation, and implementation tools; and

(iv) Explaining through the regulations of this part and by other appropriate means the process for developing the tools, the linkage between the process, tools, and enforcement mechanism, and the means by which these elements constitute an integrated framework for assuring that the goals and purposes of the Plan are achieved.

§ 385.2 Applicability of the programmatic regulations.

(a) This part applies to all activities conducted to implement the Comprehensive Everglades Restoration Plan.

(b) As used in this part, the Secretary of the Army acts through the Assistant Secretary of the Army for Civil Works with respect to the Army's civil works program pursuant to 10 U.S.C. 3016.

(c) Nothing in this part shall be interpreted to amend, alter, diminish, or otherwise affect:

(1) The rights, powers and duties provided under the “Comprehensive Everglades Restoration Plan Assurance of Project Benefits Agreement,” dated January 9, 2002 pursuant to section 601(h)(2) of WRDA 2000; or

(2) Any existing legal water rights of the United States, the State of Florida, the Miccosukee Tribe of Indians of Florida, or the Seminole Tribe of Florida, including rights under the compact among the Seminole Tribe of Florida, the State, and the South Florida Water Management District, defining the scope and use of water rights of the Seminole Tribe of Florida, as codified by section 7 of the Seminole Indian Land Claims Settlement Act of 1987 (25 U.S.C. 1772e).

(d) This part is intended to aid the internal management of the implementing agencies and is not intended to create any right or benefit enforceable at law by a party against the implementing agencies or their officers. Nothing in this part shall create a right or expectation to benefits or enhancements, temporary or permanent, in third parties that are not specifically authorized by Congress in section 601 of WRDA 2000.

(e) Nothing in this part is intended to, or shall be interpreted to, reserve or allocate water or to prescribe the process for reserving or allocating water or for water management under Florida law. Nor is this part intended to, nor shall it be interpreted to, prescribe any process of Florida law.

§ 385.3 Definitions.

For the purposes of this part, the following terms are defined:

Adaptive management means the continuous process of seeking a better understanding of the natural system and human environment in the South Florida ecosystem, and seeking continuous refinements in and improvements to the Plan to respond to new information resulting from changed or unforeseen circumstances, new scientific and technical information, new or updated modeling; information developed through the assessment principles contained in the Plan; and future authorized changes to the Plan in order to ensure that the goals and purposes of the Plan are fulfilled.

Alternative plan means a plan that consists of a system of structural and/or nonstructural measures, strategies, or programs formulated to achieve, fully or partially, the goals and purposes of the Plan, as further defined in section 1.6.1 of the Water Resources Council's “Economic and Environmental Guidelines for Water and Related Land Resources Implementation Studies,” dated March 10, 1983.

Assessment means the process whereby the actual performance of implemented projects is measured and interpreted based on analyses of information obtained from research, monitoring, modeling, or other relevant sources.

Central and Southern Florida (C&SF) Project means the project for Central and Southern Florida authorized under the heading “CENTRAL AND SOUTHERN FLORIDA” in section 203 of the Flood Control Act of 1948 (62 Stat. 1176) and any modification authorized by any other provision of law, including section 601 of WRDA 2000.

Component means features of the Plan that include, but are not limited to, storage reservoirs, aquifer storage and recovery facilities, stormwater treatment areas, water reuse facilities, canals, levees, pumps, water control structures, and seepage management facilities; the removal of canals, levees, pumps, and water control structures; and operational changes.

Comprehensive Everglades Restoration Plan (CERP) means the plan contained in the “Final Integrated Feasibility Report and Programmatic Environmental Impact Statement,” dated April 1, 1999, as modified by section 601 of WRDA 2000, and any subsequent modification authorized in law.

Comprehensive Plan Modification Report means the report prepared for approval by Congress of major changes to the Plan that are necessary to ensure that the goals and purposes of the Plan are achieved. The Comprehensive Plan Modification Report describes the formulation and evaluation of alternatives, recommended modifications to the Plan, and other economic, environmental, and engineering information, and includes the appropriate NEPA document.

Concurrence means the issuance of a written statement of concurrence or the failure to provide such a written statement within a time frame prescribed by law or this part.

Consultation means a process to ensure meaningful and timely input in the development of program and project activities, reports, manuals, plans, and other documents from Federal, State, and local agencies, the Miccosukee Tribe of Indians of Florida, and the Seminole Tribe of Florida.

Coordination means the formal exchange of information and views, by letter, report, or other prescribed means, between the Corps of Engineers and the non-Federal sponsor and another agency or tribe, including but not limited to, the exchange of information and views regarding the development of Project Implementation Reports, Operating Manuals, and Comprehensive Plan Modification Reports. Coordination activities are required by and in accordance with purposes and procedures established by Federal policy (public law, executive order, agency regulation, memorandum of agreement, and other documents that memorialize policy of the Corps of Engineers).

Cost-effective means the least costly way of attaining a given level of output or performance, consistent with the goals and purposes of the Plan and applicable laws.

Design Agreement means the agreement between the Corps of Engineers and a non-Federal sponsor concerning cost sharing for activities related to planning, engineering, design, and other activities needed to implement the Plan.

Dispute means any disagreement between the agencies or tribes associated with implementation of the Plan that cannot be resolved by the members of a Project Delivery Team or RECOVER and that is elevated to decision makers at the respective agencies or tribes.

District Engineer means the District Engineer of the Corps of Engineers, Jacksonville District.

Division Engineer means the Division Engineer of the Corps of Engineers, South Atlantic Division.

Drought contingency plan means the plan required by § 222.5(i)(5) of this chapter and described in implementing Engineer Regulation ER 1110-2-1941 “Drought Contingency Plans,” and means a plan contained within an Operating Manual that describes procedures for dealing with drought situations that affect management decisions for operating projects.

Environmental and economic equity means the fair treatment of all persons regardless of race, color, creed, national origin, or economic status, including environmental justice, and the provision of economic opportunities for small business concerns controlled by socially and economically disadvantaged individuals, including individuals with limited English proficiency, in the implementation of the Plan.

Environmental justice means identifying and addressing, disproportionately high and adverse human health or environmental effects of a Federal agency's programs, policies, and activities on minority and low-income populations, in accordance with applicable laws, regulations, and Executive Orders.

Evaluation means the process whereby the performance of plans and designs relative to desired objectives is forecast through predictive modeling and other tools.

Expected performance level means the projected level of benefits to the natural system and human environment described in the Plan.

External peer review means a process to review and validate the scientific and technical processes and information developed for implementation of the Plan that is independent of the agencies involved in the implementation of the Plan.

Goals and purposes of the Plan means the restoration, preservation, and protection of the South Florida ecosystem while providing for other water-related needs of the region, including water supply and flood protection.

Governor means the Governor of the State of Florida.

Guidance memorandum means the specific procedure, process, or other guidance specified in § 385.5(b) that is developed and approved by the Secretary of the Army with the concurrence of the Secretary of the Interior and the Governor.

Improved or new flood protection benefits means increased or new levels of service for flood protection that are identified in a Project Implementation Report and approved as a purpose of the project.

Independent scientific review means the process established pursuant to section 601(j) of WRDA 2000 to review the Plan's progress toward achieving the natural system restoration goals of the Plan.

Individual feature of the Plan means a component or group of components of the Plan related to and limited to one specific project of the Plan.

Interim goal is a means by which restoration success of the Plan may be evaluated throughout the implementation process. Interim goals provide a means of tracking restoration performance, as well as a basis for reporting on the progress made at specified intervals of time towards restoration of the South Florida ecosystem, and for periodically evaluating the accuracy of predictions of system responses to the effects of the Plan.

Interim target is a means by which the success of the Plan in providing for other water-related needs of the region, including water supply and flood protection, may be evaluated throughout the implementation process. Interim targets provide a means of tracking Plan performance, as well as a basis for reporting on progress made at specified intervals of time towards providing for other water-related needs of the region, and for periodically evaluating the accuracy of predictions of system responses to the effects of the Plan.

Justified has the same meaning as in section 601(f)(2) of WRDA 2000 which states that the Secretary of the Army, in carrying out any activity to restore, preserve, or protect the South Florida ecosystem, may determine that an activity is justified by the environmental benefits derived by the South Florida ecosystem and no further economic justification for the activity is required, if the Secretary determines that the activity is cost-effective.

Levels of service for flood protection means the expected performance of the Central and Southern Project and other water management systems in the South Florida ecosystem, consistent with applicable law, for a specific area or region.

Master Implementation Sequencing Plan means the document that describes the sequencing and scheduling for the projects of the Plan.

Mediation means a non-binding dispute resolution process designed to assist the disputing parties to resolve a disagreement. In mediation, the parties mutually select a neutral and impartial third party to facilitate the negotiations.

Monitoring means the systematic process of collecting data designed to show the status, trends, and relationships of elements of the natural system and human environment at specific locations and times.

Natural system means all land and water managed by the Federal government or the State within the South Florida ecosystem including, but not limited to, water conservation areas; sovereign submerged land; Everglades National Park; Biscayne National Park; Big Cypress National Preserve; other Federal or State (including a political subdivision of a State) land that is designated and managed for conservation purposes; the contiguous near-shore coastal water of South Florida; and, any tribal land that is designated and managed for conservation purposes, as approved by the tribe.

Next-added increment means the evaluation of an alternative as the next project to be added to a system of projects already implemented. For the purposes of this part, this means analyzing an alternative as the next project to be added to a system of projects that includes only those projects that have been approved according to general provision of law or specific authorization of Congress and are likely to have been implemented by the time the project being evaluated is completed.

Non-Federal sponsor means a legally constituted public body that has full authority and capability to perform the terms of the Project Cooperation Agreement and the ability to pay damages, if necessary, in the event of failure to perform, pursuant to section 221 of the Flood Control Act of 1970, as amended (42 U.S.C. 1962d-5b).

Operating Manuals means the set of documents that describe how the projects of the Plan and the Central and Southern Florida Project are to be operated to ensure that the goals and purposes of the Plan are achieved. Operating Manuals include the System Operating Manual and Project Operating Manuals. Operating Manuals contain water control plans, regulation schedules, and operating criteria for project and/or system regulations as well as additional information necessary to operate projects to ensure that the goals and purposes of the Plan are achieved.

Optimize means to follow a reasonable and practical process for developing a plan that returns the greatest excess of benefits, both monetary and non-monetary, over costs.

Outreach means activities undertaken to inform the public about the Plan and activities associated with implementation of the Plan, and to involve the public in the decision-making process for implementing the Plan.

Performance measure means an element or component of the natural system or human environment that is expected to be influenced by the Plan that has been selected to be evaluated or monitored as representative of a class of responses to implementation of the Plan and compared with a level of output that is expected and desired during or following the implementation of the Plan.

Periodic CERP update means the evaluation of the Plan that is conducted periodically with new or updated modeling that includes the latest available scientific, technical, and planning information.

Pilot project means a project undertaken to address uncertainties associated with certain components of the Plan such as aquifer storage and recovery, in-ground reservoir technology, seepage management, and wastewater reuse. The purpose of pilot projects is to develop information necessary to better determine the technical feasibility of these components prior to development of a Project Implementation Report.

Pilot Project Design Report means the report that contains the technical information necessary to implement a pilot project.

Pilot Project Technical Data Report means the report that documents the findings and conclusions from the implementation and testing phases of a pilot project.

Plan means the Comprehensive Everglades Restoration Plan contained in the “Final Integrated Feasibility Report and Programmatic Environmental Impact Statement,” dated April 1, 1999, as modified by section 601 of WRDA 2000, and any subsequent modification authorized in law.

Plans and specifications means the information required to bid and construct the recommended project described in the Project Implementation Report.

Pre-CERP baseline means the hydrologic conditions in the South Florida ecosystem on the date of enactment of WRDA 2000, as modeled by using a multi-year period of record based on assumptions such as land use, population, water demand, water quality, and assumed operations of the Central and Southern Florida Project.

Program-level activity means those tasks, activities, or products that support more than one project or that are system-wide in scope.

Program Management Plan means the document that describes the activities, tasks, and responsibilities that will be used to produce and deliver the products that comprise a program-level activity.

Project means a component or group of components of the Plan that are implemented together to provide functional benefits towards achieving the goals and purposes of the Plan.

Project Cooperation Agreement (PCA) means the legal agreement between the Department of the Army and a non-Federal sponsor that is executed prior to project construction. The Project Cooperation Agreement describes the financial, legal, and other responsibilities for construction, operation, maintenance, repair, rehabilitation, and replacement of a project.

Project Delivery Team means the inter-agency, interdisciplinary team led by the Corps of Engineers and the non-Federal sponsor that develops the technical products necessary to implement a project.

Project Implementation Report (PIR) means the report prepared by the Corps of Engineers and the non-Federal sponsor pursuant to section 601(h)(4)(A) of WRDA 2000 and described in section 10.3 of the “Final Integrated Feasibility Report and Programmatic Environmental Impact Statement,” dated April 1, 1999.

Project Management Plan means the document that describes the activities, tasks, and responsibilities that will be used to produce and deliver the products necessary to implement a project.

Project Operating Manual means the manual that describes the operating criteria for a project or group of projects of the Plan. The Project Operating Manual is considered a supplement to the System Operating Manual and presents more detailed information on the operation of a specific project or group of projects.

Public means any individuals, organizations, or non-Federal unit of government that might be affected by or interested in the implementation of the Plan. The public includes regional, State, and local government entities and officials, public and private organizations, including community-based organizations, Native American (Indian) tribes, and individuals.

Quality control plan means the plan prepared in accordance with applicable regulations and policies of the Corps of Engineers that describes the procedures that will be employed to insure compliance with all technical and policy requirements of the Corps of Engineers and the non-Federal sponsor.

Reservation of water for the natural system means the actions taken by the South Florida Water Management District or the Florida Department of Environmental Protection, pursuant to Florida law, to legally reserve water from allocation for consumptive use for the protection of fish and wildlife.

Restoration means the recovery and protection of the South Florida ecosystem so that it once again achieves and sustains those essential hydrological and biological characteristics that defined the undisturbed South Florida ecosystem. As authorized by Congress, the restored South Florida ecosystem will be significantly healthier than the current system; however it will not completely replicate the undisturbed South Florida ecosystem.

Restoration Coordination and Verification (RECOVER) means the interagency and interdisciplinary scientific and technical team described in the “Final Integrated Feasibility Report and Programmatic Environmental Impact Statement,” dated April 1, 1999 and established by the Corps of Engineers and the South Florida Water Management District to: ensure that a system-wide perspective is maintained; ensure the highest quality scientific and technical information is applied throughout the implementation process; and to assess, evaluate, and integrate the projects of the Plan with the overall goal of ensuring that the goals and purposes of the Plan are achieved.

South Florida ecosystem means the area consisting of the land and water within the boundary of the South Florida Water Management District in effect on July 1, 1999, including but not limited to, the Everglades, the Florida Keys, and the contiguous near-shore coastal water of South Florida.

South Florida Ecosystem Restoration Task Force (Task Force) means the task force established pursuant to section 528(f) of WRDA 1996 (110 Stat. 3770).

South Florida Water Management District (SFWMD) means the public body constituted by the State of Florida pursuant to Chapter 373.069 of the Florida Statutes.

State means the State of Florida.

System Operating Manual means the Operating Manual that provides an integrated system-wide framework for operating all of the implemented projects of the Plan and the Central and Southern Florida Project.

System-wide means pertaining to the Central and Southern Florida Project or the South Florida ecosystem, as a whole.

Technical review means the process that confirms that the engineering, economic, environmental, and other aspects of project formulation and design are in accord with appropriate Federal, State, and Corps of Engineers established standards and criteria, regulations, laws, codes, principles, and professional procedures that are necessary to ensure a quality product. Technical review also confirms the constructability and effectiveness of the product and the use of clearly justified and valid assumptions and methodologies.

Technical Review Team means the team established by the Corps of Engineers and the non-Federal sponsor to ensure quality control of documents and products produced by the Project Delivery Team through periodic technical reviews of the technical aspects of projects.

Water budget means an account of all water inflows, outflows, and changes in storage over a period of time.

Water dedicated and managed for the natural system means the water to be reserved or allocated for the natural system under State law as identified in a Project Implementation Report.

Water made available means the water expected to be generated pursuant to the implementation of a project of the Plan in accordance with the Project Implementation Report for that project.

Without CERP condition means the conditions predicted (forecast) in the South Florida ecosystem without implementation of any of the projects of the Plan.

WRDA 1996 means the Water Resources Development Act of 1996, Public Law 104-303, which was enacted on October 12, 1996.

WRDA 2000 means the Water Resources Development Act of 2000, Public Law 106-541, which was enacted on December 11, 2000.

§ 385.4 Limitation on applicability of programmatic regulations.

In accordance with section 601(h)(3)(c)(ii) of WRDA 2000, this part expressly prohibits “the requirement for concurrence by the Secretary of the Interior or the Governor on Project Implementation Reports, Project Cooperation Agreements, Operating Manuals for individual projects undertaken in the Plan, and any other documents relating to the development, implementation, and management of individual features of the Plan, unless such concurrence is provided for in other Federal or State laws.”

§ 385.5 Guidance memoranda.

(a) General. (1) Technical guidance for internal management of Corps of Engineers personnel during Plan implementation will be normally issued in the form of Engineer Regulations, Circulars, Manuals, or Pamphlets, or other appropriate form of guidance.

(2) Guidance on the following six program-wide subjects shall be promulgated in accordance with paragraphs (b) and (c) of this section:

(i) General format and content of Project Implementation Reports (§ 385.26(a));

(ii) Instructions for formulation and evaluation of alternatives developed for Project Implementation Reports, their cost effectiveness and impacts (§ 385.26(b));

(iii) General content of operating manuals (§ 385.28(a));

(iv) General directions for the conduct of the assessment activities of RECOVER (§ 385.31(b));

(v) Instructions relevant to Project Implementation Reports for identifying the appropriate quantity, timing, and distribution of water to be dedicated and managed for the natural system (§ 385.35(b)); and

(vi) Instructions relevant to Project Implementation Reports for identifying if an elimination or transfer of existing legal sources of water will occur as a result of implementation of the Plan (§ 385.36(b)).

(b) Special processes for development of six program-wide guidance memoranda. The Corps of Engineers and the South Florida Water Management District shall, in consultation with the Department of the Interior, the Environmental Protection Agency, the Department of Commerce, the Miccosukee Tribe of Indians of Florida, the Seminole Tribe of Florida, the Florida Department of Environmental Protection, and other Federal, State, and local agencies, develop the six guidance memoranda described in paragraph (a) of this section for approval by the Secretary of the Army. The Corps of Engineers and the South Florida Water Management District shall also consult with the South Florida Ecosystem Restoration Task Force in the development of these guidance memoranda. The following procedures shall apply to the specific guidance memoranda described in paragraph (a) of this section:

(1) Guidance memoranda shall be consistent with this part, applicable law, and achieving the goals and purposes of the Plan.

(2) The Secretary of the Army shall afford the public an opportunity to comment on each guidance memorandum prior to approval through the issuance of a notice of availability in the Federal Register.

(3) Approved guidance memoranda shall be made available to the public.

(4) The guidance memoranda specifically referenced in this part shall be developed by December 13, 2004.

(5) The six guidance memoranda described in paragraph (a) of this section shall be developed with the concurrence of the Secretary of the Interior and the Governor. Within 180 days after being provided with the final guidance memorandum, or such shorter period that the Secretary of the Interior and the Governor may agree to, the Secretary of the Interior and the Governor shall provide the Secretary of the Army with a written statement of concurrence or non-concurrence with the proposed guidance memorandum. A failure to provide a written statement of concurrence or non-concurrence within such time frame shall be deemed as meeting the concurrency requirements of this section. A copy of any concurrency or nonconcurrency statements shall be made a part of the administrative record and referenced in the final guidance memorandum. Any nonconcurrency statement shall specifically detail the reason or reasons for the non-concurrence. If the six guidance memoranda described in paragraph (a) of this section create a special procedure for any individual Project Implementation Report, a specific Project Cooperation Agreement, an Operating Manual for a specific project component, or any other document relating to the development, implementation, and management of one specific individual feature of the Plan, this section does not require concurrence or non-concurrence on that special procedure. In lieu of concurrence or non-concurrence on such a special procedure, the Secretary of the Army shall consult with the Secretary of the Interior and the Governor.

(6) The Secretary of the Army shall consider incorporating into the regulations of this part the guidance memoranda specifically referenced in this section during future reviews and revisions of the regulations of this part.

(c) Revisions to six Program-wide guidance memoranda. The Secretary of the Army may, whenever the Secretary believes it is necessary, and in consultation with the Department of the Interior, the Environmental Protection Agency, the Department of Commerce, the Miccosukee Tribe of Indians of Florida, the Seminole Tribe of Florida, the South Florida Water Management District, the Florida Department of Environmental Protection, other Federal, State, and local agencies, and the public, revise guidance memoranda that have been completed. Such revisions shall be developed and approved consistent with the provisions of paragraph (b) of this section. Revisions to the six guidance memoranda described in paragraph (a) of this section shall be made following the same concurrence process as in paragraph (b)(5) of this section.

(d) Other guidance. Nothing in this part shall be considered or construed to preclude the ability of the Corps of Engineers, the South Florida Water Management District, and other non-Federal sponsors from issuing other guidance or policy to assist in implementing the Plan. Any such guidance or policy shall be consistent with applicable law, policy, and regulations.

§ 385.6 Review of programmatic regulations.

(a) The Secretary of the Army shall review, and if necessary revise, the regulations of this part at least every five years. In addition, the Secretary of the Army may review and revise the regulations of this part whenever the Secretary believes that such review and revision is necessary to attain the goals and purposes of the Plan. The Secretary of the Army shall place appropriate notice in the Federal Register upon initiating review of the regulations of this part.

(b) Upon completing the review of the regulations of this part, the Secretary shall promulgate any revisions to the regulations after notice and opportunity for public comment in accordance with applicable law, with the concurrence of the Secretary of the Interior and the Governor, and in consultation with the Seminole Tribe of Florida, the Miccosukee Tribe of Indians of Florida, the Administrator of the Environmental Protection Agency, the Secretary of Commerce, and other Federal, State, and local agencies.

(c) Within 180 days after being provided with the final revisions to the programmatic regulations of this part, or such shorter period that the Secretary of the Interior and Governor may agree to, the Secretary of the Interior and the Governor shall provide the Secretary of the Army with a written statement of concurrence or non-concurrence with the revisions. A failure to provide a written statement of concurrence or non-concurrence within such time frame shall be deemed as meeting the concurrency process of paragraph (b) of this section. A copy of any concurrency or nonconcurrency statements shall be made a part of the administrative record and referenced in the final revised programmatic regulations. Any non-concurrency statement shall specifically detail the reason or reasons for the non-concurrence.

§ 385.7 Concurrency statements.

The administrative record of the programmatic regulations in this part contains a copy of the concurrency statements by the Secretary of the Interior and the Governor to the Secretary of the Army. The concurrency statements can be obtained from the Army Corps of Engineers, Jacksonville District, 701 San Marco Blvd., Jacksonville, Florida 32207, or by accessing the programmatic regulations Web page at: http://www.evergladesplan.org/pm/progr_regs_final_rule.cfm.

§ 385.8 Goals and purposes of the Comprehensive Everglades Restoration Plan.

(a) The Comprehensive Everglades Restoration Plan (CERP) is a framework for modifications and operational changes to the Central and Southern Florida Project. The overarching objective of the Plan is the restoration, preservation, and protection of the South Florida ecosystem while providing for other water-related needs of the region, including water supply and flood protection.

(b) The Corps of Engineers, the South Florida Water Management District, and other non-Federal sponsors shall, in consultation with the Department of the Interior, the Environmental Protection Agency, the Department of Commerce, the Miccosukee Tribe of Indians of Florida, the Seminole Tribe of Florida, the Florida Department of Environmental Protection, and other Federal, State, and local agencies, implement the Plan, as authorized by Congress, to ensure the protection of water quality in, the reduction of the loss of fresh water from, and the improvement of the environment of the South Florida ecosystem and to achieve and maintain the benefits to the natural system and human environment described in the Plan, and required pursuant to section 601 of WRDA 2000, for as long as the project is authorized.

(c) The goal of the Plan is to restore, preserve, and protect the South Florida ecosystem while providing for other water-related needs of the region. The Plan is designed to accomplish this by providing the quantity, quality, timing, and distribution of water necessary to achieve and sustain those essential hydrological and biological characteristics that defined the undisturbed South Florida ecosystem. As authorized by Congress, the restored South Florida ecosystem will be significantly healthier than the current system; however it will not completely replicate the undisturbed South Florida ecosystem and some areas may more closely replicate the undisturbed ecosystem than others. Initial modeling showed that most of the water generated by the Plan would go to the natural system in order to attain restoration goals, and the remainder of the water would go for use in the human environment. The Corps of Engineers, the South Florida Water Management District, and other non-Federal sponsors shall ensure that Project Implementation Reports identify the appropriate quantity, timing, and distribution of water to be dedicated and managed for the natural system that is necessary to meet the restoration goals of the Plan. In accordance with the “Comprehensive Everglades Restoration Plan Assurance of Project Benefits Agreement,” dated January 9, 2002 pursuant to section 601(h)(2) of WRDA 2000, the South Florida Water Management District or the Florida Department of Environmental Protection shall make sufficient reservations of water for the natural system under State law in accordance with the Project Implementation Report for that project and consistent with the Plan before water made available by a project is permitted for a consumptive use or otherwise made unavailable.

(d) The Corps of Engineers and non-Federal sponsors shall implement the Plan in a manner to continuously improve the expected performance level of the Plan based upon new information resulting from changed or unforeseen circumstances, new scientific and technical information, new or updated modeling; information developed through the adaptive assessment principles contained in the Plan; and future authorized changes to the Plan integrated into the implementation of the Plan.

§ 385.9 Implementation principles.

The Corps of Engineers and the South Florida Water Management District and other non-Federal sponsors shall, in consultation with the Department of the Interior, the Environmental Protection Agency, the Department of Commerce, the Miccosukee Tribe of Indians of Florida, the Seminole Tribe of Florida, the Florida Department of Environmental Protection, and other Federal, State, and local agencies, conduct activities, including program-level activities, necessary to implement the Plan. Such activities shall be conducted as part of an integrated implementation program, in accordance with this part, and based on the following principles:

(a) Individual projects shall be formulated, evaluated, and justified based on their ability to contribute to the goals and purposes of the Plan and on their ability to provide benefits that justify costs on a next-added increment basis.

(b) Interim goals shall be established in accordance with § 385.38 to provide a means for evaluating restoration success of the Plan at specific time intervals during implementation. Interim targets to evaluate progress on providing for other water-related needs of the region provided for in the Plan shall be established in accordance with § 385.39. Interim goals and interim targets shall be consistent with each other.

(c) Endorsement of the Plan as a restoration framework is not intended as a constraint on innovation during implementation through the adaptive management process. Continuous improvement of the Plan shall be sought to ensure that new information resulting from changed or unforeseen circumstances, new scientific and technical information, new or updated modeling; information developed through the assessment principles contained in the Plan; and future authorized changes to the Plan are integrated into the implementation of the Plan. The adaptive management process provides a means for analyzing the performance of the Plan and assessing progress towards meeting the goals and purposes of the Plan as well as a basis for improving the performance of the Plan. Improving the performance of the Plan means enhancing the benefits of the Plan in terms of restoration of the natural system while providing for other water-related needs of the region, including water supply and flood protection.

§ 385.10 Implementation responsibilities, consultation, and coordination.

(a) Implementing agencies. Implementation of the Plan shall be the responsibility of the Corps of Engineers and the non-Federal sponsors.

(b) Consultation—(1) Consultation with tribes. (i) In addition to any other applicable provision for consultation with Native American Tribes, including but not limited to, laws, regulations, executive orders, and policies the Corps of Engineers and non-Federal sponsors shall consult with and seek advice from the Miccosukee Tribe of Indians of Florida and the Seminole Tribe of Florida throughout the implementation process to ensure meaningful and timely input by tribal officials regarding programs and activities covered by this part. Consultation with the tribes shall be conducted on a government-to-government basis.

(ii) In carrying out their responsibilities under section 601 of WRDA 2000 with respect to the restoration of the South Florida ecosystem, the Secretary of the Army and the Secretary of the Interior shall fulfill any obligations to the Indian tribes in South Florida under the Indian trust doctrine as well as other applicable legal obligations.

(2) Consultation with agencies. The Corps of Engineers and non-Federal sponsors shall consult with and seek advice from the Department of the Interior, the Environmental Protection Agency, the Department of Commerce, the Florida Department of Environmental Protection, and other Federal, State, and local agencies throughout the implementation process to ensure meaningful and timely input by those agencies regarding programs and activities covered under this part. The time for, and extent of, consultation shall be appropriate for, and limited by, the activity involved.

(c) Coordination. The Corps of Engineers and the non-Federal sponsor shall coordinate implementation activities and the preparation of documents with other Federal, State, and local agencies and the tribes to fulfill the requirements of all applicable Federal and State laws, including but not limited to, the Fish and Wildlife Coordination Act, the National Environmental Policy Act, the Clean Air Act, the Clean Water Act, the National Historic Preservation Act, the Coastal Zone Management Act, the Marine Mammal Protection Act, and the Endangered Species Act.

(d) Timeliness obligations of consultation. Consultation involves reciprocal obligations: on the part of the Corps of Engineers and the non-Federal sponsor to involve agencies, tribes, and the public at an early stage and in such a way to ensure meaningful consultation, and on the part of the parties consulted to respond in a timely and meaningful fashion so that the implementation of the Plan is not jeopardized and so that delays do not result in other adverse consequences to restoration of the natural system, to the other goals and purposes of the Plan, or to the public interest generally. Prescribed time limits set by regulation are too inflexible for the entire consultation process. It is expected that the Corps of Engineers and the non-Federal sponsor will set reasonable time limits for consultation on specific decisions consistent with the purposes of this part and that the parties will consult in a timely and meaningful way. The Corps of Engineers and the non-Federal sponsor recognize that the time limits established for each specific decision will be proportionate to the complexity of the decision and will take into account the resources of the entity with whom the consultation is occurring in order to allow consultation to occur in a meaningful way. This part does not intend for a delay in consultation to be used as a de facto veto power. This part authorizes the Corps of Engineers and the non-Federal sponsor to set reasonable limits on the amount of time for consultation. In setting reasonable time limits, the agencies and tribes may consider relevant considerations such as sequencing of projects, planning, contracting and funding, and any factor listed for setting time limits for consulting under the National Environmental Policy Act (NEPA) (40 CFR 1501.8), including but not limited to, the nature and size of the proposed action, the degree to which relevant information is known or obtainable, the degree to which the action is controversial, the state of the art of analytical techniques, the number of persons affected, and the consequences of delay. In engaging in consultation, the Corps of Engineers and non-Federal sponsor shall inform the agencies, tribes, and public of the ending date for consultation. In addition, the agencies and tribes should adhere to all time limits imposed by law, regulations or executive order. In appropriate circumstances, the Corps of Engineers and the non-Federal sponsor may extend the time for consultation upon a showing that delays will not result in adverse consequences to the implementation of the Plan, to the restoration of the natural system, to the other goals and purposes of the Plan, or to the public interest and that relevant considerations justify a longer time. Failure of an agency, tribe or the public to engage in consultation with the Corps of Engineers and the non-Federal sponsor, or file comments in, a timely and meaningful way shall not be a sufficient reason for extending a consultation or comment period. Nothing in this part is intended to alter existing time limits established by statute or other regulations.

(e) South Florida Ecosystem Restoration Task Force. The Department of the Army recognizes the valuable role that the South Florida Ecosystem Restoration Task Force (Task Force), its working group, and its other advisory bodies play in the discussion and resolution of issues related to the South Florida ecosystem. The Corps of Engineers and the South Florida Water Management District regularly brief the Task Force on the Plan and regularly serve on the working group and other advisory bodies. The Corps of Engineers and the South Florida Water Management District and other non-Federal sponsors shall continue to provide information to, and consult with, the South Florida Ecosystem Restoration Task Force, the Florida-based working group, and advisory bodies to the Task Force as appropriate throughout the implementation process for the Plan. In addition to consultation with the Task Force specified elsewhere in this part, the Corps of Engineers and the South Florida Water Management District shall consult with the South Florida Ecosystem Restoration Task Force, its working group, and its advisory bodies, on other matters related to the implementation of the Plan, as the Task Force from time to time may request. Pursuant to the provisions of WRDA 1996, the Task Force shall provide general input concerning the implementation of the Plan. The Task Force shall provide recommendations to the Secretary of the Army regarding the implementation of the Plan, as provided in this part. The Secretary of the Army shall notify the Task Force to ensure it is afforded an opportunity to review and provide recommendations on reports and products, including but not limited to, interim goals and interim targets, Project Implementation Reports, Pilot Project Design Reports, Pilot Project Technical Data Reports, the pre-CERP baseline, assessment reports, guidance memoranda, Master Implementation Sequencing Plan, Comprehensive Plan Modification Reports, periodic CERP updates, and reports to Congress prepared pursuant to § 385.40.

§ 385.11 Implementation process for projects.

Generally, the Corps of Engineers and non-Federal sponsors shall develop and implement projects in accordance with the process that is shown in figure 1 in Appendix A of this part. Typical steps in this process involve:

(a) Project Management Plan. The Project Management Plan describes the activities, tasks, and responsibilities that will be used to produce and deliver the products necessary to implement the project.

(b) Project Implementation Report. The Project Implementation Report provides information on plan formulation and evaluation, engineering and design, estimated benefits and costs, and environmental effects to bridge the gap between the conceptual design included in the Plan and the detailed design necessary to proceed to construction. The Project Implementation Reports will also set forth additional information and analyses necessary for the Secretary of the Army or Congress to approve the project for implementation.

(c) Plans and specifications. During this phase, final design of the project is completed and plans and specifications are prepared. Plans and specifications contain the information necessary to bid and construct the project.

(d) Real estate acquisition. The lands, easements, and rights-of way, and relocations necessary for the project are acquired prior to construction.

(e) Construction. This phase is the actual construction of a project's components and includes an interim operation and monitoring period to ensure that the project operates as designed.

(f) Operation. After construction of the project has been completed, it is operated in accordance with the System Operating Manual and the Project Operating Manual.

(g) Monitoring and assessment. After the project has been constructed, monitoring is conducted as necessary to assess the effectiveness of the project and to provide information that will be used for the adaptive management program.

§ 385.12 Pilot projects.

(a) The Plan includes pilot projects to address uncertainties associated with certain components such as aquifer storage and recovery, in-ground reservoir technology, seepage management, and wastewater reuse. The purpose of the pilot projects is to develop information necessary to better determine the technical feasibility of these components prior to development of a Project Implementation Report.

(b) Prior to initiating activities on a pilot project, the Corps of Engineers and the non-Federal sponsor shall develop a Project Management Plan as described in § 385.24.

(c) Project Implementation Reports shall not be necessary for pilot projects. Prior to implementing a pilot project, the Corps of Engineers and the non-Federal sponsor shall prepare a Pilot Project Design Report.

(1) The Pilot Project Design Report shall contain the technical information necessary to construct the pilot project including engineering and design, cost estimates, real estate analyses, and appropriate NEPA documentation.

(2) The Pilot Project Design Report shall include a detailed operational testing and monitoring plan necessary to develop information to assist in better determining the technical feasibility of certain components prior to development of a Project Implementation Report.

(3) In accordance with § 385.18, the Corps of Engineers and the non-Federal sponsor shall provide the public with opportunities to review and comment on the draft Pilot Project Design Report.

(4) The Corps of Engineers and the non-Federal sponsor shall approve the final Pilot Project Design Report in accordance with applicable law.

(d) Upon completion of operational testing and monitoring, the Corps of Engineers and the non-Federal sponsor shall, in consultation with the Department of the Interior, the Environmental Protection Agency, the Department of Commerce, the Miccosukee Tribe of Indians of Florida, the Seminole Tribe of Florida, the Florida Department of Environmental Protection, and other Federal, State, and local agencies, prepare a Pilot Project Technical Data Report, documenting the findings and conclusions from the operational testing and monitoring of the pilot project. The purpose of the Pilot Project Technical Data Report is to help assess the viability of technology and to assist in the development of the full-scale project. The Corps of Engineers and the non-Federal sponsor shall also consult with the South Florida Ecosystem Restoration Task Force in preparing the report.

(1) In accordance with § 385.22(b), the draft Pilot Project Technical Data Report shall be externally peer reviewed.

(2) In accordance with § 385.18, the public shall be provided with opportunities to review and comment on the draft Pilot Project Technical Data Report.

(3) The final Pilot Project Technical Data Report shall be made available to the public.

§ 385.13 Projects implemented under additional program authority.

(a) To expedite implementation of the Plan, the Corps of Engineers and non-Federal sponsors may implement projects under the authority of section 601(c) of WRDA 2000 that are described in the Plan and that will produce a substantial benefit to the restoration, preservation, and protection of the South Florida ecosystem.

(b) Each project implemented under the authority of section 601(c) of WRDA 2000 shall:

(1) In general, follow the process described in § 385.11;

(2) Not be implemented until a Project Implementation Report is prepared and approved in accordance with § 385.26; and

(3) Not exceed a total cost of $25,000,000.

(c) The total aggregate cost of all projects implemented under the additional program authority shall not exceed $206,000,000.

§ 385.14 Incorporation of NEPA and related considerations into the implementation process.

(a) General. (1) In implementing the Plan, the Corps of Engineers shall comply with the requirements of NEPA (42 U.S.C. 4371, et seq.) and applicable implementing regulations, including determining whether a specific action, when considered individually and cumulatively, will have a significant impact on the human environment.

(2) As appropriate, other agencies shall be invited to be cooperating agencies in the preparation of NEPA documentation pursuant to § 230.16 of this chapter.

(3) The District Engineer is the NEPA official responsible for compliance with NEPA for actions conducted to implement the Plan. Unless otherwise provided for by this part, NEPA coordination for implementation of the plan shall follow the NEPA procedures established in part 230 of this chapter.

(b) Actions normally requiring an Environmental Impact Statement (EIS). (1) In addition to the actions listed in § 230.6 of this chapter, actions normally requiring an EIS are:

(i) Comprehensive Plan Modification Reports;

(ii) System Operating Manual or significant changes to the System Operating Manual;

(iii) Project Implementation Reports, including the draft Project Operating Manual when included in the Project Implementation Report;

(iv) Pilot Project Design Reports, including the detailed operational testing and monitoring plan; and

(v) Project Operating Manuals for any project where a Project Implementation Report is not prepared, or significant changes to Project Operating Manuals.

(2) The District Engineer may consider the use of an environmental assessment (EA) on the types of actions described in this paragraph if early studies and coordination show that a particular action, considered individually and cumulatively, is not likely to have a significant impact on the quality of the human environment.

(c) Actions normally requiring an EA, but not necessarily an EIS. In addition to the actions listed in § 230.7 of this chapter, actions normally requiring an EA, but not necessarily an EIS, are modifications to Project Operating Manuals or the System Operating Manual, that do not provide for significant change in operation and/or maintenance.

(d) Categorical exclusions. In addition to the activities listed in § 230.9 of this chapter, the following actions do not require separate NEPA documentation, either because, when considered individually and cumulatively, they do not have significant effects on the quality of the human environment or because any such effects will already have been considered in NEPA documentation prepared in accordance with paragraphs (b) and (c) of this section. However, the District Engineer should be alert for extraordinary circumstances that may dictate the need to prepare an EA or an EIS. Even though an EA or EIS is not indicated for a Federal action because of a “categorical exclusion,” that fact does not exempt the action from compliance with any other applicable Federal, State, or Tribal law, including but not limited to, the Endangered Species Act, the Fish and Wildlife Coordination Act, the National Historic Preservation Act, the Clean Water Act, Clean Air Act, the Coastal Zone Management Act, and the Marine Mammal Protection Act.

(1) Project Cooperation Agreements;

(2) Project Management Plans;

(3) Program Management Plans;

(4) Plans and specifications for projects;

(5) Pilot Project Technical Data Reports;

(6) Assessment reports prepared for the adaptive management program;

(7) Interim goals and interim targets;

(8) Development or revision of guidance memoranda or methods such as adaptive management, monitoring, plan formulation and evaluation, quantification of water needed for the natural system or protection of existing uses, methods of determining levels of flood protection, and similar guidance memoranda or methods; and

(9) Deviations from Operating Manuals for emergencies and unplanned minor deviations when, considered individually and cumulatively, they do not have significant effects on the quality of the human environment, as described in applicable Corps of Engineers regulations, including § 222.5(f)(4) and § 222.5(i)(5) of this chapter, and Engineer Regulation ER 1110-2-8156 “Preparation of Water Control Manuals.”

§ 385.15 Consistency with requirements of the State of Florida.

The State of Florida has established procedures, requirements, and approvals that are needed before the State or the South Florida Water Management District can participate as the non-Federal sponsor for projects of the Plan. Project Implementation Reports shall include such information and analyses, consistent with this part, as are necessary to facilitate review and approval of projects by the South Florida Water Management District and the State pursuant to the requirements of Florida law.

§ 385.16 Design agreements.

(a) The Corps of Engineers shall execute a design agreement with each non-Federal sponsor for the projects of the Plan prior to initiation of design activities with that non-Federal sponsor.

(b) Any procedures, guidance, or documents developed by the Corps of Engineers and the non-Federal sponsor pursuant to a design agreement shall be consistent with this part.

§ 385.17 Project Delivery Team.

(a) In accordance with the procedures of the Corps of Engineers business process described in Engineer Regulation ER 5-1-11 “US Army Corps of Engineers Business process,” the Corps of Engineers and the non-Federal sponsor shall form a Project Delivery Team to develop the products necessary to implement each project.

(b) The Corps of Engineers shall assign, and the non-Federal sponsor may assign, a project manager to lead the Project Delivery Team.

(c) The Corps of Engineers and the South Florida Water Management District shall encourage the participation of other Federal, State, and local agencies and the Miccosukee Tribe of Indians of Florida and the Seminole Tribe of Florida on Project Delivery Teams, and use their expertise to ensure that information developed by the Project Delivery Team is shared with agencies, tribes, and the public at the earliest possible time in the implementation process. In forming the Project Delivery Team, the Corps of Engineers and the non-Federal sponsor shall request that the Department of the Interior, the Environmental Protection Agency, the Department of Commerce, the Miccosukee Tribe of Indians of Florida, the Seminole Tribe of Florida, the Florida Department of Environmental Protection, and other Federal, State, and local agencies participate on the Project Delivery Team.

(1) In general, participation on the Project Delivery Team shall be the financial responsibility of the participating agency or tribe. However, the Corps of Engineers shall provide funding for the U.S. Fish and Wildlife Service and the National Marine Fisheries Service to prepare Fish and Wildlife Coordination Act Reports, as required by applicable law, regulation, or agency procedures.

(2) Participation by an agency or tribe on the Project Delivery Team shall not be considered or construed to be a substitute for consultation, coordination, or other activities required by applicable law or this part.

(d) Documents and work products prepared or developed by the Project Delivery Team shall not be self-executing, but shall be provided as information for consideration by the Corps of Engineers and the non-Federal sponsor, in consultation with the Department of the Interior, the Environmental Protection Agency, the Department of Commerce, the Seminole Tribe of Florida, the Miccosukee Tribe of Indians of Florida, the Florida Department of Environmental Protection, and other Federal, State, and local agencies.

§ 385.18 Public outreach.

(a) Goals. (1) The goal of public outreach is to open and maintain channels of communication with the public throughout the implementation process for the Plan in order to:

(i) Provide information about proposed activities;

(ii) Make the public's desires, needs, and concerns known to decision-makers before decisions are reached; and

(iii) Consider and respond to the public's views in reaching decisions.

(2) In carrying out implementation activities for the Plan, the Corps of Engineers and non-Federal sponsors shall undertake outreach activities to:

(i) Increase general public awareness for the Plan;

(ii) Involve interested groups and interested communities in the decision-making process and incorporate public values into decisions;

(iii) Better serve and involve minority communities and traditionally under served communities, persons with limited English proficiency, and socially and economically disadvantaged individuals;

(iv) Improve the substantive quality of decisions as a result of public participation; and

(v) Reduce conflict among interested and affected parties by building agreement or consensus on solutions to emerging issues.

(b) General requirements. (1) The Corps of Engineers and non-Federal sponsors shall provide a transparent, publicly accessible process through which scientific and technical information is used in the development of policy decisions throughout the implementation process for the Plan.

(2) The Corps of Engineers and non-Federal sponsors shall develop and conduct outreach activities for project or program-level activities in order to provide information to the public and to provide opportunities for involvement by the public.

(3) The Corps of Engineers and non-Federal sponsors shall monitor the effectiveness of outreach activities throughout the implementation process.

(4) Project Management Plans and Program Management Plans shall include information concerning any outreach activities to be undertaken during the implementation of the project or activity.

(5) Project Delivery Team meetings and RECOVER meetings shall be open to attendance by the public. The public shall be notified in advance of these meetings through e-mail, posting on a web site, or other appropriate means. The public shall be provided with an opportunity to comment at such meetings.

(6) Public meetings and workshops shall be held at such times and locations as to facilitate participation by the public.

(7) The Corps of Engineers and non-Federal sponsors shall provide opportunities for the public to review and comment on draft documents.

(c) Outreach to socially and economically disadvantaged individuals and communities. (1) The Corps of Engineers and non-Federal sponsors shall develop and conduct public outreach activities to ensure that socially and economically disadvantaged individuals, including individuals with limited English proficiency, and communities are provided opportunities to review and comment during implementation of the Plan.

(2) The Corps of Engineers and non-Federal sponsors shall monitor the effectiveness of outreach activities conducted to ensure that socially and economically disadvantaged individuals and communities, including individuals with limited English proficiency, are provided opportunities to review and comment during implementation of the Plan.

(3) Project Management Plans and Program Management Plans shall include information, concerning any outreach activities to be undertaken during the implementation of the project or activity, to socially and economically disadvantaged individuals and communities, including individuals of limited English proficiency.

(4) The Corps of Engineers and non-Federal sponsors shall make project and program information available in languages other than English where a significant number of individuals in the area affected by the project or program activity are expected to have limited English proficiency.

(5) The Corps of Engineers and non-Federal sponsors shall provide translators or similar services at public meetings where a significant number of participants are expected to have limited English proficiency.

§ 385.19 Environmental and economic equity.

(a) Project Management Plans and Program Management Plans shall include information concerning any environmental and economic equity activities to be undertaken during the implementation of the project or activity.

(b) As required by applicable laws and policies, the Corps of Engineers and non-Federal sponsors shall consider and evaluate environmental justice issues and concerns in the implementation of projects.

(c) During the implementation of the Plan, through appropriate means, consistent with section 601(k) of WRDA 2000 and other provisions of Federal law, the Corps of Engineers and non-Federal sponsors shall provide information to socially and economically disadvantaged individuals and communities, including individuals with limited English proficiency, about potential or anticipated contracting opportunities that are expected to result from implementation of the Plan.

(d) The District Engineer shall ensure that small business concerns owned and controlled by socially and economically disadvantaged individuals are provided opportunities to participate under section 15(g) of the Small Business Act (15 U.S.C. 644(g)) throughout the implementation process. The District Engineer shall track the amount of contracts awarded to small business concerns owned and controlled by socially and economically disadvantaged individuals in order to ensure that they are provided such opportunities.

§ 385.20 Restoration Coordination and Verification (RECOVER).

(a) RECOVER (Restoration Coordination and Verification) is an interagency and interdisciplinary scientific and technical team described in the “Final Integrated Feasibility Report and Programmatic Environmental Impact Statement,” dated April 1, 1999. RECOVER was established by the Corps of Engineers and the South Florida Water Management District to conduct assessment, evaluation, and planning and integration activities using the best available science that support implementation of the Plan with the overall goal of ensuring that the goals and purposes of the Plan are achieved. RECOVER has been organized into a Leadership Group that provides management and coordination for the activities of RECOVER and teams that accomplish activities such as: developing system-wide performance measures; developing and implementing the monitoring and assessment program; evaluating alternatives developed by Project Delivery Teams to achieve the goals and purposes of the Plan; conducting system-wide water quality analyses; developing, refining, and applying system-wide models and tools; and evaluating modifications to the Plan. RECOVER is not a policy making body, but has technical and scientific responsibilities that support implementation of the Plan.

(b) Documents or work products prepared or developed by RECOVER shall not be self-executing, but shall be provided as information for consideration by the Corps of Engineers and the South Florida Water Management District, in consultation with the Department of the Interior, the Environmental Protection Agency, the Department of Commerce, the Miccosukee Tribe of Indians of Florida, the Seminole Tribe of Florida, the Florida Department of Environmental Protection, and other Federal, State, and local agencies. Technical information developed by RECOVER shall be available to the public.

(c) The Corps of Engineers and the South Florida Water Management District shall encourage the participation of other Federal, State, and local agencies and the Miccosukee Tribe of Indians of Florida and the Seminole Tribe of Florida on RECOVER, to use their expertise, to ensure that information developed by RECOVER is shared at the earliest possible time with agencies, tribes, and the public, and to ensure that matters of concern are addressed as early as possible. The Corps of Engineers and the South Florida Water Management District recognize the special role of the National Oceanic and Atmospheric Administration of the Department of Commerce, the Florida Fish and Wildlife Conservation Commission, the Department of the Interior and the Florida Fish and Wildlife Conservation Commission as stewards of the natural system and for their technical and scientific activities in support of restoration. The Corps of Engineers and the South Florida Water Management District recognize the special role of the Environmental Protection Agency and the Florida Department of Environmental Protection in water quality issues. Accordingly, the Corps of Engineers and the South Florida Water Management District have used and will continue to use the Department of the Interior, the Department of Commerce, the Florida Fish and Wildlife Conservation Commission, the Environmental Protection Agency, and the Florida Department of Environmental Protection as co-chairs along with the Corps of Engineers and the South Florida Water Management District on the appropriate technical teams that have been established to date as part of RECOVER.

(1) In general, participation on RECOVER shall be the financial responsibility of the participating agency or tribe.

(2) Participation by an agency or tribe on RECOVER shall not be considered or construed to be a substitute for consultation, coordination, or other activities required by applicable law, policy, or regulation.

(d) The Corps of Engineers and the South Florida Water Management District shall:

(1) Assign program managers from the Corps of Engineers and the South Florida Water Management District to be responsible for carrying out the activities of RECOVER; and

(2) Establish a RECOVER Leadership Group to assist the program managers in coordinating and managing the activities of RECOVER, including the establishment of sub-teams or other entities, and in reporting on the activities of RECOVER. In addition to the program managers, the RECOVER Leadership Group shall, consist of one member appointed by each of the following:

(i) Environmental Protection Agency;

(ii) National Oceanic and Atmospheric Administration;

(iii) U.S. Fish and Wildlife Service;

(iv) U.S. Geological Survey;

(v) National Park Service;

(vi) Miccosukee Tribe of Indians of Florida;

(vii) Seminole Tribe of Florida;

(viii) Florida Department of Agriculture and Consumer Services;

(ix) Florida Department of Environmental Protection; and

(x) Florida Fish and Wildlife Conservation Commission.

(3) As necessary to assist the program managers, the Corps of Engineers and the South Florida Water Management District may add additional members to the RECOVER Leadership Group.

(e) RECOVER shall perform assessment, evaluation, and planning and integration activities as described in this paragraph.

(1) Assessment activities. In accordance with § 385.31, RECOVER shall conduct credible scientific assessments of hydrological, water quality, biological, ecological, water supply, and other responses to the Plan. The Corps of Engineers and the South Florida Water Management District will ensure that these assessments incorporate the best available science and that the results are provided for external peer review, as appropriate, and are made fully available for public review and comment. RECOVER shall conduct assessment activities, including, but not limited to:

(i) Developing proposed assessment performance measures for assessing progress towards the goals and purposes of the Plan;

(ii) Developing a proposed monitoring plan to support the adaptive management program;

(iii) Conducting monitoring and assessment activities as part of the adaptive management program to assess the actual performance of the Plan;

(iv) Developing recommendations for interim goals in accordance with § 385.38;

(v) Assessing progress towards achieving the interim goals established pursuant to § 385.38;

(vi) Developing recommendations for interim targets in accordance with § 385.39;

(vii) Assessing progress towards achieving the interim targets established pursuant to § 385.39; and

(viii) Cooperating with the independent scientific review panel and external peer review in accordance with § 385.22.

(2) Evaluation activities. In accordance with § 385.26(c) and § 385.32, RECOVER shall assist Project Delivery Teams in ensuring that project design and performance is fully linked to the goals and purposes of the Plan and incorporating, as appropriate, information developed for Project Implementation Reports into the Plan. RECOVER shall conduct evaluation activities, including, but not limited to:

(i) Developing proposed evaluation performance measures for evaluating alternative plans developed for the Project Implementation Report;

(ii) Conducting evaluations of alternative plans developed for Project Implementation Reports and Comprehensive Plan Modification Reports; and

(iii) Supporting development and refinement of predictive models and tools used in the evaluation of alternate plans developed by the Project Delivery Teams.

(3) Planning and integration activities. RECOVER shall conduct planning and integration activities, in accordance with § 385.31, in support of the adaptive management program as a basis for identifying opportunities for improving the performance of the Plan and other appropriate planning and integration activities associated with implementation of the Plan. RECOVER shall conduct planning and integration activities, including, but not limited to:

(i) Developing and refining conceptual and predictive models and tools in support of the integration of new science into the adaptive management program;

(ii) Reviewing and synthesizing new information and science that could have an effect on the Plan;

(iii) Developing proposed refinements and improvements in the design or operation of the Plan during all phases of implementation;

(iv) Preparing technical information to be used in the development of the periodic reports to Congress prepared pursuant to § 385.40; and

(v) Analyzing proposed revisions to the Master Implementation Sequencing Plan.

(f) In carrying out the functions described in this section, RECOVER shall consider the effects of activities and projects that are not part of the Plan, but which could affect the ability of the Plan to achieve its goals and purposes.

(g) As appropriate, the Corps of Engineers and the South Florida Water Management District shall seek external peer review of RECOVER activities in accordance with § 385.22(b).

§ 385.21 Quality control.

(a) The Corps of Engineers and the non-Federal sponsor shall prepare a quality control plan, in accordance with applicable Corps of Engineers regulations, for each product that will be produced by a Project Delivery Team. The quality control plan shall be included in the Project Management Plan and shall describe the procedures to be used to ensure compliance with technical and policy requirements during implementation.

(b) During development of the Project Management Plan for each project, the Corps of Engineers and the non-Federal sponsor shall establish a Technical Review Team to conduct reviews to ensure that products are consistent with established criteria, guidance, procedures, and policy. The members of the Technical Review Team shall be independent of the Project Delivery Team and the project being reviewed, and should be knowledgeable of design criteria established for the Plan.

(c) Technical review is intended to be a continuous process throughout project implementation. The Technical Review Team shall document its actions and recommendations and provide reports to the Project Delivery Team at designated points during the implementation process that shall be described in the quality control plan.

§ 385.22 Independent scientific review and external peer review.

(a) The independent scientific review panel required by section 601(j). (1) Section 601(j) of WRDA 2000 requires that the Secretary of the Army, the Secretary of the Interior, and the Governor, in consultation with the South Florida Ecosystem Restoration Task Force, establish an independent scientific review panel, convened by a body, such as the National Academy of Sciences, to review the Plan's progress toward achieving the natural system restoration goals of the Plan. Section 601(j) also directs that this panel produce a biennial report to Congress, the Secretary of the Army, the Secretary of the Interior, and the Governor that includes an assessment of ecological indicators and other measures of progress in restoring the ecology of the natural system, based on the Plan.

(2) To carry out section 601(j), the Department of the Army, the Department of the Interior, and the State shall establish an independent scientific review panel to conduct on-going review of the progress achieved by the implementation of the Plan in achieving the restoration goals of the Plan and shall provide the panel with the resources and cooperation necessary to ensure that the panel is able to function effectively.

(3) Not later than June 14, 2004, the Secretary of the Army, the Secretary of the Interior, and the Governor, in consultation with the South Florida Ecosystem Restoration Task Force, shall enter into a five-year agreement, with options for extensions in five-year increments, with the National Academy of Sciences to convene this panel.

(4) The Department of the Army, the Department of the Interior, and the State expect that the National Academy of Sciences will use established practices for assuring the independence of members and that the review panel will include members reflecting a balance of the knowledge, training, and experience suitable to comprehensively review and assess progress towards achieving natural system restoration goals of the Plan.

(5) To ensure the independence of the section 601(j) panel, its sole mission shall be to review the Plan's progress toward achieving the natural system restoration goals of the Plan and to produce a biennial report to Congress, the Secretary of the Army, the Secretary of the Interior, and the Governor that includes an assessment of ecological indicators and other measures of progress in restoring the ecology of the natural system, based on the Plan. The Secretary of the Army, the Secretary of the Interior, the Governor, and the South Florida Ecosystem Restoration Task Force and its members, shall not attempt to influence the panel's review or assign this panel any other tasks, nor request any advice on any other matter, nor shall this panel accept any other tasks nor provide advice on any other matter, to any entity, whether Federal, State or local, whether public or private.

(6) Before final establishment of the panel, the Department of the Army, the Department of the Interior, and the State, in consultation with the South Florida Ecosystem Restoration Task Force, shall be afforded the opportunity to review the list of panel members convened by the National Academy of Sciences.

(7) The agreement shall recognize that the Department of the Army, the Department of the Interior, and the State retain the right and ability to establish other independent scientific review panels or external peer reviews when deemed necessary by those agencies for conducting specific scientific and technical reviews.

(8) The Department of the Army, the Department of the Interior, and the State of Florida shall share the panel's costs. The Department of the Army and the Department of the Interior shall enter into a separate Memorandum of Agreement that will specify how the Federal agencies will pay the Federal share of these costs. The State's fifty percent share shall be accounted for in the design agreement between the Corps of Engineers and the South Florida Water Management District.

(9) The panel shall produce a biennial report to Congress, the Secretary of the Army, the Secretary of the Interior, and the Governor, pursuant to section 601(j) of WRDA 2000, that includes an assessment of ecological indicators and other measures of progress in restoring the ecology of the natural system, based on the Plan.

(10) The Corps of Engineers and the South Florida Water Management District and other non-Federal sponsors shall cooperate with the independent scientific review panel, including responding to reasonable requests for information concerning the implementation of the Plan.

(11) The Secretary of the Army, the Secretary of the Interior, and the Governor shall consult with the South Florida Ecosystem Restoration Task Force in their decision to exercise each five-year option to extend the agreement with the National Academy of Sciences. Upon expiration of the agreement, the Secretary of the Army, the Secretary of the Interior, and the Governor shall consult the South Florida Ecosystem Restoration Task Force in selection of another body to convene the independent scientific review panel required by section 601(j) of WRDA 2000.

(b) External peer review. (1) The Department of the Army, the Department of the Interior, the South Florida Water Management District, and other Federal, State, and local agencies, the Miccosukee Tribe of Indians of Florida and the Seminole Tribe of Florida may initiate an external peer review process to review documents, reports, procedures, or to address specific scientific or technical questions or issues relating to their jurisdiction.

(2) In accordance with § 385.12(d), draft Pilot Project Technical Reports shall be externally peer reviewed.

(3) In accordance with § 385.31(b), draft assessment reports prepared for the adaptive management program shall be externally peer reviewed.

§ 385.23 Dispute resolution.

(a) Disputes with the non-Federal sponsor concerning a Project Cooperation Agreement shall be resolved under the specific dispute resolution procedures of that Project Cooperation Agreement.

(b) Disputes with the non-Federal sponsor concerning design activities shall be resolved under the specific dispute resolution procedures of the design agreement.

(c) All other unresolved issues with the non-Federal sponsor and disputes with the State associated with the implementation of the Plan shall be resolved according to the terms of the Dispute Resolution Agreement executed on September 9, 2002 pursuant to section 601(i) of WRDA 2000.

(d) For disputes with parties not covered by the provisions of paragraphs (a), (b), or (c) of this section, the Corps of Engineers shall attempt to resolve the dispute in accordance with applicable statutory requirements and/or the following procedures:

(1) The parties will attempt to resolve disputes at the lowest organizational level before seeking to elevate a dispute.

(2) Any disputed matter shall first be elevated to the District Engineer and the equivalent official of the other agency, or their designees. The parties may decide to continue to elevate the dispute to higher levels within each agency.

(3) The parties to a dispute may agree to participate in mediation.

(4) When a dispute is resolved the parties shall memorialize the resolution in writing.

§ 385.24 Project Management Plans.

(a) General requirements. (1) The Corps of Engineers and the non-Federal sponsor shall, in consultation with the Department of the Interior, the Environmental Protection Agency, the Department of Commerce, the Seminole Tribe of Florida, the Miccosukee Tribe of Indians of Florida, the Florida Department of Environmental Protection, and other Federal, State, and local agencies, develop a Project Management Plan prior to initiating activities on a project.

(2) The Project Management Plan shall define the activities, and where appropriate, the subordinate tasks, as well as the assignment of responsibility for completing products and activities such as Project Implementation Reports, Pilot Project Design Reports, plans and specifications, real estate acquisition, construction contracts and construction, Comprehensive Plan Modification Reports, and other activities necessary to support implementation of the Plan.

(3) The Project Management Plan shall include a quality control plan, as described in § 385.21.

(4) As appropriate, the Project Management Plan shall include activities to be conducted to meet the requirements of the Fish and Wildlife Coordination Act, as described in § 385.26(e).

(5) The Project Management Plan shall provide schedule and funding information for the project.

(6) In accordance with § 385.18, Corps of Engineers and the non-Federal sponsor shall provide opportunities for the public to review and comment on the Project Management Plan.

(b) Revisions to Project Management Plans. The Corps of Engineers and the non-Federal sponsor may, in consultation with the Department of the Interior, the Environmental Protection Agency, the Department of Commerce, the Seminole Tribe of Florida, the Miccosukee Tribe of Indians of Florida, the Florida Department of Environmental Protection, and other Federal, State, and local agencies, revise the Project Management Plan whenever necessary, including after completion of the Project Implementation Report, or Plans and Specifications. In accordance with § 385.18, the Corps of Engineers and the non-Federal sponsor shall provide opportunities for the public to review and comment on revisions to the Project Management Plan.

§ 385.25 Program Management Plans.

(a) General requirements. (1) The Corps of Engineers and the non-Federal sponsor shall, in consultation with the Department of the Interior, the Environmental Protection Agency, the Department of Commerce, the Seminole Tribe of Florida, the Miccosukee Tribe of Indians of Florida, the Florida Department of Environmental Protection, and other Federal, State, and local agencies, develop a Program Management Plan prior to initiating a program-level activity.

(2) The Program Management Plan shall define the activities, and where appropriate, the subordinate tasks, as well as the assignment of responsibility for completing products developed in support to program-level activities.

(3) In accordance with § 385.18, Corps of Engineers and the non-Federal sponsor shall provide opportunities for the public to review and comment on the Program Management Plan.

(b) Revisions to Program Management Plans. The Corps of Engineers and the non-Federal sponsor may, in consultation with the Department of the Interior, the Environmental Protection Agency, the Department of Commerce, the Seminole Tribe of Florida, the Miccosukee Tribe of Indians of Florida, the Florida Department of Environmental Protection, and other Federal, State, and local agencies, revise the Program Management Plan whenever necessary to incorporate new or changed information that affects the scope, schedule, or budget of the activities described in the Program Management Plan. In accordance with § 385.18, the Corps of Engineers and the non-Federal sponsor shall provide opportunities for the public to review and comment on revisions to the Program Management Plan.

§ 385.26 Project Implementation Reports.

(a) General requirements. (1) The Project Implementation Report is a document that provides information on plan formulation and evaluation, engineering and design, estimated benefits and costs, environmental effects, and the additional information and analysis necessary for the Secretary of the Army to approve the project for implementation, or for Congress to authorize the project for implementation. The Project Implementation Report bridges the gap between the conceptual level of detail contained in the “Final Integrated Feasibility Report and Programmatic Environmental Impact Statement,” dated April 1, 1999 and the detailed design necessary to prepare plans and specifications required to proceed to construction. Prior to requesting approval or authorization for the implementation of a project, the Corps of Engineers and the non-Federal sponsor shall, in consultation with the Department of the Interior, the Environmental Protection Agency, the Department of Commerce, the Seminole Tribe of Florida, the Miccosukee Tribe of Indians of Florida, the Florida Department of Environmental Protection, and other Federal, State, and local agencies, complete a Project Implementation Report addressing the project's justification in accordance with section 601(f)(2) of WRDA 2000, and other factors required by section 601(h)(4)(A) of WRDA 2000. To eliminate duplication with State and local procedures, the Project Implementation Report shall also address the factors of relevant State laws, including sections 373.1501 and 373.470 of the Florida Statutes.

(2) Before completion of the draft Project Implementation Report, the Corps of Engineers and the non-Federal sponsor shall provide the South Florida Ecosystem Restoration Task Force with information about the alternative plans developed and evaluated for the Project Implementation Report.

(3) The Project Implementation Report shall:

(i) Be consistent with the Plan and applicable law, policy, and regulation, including the Principles and Guidelines of the Water Resources Council, as modified by section 601(f)(2)(A) of WRDA 2000;

(ii) Be based on the best available science;

(iii) Comply with all applicable Federal, State, and Tribal laws;

(iv) Contain sufficient information for proceeding to final design of the project, such as: additional plan formulation and evaluation, environmental and/or economic benefits, engineering and design, costs, environmental impacts, real estate requirements, and the preparation of the appropriate National Environmental Policy Act documentation;

(v) Contain the information necessary to determine that the activity is justified by the environmental benefits derived by the South Florida ecosystem in accordance with section 601(f)(2)(A) and/or that the benefits of the project are commensurate with costs, and that the project is cost-effective;

(vi) Comply, in accordance with section 601(b)(2)(A)(ii) of WRDA 2000, with applicable water quality standards and applicable water quality permitting requirements;

(vii) Identify, in accordance with § 385.35, the appropriate quantity, timing, and distribution of water dedicated and managed for the natural system;

(viii) Identify, in accordance with § 385.35, the amount of water to be reserved or allocated for the natural system under State law necessary to implement the provisions in paragraphs (a)(3)(vi) and (vii) of this section;

(ix) Identify the quantity, timing, and distribution of water made available for other water-related needs of the region;

(x) Determine, in accordance with § 385.36, if existing legal sources of water are to be eliminated or transferred;

(xi) Determine, in accordance with § 385.37(b) that implementation of the selected alternative will not reduce levels of service for flood protection that:

(A) Were in existence on the date of enactment of section 601 of WRDA 2000; and

(B) Are in accordance with applicable law; and consider, as appropriate, in accordance with § 385.37(c), opportunities to provide additional flood protection;

(xii) Include an assessment of the monetary and non-monetary benefits and costs, optimization and justification, cost-effectiveness, and engineering feasibility of the project;

(xiii) Include a discussion of any significant changes in cost or scope of the project from that presented in the “Final Integrated Feasibility Report and Programmatic Environmental Impact Statement,” dated April 1, 1999;

(xiv) Include an analysis, prepared by RECOVER as described in paragraph (c) of this section, of the project's contributions towards achieving the goals and purposes of the Plan, including, as appropriate, suggestions for improving the performance of the alternative plans;

(xv) Describe how the project contributes to the achievement of interim goals established pursuant to § 385.38 and the interim targets established pursuant to § 385.39;

(xvi) Include, in accordance with § 385.28(c), a draft Project Operating Manual as an appendix; and

(xvii) Include, as appropriate, information necessary for the non-Federal sponsor to address the requirements of Chapter 373 of the Florida Statutes, and other applicable planning and reporting requirements of Florida law.

(4) The Corps of Engineers and the non-Federal sponsor shall develop the Project Implementation Report generally in accordance with the process shown in figure 2 in Appendix A of this part.

(5) The Corps of Engineers and the South Florida Water Management District shall develop a guidance memorandum in accordance with § 385.5 for approval by the Secretary of the Army, with the concurrence of the Secretary of the Interior and the Governor, that describes the major tasks that are generally needed to prepare a Project Implementation Report and the format and content of a Project Implementation Report.

(b) Formulation and evaluation. In preparing a Project Implementation Report, the Corps of Engineers and the non-Federal sponsor shall formulate and evaluate alternative plans to optimize the project's contributions towards achieving the goals and purposes of the Plan, and to develop justified and cost-effective ways to achieve the benefits of the Plan.

(1) General. The Corps of Engineers and the South Florida Water Management District shall develop a guidance memorandum in accordance with § 385.5 for approval by the Secretary of the Army, with the concurrence of the Secretary of the Interior and the Governor, that describes the processes to be used to formulate and evaluate alternative plans and their associated monetary and non-monetary benefits and costs, determine cost-effectiveness and optimize the project's contribution towards achieving the goals and purposes of the Plan, and the basis for justifying and selecting an alternative to be recommended for implementation. The guidance memorandum shall also provide a process for evaluating projects that are outside the boundary of regional computer models or projects whose effects cannot be captured in regional computer models. Project Implementation Reports approved by the Secretary of the Army before December 12, 2003 or before the development of the guidance memorandum may use whatever method that, in the Secretary of the Army's discretion, is deemed appropriate and is consistent with applicable law, policy, and regulations.

(2) Project formulation and evaluation. The guidance memorandum shall describe the process for formulating and evaluating alternative plans for their ability to optimize contributions for achieving the goals and purposes of the Plan. The guidance memorandum shall describe the process for including each alternative plan with all of the other components of the Plan and evaluating the total monetary and non-monetary benefits and costs of the resulting comprehensive plan when compared to the without CERP condition. In formulating alternative plans to be evaluated, the project as described in the “Final Integrated Feasibility Report and Programmatic Environmental Impact Statement,” dated April 1, 1999 shall be included as one of the alternative plans that is evaluated. For the selected plan, the guidance memorandum shall also describe the process for evaluating that plan as the next-added increment of the Plan.

(3) Identification of selected alternative plan. The guidance memorandum shall also include a process for identification of a selected alternative plan, based on the analyses conducted in paragraph (b)(2) of this section. The alternative plan to be selected should be the plan that maximizes net benefits, both monetary and non-monetary, on a system-wide basis, provided that this plan is justified on a next-added increment basis. Alternative plans that are not justified on a next-added increment basis shall not be selected. The guidance memorandum shall describe an iterative process for evaluating and/or combining alternative options until an alternative is identified that maximizes net benefits while still providing benefits that justify costs on a next-added increment basis.

(c) RECOVER performance evaluation of alternative plans. (1) Prior to the identification of a selected alternative plan, RECOVER shall evaluate the performance of alternative plans towards achieving the goals and purposes of the Plan.

(2) RECOVER shall prepare information for the Project Delivery Team describing the results of the evaluations of alternative plans developed for the Project Implementation Report towards achieving the goals and purposes of the Plan, including, as appropriate, suggestions for improving the performance of the alternative plans.

(d) NEPA documentation for Project Implementation Reports. (1) The Corps of Engineers and the non-Federal sponsor shall prepare the appropriate NEPA document to accompany the Project Implementation Report. The NEPA document shall contain an analysis of the effects of the alternatives formulated for the Project Implementation Report. The NEPA document for the Project Implementation Report shall use the Programmatic Environmental Impact Statement included in the “Final Integrated Feasibility Report and Programmatic Environmental Impact Statement,” dated April 1, 1999, as appropriate, for the purpose of tiering as described in § 230.14(c) of this chapter.

(2) The District Engineer shall prepare the Record of Decision for Project Implementation Reports. Review and signature of the Record of Decision shall follow the same procedures as for review and approval of feasibility reports in § 230.14 of this chapter and other applicable Corps of Engineers regulations.

(e) Fish and Wildlife Coordination Act requirements. (1) The Corps of Engineers and the non-Federal sponsor shall coordinate with the U.S. Fish and Wildlife Service, the National Marine Fisheries Service, the Florida Fish and Wildlife Conservation Commission, and other appropriate agencies in the preparation of a Project Implementation Report, as required by applicable law.

(2) The Project Management Plan shall include a discussion of activities to be conducted for compliance with the Fish and Wildlife Coordination Act and other applicable laws.

(3) Consistent with applicable law, policy, and regulations, coordination shall include preparation of the following documents as shown in figure 2 in Appendix A of this part:

(i) Planning Aid Letter that describes issues and opportunities related to the conservation and enhancement of fish and wildlife resources; and

(ii) Draft and final Fish and Wildlife Coordination Act Reports that provide the formal views and recommendations of the U.S. Fish and Wildlife Service or the National Marine Fisheries Service, and the Florida Fish and Wildlife Conservation Commission on alternative plans.

(f) Project Implementation Report review and approval process. (1) The Corps of Engineers and the non-Federal sponsor shall provide opportunities for the public to review and comment on the draft Project Implementation Report and NEPA document, in accordance with § 385.18 and applicable law and Corps of Engineers policy.

(2) The Project Implementation Report shall contain an appropriate letter of intent from the non-Federal sponsor indicating concurrence with the recommendations of the Project Implementation Report.

(3) Upon the completion of the Project Implementation Report and NEPA document, the District Engineer shall submit the report and NEPA document to the Division Engineer.

(4) Upon receipt and approval of the Project Implementation Report the Division Engineer shall issue a public notice announcing completion of the Project Implementation Report based upon:

(i) The Division Engineer's endorsement of the findings and recommendations of the District Engineer; and

(ii) The Division Engineer's assessment that the project has been developed and the report prepared in accordance with current law and policy. The notice shall indicate that the report has been submitted to Corps of Engineers Headquarters for review.

(5) Headquarters, U.S. Army Corps of Engineers shall conduct a review in accordance with applicable policies and regulations of the Corps of Engineers. Headquarters, U.S. Army Corps of Engineers shall administer the 30-day state and agency review of the Project Implementation Report, and as appropriate, file the Environmental Impact Statement with the Environmental Protection Agency.

(6) After completion of the review and other requirements of law and policy, the Chief of Engineers shall submit the Project Implementation Report and the Chief of Engineers' recommendations on the project to the Assistant Secretary of the Army for Civil Works.

(7) The Assistant Secretary of the Army for Civil Works shall review all Project Implementation Reports, and shall, prior to either approving them or submitting the Assistant Secretary's recommendations to Congress, coordinate the project and proposed recommendations with the Office of Management and Budget.

(i) For projects authorized by section 601(c) of WRDA 2000, the Assistant Secretary of the Army for Civil Works shall review and approve the Project Implementation Report prior to implementation of the project.

(ii) For projects authorized by section 601(b)(2)(C) of WRDA 2000, the Assistant Secretary of the Army for Civil Works shall review the Project Implementation Report prior to submitting the Assistant Secretary's recommendations to the Committee on Transportation and Infrastructure of the House of Representatives and the Committee on Environment and Public Works of the Senate for approval.

(iii) For all other projects, the Assistant Secretary of the Army for Civil Works shall review the Project Implementation Report prior to submitting the Assistant Secretary's recommendations regarding authorization to Congress.

§ 385.27 Project Cooperation Agreements.

(a) General. Prior to initiating construction or implementation of a project, the Corps of Engineers shall execute a Project Cooperation Agreement with the non-Federal sponsor in accordance with applicable law.

(b) Verification of water reservations. The Project Cooperation Agreement shall include a finding that the South Florida Water Management District or the Florida Department of Environmental Protection has executed under State law the reservation or allocation of water for the natural system as identified in the Project Implementation Report. Prior to execution of the Project Cooperation Agreement, the District Engineer shall verify in writing that the South Florida Water Management District or the Florida Department of Environmental Protection has executed under State law the reservation or allocation of water for the natural system as identified in the Project Implementation Report. The District Engineer's verification shall provide the basis for the finding in the Project Cooperation Agreement and be made available to the public.

(c) Changes to water reservations. Reservations or allocations of water are a State responsibility. Any change to the reservation or allocation of water for the natural system made under State law shall require an amendment to the Project Cooperation Agreement.

(1) The District Engineer shall, in consultation with the South Florida Water Management District, the Florida Department of Environmental Protection, the Department of the Interior, the Environmental Protection Agency, the Department of Commerce, the Seminole Tribe of Florida, the Miccosukee Tribe of Indians of Florida, and other Federal, State, and local agencies, verify in writing that the revised reservation or allocation continues to provide for an appropriate quantity, timing, and distribution of water dedicated and managed for the natural system after considering any changed circumstances or new information since completion of the Project Implementation Report. In accordance with applicable State law, the non-Federal sponsor shall provide opportunities for the public to review and comment on any proposed changes in the water reservation made by the State.

(2) The Secretary of the Army shall notify the appropriate committees of Congress whenever a change to the reservation or allocation of water for the natural system executed under State law as described in the Project Implementation Report has been made. Such notification shall include the Secretary's and the State's reasons for determining that the revised reservation or allocation continues to provide for an appropriate quantity, timing, and distribution of water dedicated and managed for the natural system after considering any changed circumstances or new information since completion of the Project Implementation Report. The Secretary of the Army's notification to the appropriate committees of Congress shall be made available to the public.

(d) Savings clause provisions. The Project Cooperation Agreement shall ensure that the Corps of Engineers and the non-Federal sponsor not:

(1) Eliminate or transfer existing legal sources of water until a new source of comparable quantity and quality as that available on the date of enactment of WRDA 2000 is available to replace the water to be lost as a result of implementation of the Plan; and

(2) Reduce levels of service for flood protection that are:

(i) In existence on the date of enactment of WRDA 2000; and

(ii) In accordance with applicable law.

§ 385.28 Operating Manuals.

(a) General provisions. (1) The Corps of Engineers and the non-Federal sponsor shall, in consultation with the Department of the Interior, the Environmental Protection Agency, the Department of Commerce, the Seminole Tribe of Florida, the Miccosukee Tribe of Indians of Florida, the Florida Department of Environmental Protection, and other Federal, State, and local agencies, develop Operating Manuals to ensure that the goals and purposes of the Plan are achieved.

(2) Operating Manuals shall consist of a System Operating Manual and Project Operating Manuals. In general, the System Operating Manual provides a system-wide operating plan for the operation of the projects of the Plan and other C&SF Project features and the Project Operating Manuals provide the details necessary for integrating the operation of the individual projects with the system operation described in the System Operating Manual.

(3) In accordance with § 385.18, the public shall have the opportunity to review and comment on draft Operating Manuals.

(4) The Division Engineer and the non-Federal sponsor shall approve completed Operating Manuals.

(5) The Corps of Engineers and the South Florida Water Management District shall develop a guidance memorandum in accordance with § 385.5 for approval by the Secretary of the Army, with the concurrence of the Secretary of the Interior and the Governor, that describes the content of Operating Manuals and the tasks necessary to develop Operating Manuals.

(6) Operating Manuals shall:

(i) Be consistent with the goals and purposes of the Plan;

(ii) Comply with NEPA, in accordance with § 385.14.

(iii) Describe regulation schedules, water control, and operating criteria for a project, group of projects, or the entire system;

(iv) Make provisions for the natural fluctuation of water made available in any given year and fluctuations necessary for the natural system as described in the Plan;

(v) Be consistent with applicable water quality standards and applicable water quality permitting requirements;

(vi) Be consistent with the reservation or allocation of water for the natural system and the savings clause provisions described in the Project Implementation Report and the Project Cooperation Agreement and the provisions of § 385.35(b), § 385.36, and § 385.37 and reflect the operational criteria used in the identification of the appropriate quantity, timing, and distribution of water dedicated and managed for the natural system;

(vii) Include a drought contingency plan as required by § 222.5(i)(5) of this chapter and Engineer Regulation ER 1110-2-1941 “Drought Contingency Plans” that is consistent with the Water Rights Compact Among the Seminole Tribe of Florida, the State of Florida, and the South Florida Water Management District and Florida Administrative Code Section 40E-21 (Water Shortage Plan) and Florida Administrative Code Section 40E-22 (Regional Water Shortage Plan); and

(viii) Include provisions authorizing temporary short-term deviations from the Operating Manual for emergencies and unplanned circumstances, as described in applicable Corps of Engineers regulations, including § 222.5(f)(4) and § 222.5(i)(5) of this chapter, and Engineer Regulation ER 1110-2-8156 “Preparation of Water Control Manuals.” However, deviations shall be minimized by including planning for flooding events caused by rainfall and hurricane events, as well as by including a drought contingency plan.

(A) Emergency deviations. Examples of some emergencies that can be expected to occur at a project are: drowning and other accidents, failure of the operation facilities, chemical spills, treatment plant failures and other temporary pollution problems. Water control actions necessary to abate the problem are taken immediately unless such action would create equal or worse conditions.

(B) Unplanned circumstances. There are unplanned circumstances that create a temporary need for minor deviations from the Operating Manual, although they are not considered emergencies. Deviations are sometimes necessary to carry out maintenance and inspection of facilities. Requests for deviations for unplanned circumstances generally involve time periods ranging from a few hours to a few days. Approval of these changes shall be obtained from the Division Engineer.

(7) Except as provided in this part, operating manuals generally shall follow the procedures for water control plans in § 222.5 of this chapter and applicable Corps of Engineers regulations for preparation of water control manuals and regulation schedules, including Engineer Regulation ER 1110-2-8156.

(b) System Operating Manual. (1) Not later than December 31, 2005, the Corps of Engineers and the South Florida Water Management District shall, in consultation with the Department of the Interior, the Environmental Protection Agency, the Department of Commerce, the Seminole Tribe of Florida, the Miccosukee Tribe of Indians of Florida, the Florida Department of Environmental Protection, and other Federal, State, and local agencies, develop a System Operating Manual that provides a system-wide operating plan for the operation of implemented projects of the Plan and other Central and Southern Florida Project features to ensure that the goals and purposes of the Plan are achieved.

(2) The System Operating Manual shall initially be based on the existing completed Central and Southern Florida Project features and shall be developed by the Corps of Engineers as provided in § 222.5(g) of this chapter and by the South Florida Water Management District as its laws and regulations require. Existing water control plans, regulation schedules, and Master Water Control Plans for the Central and Southern Florida Project shall remain in effect until approval of the System Operating Manual.

(3) The System Operating Manual shall be revised whenever the Corps of Engineers and the South Florida Water Management District, in consultation with the Department of the Interior, the Environmental Protection Agency, the Department of Commerce, the Seminole Tribe of Florida, the Miccosukee Tribe of Indians of Florida, the Florida Department of Environmental Protection, and other Federal, State, and local agencies, believe it is necessary to ensure that the goals and purposes of the Plan are achieved.

(4) Except as provided in this part, the System Operating Manual shall follow the procedures for preparation of water control manuals, regulation schedules and Master Water Control Manuals in § 222.5 of this chapter and applicable Corps of Engineers regulations.

(5) The Corps of Engineers and the South Florida Water Management District shall provide notice and opportunity for public comment for any significant modification to the System Operating Manual.

(c) Project Operating Manuals. (1) The Corps of Engineers and the non-Federal sponsor shall, in consultation with the Department of the Interior, the Environmental Protection Agency, the Department of Commerce, the Seminole Tribe of Florida, the Miccosukee Tribe of Indians of Florida, the Florida Department of Environmental Protection, and other Federal, State, and local agencies, develop a Project Operating Manual for each project of the Plan that is implemented.

(2) Project Operating Manuals shall be considered supplements to the System Operating Manual, and present aspects of the projects not common to the system as a whole.

(3) Each Project Implementation Report shall, as appropriate, include a draft Project Operating Manual as an appendix to the Project Implementation Report.

(4) As appropriate, the draft Project Operating Manual shall be revised for the project construction phase and the operational monitoring and testing phase after completion of project construction.

(5) The final Project Operating Manual shall be completed as soon as practicable after completion of the operational testing and monitoring phase of the project. The completed project shall continue to be operated in accordance with the approved draft Project Operating Manual until the final Project Operating Manual is approved.

(6) The Corps of Engineers and the non-Federal sponsor shall provide notice and opportunity for public comment for any significant modification to the Project Operating Manual.

§ 385.29 Other project documents.

(a) As appropriate, the Corps of Engineers and the non-Federal sponsor may prepare design documents to provide additional design information needed for projects. Such documents shall be approved in accordance with applicable policies of the Corps of Engineers and the non-Federal sponsor.

(b) The Corps of Engineers and the non-Federal sponsor shall prepare plans and specifications necessary for construction of projects. Such documents shall be approved in accordance with applicable policies of the Corps of Engineers and the non-Federal sponsor.

(c) The Corps of Engineers and the non-Federal sponsor may prepare other documents as appropriate during the real estate acquisition and construction phases for projects. Such documents shall be approved in accordance with applicable policies of the Corps of Engineers and the non-Federal sponsor.

§ 385.30 Master Implementation Sequencing Plan.

(a) Not later than December 13, 2004 the Corps of Engineers and the South Florida Water Management District shall, in consultation with the Department of the Interior, the Environmental Protection Agency, the Department of Commerce, the Seminole Tribe of Florida, the Miccosukee Tribe of Indians of Florida, the Florida Department of Environmental Protection, and other Federal, State, and local agencies, develop a Master Implementation Sequencing Plan that includes the sequencing and scheduling for implementation of all of the projects of the Plan, including pilot projects and operational elements, based on the best scientific, technical, funding, contracting, and other information available. The Corps of Engineers and the South Florida Water Management District shall also consult with the South Florida Ecosystem Restoration Task Force in preparing the Master Implementation Sequencing Plan.

(1) Projects shall be sequenced and scheduled to maximize the achievement of the goals and purposes of the Plan at the earliest possible time and in the most cost-effective way, consistent with the requirement that each project be justified on a next-added increment basis, including the achievement of the interim goals established pursuant to § 385.38 and the interim targets established pursuant § 385.39, consistent with § 385.36 and § 385.37(b), and to the extent practical given funding, engineering, and other constraints. The sequencing and scheduling of projects shall be based on considering factors, including, but not limited to:

(i) Technical dependencies and constraints;

(ii) Benefits to be provided by the project;

(iii) Availability of lands required for the project; and

(iv) Avoiding elimination or transfers of existing legal sources of water until an alternate source of comparable quantity and quality is available, in accordance with § 385.36.

(2) The Master Implementation Sequencing Plan shall include appropriate discussion of the logic, constraints, and other parameters used in developing the sequencing and scheduling of projects.

(3) In accordance with § 385.18, the Corps of Engineers and the South Florida Water Management District shall provide opportunities for the public to review and comment on the Master Implementation Sequencing Plan.

(b) Whenever necessary to ensure that the goals and purposes of the Plan are achieved, but at least every five years, the Corps of Engineers and the South Florida Water Management District shall, in consultation with the Department of the Interior, the Environmental Protection Agency, the Department of Commerce, the Seminole Tribe of Florida, the Miccosukee Tribe of Indians of Florida, the Florida Department of Environmental Protection, and other Federal, State, and local agencies, review the Master Implementation Sequencing Plan.

(1) The Master Implementation Sequencing Plan may be revised as appropriate, consistent with the goals and purposes of the Plan, and consistent with § 385.36 and § 385.37(b), to incorporate new information including, but not limited to:

(i) Updated schedules from Project Management Plans;

(ii) Information obtained from pilot projects;

(iii) Updated funding information;

(iv) Approved revisions to the Plan;

(v) Congressional or other authorization or direction;

(vi) Information resulting from the adaptive management program, including new information on costs and benefits; or

(vii) Information regarding progress towards achieving the interim goals established pursuant to § 385.38 and the interim targets established pursuant to § 385.39.

(2) Proposed revisions to the Master Implementation Sequencing Plan shall be analyzed by RECOVER for effects on achieving the goals and purposes of the Plan and the interim goals and targets.

(3) The revised Master Implementation Sequencing Plan shall include information about the reasons for the changes to the sequencing and scheduling of individual projects.

(4) In accordance with § 385.18, the Corps of Engineers and the South Florida Water Management District shall provide opportunities for the public to review and comment on revisions to the Master Implementation Sequencing Plan.

§ 385.31 Adaptive management program.

(a) General. The Corps of Engineers and the South Florida Water Management District shall, in consultation with the Department of the Interior, the Environmental Protection Agency, the Department of Commerce, the Seminole Tribe of Florida, the Miccosukee Tribe of Indians of Florida, the Florida Department of Environmental Protection, and other Federal, State, and local agencies, establish an adaptive management program to assess responses of the South Florida ecosystem to implementation of the Plan; to determine whether or not these responses match expectations, including the achievement of the expected performance level of the Plan, the interim goals established pursuant to § 385.38, and the interim targets established pursuant § 385.39; to determine if the Plan, system or project operations, or the sequence and schedule of projects should be modified to achieve the goals and purposes of the Plan, or to increase net benefits, or to improve cost effectiveness; and to seek continuous improvement of the Plan based upon new information resulting from changed or unforeseen circumstances, new scientific and technical information, new or updated modeling; information developed through the assessment principles contained in the Plan; and future authorized changes to the Plan integrated into the implementation of the Plan. Endorsement of the Plan as a restoration framework is not intended as an artificial constraint on innovation in its implementation.

(b) Assessment activities. (1) RECOVER shall develop an assessment program to assess responses of the system to implementation of the Plan. The Corps of Engineers and the South Florida Water Management District shall develop a guidance memorandum in accordance with § 385.5 for approval by the Secretary of the Army, with the concurrence of the Secretary of the Interior and the Governor, that describes the processes to be used to conduct these assessments.

(2) RECOVER shall develop a monitoring program that is designed to measure status and trends towards achieving the goals and purposes of the Plan throughout the South Florida ecosystem.

(3) RECOVER shall conduct monitoring activities and use the information collected and analyzed through the monitoring program as a basis for conducting assessment tasks, which may include, but are not limited to, the following:

(i) Determining if measured responses are desirable and are achieving the interim goals and the interim targets or the expected performance level of the Plan;

(ii) Evaluating if corrective actions to improve performance or improve cost-effectiveness should be considered; and

(iii) Preparing reports on the monitoring program.

(4) Whenever it is deemed necessary, but at least every five years, RECOVER shall prepare a technical report that presents an assessment of whether the goals and purposes of the Plan are being achieved, including whether the interim goals and interim targets are being achieved or are likely to be achieved. The technical report shall be provided to the Corps of Engineers and the South Florida Water Management District for use in preparing the assessment report. The technical report prepared by RECOVER shall also be made available to the public.

(i) The Corps of Engineers and the South Florida Water Management District shall consult with the Department of the Interior, the Environmental Protection Agency, the Department of Commerce, the Seminole Tribe of Florida, the Miccosukee Tribe of Indians of Florida, the Florida Department of Environmental Protection, and other Federal, State, and local agencies in the development of the assessment report. The Corps of Engineers and the South Florida Water Management District shall also consult with the South Florida Ecosystem Restoration Task Force in developing the assessment report.

(ii) In accordance with § 385.22(b), the draft assessment report shall be externally peer reviewed.

(iii) In accordance with § 385.18, Corps of Engineers and the South Florida Water Management District shall provide opportunities for the public to review and comment on the draft assessment report.

(iv) The Corps of Engineers and the South Florida Water Management District shall transmit the final assessment report to the Secretary of the Army, the Secretary of the Interior, and the Governor.

(v) The Secretary of the Army shall make the final assessment report available to the public.

(c) Periodic CERP updates. Not later than June 14, 2004 and whenever necessary to ensure that the goals and purposes of the Plan are achieved, but not any less often than every five years, the Corps of Engineers and the South Florida Water Management District shall, in consultation with the Department of the Interior, the Environmental Protection Agency, the Department of Commerce, the Seminole Tribe of Florida, the Miccosukee Tribe of Indians of Florida, the Florida Department of Environmental Protection, and other Federal, State, and local agencies, conduct an evaluation of the Plan using new or updated modeling that includes the latest scientific, technical, and planning information. As part of the evaluation of the Plan, the Corps of Engineers and the South Florida Water Management District shall determine the total quantity of water that is expected to be generated by implementation of the Plan, including the quantity expected to be generated for the natural system to attain restoration goals as well as the quantity expected to be generated for use in the human environment. The Corps of Engineers and the South Florida Water Management District shall also consult with the South Florida Ecosystem Restoration Task Force in conducting the evaluation of the Plan. As appropriate, the results of the evaluation of the Plan may be used to initiate management actions in accordance with paragraph (d) of this section that are necessary to seek continuous improvement of the Plan based upon new information resulting from changed or unforeseen circumstances, new scientific and technical information, new or updated modeling; information developed through the assessment principles contained in the Plan; and future authorized changes to the Plan integrated into the implementation of the Plan. In addition, and as appropriate, the results of the evaluation of the Plan may be used to consider changes to the interim goals in accordance with § 385.38 and changes to the interim targets in accordance with § 385.39.

(d) Management actions. (1) In seeking continuous improvement of the Plan based upon new information resulting from changed or unforeseen circumstances, new scientific and technical information, new or updated modeling; information developed through the assessment principles contained in the Plan; and future authorized changes to the Plan integrated into the implementation of the Plan, the Corps of Engineers and the South Florida Water Management District and other non-Federal sponsors shall, in consultation with the Department of the Interior, the Environmental Protection Agency, the Department of Commerce, the Seminole Tribe of Florida, the Miccosukee Tribe of Indians of Florida, the Florida Department of Environmental Protection, and other Federal, State, and local agencies, use the assessment report prepared in accordance with paragraph (b) of this section, information resulting from independent scientific review and external peer review in accordance with § 385.22, or other appropriate information including progress towards achievement of the interim goals established pursuant to § 385.38 and the interim targets established pursuant to § 385.39 to determine if the activities described in paragraph (d)(2) of this section should be undertaken to ensure that the goals and purposes of the Plan are achieved. The Corps of Engineers and the South Florida Water Management District shall, in consultation with the Department of the Interior, the Environmental Protection Agency, the Department of Commerce, the Seminole Tribe of Florida, the Miccosukee Tribe of Indians of Florida, the Florida Department of Environmental Protection, and other Federal, State, and local agencies, consider the following actions:

(i) Modifying current operations of the Plan;

(ii) Modifying the design or operational plan for a project of the Plan not yet implemented;

(iii) Modifying the sequence or schedule for implementation of the Plan;

(iv) Adding new components to the Plan or deleting components not yet implemented;

(v) Removing or modifying a component of the Plan already in place; or

(vi) A combination of these.

(2) Such actions should be implemented through revisions to Operating Manuals in accordance with § 385.28, revisions to the Master Implementation Sequencing Plan in accordance with § 385.30, a Comprehensive Plan Modification Report in accordance with § 385.32, or other appropriate mechanisms.

§ 385.32 Comprehensive Plan Modification Report.

Whenever the Corps of Engineers and the South Florida Water Management District, in consultation with the Department of the Interior, the Environmental Protection Agency, the Department of Commerce, the Seminole Tribe of Florida, the Miccosukee Tribe of Indians of Florida, the Florida Department of Environmental Protection, and other Federal, State, and local agencies, determine that changes to the Plan are necessary to ensure that the goals and purposes of the Plan are achieved or that they are achieved cost-effectively, or to ensure that each project of the Plan is justified on a next-added increment basis, the Corps of Engineers and the South Florida Water Management District shall, in consultation with the Department of the Interior, the Environmental Protection Agency, the Department of Commerce, the Seminole Tribe of Florida, the Miccosukee Tribe of Indians of Florida, the Florida Department of Environmental Protection, and other Federal, State, and local agencies, prepare a Comprehensive Plan Modification Report using a process that is consistent with the provisions of § 385.10, § 385.14, § 385.18, and § 385.19. The Corps of Engineers and the South Florida Water Management District shall also consult with the South Florida Ecosystem Restoration Task Force in preparing the Comprehensive Plan Modification Report.

(a) General requirements. The Comprehensive Plan Modification Report shall:

(1) Be initiated at the discretion of the Corps of Engineers and the South Florida Water Management District in consultation with the Department of the Interior, the Environmental Protection Agency, the Department of Commerce, the Seminole Tribe of Florida, the Miccosukee Tribe of Indians of Florida, the Florida Department of Environmental Protection, and other Federal, State, and local agencies, after consideration of the assessment report prepared in accordance with § 385.31(b), requests from the Department of the Interior or the State, or other appropriate information;

(2) Comply with all applicable Federal and State laws, including the National Environmental Policy Act, the Endangered Species Act, the Fish and Wildlife Coordination Act, the National Historic Preservation Act, the Clean Water Act, the Safe Drinking Water Act, the Clean Air Act, the Coastal Zone Management Act, the Marine Mammal Protection Act, and any other applicable law;

(3) Contain information such as: Plan formulation and evaluation, engineering and design, estimated benefits and costs, and environmental effects,;

(4) Include appropriate analyses of alternatives evaluated by RECOVER;

(5) Include updated water budget information for the Plan, including the total quantity of water that is expected to be generated by implementation of the Plan, and the quantity expected to be generated for the natural system to attain restoration goals as well as the quantity expected to be generated for use in the human environment;

(6) Contain appropriate NEPA documentation to supplement the Programmatic Environmental Impact Statement included in the “Final Integrated Feasibility Report and Programmatic Environmental Impact Statement,” dated April 1, 1999; and

(7) Include coordination with the U.S. Fish and Wildlife Service, the National Marine Fisheries Service, the Florida Fish and Wildlife Coordination Commission, and other appropriate agencies in the preparation of the Comprehensive Plan Modification Report, as required by applicable law.

(b) Review and approval of Comprehensive Plan Modification Report. (1) The Corps of Engineers and the South Florida Water Management District shall provide opportunities for the public to review and comment on the draft Comprehensive Plan Modification Report and NEPA document, in accordance with § 385.18 and applicable law and Corps of Engineers policy.

(2) The Comprehensive Plan Modification Report shall contain an appropriate letter of intent from the South Florida Water Management District indicating concurrence with the recommendations of the Comprehensive Plan Modification Report.

(3) Upon the completion of the Comprehensive Plan Modification Report and NEPA document, the District Engineer shall submit the report and NEPA document to the Division Engineer.

(4) Upon receipt and approval of the Comprehensive Plan Modification Report, the Division Engineer shall issue a public notice announcing completion of the Comprehensive Plan Modification Report based upon:

(i) The Division Engineer's endorsement of the findings and recommendations of the District Engineer; and

(ii) The Division Engineer's assessment that the report has been prepared in accordance with current law and policy. The notice shall indicate that the report has been submitted to Corps of Engineers Headquarters for review.

(5) Headquarters, U.S. Army Corps of Engineers shall conduct a review in accordance with applicable policies and regulations of the Corps of Engineers. Headquarters, U.S. Army Corps of Engineers shall administer the 30-day state and agency review of the Comprehensive Plan Modification Report, and, as appropriate, file the Environmental Impact Statement with the Environmental Protection Agency.

(6) After completion of the policy review and other requirements of law and policy, the Chief of Engineers shall submit the Comprehensive Plan Modification Report and the Chief of Engineers' recommendations to the Assistant Secretary of the Army for Civil Works.

(7) The Assistant Secretary of the Army for Civil Works shall review the Comprehensive Plan Modification Report and shall, prior to submitting the Assistant Secretary's recommendations to Congress, coordinate the proposed recommendations with the Office of Management and Budget.

(c) Minor changes to the Plan. The Plan requires a process for adaptive management and incorporation of new information. As a result of this process, minor adjustments in the Plan may be made through Project Implementation Reports. It is not the intent of this section to require a continual cycle of report writing for minor changes. Instead, the intent of this section is to develop a Comprehensive Plan Modification Report for changes to the Plan that would require a supplement to the programmatic Environmental Impact Statement. The Corps of Engineers and the South Florida Water Management District may, in their discretion, elect to prepare a Comprehensive Plan Modification Report for other changes.

§ 385.33 Revisions to models and analytical tools.

(a) In carrying out their responsibilities for implementing the Plan, the Corps of Engineers, the South Florida Water Management District, and other non-Federal sponsors shall rely on the best available science including models and other analytical tools for conducting analyses for the planning, design, construction, operation, and assessment of projects. The selection of models and analytical tools shall be done in consultation with the Department of the Interior, the Environmental Protection Agency, the Department of Commerce, the Miccosukee Tribe of Indians of Florida, the Seminole Tribe of Florida, the Florida Department of Environmental Protection, and other Federal, State, and local agencies.

(b) The Corps of Engineers, the South Florida Water Management District, and other non-Federal sponsors may, in consultation with the Department of the Interior, the Miccosukee Tribe of Indians of Florida, the Seminole Tribe of Florida, the Environmental Protection Agency, the Department of Commerce, the Florida Department of Environmental Protection, and other Federal, State, and local agencies, periodically revise models and analytical tools or develop new models and analytical tools as needed. As appropriate, RECOVER shall review the adequacy of system-wide simulation models and analytical tools used in the evaluation and assessment of projects, and shall propose improvements in system-wide models and analytical tools required for the evaluation and assessment tasks.

(c) The Corps of Engineers and the South Florida Water Management District shall determine on a case-by-case basis what documentation is appropriate for revisions to models and analytic tools, depending on the significance of the changes and their impacts to the Plan. Such changes may be treated as Minor Changes to the Plan, in accordance with § 385.32(c) where appropriate.

§ 385.34 Changes to the Plan.

(a) The Plan shall be updated to incorporate approved changes to the Plan resulting from:

(1) Approval by the Secretary of the Army of a project to be implemented pursuant to § 385.13;

(2) Authorization of projects by Congress;

(3) Comprehensive Plan Modification Reports approved by Congress; or

(4) Other changes authorized by Congress.

(b) The Corps of Engineers and the South Florida Water Management District shall annually prepare a document for dissemination to the public that describes:

(1) The components of the Plan, including any approved changes to the Plan;

(2) The estimated cost of the Plan, including any approved changes to the Plan;

(3) A water budget for the Plan; and

(4) The water that has been reserved or allocated for the natural system under State law for the Plan.

(c) The Corps of Engineers shall annually provide to the Office of Management and Budget an updated estimate of total cost of the Plan, the costs of individual project components, and an explanation of any changes in these estimates from the initial estimates contained in the “Final Integrated Feasibility Report and Programmatic Environmental Impact Statement,” dated April 1, 1999.

§ 385.35 Achievement of the benefits of the Plan.

(a) Pre-CERP baseline water availability and quality. (1) Not later than June 14, 2004 the Corps of Engineers and the South Florida Water Management District shall, in consultation with the Department of the Interior, the Miccosukee Tribe of Indians of Florida, the Seminole Tribe of Florida, the Environmental Protection Agency, the Department of Commerce, the Florida Department of Environmental Protection, and other Federal, State, and local agencies, develop for approval by the Secretary of the Army, the pre-CERP baseline to be used to aid the Corps of Engineers and the South Florida Water Management District in determining if existing legal sources of water will be eliminated or transferred as a result of project implementation as described in § 385.36 and memorialize the pre-CERP baseline in an appropriate document. The Corps of Engineers and the South Florida Water Management District shall consult with the South Florida Ecosystem Restoration Task Force in the development of the pre-CERP baseline.

(i) The pre-CERP baseline may express the quantity, timing, and distribution of water in stage duration curves; exceedance frequency curves; quantities available in average, wet, and dry years; or any other method which is based on the best available science.

(ii) The pre-CERP baseline shall include appropriate documentation that includes a description of the assumptions used to develop the pre-CERP baseline.

(iii) In addition to the development of the pre-CERP baseline, the Corps of Engineers and the South Florida Water Management District shall conduct other analyses that they deem necessary to determine if an existing legal source of water has been eliminated or transferred or if a new source of water is of comparable quality to that which has been eliminated or transferred in accordance with § 385.36.

(2) In accordance with § 385.18, the Corps of Engineers and the South Florida Water Management District shall provide opportunities for the public to review and comment on the pre-CERP baseline.

(3) The pre-CERP baseline shall be developed with the concurrence of the Secretary of the Interior and the Governor. Within 180 days of being provided the pre-CERP baseline, or such shorter period that the Secretary of the Interior and the Governor may agree to, the Secretary of the Interior and the Governor shall provide the Secretary of the Army with a written statement of concurrence or non-concurrence with the pre-CERP baseline. A failure to provide a written statement of concurrence or non-concurrence within such time frame shall be deemed as meeting the concurrency process of this section. A copy of any concurrency or non-concurrency statements shall be made a part of the administrative record and referenced in the final determination of the pre-CERP baseline. Any non-concurrency statement shall specifically detail the reason or reasons for the non-concurrence.

(4) Nothing in this paragraph is intended to, or shall it be interpreted to, reserve or allocate water or to prescribe the process for reserving or allocating water or for water management under Florida law. Nothing in this section is intended to, nor shall it be interpreted to, prescribe any process of Florida law.

(b) Identification of water made available and water to be reserved or allocated for the natural system. (1) Initial modeling showed that most of the water generated by the Plan would go to the natural system in order to attain restoration goals, and the remainder of the water would go for use in the human environment. The Corps of Engineers, the South Florida Water Management District, and other non-Federal sponsors shall ensure that Project Implementation Reports identify the appropriate quantity, timing, and distribution of water to be dedicated and managed for the natural system that is necessary to meet the restoration goals of the Plan. In accordance with the “Comprehensive Everglades Restoration Plan Assurance of Project Benefits Agreement,” dated January 9, 2002 pursuant to section 601(h)(2) of WRDA 2000, the South Florida Water Management District or the Florida Department of Environmental Protection shall make sufficient reservations of water for the natural system under State law in accordance with the Project Implementation Report for that project and consistent with the Plan before water made available by a project is permitted for a consumptive use or otherwise made unavailable. In accordance with § 385.31(c), the Corps of Engineers and the South Florida Water Management District shall, in consultation with the Department of the Interior, the Environmental Protection Agency, the Department of Commerce, the Miccosukee Tribe of Indians of Florida, the Seminole Tribe of Florida, the Florida Department of Environmental Protection, and other Federal, State, and local agencies, determine the total quantity of water that is expected to be generated by implementation of the Plan, including the quantity expected to be generated for the natural system to attain restoration goals as well as the quantity expected to be generated for use in the human environment, and shall periodically update that estimate, as appropriate, based on new information resulting from changed or unforeseen circumstances, new scientific or technical information, new or updated models, or information developed through the adaptive assessment principles contained in the Plan, or future authorized changes to the Plan integrated into the implementation of the Plan.

(2) Each Project Implementation Report shall take into account the availability of pre-CERP baseline water and previously reserved water as well as the estimated total quantity of water that is necessary for restoration for the natural system and the quantity of water anticipated to be made available from future projects in identifying the appropriate quantity, timing, and distribution of water dedicated and managed for the natural system, determining whether improvements in water quality are necessary to ensure that water delivered to the natural system meets applicable water quality standards; and identifying the amount of water for the natural system necessary to implement, under State law, the provisions of section 601(h)(4)(A)(iii)(V) of WRDA 2000.

(3) Section 601(h)(3)(C)(i)(I) of WRDA 2000 requires the regulations of this part to establish a process for development of Project Implementation Reports, Project Cooperation Agreements, and Operating Manuals that ensure that the goals and objectives of the Plan are achieved. Section 601(h)(4)(A)(iii)(IV) of WRDA 2000 provides that Project Implementation Reports shall identify the appropriate quantity, timing, and distribution of water dedicated and managed for the natural system. Section 601(h)(4)(A)(iii)(V) of WRDA 2000 provides that Project Implementation Reports shall identify the amount of water to be reserved or allocated for the natural system necessary to implement, under State law, the provisions of section 601(h)(4)(A)(iii)(IV) and (VI) of WRDA 2000. To implement these provisions and § 385.5, the Corps of Engineers and the South Florida Water Management District shall develop a guidance memorandum in accordance with § 385.5 for approval by the Secretary of the Army, with the concurrence of the Secretary of the Interior and the Governor. The guidance memorandum shall provide a process to be used in the preparation of Project Implementation Reports for identifying the appropriate quantity, timing, and distribution of water dedicated and managed for the natural system; determining the quantity, timing and distribution of water made available for other water-related needs of the region; determining whether improvements in water quality are necessary to ensure that water delivered by the Plan meets applicable water quality standards; and identifying the amount of water for the natural system necessary to implement, under State law, the provisions of section 601(h)(4)(A)(iii) of WRDA 2000.

(i) The guidance memorandum shall generally be based on using a system-wide analysis of the water made available and may express the quantity, timing and distribution of water in stage duration curves; exceedance frequency curves; quantities available in average, wet, and dry years; or any other method which is based on the best available science. The guidance memorandum shall also provide for projects that are hydrologically separate from the rest of the system. The guidance memorandum also shall address procedures for determining whether improvements in water quality are necessary to ensure that water delivered to the natural system meets applicable water quality standards. These procedures shall ensure that any features to improve water quality are implemented in a manner consistent with the cost sharing provisions of WRDA 1996 and WRDA 2000.

(ii) The guidance memorandum shall generally take into account the natural fluctuation of water made available in any given year based on an appropriate period of record; the objective of restoration of the natural system; the need for protection of existing uses transferred to new sources; contingencies for drought protection; the need to identify the additional quantity, timing, and distribution of water made available by a new project component while maintaining a system-wide perspective on the amount of water made available by the Plan; and the need to determine whether improvements in water quality are necessary to ensure that water delivered by the Plan meets applicable water quality standards.

(iii) Project Implementation Reports approved before December 12, 2003 or before the development of the guidance memorandum may use whatever method that the Corps of Engineers and the non-Federal sponsor deem is reasonable and consistent with the provisions of section 601 of WRDA 2000.

(iv) Nothing in this paragraph is intended to, or shall it be interpreted to, reserve or allocate water or to prescribe the process for reserving or allocating water or for water management under Florida law. Nothing in this section is intended to, nor shall it be interpreted to, prescribe any process of Florida law.

(c) Procedures in event that the project does not perform as expected. The Project Implementation Report shall include a plan for operations of the project in the event that the project fails to provide the quantity, timing, or distribution of water described in the Project Implementation Report. Such plan shall take into account the specific authorized purposes of the project and the goals and purposes of the Plan and shall also provide for undertaking management actions in accordance with § 385.31(d).

§ 385.36 Elimination or transfer of existing legal sources of water.

(a) Pursuant to the provisions of section 601(h)(5)(A) of WRDA 2000, Project Implementation Reports shall include analyses to determine if existing legal sources of water are to be eliminated or transferred as a result of project implementation. If implementation of the project shall cause an elimination or transfer of existing legal sources of water, then the Project Implementation Report shall include an implementation plan that ensures that such elimination or transfer shall not occur until a new source of water of comparable quantity and quality is available to replace the water to be lost as a result of implementation of the Plan. The Corps of Engineers and the non-Federal sponsor shall determine if implementation of the project will cause an elimination or transfer of existing legal sources of water by comparing the availability of water with the recommended project with the pre-CERP baseline developed in accordance with § 385.35(a), by using the water quality and other analyses developed in § 385.35(a)(1)(iii), and by using other appropriate information.

(b) The Corps of Engineers and the South Florida Water Management District shall develop a guidance memorandum in accordance with § 385.5 for approval by the Secretary of the Army, with the concurrence of the Secretary of the Interior and the Governor, that describes the process for determining if existing legal sources of water are to be eliminated or transferred and for determining how and when a new source of water of comparable quantity and quality as that available on the date of enactment of WRDA 2000 is available to replace the water to be lost as a result of implementation of the Plan. The guidance memorandum shall also describe the process for comparing the recommended project with the pre-CERP baseline to determine if existing legal sources of water are to be transferred or eliminated as a result of project implementation. The guidance memorandum shall include a definition for existing legal sources of water for the purposes of determining if existing legal sources of water are to be eliminated or transferred. Existing legal sources of water shall include those for:

(1) An agricultural or urban water supply;

(2) Allocation or entitlement to the Seminole Indian Tribe of Florida under section 7 of the Seminole Indian Land Claims Settlement Act of 1987 (25 U.S.C. 1772e);

(3) The Miccosukee Tribe of Indians of Florida;

(4) Water supply for Everglades National Park; and

(5) Water supply for fish and wildlife.

(c) Until guidance is issued, issues involving existing legal sources of water should be resolved on a case-by-case basis considering all factors that can be identified as relevant to decisions under the savings clause.

§ 385.37 Flood protection.

(a) General. In accordance with section 601 of WRDA 2000, flood protection, consistent with restoration, preservation, and protection of the natural system, is a purpose of the Plan.

(b) Existing flood protection. Each Project Implementation Report shall include appropriate analyses, and consider the operational conditions included in the pre-CERP baseline developed pursuant to § 385.35(a), to demonstrate that the levels of service for flood protection that:

(1) Were in existence on the date of enactment of section 601 of WRDA 2000; and

(2) Are in accordance with applicable law, will not be reduced by implementation of the project.

(c) Improved and new flood protection. The overarching objective of the Plan is the restoration, preservation, and protection of the South Florida Ecosystem while providing for other water-related needs of the region, including water supply and flood protection. As appropriate, the Corps of Engineers and the non-Federal sponsor shall consider opportunities to provide additional flood protection, consistent with restoration of the natural system, and the provisions of section 601(f)(2)(B) of WRDA 2000 and other applicable laws.

§ 385.38 Interim goals.

(a) Agreement. (1) The Secretary of the Army, the Secretary of the Interior, and the Governor shall, not later than December 13, 2004, and in consultation with the Environmental Protection Agency, the Department of Commerce, the Miccosukee Tribe of Indians of Florida, the Seminole Tribe of Florida, and other Federal, State, and local agencies, and the South Florida Ecosystem Restoration Task Force, execute an Interim Goals Agreement establishing interim goals to facilitate inter-agency planning, monitoring, and assessment so as to achieve the overarching objectives of the Plan and to provide a means by which the restoration success of the Plan may be evaluated, and ultimately reported to Congress in accordance with § 385.40 throughout the implementation process.

(2) After execution of the Interim Goals Agreement, the Department of the Army shall memorialize the agreement in appropriate Corps of Engineers guidance.

(b) Purpose. (1) Interim goals are a means by which the restoration success of the Plan may be evaluated at specific points by agency managers, the State, and Congress throughout the overall planning and implementation process. In addition, interim goals will facilitate adaptive management and allow the Corps of Engineers and its non-Federal sponsors opportunities to make adjustments if actual project performance is less than anticipated, including recommending changes to the Plan. Interim goals are not standards or schedules enforceable in court.

(2) The interim goals shall:

(i) Facilitate inter-agency planning, monitoring and assessment;

(ii) Be provided to the independent scientific review panel established in accordance with § 385.22(a);

(iii) Be considered in developing the Master Implementation Sequencing Plan, Project Implementation Reports, and Comprehensive Plan Modification Reports; and

(iv) Be considered in making budgetary decisions concerning implementation of the Plan.

(3) To ensure flexibility in implementing the Plan over the next several decades, and to ensure that interim goals may reflect changed circumstances or new information resulting from adaptive management, the interim goals may be modified, consistent with the processes set forth in paragraph (d) of this section, to reflect new information resulting from changed or unforeseen circumstances, new scientific and technical information, new or updated modeling; information developed through the assessment principles contained in the Plan; and future authorized changes to the Plan integrated into the implementation of the Plan.

(4) The Corps of Engineers and the South Florida Water Management District shall sequence and schedule projects as appropriate to achieve the interim goals and the interim targets established pursuant to § 385.39 to the extent practical given funding, technical, or other constraints.

(5) If the interim goals have not been met or are unlikely to be met, then the Corps of Engineers and the South Florida Water Management District shall determine why the interim goals have not been met or are unlikely to be met and either:

(i) Initiate adaptive management actions pursuant to § 385.31(d) to achieve the interim goals as soon as practical, consistent with the purposes of the Plan and consistent with the interim targets established pursuant to § 385.39; or

(ii) Recommend changes to the interim goals in accordance with paragraph (b)(3) of this section.

(c) Principles for developing interim goals. (1) RECOVER, using best available science and information, shall recommend a set of interim goals for implementation of the Plan, consisting of regional hydrologic performance targets, improvements in water quality, and anticipated ecological responses for areas such as, Lake Okeechobee, the Kissimmee River Region, the Water Conservation Areas, the Lower East Coast, the Upper East Coast, the Everglades Agricultural Area, and the Caloosahatchee River, Everglades National Park, Big Cypress National Preserve, Biscayne Bay, Florida Bay, and other estuaries and nearshore areas. These interim goals shall reflect the incremental accomplishment of the expected performance level of the Plan, and will identify improvements in quantity, quality, timing, and distribution of water for the natural system provided by the Plan in five-year increments that begin in 2005, with the goals reflecting the results expected to be achieved by 2010 and for each five-year increment thereafter. The interim goals shall be developed through the use of appropriate models and tools and shall provide a quantitative basis for evaluating the restoration success of the Plan during the period of implementation. In developing the interim goals for the five-year increments, RECOVER shall use the Master Implementation Sequencing Plan as the basis for predicting performance at a given time. RECOVER may recommend additional interim goals in addition to those initially developed and may propose revisions to the initial set of interim goals as new information is gained through adaptive management. Interim goals shall include incremental improvements in the quantity, quality, timing, and distribution of water anticipated to be required to meet long-term hydrological and ecological restoration goals, based on best available science. These goals may be modified, based on best available science and the adaptive assessment principles contained in the Plan, in accordance with paragraph (d) of this section.

(2) In developing its recommendations for interim goals, RECOVER shall consider indicators including, but not limited to:

(i) Hydrologic indicators, including:

(A) The amount of water, in addition to the pre-CERP baseline and assumptions regarding without project conditions, which will be available to the natural system;

(B) Hydroperiod targets in designated sample areas throughout the Everglades;

(C) The changes in the seasonal and annual overland flow volumes in the Everglades that will be available to the natural system;

(D) The frequency of extreme high and low water levels in Lake Okeechobee; and

(E) The frequency of meeting salinity envelopes in estuaries such as the St. Lucie, Caloosahatchee, Biscayne Bay, and Florida Bay and nearshore areas.

(ii) Improvement in water quality; including:

(A) Total phosphorus concentrations in the Everglades; and

(B) Lake Okeechobee phosphorus concentrations.

(iii) Ecological responses, including:

(A) Increases in total spatial extent of restored wetlands;

(B) Improvement in habitat quality; and

(C) Improvement in native plant and animal abundance.

(3) In developing the interim goals based upon water quality and expected ecological responses, the Corps of Engineers, The Department of the Interior, and the South Florida Water Management District shall take into consideration the extent to which actions undertaken by Federal, State, tribal, and other entities under programs not within the scope of this part may affect achievement of the goals.

(d) Process for establishing interim goals. (1) The recommendations of RECOVER shall be provided to the Corps of Engineers, the Department of the Interior, and the South Florida Water Management District. These recommendations shall be provided no later than June 14, 2004. The proposed Interim Goals Agreement shall be developed by the Secretary of the Army, the Secretary of the Interior and the Governor in consultation with the Miccosukee Tribe of Indians of Florida, the Seminole Tribe of Florida, the Environmental Protection Agency, the Department of the Commerce, other Federal, State, and local agencies, and the South Florida Ecosystem Restoration Task Force. In considering the interim goals to be included in the Interim Goals Agreement, the Secretary of the Army, the Secretary of the Interior, and the Governor, shall be provided with, and consider, the technical recommendations of RECOVER and any modifications to those recommendations by the Corps of Engineers, the Department of Interior, or the South Florida Water Management District. The Secretary of the Army shall provide a notice of availability of the proposed agreement to the public in the Federal Register and seek public comments. After considering comments of the public on the proposed agreement, and incorporating any suggestions that are appropriate and consistent with the goals and purposes of the Plan, the Secretary of the Army, the Secretary of the Interior, and the Governor, shall execute the final agreement, and the Secretary of the Army shall provide a notice of availability to the public in the Federal Register by no later than December 13 2004.

(2) In developing its recommendations for interim goals, RECOVER shall use the principles in paragraph (c) of this section.

(3) The Secretary of the Army, the Secretary of the Interior, and the Governor shall review the Interim Goals Agreement at a minimum of every five years after the date of the Interim Goals Agreement, to determine if the interim goals should be revised. Thereafter, the Secretary of the Army, the Secretary of the Interior, and the Governor shall revise the interim goals and execute a new agreement as appropriate. However, the Secretary of the Army, the Secretary of the Interior, and the Governor may review and revise the interim goals whenever appropriate as new information becomes available. Any revisions to the interim goals shall be consistent with the process established in this section.

§ 385.39 Evaluating progress towards other water-related needs of the region provided for in the Plan.

(a) Purpose. (1) The overarching objective of the Plan is the restoration, preservation, and protection of the South Florida ecosystem while providing for other water-related needs of the region, including water supply and flood protection. Progress towards providing for these other water-related needs shall also be evaluated.

(2) As provided for in paragraph (c) of this section, the Secretary of the Army and the Governor shall establish interim targets for evaluating progress towards other water-related needs of the region provided for in the Plan throughout the implementation process. The interim targets and interim goals shall be consistent with each other.

(3) The Department of the Army shall include these interim targets in appropriate Corps of Engineers guidance.

(4) To ensure flexibility in implementing the Plan over the next several decades, and to ensure that interim targets may reflect changed circumstances or new information resulting from adaptive management, the interim targets may be modified, consistent with the processes set forth in paragraph (c) of this section, to reflect new information resulting from changed or unforeseen circumstances, new scientific and technical information, new or updated modeling; information developed through the assessment principles contained in the Plan; and future authorized changes to the Plan integrated into the implementation of the Plan.

(5) The Corps of Engineers and the South Florida Water Management District shall sequence and schedule projects as appropriate to achieve the interim goals and interim targets for other water-related needs of the region provided for in the Plan, to the extent practical given funding, technical, or other constraints.

(6) If the interim targets have not been met or are unlikely to be met, then the Corps of Engineers and the South Florida Water Management District shall determine why the interim targets have not been met or are unlikely to be met and either:

(i) Initiate adaptive management actions pursuant to § 385.31(d) to achieve the interim targets as soon as practicable, consistent with the purposes of the Plan and consistent with the interim goals established pursuant to § 385.38; or

(ii) Recommend changes to the interim targets in accordance with paragraph (a)(4) of this section.

(b) Principles for developing interim targets. (1) RECOVER, using best available science and information, shall recommend a set of interim targets for evaluating progress towards other water-related needs of the region provided for in the Plan. These interim targets shall reflect the incremental accomplishment of the expected performance level of the Plan, and will identify improvements in quantity, quality, timing and distribution of water in five-year increments that begin in 2005, with the targets reflecting the results expected to be achieved by 2010 and for each five-year increment thereafter. The interim targets shall be developed through the use of appropriate models and tools and shall provide a quantitative basis for evaluating progress towards other water-related needs of the region provided for in the Plan during the period of implementation. In developing the interim targets for the five-year increments, RECOVER shall use the Master Implementation Sequencing Plan as the basis for predicting the performance at a given time. RECOVER may recommend additional interim targets for implementation of CERP in addition to those initially developed and may propose revisions to the initial set of interim targets as new information is gained through adaptive management.

(2) In developing its recommendations for interim targets, RECOVER shall consider indicators including, but not limited to:

(i) The frequency of water restrictions in the Lower East Coast Service Areas at each time increment;

(ii) The frequency of water restrictions in the Lake Okeechobee Service Areas at each time increment;

(iii) The frequency of meeting salt-water intrusion protection criteria for the Lower East Coast Service Area at each time increment; and

(iv) The frequency of water shortage restrictions on lands covered under the Water Rights Compact Among the Seminole Tribe of Florida, the State of Florida, and the South Florida Water Management District at each time increment.

(c) Process for establishing interim targets. (1) The recommendations of RECOVER shall be provided to the Corps of Engineers and the South Florida Water Management District. These recommendations shall be provided no later than June 14, 2004. The proposed interim targets shall be developed by the Secretary of the Army and the Governor, in consultation with the Department of the Interior, the Environmental Protection Agency, the Department of Commerce, the Miccosukee Tribe of Indians of Florida, the Seminole Tribe of Florida, the Florida Department of Environmental Protection, and other Federal, State, and local agencies, and the South Florida Ecosystem Restoration Task Force. In considering the interim targets, the Secretary of the Army and the Governor, shall be provided with, and consider, the technical recommendations of RECOVER and any modifications to those recommendations by the Corps of Engineers or the South Florida Water Management District. The Secretary of the Army shall provide a notice of availability of the proposed interim targets to the public in the Federal Register and seek public comments. After considering comments of the public on the proposed interim targets, and incorporating any suggestions that are appropriate and consistent with the goals and purposes of the Plan, the Secretary of the Army and the Governor, shall establish the final interim targets, and the Secretary of the Army shall provide a notice of availability to the public in the Federal Register by no later than December 13, 2004, but not prior to the execution of the Interim Goals Agreement pursuant to § 385.38. Interim targets are intended to facilitate inter-agency planning, monitoring, and assessment throughout the implementation process and are not standards or schedules enforceable in court.

(2) In developing its recommendations for interim targets, RECOVER shall use the principles in paragraph (b) of this section.

(3) The Secretary of the Army and the Governor shall review the interim targets at a minimum every five years beginning five years after the establishment of the interim targets to determine if they should be revised and to determine what those revisions should be. The public shall also be provided with an opportunity to comment on the proposed revisions. The Secretary of the Army and the Governor may also revise the interim targets whenever appropriate as new information becomes available. Any revisions to the interim targets shall be established consistent with the process described in this section.

§ 385.40 Reports to Congress.

(a) Beginning on October 1, 2005 and periodically thereafter until October 1, 2036, the Secretary of the Army and the Secretary of the Interior shall jointly submit to Congress a report on the implementation of the Plan as required by section 601(l) of WRDA 2000. Such reports shall be completed not less often than every five years.

(b) This report shall be prepared in consultation with the Environmental Protection Agency, the Department of Commerce, the Seminole Tribe of Florida, the Miccosukee Tribe of Indians of Florida, the Florida Department of Environmental Protection, the South Florida Water Management District, and other Federal, State, and local agencies and the South Florida Ecosystem Restoration Task Force.

(c) Such reports shall include a description of planning, design, and construction work completed, the amount of funds expended during the period covered by the report, including a detailed analysis of the funds expended for adaptive management, and the work anticipated over the next five-year period and updated estimates of total cost of the Plan and individual component costs and an explanation of any changes from the initial estimates contained in the “Final Integrated Feasibility Report and Programmatic Environmental Impact Statement,” dated April 1, 1999.

(d) In addition, each report shall include:

(1) The determination of each Secretary, and the Administrator of the Environmental Protection Agency, concerning the benefits to the natural system and the human environment achieved as of the date of the report and whether the completed projects of the Plan are being operated in a manner that is consistent with the requirements of section 601(h) of WRDA 2000;

(2) Progress towards the interim goals established in accordance with § 385.38 for assessing progress towards achieving the benefits to the natural system;

(3) Progress towards interim targets for other water-related needs of the region provided for in the Plan established pursuant § 385.39 for assessing progress towards achieving the benefits to the human environment; and

(4) A review of the activities performed by the Secretary pursuant to section 601(k) of WRDA 2000 and § 385.18 and § 385.19 as they relate to socially and economically disadvantaged individuals and individuals with limited English proficiency.

(e) The discussion on interim goals in the periodic reports shall include:

(1) A discussion of the performance that was projected to be achieved in the last periodic report to Congress;

(2) A discussion of the steps taken to achieve the interim goals since the last periodic Report to Congress and the actual performance of the Plan during this period;

(3) If performance did not meet the interim goals, a discussion of the reasons for such shortfall;

(4) Recommendations for improving performance; and

(5) The interim goals to be achieved in the next five years, including any revisions to the interim goals, reflecting the work to be accomplished during the next five years, along with a discussion of steps to be undertaken to achieve the interim goals.

(f) The discussion on interim targets in the periodic reports shall include:

(1) A discussion of the expected and actual performance of the Plan in achieving interim targets since the last periodic Report to Congress, including the reasons for any deviations from expected performance; and

(2) A discussion of the interim targets expected to be achieved during the next five years, including specific activities to achieve them and any recommendations for improving performance.

(g) In preparing the report to Congress required pursuant to this section, the Corps of Engineers and the Department of the Interior shall provide an opportunity for public review and comment, in accordance with § 385.18.

§ 386.1 Purpose and scope.

The Water Infrastructure Finance and Innovation Act of 2014 (WIFIA) authorized a new Federal credit program for water resources infrastructure projects to be administered by the U.S. Army Corps of Engineers (Corps). Title 1, Division D of the Consolidated Appropriations Act, 2021, and Division J, Title III of the Infrastructure Investment and Jobs Act limits the program to safety projects to maintain, upgrade, and repair dams identified in the National Inventory of Dams with a primary owner type of State, local government, public utility or private. The purpose of this rule is to establish the process by which the Corps will administer such credit assistance, including the assessment of fees, and to set forth the policies and procedures that the Corps will use for receiving, evaluating, approving applications, and servicing and monitoring direct loans and loan guarantees.

§ 386.2 Definitions.

The following definitions apply to this part:

(a) Application means the form and attachments submitted by prospective borrowers that have been selected to apply for credit assistance after the review of letters of interest.

(b) Borrower means any entity that enters into a direct loan or Loan Guarantee Agreement with the Corps that is primarily liable for payment of the principal or interest on a Federal credit instrument. “Borrower” is synonymous with “obligor.” “Obligor” is used in place of borrower in this part whenever “obligor” appears in a corresponding section of WIFIA.

(c) Clean energy means systems, processes, and best practices for producing, converting, storing, transmitting, distributing, and consuming energy that avoid, reduce, or sequester the amount of greenhouse gas (GHG) emitted to, or concentrated in, the atmosphere.

(d) Community means a collection of people in a geographic area having one or more characteristic in common. The geographic area may be contained within or cross political subdivisions of States.

(e) Credit agreement means a contractual agreement (or agreements) between the Corps and a borrower (and the lender, if applicable) establishing the terms and conditions, rules, and requirements of a secured loan or loan guarantee.

(f) Credit assistance means a secured loan or loan guarantee under 33 U.S.C. 3908.

(g) Credit subsidy shall have the same meaning as “cost” under section 502(5) of the Federal Credit Reform Act of 1990 (2 U.S.C. 661a(5)), which is the net present value at the time the Loan Agreement or Loan Guarantee Agreement is executed. The credit subsidy cost for a given project is the net present value, at the time the Loan Agreement or Loan Guarantee Agreement is executed of the following estimated cash flows, discounted to the point of disbursement:

(1) Payments by the Government to cover defaults and delinquencies, interest subsidies, or other payments; less

(2) Payments to the Government including origination and other fees, penalties, and recoveries including the effects of changes in loan or debt terms resulting from the exercise by the borrower, eligible lender, or other holder of an option included in a Loan Agreement or Loan Guarantee Agreement.

(h) Economically disadvantaged community refers to a community that meets one of the following criteria:

(1) Low-income;

(2) Unemployment rate above national average;

(3) Indian country as defined in 18 U.S.C. 1151 or in the proximity of an Alaska Native Village;

(4) U.S. Territories; or

(5) Identified as disadvantaged by the Climate and Economic Justice Screening Tool (developed by the Council on Environmental Quality). 1

1 Currently available at https://screeningtool.geoplatform.gov.

(i) Economically justified means that the anticipated benefits will exceed the costs.

(j) Eligible entity means one of the following:

(1) A corporation;

(2) A partnership;

(3) A joint venture;

(4) A trust;

(5) A State, or local government entity, agency, or instrumentality;

(6) A Tribal government or consortium of Tribal governments; or

(7) A State infrastructure financing authority.

(k) Eligible project costs means the amounts, which are paid by, or for the account of, a borrower in connection with a project, including the cost of:

(1) Development-phase activities, including planning, feasibility analysis (including any related analysis necessary to carry out an eligible project), revenue forecasting, environmental review, permitting, preliminary engineering and design work, and other pre-construction activities.

(2) Construction, reconstruction, rehabilitation, and replacement activities.

(3) Acquisition of real property or an interest in real property (including water rights, land relating to the project, and improvements to land), environmental mitigation, construction contingencies, and acquisition of equipment; and

(4) Capitalized interest necessary to meet market requirements, reasonably required reserve funds, capital issuance expenses, and other carrying costs during construction. Capitalized interest on the Federal credit instrument is not an eligible project cost.

(l) Environmentally acceptable means the project will satisfy all applicable and necessary environmental requirements to include those identified in Sec. 386.5(a), such as the National Environmental Policy Act (NEPA).

(m) Federal credit instrument means a secured loan or loan guarantee authorized to be made available under 33 U.S.C. 3901-3914 with respect to a project.

(n) Investment-grade rating means a rating category of BBB minus, Baa3, bbb minus, BBB (low), or higher assigned by a nationally recognized statistical rating organization (NRSRO) to project obligations offered into the capital markets.

(o) Iron and steel products means the following products made primarily of iron or steel: lined or unlined pipes and fittings, manhole covers and other municipal castings, hydrants, tanks, flanges, pipe clamps and restraints, valves, structural steel, reinforced precast concrete, and construction materials.

(p) Lender means any non-Federal qualified institutional buyer (as defined in 17 CFR 230.144A(a), known as Rule 144A(a) of the Securities and Exchange Commission and issued under the Securities Act of 1933 (15 U.S.C. 77a et seq.)), including:

(1) A qualified retirement plan (as defined in section 4974(c) of the Internal Revenue Code of 1986, 26 U.S.C. 4974(c)) that is a qualified institutional buyer;

(2) A governmental plan (as defined in section 414(d) of the Internal Revenue Code of 1986, 26 U.S.C. 414(d)) that is a qualified institutional buyer; and

(3) The Federal Financing Bank.

(q) Loan guarantee means any guarantee or other pledge by the Secretary of the Army (Secretary) to pay all or part of the principal of and interest on a loan or other debt obligation issued by a borrower and funded by a lender.

(r) Low income means the area has a per capita income of 80 percent or less of the national average.

(s) Nationally recognized statistical rating organization (NRSRO) means a credit rating agency identified and registered by the Office of Credit Ratings in the Securities and Exchange Commission under 15 U.S.C. 78c.

(t) Non-Federal means an organization that is not an agency or instrumentality of the Federal Government, including State, interstate, Indian Tribal, or local government, as well as private organizations.

(u) Preliminary application means the form and attachments prospective borrowers submit to the Corps to be considered for credit assistance following the announcement of available funding.

(v) Project means:

(1) Safety projects to maintain, upgrade, and repair dams (including dam removal) identified in the National Inventory of Dams with a primary owner type of State, local government, public utility, or private; and which meets the statutory requirements of Title 1, Division D of the Consolidated Appropriations Act 2021, meet the criteria outlined in 85 FR 39189 (see division D of the Further Consolidated Appropriations Act, 2020 (Pub. L. 116-94)).

(2) Any project that meets the criteria in paragraph (v)(1) of this section must also be a project for flood damage reduction, hurricane and storm damage reduction, aquatic environmental restoration, coastal or inland harbor navigation improvement, or inland and intracoastal waterways navigation improvement that the Secretary determines is technically sound, economically justified, and environmentally acceptable, including—

(i) A project to reduce flood damage;

(ii) A project to restore aquatic ecosystems;

(iii) A project to improve the inland and intracoastal waterways navigation system of the United States; and

(iv) A project to improve navigation of a coastal inland harbor of the United States, including channel deepening and construction of associated general navigation features.

(3) Acquisition of real property or an interest in real property for a project that meets the criteria under paragraph (v)(1) of this section—

(i) If the acquisition is integral to a project eligible for WIFIA credit assistance; or

(ii) Pursuant to an existing plan that, in the judgment of the Secretary, would mitigate the environmental impacts of water resources infrastructure projects otherwise eligible for WIFIA credit assistance.

(4) A combination of projects secured by a common security pledge, each of which is eligible for WIFIA credit assistance, for which an eligible entity, or a combination of eligible entities, submits a single application.

(w) Project obligation means any note, bond, debenture, or other debt obligation issued by a borrower in connection with the financing of a project, other than a Federal credit instrument.

(x) Projected substantial completion date means the expected date as determined by the Secretary, at which the stage in the progress of the project when the project or designated portion thereof is sufficiently complete in accordance with the contract documents so that the project or designated portion thereof can be used for its intended use.

(y) Prospective borrower means an eligible entity seeking credit assistance.

(z) Publicly sponsored means the obligor can demonstrate, to the satisfaction of the Secretary, that it has consulted with the affected State, local, or Tribal government in which the project is located, or is otherwise affected by the project, and that such government supports the proposed project. Support can be shown by a certified letter signed by the approving municipal department or similar agency, mayor or other similar designated authority, local ordinance, or any other means by which local government approval can be evidenced.

(aa) Secured loan means a direct loan or other debt obligation (including a note, bond, debenture, and sale or lease financing arrangement) issued by a borrower funded by the Secretary in connection with the financing of a project under 33 U.S.C. 3908.

(bb) Small community means a community of not more than 25,000 individuals.

(cc) State means any of the fifty States, the District of Columbia, Puerto Rico, or any other territory or possession of the United States.

(dd) State infrastructure financing authority means the State entity established or designated by the Governor of a State to receive a capitalization grant provided by, or otherwise carry out the requirements of, title VI of the Federal Water Pollution Control Act (33 U.S.C. 1381 et seq.) or section 1452 of the Safe Drinking Water Act (42 U.S.C. 300j-12).

(ee) Subsidy amount means the dollar amount of budget authority that is sufficient to cover the estimated long-term cost to the Federal Government of a Federal credit instrument, calculated on a net present value basis, excluding administrative costs and any incidental effects on the governmental receipts or outlays in accordance with the provisions of the Federal Credit Reform Act of 1990 (2 U.S.C. 661 et seq.).

(ff) Substantial completion means the stage in the progress of the project when the project or designated portion thereof is sufficiently complete in accordance with the contract documents so that the project or designated portion thereof can be used for its intended use.

(gg) Technically sound means the project will meet all applicable engineering, safety, and other technical standards.

(hh) Term sheet means a contractual agreement between the Corps and the borrower (and the lender, if applicable) that sets forth the key business terms and conditions of a Federal credit instrument.

(ii) Territory means each of the commonwealths, territories, and possessions of the United States established in Title 48 of the U.S.C.

(jj) Treatment works has the meaning given the term in section 212 of the Federal Water Pollution Control Act (33 U.S.C. 1292).

(kk) Unemployment rate above national average means the area has an unemployment rate that is, for the most recent 24-month period for which data are available, at least 1 percent greater than the national average unemployment rate.

(ll) WIFIA means the Water Infrastructure Finance and Innovation Act of 2014 (Pub. L. 113-121), as amended.

§ 386.3 Limitations on assistance.

(a) The total amount of credit assistance offered to any project under this part shall not exceed 49% of the reasonably anticipated eligible project costs, or, if the secured loan does not receive an investment grade rating, the total amount of credit assistance shall not exceed the amount of the senior project obligations of the project (33 U.S.C. 3908(b)(2)(B)).

(b) Notwithstanding paragraph (a) of this section, the Secretary may offer credit assistance in excess of 49% of the reasonably anticipated eligible project costs as long as such excess assistance combined for all projects does not require greater than 25% of the subsidy amount made available for the fiscal year, per 33 U.S.C. 3912(d).

(1) Use of the authority to offer credit assistance in excess of 49% of the anticipated eligible project costs shall be considered on a case by case basis.

(2) In the event this authority is used, all other criteria and requirements described in this part must be met and adhered to.

(c) For each project receiving credit assistance, total Federal assistance may not exceed 80% of the total project costs, except for certain rural water projects authorized to be carried out by the Secretary of the Interior that includes among its beneficiaries a federally recognized Indian Tribe and for which the authorized Federal share of the total project costs is greater than 80%, and in accordance with 85 FR 39189 (see division D of the Further Consolidated Appropriations Act, 2020 (Pub. L. 116-94)).

(d) Proceeds from the credit assistance shall not be utilized to provide cash contributions to the Corps for project related costs, except for such fees as allowed by 33 U.S.C. 3908(b)(7), limited to the application, transaction processing, and servicing fees as described in § 386.15.

(e) Costs incurred, and the value of any integral in-kind contributions made, before receipt of credit assistance may be considered in calculating eligible project costs only upon approval of the Secretary. Such costs and integral in-kind contributions must be directly related to the development or execution of the project and must be eligible project costs as defined in § 386.2. In addition, such costs, excluding the value of any integral in-kind contributions, are payable from the proceeds of the Federal credit instrument and shall be considered incurred costs for purposes of paragraph (h) of this section. Capitalized interest on the Federal credit instrument is not eligible for calculating eligible project costs.

(f) No costs financed internally or with interim funding may be refinanced under this part later than a year following substantial completion of the project.

(g) The Secretary shall not obligate funds in the form of a loan or loan guarantee for a project prior to:

(1) To issuance of a determination that the Federal action is eligible for a Categorical Exclusion:

(2) Issuance of a Finding of No Significant Impact; or

(3) Issuance of a Record of Decision under the National Environmental Policy Act (NEPA), 42 U.S.C. 4321 et seq.

(h) The Secretary shall fund a secured loan based on the project's financing needs. The credit agreement shall include the anticipated schedule for such loan disbursements. Actual disbursements will be based on incurred costs, and in accordance with the approved construction plan, as evidenced by invoices or other documentation acceptable to the Secretary.

(i) The interest rate on a secured loan will be equal to or greater than the yield on U.S. Treasury securities of comparable maturity on the date of execution of the credit agreement as identified through use of the daily rate tables published by the Bureau of the Fiscal Service for the State and Local Government Series (SLGS) investments. The yield on comparable Treasury securities will be estimated by adding one basis point to the SLGS daily rate with a maturity that is closest to the weighted average loan life of the Federal credit instrument, per 33 U.S.C. 3908(b)(4).

(j) The final maturity date of a secured loan will be the earlier of the date that is 35 years after the date of substantial completion of the project, as determined by the Secretary and identified in the credit agreement, or if the useful life of the project, as determined by the Secretary, is less than 35 years, the useful life of the project; however, the final maturity date of a secured loan to a State infrastructure financing authority will be not later than 35 years after the date on which amounts are first disbursed. In determining the useful life of the project, for the purposes of establishing the final maturity date of the Federal credit instrument, the Secretary will consider the useful economic life of the asset(s) being financed.

(k) A secured loan will not be subordinated to the claims of any holder of project obligations in the event of bankruptcy, insolvency, or liquidation of the borrower of the project (33 U.S.C. 3908(b)(6)).

(l) The Corps will establish a repayment schedule for a secured loan or loan guarantee based on the projected cash flow from project revenues and other repayment sources. Scheduled loan or loan guarantee repayments of principal and interest on a secured loan or loan guarantee will commence not later than 5 years after the projected date of substantial completion of the project at the time of execution of the Loan Agreement or Loan Guarantee Agreement, as determined by the Secretary (33 U.S.C. 3908(c)(A)); however, scheduled loan or loan guarantee repayments of principal and interest on a secured loan to a State infrastructure financing authority will commence not later than 5 years after the date on which amounts are first disbursed. The final maturity of the credit agreement shall be in no instance later than 35 years after the projected date of substantial completion of the project at the time of execution of the Loan Agreement or Loan Guarantee Agreement.

§ 386.4 Application process.

(a) Each fiscal year for which budget authority is made available by Congress, the Corps shall publish a solicitation to announce the availability of credit assistance. It will specify how to electronically submit a preliminary application, the estimated amount of funding available to support Federal credit instruments, contact name(s), and other details for submissions and funding approvals.

(b) Prospective borrowers seeking credit assistance under this part will be required to follow an application process requiring submission of the preliminary application as designated in the solicitation to announce the availability of credit assistance. In addition, the extent to which the project financing plan includes any other form of Federal assistance (including grants), in addition to WIFIA credit assistance, will be required to be provided in the application.

(c) Following approval of the term sheet, and/or negotiation of satisfactory terms and conditions of the Federal credit instrument, the prospective borrower will proceed to closing, as described in § 386.13.

§ 386.5 Federal requirements.

All projects receiving credit assistance under this part shall comply, where applicable, with:

(a) Environmental authorities. (1) The National Environmental Policy Act of 1969, 42 U.S.C. 4321 et seq.;

(2) Archeological and Historic Preservation Act, 16 U.S.C. 469-469c;

(3) Clean Air Act, 42 U.S.C. 7401 et seq.;

(4) Clean Water Act, 33 U.S.C. 1251 et seq.;

(5) Coastal Barrier Resources Act, 16 U.S.C. 3501 et seq.;

(6) Coastal Zone Management Act, 16 U.S.C. 1451 et seq.;

(7) Endangered Species Act, 16 U.S.C. 1531 et seq.;

(8) Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations, Executive Order 12898, 3 CFR, 1994 Comp., p. 859;

(9) Floodplain Management, Executive Order 11988, as amended by Executive Order 13690;

(10) Protection of Wetlands, Executive Order 11990, 3 CFR, 1977 Comp., p. 121, as amended by Executive Order 12608, 3 CFR, 1987 Comp., p. 245;

(11) Farmland Protection Policy Act, 7 U.S.C. 4201 et seq.;

(12) Fish and Wildlife Coordination Act, 16 U.S.C. 661-666c, as amended;

(13) Magnuson-Stevens Fishery Conservation and Management Act, 16 U.S.C. 1801 et seq.;

(14) National Historic Preservation Act, 54 U.S.C. 300101 et seq..;

(15) Safe Drinking Water Act, 42 U.S.C. 300f et seq.; and

(16) Wild and Scenic Rivers Act, 16 U.S.C. 1271 et seq.

(b) Economic and miscellaneous authorities. (1) Debarment and Suspension, Executive Order 12549, 3 CFR, 1986 Comp., p. 189;

(2) New Restrictions on Lobbying, 31 U.S.C. 1352;

(3) Prohibitions relating to violations of the Clean Water Act or Clean Air Act with respect to Federal contracts, grants, or loans under 42 U.S.C. 7606 and 33 U.S.C. 1368, and Executive Order 11738, 3 CFR, 1971-1975 Comp., p. 799; and

(4) The Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970, 42 U.S.C. 4601 et seq.

(c) Civil rights, nondiscrimination, equal employment opportunity authorities. (1) Age Discrimination Act, 42 U.S.C.6101 et seq.;

(2) Equal Employment Opportunity, Executive Order 11246, 3 CFR, 1964-1965 Comp., p. 339;

(3) Section 504 of the Rehabilitation Act, 29 U.S.C. 794, supplemented by Executive Orders 11914, 3 CFR, 1976 Comp., p. 117, and 11250, 3 CFR, 1964-1965 Comp., p. 351; and

(4) Title VI of the Civil Rights Act of 1964, 42 U.S.C. 2000d et seq.

(d) Others authorities. Other Federal and compliance requirements as may be applicable.

§ 386.6 Floodplain management.

(a) In making WIFIA funding decisions under this part, the Corps will follow the requirements of Executive Order (E.O.) 11988, as amended by E.O. 13690, and Engineering Regulation (ER) 1165-2-26, “Implementation of E.O. 11988 on Floodplain Management”. Applicants shall submit information regarding the project that is sufficient for the Corps to determine that the project is in compliance with the requirements of E.O. 11988 and ER 1165-2-26.

(b) Projects funded under this part will meet or exceed applicable State, local, Tribal, and territorial standards for flood risk and floodplain management, as well as E.O. 11988.

(c) All projects under this part are considered Federal actions under E.O. 11988 and thus, project applicants shall determine whether the proposed project will occur in the floodplain. If the project is located within the floodplain, the applicant must determine whether the action is critical or not and what floodplain standard to follow. The Corps will implement the Federal Flood Risk Management Standard (FFRMS), where appropriate, which is a flood standard established by E.O. 13690, that aims to build a more resilient future through the encouragement of consideration of current and future risk when Federal investments are used to build or rebuild near floodplains. The Corps will ensure unwise uses are avoided, where possible, including the increase or transfer of flood risks, resulting in adverse impacts to human health, safety, welfare, property, natural resources, or functions of floodplains. Further guidance on implementation of E.O. 11988 can be found in the Corps ER 1165-2-26 (30 March 1984). Further information on FFRMS can be found at https://www.iwr.usace.army.mil/Missions/Flood-Risk-Management/Flood-Risk-Management-Program/About-the-Program/Policy-and-Guidance/Federal-Flood-Risk-Management-Standard/.

§ 386.7 American iron and steel.

(a) All projects receiving credit assistance under this part for construction, alteration, maintenance, or repair of a project shall use only iron and steel products produced in the United States, unless waiver of the requirement in this paragraph (a) is granted by an official authorized to do so.

(b) Consistent with 33 U.S.C. 3914(b), “iron and steel products” means the following products made primarily of iron or steel: lined or unlined pipes and fittings, manhole covers and other municipal castings, hydrants, tanks, flanges, pipe clamps and restraints, valves, structural steel, reinforced precast concrete and construction materials. Equipment employed in construction that does not become part of the project is not an “iron and steel product” for the purpose of this section.

§ 386.8 Labor standards.

All laborers and mechanics employed by contractors or subcontractors on projects receiving credit assistance under this part shall be paid wages at rates not less than those prevailing for the same type of work on similar construction in the immediate locality, as determined by the Secretary of Labor.

§ 386.9 Investment-grade ratings.

(a) At the time a prospective borrower submits an application, the Corps shall require a preliminary rating opinion letter. The letter is a conditional credit assessment from a NRSRO that provides a preliminary indication of the project's overall creditworthiness and that specifically addresses the potential of the project's senior debt obligations, which may include, or be limited to, the Federal credit instrument to achieve an investment-grade rating, and address the rating of obligations similar to those proposed for the Federal credit instrument when the Federal credit instrument is not a senior debt obligation. The requirement of this paragraph (a) may be met, on a case-by-case basis, by accepting a recent credit rating of obligations that have a lien on the revenues pledged for repayment. This rating should be based on an unenhanced analysis of the underlying pledged source of repayment and not give any credit to any prospective loan guarantee provided by the U.S. Government.

(b) Consistent with 33 U.S.C. 3907(a)(D)(ii), the full funding of a Federal credit instrument shall be contingent on:

(1) The assignment of investment-grade ratings by NRSROs to all project obligations that have a lien on the pledged security senior to that of the Federal credit instrument on the pledged security; or

(2)(i) In the event that the Federal credit instrument is:

(A) A senior debt obligation;

(B) Pari passu with the senior project obligations; or

(C) A general obligation of the prospective borrower, to the Federal credit instrument.

(ii) The applicant must provide at least one final rating opinion letter which provides a credit rating on the direct loan or the unenhanced Federal credit instrument. This rating should be based on an unenhanced analysis of the underlying pledged source of repayment and not give any credit to the loan or loan guarantee provided by the U.S. Government.

(c) Neither the preliminary rating opinion letter nor the final ratings should reflect the effect of bond insurance, unless that insurance provides credit enhancement that secures WIFIA obligation.

§ 386.10 Threshold criteria.

(a) To be eligible to receive Federal credit assistance under this part, a project shall meet the following threshold criteria:

(1) The project and prospective borrower shall be creditworthy.

(2) A project shall have eligible project costs that are reasonably anticipated to equal or exceed $20 million.

(3) A Federal credit instrument:

(i) Shall be repayable, in whole or in part, from State or local taxes, user fees, or other dedicated revenue sources that also secure the senior project obligations of the project;

(ii) Shall include a rate covenant, coverage requirement, or similar security feature supporting the project obligations; and

(iii) May have a lien on revenues subject to any lien securing project obligations.

(4) In the case of a project that is undertaken by an entity that is not a State or local government or an agency or instrumentality of a State or local government, or a Tribal government or consortium of Tribal governments, the project that the entity is undertaking shall be publicly sponsored.

(5) The prospective borrower shall have developed an operations and maintenance plan that identifies adequate revenues to operate, maintain, and repair the project during its useful life. If the borrower is a State infrastructure financing authority, it shall have ensured and will ensure that its borrowers have a plan for the eligible projects they are undertaking that identifies adequate revenues to operate, maintain and repair such projects during the useful life of such projects. The requirement in this paragraph (a)(5) may be met through the development of a written plan or a financial model.

(b) With respect to paragraph (a)(3) of this section, the Secretary may accept general obligation pledges or general corporate promissory pledges and will determine the acceptability of other pledges and forms of collateral as dedicated revenue sources on a case-by-case basis. The Secretary shall not accept a pledge of Federal funds, regardless of source, as security for the Federal credit instrument.

(c) The provision at 33 U.S.C. 3907(c) provides that nothing in section 3907(c) (which includes eligibility requirements and selection criteria for projects and entities receiving WIFIA assistance) is intended to supersede the applicability of other requirements of Federal law, including regulations.

§ 386.11 Selection criteria.

The selection criteria in paragraphs (a) through (l) of this section will be used for evaluating and selecting among eligible projects to receive credit assistance:

(a) The extent to which the project is nationally or regionally significant, with respect to the generation of economic and public benefits, such as—

(1) The reduction of flood risk;

(2) The improvement of water quality and quantity, including aquifer recharge;

(3) The protection of drinking water, including source water protection;

(4) The support of domestic and international commerce; and

(5) The restoration of degraded aquatic ecosystem structures.

(b) The extent to which the project financing plan includes public or private financing, in addition to WIFIA credit assistance.

(c) The likelihood that WIFIA credit assistance would enable the project to proceed at an earlier date than the project would otherwise be able or likely to proceed.

(d) The extent to which the project uses new or innovative approaches.

(e) The amount of budget authority required to fund the WIFIA Federal credit instrument.

(f) The extent to which the project—

(1) Protects against an extreme weather event, such as a flood or hurricane; or

(2) Helps maintain or protect the environment.

(g) The extent to which a project serves regions with significant clean energy exploration development, or production areas.

(h) The extent to which a project serves regions with significant water resource challenges, including the need to address—

(1) Water quality concerns in areas of regional, national, or international significance;

(2) Water quantity concerns related to groundwater, surface water, or other water sources;

(3) Significant flood risk;

(4) Water resource challenges identified in existing regional, State, or multistate agreements; or

(5) Water resources with exceptional recreational value or ecological assistance.

(i) The extent to which the project addresses identified municipal, State, or regional priorities.

(j) The readiness of the project to proceed toward development, including a demonstration by the obligor that there is a reasonable expectation that the contracting process for construction of the project can commence not later than 90 days after the date on which a Federal credit instrument is obligated for the project under WIFIA.

(k) The extent to which WIFIA credit assistance reduces the overall Federal contributions to the project.

(l) The extent to which the project serves economically disadvantaged communities and spurs economic opportunity for, and minimally adversely impacts, economically disadvantaged communities and their populations.

§ 386.12 Term sheets and approvals.

(a) The Corps, after review and evaluation of an application, and all other required documents submitted by a prospective borrower, may offer to such prospective borrower a written term sheet and/or a credit agreement, including detailed terms and conditions that must be met.

(b) The issuance of a term sheet, upon execution by the Secretary, does not constitute a commitment by the Secretary to enter into the Loan Agreement or Loan Guarantee Agreement. Execution of the Loan Agreement or Loan Guarantee Agreement represents obligation by the Secretary.

§ 386.13 Closing on the Loan Agreement or Loan Guarantee Agreement.

(a) Only a Loan Agreement or Loan Guarantee Agreement executed by the Secretary can obligate the Corps to issue a loan or loan guarantee. The Corps is not bound by oral representations. Each Loan Agreement or Loan Guarantee Agreement shall contain the following requirements and conditions, and shall not be executed until the Corps determines that the following requirements and conditions are satisfied:

(1) Except if explicitly authorized by an Act of Congress, no Federal funds, proceeds of Federal loans, or proceeds of loans guaranteed by the Federal Government may be used by a borrower to pay for credit subsidy costs, administrative fees, or other fees charged by or paid to the Corps relating to the WIFIA program; however, proceeds of the Federal credit instrument may be used to pay for such administrative or other fees but may not be used to pay an “Optional Credit Subsidy Fee”.

(2) At closing, the Corps will ensure that the following requirements and conditions are or will be satisfied pursuant to the credit agreement or otherwise:

(i) The project qualifies as an eligible project under WIFIA;

(ii) The face value of the credit agreement is limited to no more than 49 percent of reasonably anticipated eligible project costs, or if credit assistance in excess of 49 percent has been approved, no more than the percentage of eligible project costs agreed upon, not to exceed 80 percent of total project costs;

(iii) If the credit instrument is a loan guarantee, the loan guarantee does not finance, either directly or indirectly, tax exempt debt obligations, consistent with the requirements of section 149(b) of the Internal Revenue Code;

(iv) The amount of the credit agreement, when combined with other funds, will be sufficient to carry out the project, including adequate contingency funds;

(v) The borrower is pledging collateral and/or providing a general obligation pledge, determined by the Corps to be necessary to secure the repayment of the credit agreement;

(vi) The credit agreement and related documents include detailed terms and conditions necessary and appropriate to protect the interest of the United States in the case of default;

(vii) There is satisfactory evidence that the applicant is willing, competent, and capable of performing the terms and conditions of the credit agreement, and will diligently pursue the project;

(viii) The applicant has taken and is obligated to continue to take those actions necessary to perfect and maintain liens on assets which are pledged as security for the credit agreement, as allowed under State or local law;

(ix) The Corps or its representatives have access to the project site at all reasonable times in order to monitor the performance of the project;

(x) The Corps and the applicant agree as to the information that will be made available to the Corps and the information that will be made publicly available;

(xi) The applicant will file or has filed applications for or obtained any required regulatory approvals for the project and is in compliance, or promptly will be in compliance, where appropriate, with all Federal, State, and local regulatory requirements;

(xii) The applicant has no delinquent Federal debt, including tax liabilities, unless the delinquency has been resolved with the appropriate Federal agency in accordance with the standards of the Debt Collection Improvement Act of 1996;

(xiii) Loan proceeds provided under the agreement shall not be utilized by the applicant to provide cash contributions to the Corps for project related costs, except for such fees as allowed by 33 U.S.C. 3908(b)(7), limited to the application, transaction processing, and servicing fees as described in § 386.15;

(xiv) Costs incurred with loan proceeds under the agreement shall not be eligible for reimbursement or for the transfer of credit toward the non-Federal cost share of another federally authorized project;

(xv) The credit agreement and related agreements contain such other terms and conditions as the Corps deems reasonable and necessary to protect the interests of the United States, including without limitation provisions for:

(A) Such collateral and other credit support for the credit agreement; and

(B) Such collateral sharing, priorities and voting rights among creditors and other intercreditor arrangements as, in each case, the Corps deems reasonable and necessary to protect the interests of the United States; and

(3) The credit agreement must contain audit provisions which provide, in substance, as follows:

(i) The applicant must keep such records concerning the project as are necessary to facilitate an effective and accurate audit and performance evaluation of the project; and

(ii) The Corps and the Inspector General, or their duly authorized representatives, must have access, for the purpose of audit and examination, to any pertinent books, documents, papers, and records of the applicant. Examination of records may be made during the regular business hours of the applicant, or at any other time mutually convenient.

(4) OMB has reviewed and approved the Corps calculation of the Credit Subsidy Cost of the Loan or Loan Guarantee.

(b) The Corps will set a closing date. By the closing date, the prospective borrower must have satisfied all of the detailed terms and conditions required by the Corps and all other contractual, statutory, and regulatory requirements. In addition, the prospective borrower must have provided at least one final rating opinion letter which provides a credit rating on the final negotiated direct loan or Loan Guarantee Agreement that does not take into account the full faith and credit of the United States of America. The prospective borrower must submit this final credit rating letter to the Corps prior to closing. If the prospective borrower has not satisfied all such terms and conditions by the closing date, the Secretary may set a new closing date or reject the application.

(c) The execution of a Loan Agreement or Loan Guarantee shall represent approval of the application for credit assistance and shall represent the legal obligation of budget authority.

§ 386.14 Reporting requirements.

The borrower will provide annual audited financial statements, a public benefits report, and other reports to the Corps in the form and manner agreed upon in the credit agreement. These other reports may include, but are not limited to, an updated financial model and construction reports. The Corps may conduct periodic financial and compliance reviews or audits of the borrower and its project, as determined necessary by the Corps.

§ 386.15 Fees.

(a) Application fee. The Corps will require a non-refundable application fee for each project applying for credit assistance under the WIFIA program. The application fee will be due upon submission of the application. For public applicants with projects serving small communities or economically disadvantaged communities, the total application fee will be $0. For all other applications, the total application fee will be $25,000. The total application fee will be credited to the transaction processing fee required under paragraph (b) of this section.

(b) Transaction processing fee. Except as otherwise provided in paragraph (f) of this section, the Corps will require an additional transaction processing fee for projects selected to receive WIFIA assistance upon closing, or if the project does not proceed to closing, e.g., if the application is withdrawn or denied. The proceeds of any such fees will be used to pay the remaining portion of the Corps' cost of providing credit assistance and the costs of conducting engineering reviews and retaining expert firms, including financial and legal services, to assist in the underwriting of the Federal Credit instrument.

(c) Servicing fee. The Corps will require borrowers to pay a servicing fee for each credit instrument approved for funding. Separate fees may apply for each type of credit instrument (e.g., a secured loan with a single disbursement, or a secured loan with multiple disbursements), depending upon the costs of servicing the credit instrument as determined by the Secretary. Such fees will be set at a level sufficient to enable the Corps to recover all or a portion of the costs to the Federal Government of servicing WIFIA credit instruments.

(d) Optional credit subsidy fee. If, in any given year, there is insufficient budget authority to fund the credit instrument for a qualified project that has been selected to receive assistance under WIFIA, the Corps and the approved applicant may agree upon a supplemental fee to be paid by or on behalf of the approved applicant at the time of execution of the term sheet to reduce the subsidy cost of that project. No such fee may be included among eligible project costs.

(e) Reduced fees. To the extent that Congress appropriates funds in any given year beyond those needed to cover internal administrative costs, the Corps may utilize such appropriated funds to reduce fees for a State or local governmental entity, agency, or instrumentality, a Tribal government or consortium of Tribal governments that would otherwise be charged under paragraph (c) of this section.

(f) Enhanced monitoring fee. The Corps may require payment in full by the borrower of additional fees, in an amount determined by the Corps, and of related fees and expenses of its independent consultants and outside counsel, to the extent that such fees and expenses are incurred by or on behalf of the Corps and to the extent such third parties are not paid directly by the borrower, in the event the borrower experiences difficultly relating to technical, financial, or legal matters or other events (e.g., engineering failure or financial workouts) which require the Corps to incur time or expenses beyond standard monitoring. No such fee may be included among eligible project costs.

§ 401.1 Short title.

These regulations may be cited as the “Seaway Regulations (the “Practices and Procedures” in Canada).”

[39 FR 10900, Mar. 22, 1974, as amended at 65 FR 52913, Aug. 31, 2000]

§ 401.2 Interpretation.

In the regulations in this part:

(a) Corporation means the Great Lakes St. Lawrence Seaway Development Corporation.

(b) E-business means web applications on the St. Lawrence Seaway Management Corporation Web site which provides direct electronic transmission of data to complete and submit application forms and transit data;

(c) Flashpoint means the lowest temperature of a flammable liquid at which its vapor forms an ignitable mixture with air as determined by the closed-cup method;

(d) Hands Free Mooring (HFM) means a system that uses vacuum pads that are mounted on vertical rails inside the lock chamber wall to secure a vessel during the lockage process.

(e) Manager means the St. Lawrence Seaway Management Corporation;

(f) Navigation season means the annual period designated by the Corporation and the Manager, that is appropriate to weather and ice conditions or vessel traffic demands, during which the Seaway is open for navigation;

(g) E-business means web applications on the St. Lawrence Seaway Management Corporation website which provides direct electronic transmission of data to complete and submit application forms and transit data;

(h) Passing through means in transit through a lock or through the waters enclosed by the approach walls at either end of a lock chamber;

(i) Pleasure craft means a vessel, however propelled, that is used exclusively for pleasure and that does not carry passengers who have paid a fare for passage;

(j) Preclearance means the authorization given by the Corporation or the Manager for a vessel to transit;

(k) Representative means the owner or charterer of a vessel or an agent of either of them and includes any person who, in an application for preclearance of a vessel, accepts responsibility for payment of the tolls and charges to be assessed against the vessel in respect of transit and wharfage;

(l) Seaway means the deep waterway between the Port of Montreal and Lake Erie and includes all locks, canals and connecting and contiguous waters that are part of the deep waterway, and all other canals and works, wherever located, the management, administration and control of which have been entrusted to the Corporation or the Manager;

(m) Seaway station means a radio station operated by the Corporation or the Manager. (Refer to 401.62. Seaway Stations for the list and location of stations);

(n) Tanker means any vessel specifically constructed for carrying bulk cargoes of liquid petroleum products, liquid chemicals, liquid edible oils and liquified gases in tanks which form both an integral part and the total cargo carrying portion of that vessel;

(o) Tariff of Tolls means the same as Schedule of Tolls in Canada;

(p) Tolls(s) or tolls and charges is included in the definition of fees in Canada;

(q) Towed means pushed or pulled through the water;

(r) Transit means to use the Seaway, or a part of it, either upbound or downbound;

(s) Vessel (ship in Canada) means any type of craft used as a means of transportation on water; and

(t) Vessel traffic controller (ship traffic controller in Canada) means the officer who controls vessel traffic from a Seaway station.

(68 Stat. 93-96, 33 U.S.C. 981-990, as amended and secs. 4, 5, 6, 7, 8, 12 and 13 of sec. 2 of Pub. L. 95-474, 92 Stat. 1471)

[39 FR 10900, Mar. 22, 1974, as amended at 45 FR 52377, Aug. 7, 1980; 65 FR 52913, 52915, Aug. 31, 2000; 66 FR 15329, Mar. 16, 2001; 72 FR 2620, Jan. 22, 2007; 79 FR 12659, Mar. 6, 2014; 85 FR 15950, Mar. 20, 2020; 86 FR 15412, Mar. 23, 2021]

§ 401.3 Maximum vessel dimensions.

(a) Subject to paragraph (e) of this section, no vessel of more than 222.5 m in overall length or 23.8 m in extreme breadth shall transit.

(b) No vessel shall transit if any part of the vessel or anything on the vessel extends more than 35.5 m above water level.

(c) No vessel shall transit if any part of its bridges or anything on the vessel protrudes beyond the hull.

(d) No vessel's hull or superstructure when alongside a lock wall shall extend beyond the limits of the lock wall, as illustrated in appendix I of this part.

(e) A vessel having a beam width in excess of 23.2 m, but not more than 23.8 m, and having dimensions that do not exceed the limits set out in the block diagram in appendix I of this part or overall length in excess of 222.5 m, but not more than 225.5 m, shall, on application to the Manager or Corporation, be considered for transit in accordance with directions issued by the Manager and Corporation.

(f) Vessels with beams greater than 23.20 m may be subject to transit restrictions and/or delays during periods of ice cover.

(68 Stat. 93-96, 33 U.S.C. 981-990, as amended and secs. 4, 5, 6, 7, 8, 12 and 13 of Sec. 2 of Pub. L. 95-474, 92 Stat. 1471)

[39 FR 10900, Mar. 22, 1974, as amended at 45 FR 52377, Aug. 7, 1980; 47 FR 51121, Nov. 12, 1982; 48 FR 20690, May 9, 1983; 61 FR 19550, May 2, 1996; 65 FR 52913, Aug. 31, 2000; 70 FR 12970, Mar. 17, 2005]

§ 401.4 Maximum length and weight.

No vessel of less than 6 m in overall length or 900 kg in weight shall transit through Seaway Locks.

[70 FR 12970, Mar. 17, 2005]

§ 401.5 Required equipment.

(a) No vessel shall transit unless it is (1) Propelled by motor power that is adequate in the opinion of an officer; and (2) Marked and equipped in accordance with the requirements of § 401.6 to 401.21.

(b) [Reserved]

(68 Stat. 93-96, 33 U.S.C. 981-990, as amended and secs. 4, 5, 6, 7, 8, 12 and 13 of Sec. 2 of Pub. L. 95-474, 92 Stat. 1471)

[43 FR 25817, June 15, 1978, as amended at 45 FR 52378, Aug. 7, 1980]

§ 401.6 Markings.

(a) Vessels of more than 20.0 m in overall length shall be correctly and distinctly marked and equipped with draft markings on both sides at the bow and stern.

(b) In addition to the markings required by paragraph (a) of this section, vessels of more than 110 m in overall length shall be marked on both sides with midship draft markings.

(c) Where a vessel's bulbous bow extends forward beyond her stem head, a symbol of a bulbous bow shall be marked above the vessel's summer load line draught mark in addition to a + symbol followed by a number indicating the total length in meters by which the bulbous bow projects beyond the stem.

(68 Stat. 93-96, 33 U.S.C. 981-990, as amended and secs. 4, 5, 6, 7, 8, 12 and 13 of sec. 2 of Pub. L. 95-474, 92 Stat. 1471)

[47 FR 51121, Nov. 12, 1982, as amended at 61 FR 19551, May 2, 1996; 70 FR 12970, Mar. 17, 2005]

§ 401.7 Fenders.

(a) Where any structural part of a vessel protrudes so as to endanger Seaway installations, the vessel shall be equipped with only horizontal permanent fenders—

(1) That are made of steel, are of a thickness not exceeding 15 cm, with well tapered ends, and are located along the hull, close to the main deck level; and

(2) On special application, portable fenders, other than rope hawsers, may be allowed for a single transit if the portable fenders are—

(i) Made of a material that will float; and

(ii) Securely fastened and suspended from the vessel in a horizontal position by a steel cable or a fiber rope in such a way that they can be raised or lowered in a manner that does not damage Seaway installations.

(b) Tires shall not be used as fenders.

(c) On special application, vessels of unusual design may be permitted to utilize permanent fenders not greater than 30 cm in thickness.

[61 FR 19551, May 2, 1996, as amended at 70 FR 12970, Mar. 17, 2005; 74 FR 18994, Apr. 27, 2009; 85 FR 15950, Mar. 20, 2020; 88 FR 14267, Mar. 8, 2023]

§ 401.8 Landing booms.

(a) Vessels of more than 50 m in overall length and a freeboard of 2 m or more may be equipped with landing booms.

(b) For vessels with landing booms:

(1) Vessel must be equipped with an adequate landing boom on each side;

(2) Landing booms must be in compliance with applicable regulations;

(3) Vessel's crews shall be adequately trained in the use of landing booms for the purpose of landing crew ashore; and

(4) Vessel must have onboard for inspection the following documents:

(i) A copy of the test certificates for each of the landing booms from either a classification society or a third party, dated within 5 years;

(ii) Documents to demonstrate appropriate training; and

(iii) Documented tests and maintenance records of landing boom equipment.

(c) At the U.S. Locks, vessels not equipped with or not using landing booms may be tied up at the approach walls based on Lock personnel availability.

(d) At the Canadian Locks, vessels not equipped with or not using landing booms may be delayed and/or put to anchor until such time that the traffic pattern can accommodate their transit.

[90 FR 1882, Jan. 10, 2025]

§ 401.9 Radio telephone and navigation equipment.

(a) Self-propelled vessels, other than pleasure craft of less than 20.0 m in overall length, shall be equipped with two VHF (very high frequency) radios.

(1) All communications shall be on the applicable VHF frequency. The use of personal electronic devices for communication between vessels or with traffic control should be limited to necessity.

(2) Please note that communications into the Traffic Control Center may be recorded for quality assurance and training purposes.

(b) The radio transmitters on a vessel shall:

(1) Have sufficient power output to enable the vessel to communicate with Seaway stations from a distance of 48 km; and

(2) Be fitted to operate from the conning position in the wheelhouse and to communicate on channels 11, 12, 13, 14, 15, 16, 17, 66a, 75, 76 and 77.

(c) Gyro compass error greater than 2 degrees must be serviced prior to transiting the Seaway, and if noted during a Seaway transit, must be reported to the nearest Seaway station and serviced at the first opportunity.

[39 FR 10900, Mar. 22, 1974, as amended at 40 FR 11721, Mar. 13, 1975; 47 FR 51121, Nov. 12, 1982; 48 FR 20690, May 9, 1983; 61 FR 19551, May 2, 1996; 70 FR 12970, Mar. 17, 2005; 79 FR 12659, Mar. 6, 2014; 82 FR 12419, Mar. 3, 2017; 85 FR 15950, Mar. 20, 2020; 88 FR 14267, Mar. 8, 2023; 89 FR 15960, Mar. 6, 2024; 90 FR 1882, Jan. 10, 2025; 91 FR 12691, Mar. 17, 2026]

§ 401.10 Mooring lines.

(a) Mooring lines shall:

(1) Be of a uniform thickness throughout their length;

(2) Have a diameter not greater than 28 mm for wire line and not greater than 64 mm for approved synthetic lines;

(3) Be fitted with a hand spliced eye or Flemish type mechanical spliced eye of not less than 2.4 m long for wire lines and 1.8 m long spliced eye for approved synthetic lines;

(4) Have sufficient strength to check the vessel; and

(5) Be arranged so that they may be led to either side of the vessel as required.

(6) Be certified and a test certificate for each mooring line containing information on breaking strength, material type, elongation and diameter shall be available onboard for inspection.

(b) Unless otherwise permitted by an officer, vessels greater than 200 m shall only use wire mooring lines with a breaking strength that complies with the minimum specifications set out in the table to this section shall be used for securing a vessel in lock chambers.

(c) [Reserved]

(d) Notwithstanding paragraphs (a) through (c) of this section, nylon line is not permitted.

Table 1 to Paragraph (d)

Overall length of ships | Length of mooring line (m) | Breaking strength (MT)

40 m or more but not more than 60 m | 110 | 10

More than 60 m but not more than 90 m | 110 | 15

More than 90 m but not more than 120 m | 110 | 20

More than 120 m but not more than 180 m | 110 | 28

More than 180 m but not more than 200 m | 110 | 31

More than 200 m but not more than 225.5 m | 110 | 35

Elongation of synthetic lines shall not exceed 20%.

(e) Hand held synthetic lines if permitted by the Manager or Corporation shall meet the criteria in paragraph (a) of this section and shall have a minimum length of not less than 65 meters.

[39 FR 10900, Mar. 22, 1974, as amended at 47 FR 51121, Nov. 12, 1982; 48 FR 20691, May 9, 1983; 48 FR 22545, May 19, 1983; 61 FR 19551, May 2, 1996; 65 FR 52913, Aug. 31, 2000; 70 FR 12970, Mar. 17, 2005; 74 FR 18994, Apr. 27, 2009; 75 FR 10689, Mar. 9, 2010; 78 FR 16181, Mar. 14, 2013; 79 FR 12659, Mar. 6, 2014; 81 FR 13745, Mar. 15, 2016; 87 FR 12591, Mar. 7, 2022; 90 FR 1882, Jan. 10, 2025]

§ 401.11 Fairleads.

(a) Mooring lines shall:

(1) Be led at the vessel's side through a type of fairlead or closed chock, acceptable to the Manager and Corporation;

(2) Pass through not more than three inboard rollers that are fixed in place and equipped with horns to ensure that lines will not slip off when slackened and provided with free-running sheaves or rollers; and

(3) Where the fairleads are mounted flush with the hull, be permanently fendered to prevent the lines from being pinched between the vessel and a wall.

(4) When passing synthetic lines through a type of fairlead or closed chock acceptable to the Manager and the Corporation all sharp edges of the fairlead, closed chock and/or bulwark shall be rounded to protect the line from chafing or breakage.

(b) Wire lines shall only be led through approved roller type fairleads.

[39 FR 10900, Mar. 22, 1974, as amended at 70 FR 12971, Mar. 17, 2005; 74 FR 18994, Apr. 27, 2009; 76 FR 13089, Mar. 10, 2011; 77 FR 40804, July 11, 2012]

§ 401.12 Minimum requirements—mooring lines and fairleads.

(a) Unless otherwise permitted by the officer the minimum requirements in respect to mooring lines which shall be available for securing on either side of the vessel, winches and the location of fairleads on vessels are as follows:

(1) Vessels of 100 m or less in overall length shall have at least three mooring lines—wires or synthetic hawsers, two of which shall be independently power operated and one if synthetic, may be hand held.

(i) One line shall lead forward from the break of the bow and one line shall lead astern from the quarter and be independently power operated by winches, capstans or windlasses and lead through closed chocks or fairleads acceptable to the Manager and the Corporation; and

(ii) One synthetic hawser may be hand held or if wire line is used shall be powered. The line shall lead astern from the break of the bow through a closed chock to suitable bitts on deck for synthetic line or led from a capstan, winch drums or windlass to an approved fairlead for a wire line.

(2) Vessels of more than 100 m but not more than 150 m in overall length shall have three mooring lines—wires or synthetic hawsers, which shall be independently power operated by winches, capstans or windlasses.

(i) All lines shall be led through closed chocks or fairleads acceptable to the Manager and the Corporation.

(ii) One mooring line shall lead forward and one shall lead astern from the break of the bow and one mooring line shall lead astern from the quarter.

(3) Vessels of more than 150 m but not more than 200 m in overall length shall have four mooring lines, wires or synthetic hawsers, which shall be independently power operated by winches.

(i) One mooring line shall lead forward and one mooring line shall lead astern from the break of the bow.

(ii) One mooring line shall lead forward and one mooring line shall lead astern from the quarter.

(iii) All lines shall be led through closed chocks or fairleads acceptable to the Manager and the Corporation.

(4) Vessels of more than 200 m in overall length shall have four mooring lines—wires, independently power operated by the main drums of adequate power operated winches as follows:

(i) One mooring line shall lead forward and one mooring line shall lead astern from the break of the bow.

(ii) One mooring line shall lead forward and one mooring line shall lead astern from the quarter.

(iii) All lines shall be led through a type of fairlead acceptable to the Manager and the Corporation.

(5) Every vessel shall have a minimum of two spare mooring lines available and ready for immediate use.

(b) Unless otherwise permitted by the officer, the following table sets out the requirements for the location of fairleads or closed chocks for vessels of 100 m or more in overall length:

Table 1 to Paragraph (b)

Overall length of ships | For mooring lines Nos. 1 and 2 | For mooring lines Nos. 3 and 4

100 m or more but not more than 180 m | Shall be at a location on the ship side where the beam is at least 90% of the full beam of the ship | Shall be at a location on the ship side where the beam is at least 90% of the full beam of the ship.

More than 180 m but not more than 225.5 m | Between 20 m & 50 m from the stern | Between 20 m & 50 m from the stern.

[74 FR 18994, Apr. 27, 2009, as amended at 75 FR 10689, Mar. 9, 2010; 76 FR 13089, Mar. 10, 2011; 77 FR 40804, July 11, 2012; 81 FR 13745, Mar. 15, 2016; 83 FR 12485, Mar. 22, 2018; 90 FR 1882, Jan. 10, 2025]

§ 401.13 Hand lines.

Hand lines shall:

(a) Be made of material acceptable to the Manager and the Corporation;

(b) Be of uniform thickness and have a diameter of not less than 12 mm and not more than 18 mm and a minimum length of 30 m; and

(c) Not be weighted or have knotted ends.

[70 FR 12971, Mar. 17, 2005, as amended at 79 FR 12659, Mar. 6, 2014; 81 FR 13746, Mar. 15, 2016; 90 FR 1882, Jan. 10, 2025]

§ 401.14 Anchors, anchor marking buoys.

(a) Every vessel shall have their anchors cleared and have the anchor marking buoys free to deploy (weak link to hold buoy line onboard) with the buoy lines firmly secured to each anchor, and ready to be released prior to entering the Seaway.

(b) Every vessel shall deploy the anchor marking buoy when dropping an anchor in Seaway waters (designated Seaway anchorages exempt).

(c) Every vessel shall be equipped with operational anchor(s) suitably rigged for immediate release, holding, and retrieval. Every vessel shall be responsible for locating and retrieving any anchor deployed by the vessel and shall do so in a timely manner so as not to delay transit of vessels.

[79 FR 12659, Mar. 6, 2014, as amended at 85 FR 15950, Mar. 20, 2020; 86 FR 15412, Mar. 23, 2021; 88 FR 14267, Mar. 8, 2023; 90 FR 1882, Jan. 10, 2025]

§ 401.15 Stern anchors.

(a) Every vessel of more than 125 m in overall length, the keel of which is laid after January 1, 1975, shall be equipped with a stern anchor.

(b) Every integrated tug and barge or articulated tug and barge unit greater than 125 m in overall length which is constructed after January 1, 2003 shall be equipped with a stern anchor.

[77 FR 40804, July 11, 2012]

§ 401.16 Propeller direction alarms.

Every vessel of 1600 gross registered tons or integrated tug and barge or articulated tug and barge unit of combined 1600 gross registered tons or more shall be equipped with—

(a) Propeller direction and shaft r.p.m. indicators located in the wheelhouse and the engine room; and

(b) Visible and audible wrong-way propeller direction alarms, with a time delay of not greater than 8 seconds, located in the wheelhouse and the engineer room, unless the vessel is fitted with a device which renders it impossible to operate engines against orders from the bridge telegraph.

(68 Stat. 93-96, 33 U.S.C. 981-990, as amended and secs. 4, 5, 6, 7, 8, 12 and 13 of sec. 2 of Pub. L. 95-474, 92 Stat. 1471)

[41 FR 12227, Mar. 24, 1976, as amended at 45 FR 52378, Aug. 7, 1980; 70 FR 12971, Mar. 17, 2005; 71 FR 5606, Feb. 2, 2006]

§ 401.17 Pitch indicators and alarms.

Every vessel of 1600 gross registered tons or integrated tug and barge or articulated tug and barge unit of combined 1600 gross registered tons or more equipped with a variable pitch propeller shall be equipped with—

(a) A pitch indicator in the wheelhouse and the engine room; and

(b) Visible and audible pitch alarms, with a time delay of not greater than 8 seconds, in the wheelhouse and engine room to indicate wrong way pitch.

[47 FR 51122, Nov. 12, 1982, as amended at 70 FR 12971, Mar. 17, 2005; 71 FR 5606, Feb. 2, 2006; 81 FR 13746, Mar. 15, 2016; 90 FR 1882, Jan. 10, 2025]

§ 401.18 Steering lights.

Every vessel shall be equipped with:

(a) A steering light located on the centerline at or near the stem of the vessel and clearly visible from the helm; or

(b) Two steering lights located at equal distances either side of the centerline at the forepart of the vessel and clearly visible from the bridge along a line parallel to the keel.

[49 FR 30935, Aug. 2, 1984]

§ 401.19 Disposal and discharge systems.

(a) Every vessel not equipped with containers for ordure shall be equipped with a sewage disposal system enabling compliance with the Vessel Pollution and Dangerous Chemicals regulations (Canada), the U.S. Clean Water Act, and the U.S. Rivers and Harbors Act of 1899, and amendments thereto.

(b) Garbage on a vessel shall be:

(1) Destroyed by means of an incinerator or other garbage disposal device; or

(2) Retained on board in covered, leak-proof containers, until such time as it can be disposed of in accordance with the provisions of the Vessel Pollution and Dangerous Chemicals regulations (Canada), the U.S. Clean Water Act and the U.S. Rivers and Harbors Act of 1899, and amendments thereto.

(c) No substance shall be discharged or disposed of onto a lockwall or tie-up wall by any means, including overboard discharge pipes.

(d) Burning of shipboard garbage is prohibited between call in point 2 (CIP 2) and Cape Vincent, and between CIP 15 and 16.

[39 FR 10900, Mar. 22, 1974, as amended at 45 FR 52378, Aug. 7, 1980; 49 FR 30936, Aug. 2, 1984; 55 FR 48578, Nov. 21, 1990; 55 FR 52844, Dec. 24, 1990; 70 FR 12971, Mar. 17, 2005; 79 FR 12660, Mar. 6, 2014; 89 FR 15960, Mar. 6, 2024; 90 FR 1883, Jan. 10, 2025]

§ 401.20 Automatic Identification System.

(a) Each of the following vessels must use an Automatic Identification System (AIS) transponder to transit the Seaway:

(1) Each commercial vessel that requires pre-clearance in accordance with § 401.22 and has a 300 gross tonnage or greater, has a Length Over All (LOA) over 20 meters, or carries more than 50 passengers for hire; and

(2) Each dredge, floating plant or towing vessel over 8 meters in length, except only each lead unit of combined and multiple units (tugs and tows).

(b) Each vessel listed in paragraph (a) of this section must meet the following requirements to transit the Seaway:

(1) International Maritime Organization (IMO) Resolution MSC.74(69), Annex 3, Recommendation on Performance Standards for a Universal Shipborne AIS, as amended;

(2) International Telecommunication Union, ITU-R Recommendation M.1371-5: 2014, Technical Characteristics For A Universal Shipborne AIS Using Time Division Multiple Access In The VHF Maritime Mobile Band, as amended;

(3) International Electrotechnical Commission, IEC 61993-2 Ed.3, Maritime Navigation and Radio Communication Equipment and Systems—AIS—Part 2: Class A Shipborne Equipment of the Universal AIS—Operational and Performance Requirements, Methods of Test and Required Test Results, as amended;

(4) International Maritime Organization (IMO) Guidelines for Installation of Shipborne Automatic Identification System (AIS), NAV 48/18, 6 January 2003, as amended, and, for ocean vessels only, with a pilot plug, as specified in Section 3.2 of those Guidelines, installed close to the primary conning position in the navigation bridge and a power source accessible for the pilot's laptop computer; and

(5) The Minimum Keyboard Display (MKD) shall be located as close as possible to the primary conning position and be visible;

(6) Computation of AIS position reports using a Satellite Based Augmentation System (SBAS); or

(7) The use of a temporary unit meeting the requirements of subparagraphs (b)(1) through (6) of this section is permissible; or

(8) For each vessel with LOA less than 30 meters, the use of portable AIS compatible with the requirements of subparagraphs (b)(1) through (3) and subparagraphs (5) and (6) of this section is permissible.

[68 FR 9551, Feb. 28, 2003; 68 FR 11974, Mar. 13, 2003, as amended at 70 FR 12972, Mar. 17, 2005; 86 FR 15412, Mar. 23, 2021; 87 FR 12591, Mar. 7, 2022; 88 FR 14267, Mar. 8, 2023; 89 FR 15961, Mar. 6, 2024]

§ 401.21 Requirements for U.S. waters of the St. Lawrence Seaway.

In addition to the requirements set forth elsewhere in these Regulations, vessels transiting the U.S. waters of the St. Lawrence Seaway are subject to the requirements set out in Schedule I.

(68 Stat. 93-96, 33 U.S.C. 981-990, as amended and secs. 4, 5, 6, 7, 8, 12 and 13 of sec. 2 of Pub. L. 95-474, 92 Stat. 1471)

[45 FR 52378, Aug. 7, 1980]

§ 401.22 Preclearance of vessels.

(a) No vessel, other than a pleasure craft 300 gross registered tonnage or less, shall transit until an application for preclearance has been made, pursuant to § 401.24, to the Manager by the vessel's representative and the application has been approved by the Corporation or the Manager pursuant to § 401.25.

(b) No vessel shall transit while its preclearance is suspended or has terminated by reason of:

(1) The expiration of the representative's guarantee of toll payment,

(2) A change of representative of the vessel,

(3) A material alteration in the physical characteristics of the vessel, until another application for preclearance has been made and approved, or

(4) Past due invoices by the representative as set out in § 401.75.

(c) Unless otherwise permitted by an officer a non-commercial vessel of 300 gross registered tonnage or less cannot apply for preclearance status and must transit as a pleasure craft.

(68 Stat. 93-96, 33 U.S.C. 981-990, as amended and secs. 4, 5, 6, 7, 8, 12 and 13 of sec. 2 of Pub. L. 95-474, 92 Stat. 1471)

[39 FR 10900, Mar. 22, 1974, as amended at 47 FR 51122, Nov. 12, 1982; 55 FR 48598, Nov. 21, 1990; 65 FR 52914, 52915, Aug. 31, 2000; 66 FR 15329, Mar. 16, 2001; 70 FR 12972, Mar. 17, 2005; 72 FR 2620, Jan. 22, 2007; 79 FR 12660, Mar. 6, 2014]

§ 401.23 Liability insurance.

(a) It is a condition of approval of an application for preclearance that the vessel is covered by liability insurance equal to or exceeding $100 per gross registered ton.

(b) No vessel shall transit while its liability insurance is not in full force and effect.

(68 Stat. 93-96, 33 U.S.C. 981-990, as amended and secs. 4, 5, 6, 7, 8, 12 and 13 of sec. 2 of Pub. L. 95-474, 92 Stat. 1471)

[39 FR 10900, Mar. 22, 1974, as amended at 45 FR 52378, Aug. 7, 1980]

§ 401.24 Application for preclearance.

(a) The representative of a vessel may, on a preclearance form obtained from the Manager, St. Lambert, Quebec or downloaded from the St. Lawrence Seaway Web site (www.greatlakes-seaway.com), apply for preclearance, giving particulars of the ownership, liability insurance and physical characteristics of the vessel and guaranteeing payment of the fees that may be incurred by the vessel. The form may also be completed and submitted on the Seaway Web site via e-business. Preclearance application must be received by the St. Lawrence Seaway between 08:00—16:00 hours Monday through Friday excluding holidays and at least 24 hours prior to Seaway inspection or vessel arrival.

(b) For representatives benefitting from the exemption of security tolls as set out in § 401.26(c) and § 401.26(d), a continuous preclearance status may be assigned to all vessels under their responsibility. Validation of the continuous preclearance status will be required every 5 years.

(c) For representatives with a valid security for tolls and a good payment history as set out in § 401.26(c) and § 401.26(d), a continuous preclearance status may be assigned to all vessels under their responsibility. Validation of the continuous preclearance status will be required every year.

(d) In the event that a vessel under the representative's responsibility is modified or upgraded, an application for preclearance will be required to update the vessel's information and reset the vessel's preclearance status.

[79 FR 12660, Mar. 6, 2014]

§ 401.25 Approval of preclearance.

Where the Corporation or the Manager approves an application for preclearance, it shall:

(a) Give the approval; and

(b) Assign a number to the approval.

[39 FR 10900, Mar. 22, 1974, as amended at 65 FR 52914, 52915, Aug. 31, 2000]

§ 401.26 Security for tolls.

(a) Before transit by a vessel to which the requirement of preclearance applies, security for the payment of tolls in accordance with the “St. Lawrence Seaway Tariff of Tolls” as well as security for any other charges, shall be provided by the representative by means of:

(1) A deposit of money with the Manager;

(2) A letter of guarantee to the Manager given by a financial institution approved by the Manager; or

(3) A letter of guarantee given to the Manager by an acceptable Bonding Company. Bonding Companies may be accepted if they:

(4) A letter of guarantee to the Manager given by an institution referred to in paragraph (a)(2) of this section.

(5) A letter of guarantee or bond given to the Manager by an acceptable Bonding Company. Bonding companies may be accepted if they:

(i) Appear on the list of acceptable bonding companies as issued by the Treasury Board of Canada; and

(ii) Meet financial soundness requirements as may be defined by the Manager at the time of the request.

(b) The security for the tolls of a vessel shall be sufficient to cover the tolls established in the “St. Lawrence Seaway Tariff of Tolls” for the gross registered tonnage of the vessel, cargo carried, and lockage tolls as well as security for any other charges estimated by the Manager.

(c)(1) Where a number of vessels:

(i) For each of which a preclearance has been given;

(ii) Are owned or controlled by the same individual or company; and

(iii) Have the same representative,

(2) The security for the tolls may not be required if the individual, company or representative has paid every toll invoice received in the preceding five years within the period set out in § 401.75(a).

(d) Notwithstanding paragraph (c) of this section, where a number of vessels, for each of which a preclearance has been given, are owned or controlled by the same individual or company and have the same representative, the security for the tolls may be reduced or eliminated provided the representative has paid every toll invoice received in the preceding five (5) years within the period set out in § 401.75(a). Upon request from the Manager, the representative must provide the Manager with a financial statement that meets the requirements established by the Manager.

(e) Where, in the opinion of the Manager, the security provided by the representative is insufficient to secure the tolls and charges incurred or likely to be incurred by a vessel, the Manager may suspend the preclearance of the vessel.

[65 FR 52914, Aug. 31, 2000, as amended at 71 FR 5606, Feb. 2, 2006; 79 FR 12660, Mar. 6, 2014]

§ 401.27 Compliance with instructions.

Every vessel shall comply promptly with transit instructions given by the traffic controller or any other officer.

[73 FR 9953, Feb. 25, 2008]

§ 401.28 Speed limits.

(a) The maximum speed over the bottom for a vessel of more than 12 m in overall length shall be regulated so as not to adversely affect other vessels or shore property, and in no event shall such a vessel proceeding in any area between the place set out in Column I of an item of Schedule II to this part and a place set out in Column II of that item exceed the speed set out in Column III or Column IV of that item, whichever speed is designated by the Corporation and the Manager in a Seaway Notice from time to time as being appropriate to existing water levels.

(b) Where the Corporation or the Manager designate any speed less than the maximum speeds set out in Schedule II of this part, that speed shall be transmitted as transit instructions referred to in § 401.27.

(c) Every vessel under way shall proceed at a reasonable speed so as not to cause undue delay to other vessels.

(d) Every vessel passing a moored vessel or equipment working in a canal shall proceed at a speed that will not endanger the moored vessel, the moored equipment or the occupants of either.

(e) Notwithstanding the above speed limits, every vessel approaching a free standing lift bridge shall proceed at a speed so that it will not pass the Limit of Approach sign should the raising of the bridge be delayed.

(68 Stat. 93-96, 33 U.S.C. 981-990, as amended and secs. 4, 5, 6, 7, 8, 12 and 13 of sec. 2 of Pub. L. 95-474, 92 Stat. 1471)

[39 FR 10900, Mar. 22, 1974, as amended at 47 FR 51122, Nov. 12, 1982; 55 FR 48599, Nov. 21, 1990; 65 FR 52914, Aug. 31, 2000; 78 FR 16181, Mar. 14, 2013; 88 FR 14267, Mar. 8, 2023]

§ 401.29 Maximum draft.

(a) Notwithstanding any provision herein, the loading of cargo, draft and speed of a vessel in transit shall be controlled by the master, who shall take into account the vessel's individual characteristics and its tendency to list or squat, so as to avoid striking bottom.

(b) The draught of a vessel shall meet minimum draft requirements as defined at inspection on the Enhanced Ship Inspection form and not, in any case, exceed 79.2 dm or the maximum permissible draught designated in a Seaway Notice by the Manager and the Corporation for the part of the Seaway in which a vessel is passing.

(c) Any vessel will be permitted to load at an increased draught of not more than 7 cm above the maximum permissible draught in effect (also known as DIS draught) as prescribed under paragraph (b) of this section if it is equipped with a Draught Information System (DIS) and meets the following:

(1) An operational Draught Information System (DIS) approved by a member of the International Association of Classification Societies (IACS) as compliant with the Implementation Specifications found at www.greatlakes-seaway.com and having onboard:

(i) An operational AIS with accuracy approved by the Seaway; and

(ii) Up-to-date electronic charts; and

(iii) Up-to-date charts containing high resolution bathymetric data; and

(iv) Vessels must be equipped with a bow thruster and bow thruster must be operational.

(2) The DIS Tool Display shall be located as close to the primary conning position and be visible and legible.

(i) Verification document of the DIS must be kept on board the vessel at all times and made available for inspection;

(ii) DIS license to use the software must be valid;

(iii) Software version of DIS matches the version in the IACS verification letter, or higher;

(iv) A company letter attesting to officer training on use of the DIS must be kept on board and made available for inspection; and

(v) When transiting Seaway waters with the DIS, a trained officer on the use of the DIS must be on the bridge.

(3) Any vessel not yet approved, but intending to use the DIS in the Seaway must notify the Manager or the Corporation at least 96 hours in advance so that arrangements can be made for appropriate testing for approval to use the DIS to transit the Seaway.

(4) A vessel already approved to use DIS to transit the Seaway and intending to use it must email a completed DIS Confirmation Checklist (found at www.greatlakes-seaway.com) to slsmcmarineservices@seaway.ca once per navigation season, at least 96 hours prior to its initial transit of the navigation season.

(5) If for any reason the DIS, AIS, or bow thruster becomes inoperable, malfunctions, or is not used while the vessel is transiting at a draught greater than the maximum permissible draught prescribed under paragraph (b) of this section in effect at the time, the vessel must notify the Manager or the Corporation immediately.

[78 FR 16181, Mar. 14, 2013, as amended at 79 FR 12660, Mar. 6, 2014; 80 FR 4500, Jan. 28, 2015; 81 FR 13746, Mar. 15, 2016; 82 FR 12419, Mar. 3, 2017; 84 FR 8984, Mar. 13, 2019; 86 FR 15412, Mar. 23, 2021; 88 FR 14267, Mar. 8, 2023; 89 FR 15961, Mar. 6, 2024; 90 FR 1883, Jan. 10, 2025; 91 FR 12691, Mar. 17, 2026]

§ 401.30 Ballast water and trim.

(a) Every vessel shall be adequately ballasted.

(b) Every vessel shall be properly trimmed.

(c) No vessel, other than under exceptional circumstances and with special permission, shall be accepted for transit whose trim by the stern exceeds 45.7 dm.

(d) Any vessel that is not adequately ballasted or properly trimmed in the opinion of an officer, may be refused transit or may be delayed.

(e) To obtain clearance to transit the Seaway:

(1) Every vessel entering the Seaway after operating beyond the exclusive economic zone must agree to comply with the “Code of Best Practices for Ballast Water Management” of the Shipping Federation of Canada dated September 28, 2000, while operating anywhere within the Great Lakes and the Seaway; and

(2) Every other vessel entering the Seaway that operates within the Great Lakes and the Seaway must agree to comply with the “Voluntary Management Practices to Reduce the Transfer of Aquatic Nuisance Species Within the Great Lakes by U.S. and Canadian Domestic Shipping” of the Lake Carriers Association and Canadian Shipowners Association dated January 26, 2001, while operating anywhere within the Great Lakes and the Seaway. For copies of the “Code of Best Practices for Ballast Water Management” and of the “Voluntary Management Practices to Reduce the Transfer of Aquatic Nuisance Species Within the Great Lakes by U.S. and Canadian Domestic Shipping” refer to the St. Lawrence Seaway Web site at http://www.greatlakes-seaway.com.

(f) As a condition of transit of the Seaway after having operated outside the exclusive economic zone (EEZ) every vessel that carries only residual amounts of ballast water and/or sediment that were taken onboard the vessel outside the EEZ shall:

(1) Conduct a saltwater flushing of their ballast water tanks that contain the residual amounts of ballast water and/or sediment in an area 200 nautical miles from any shore before entering waters of the Seaway. Saltwater flushing is defined as the addition of mid-ocean water to ballast water tanks: The mixing of the flushwater with residual water and sediment through the motion of the vessel; and the discharge of the mixed water, such that the resultant residual water remaining in the tank has as high salinity as possible, and is at least 30 parts per thousand (ppt). The vessel shall take on as much mid-ocean water into each tank as is safe (for the vessel and crew) in order to conduct saltwater flushing. And adequate flushing may require more than one fill-mix-empty sequence, particularly if only small amounts of water can be safely taken onboard at one time. The master of the vessel is responsible for ensuring the safety of the vessel, crew, and passengers. Vessels reporting only residual ballast water onboard shall take particular care to conduct saltwater flushing on the transit to the Great Lakes so as to eliminate fresh and or brackish water residuals in ballast tanks; and

(2) Maintain the ability to measure salinity levels in each tank onboard the vessel so that final salinities of at least 30 ppt can be ensured.

(g) Every tank that is found not in compliance with 401.30(f) shall retain any ballast water until it exits the Seaway.

(h) These requirements do not apply to vessels of the armed forces, as defined in the Federal Water Pollution Control Act, or that are owned or operated by a state and used in government noncommercial service.

[39 FR 10900, Mar. 22, 1974, as amended at 67 FR 8887, Feb. 27, 2002; 70 FR 12972, Mar. 17, 2005; 71 FR 5606, Feb. 2, 2006; 73 FR 9953, Feb. 25, 2008]

§ 401.31 Meeting and passing.

(a) The meeting and passing of vessels shall be governed by the Collision Regulations of Canada and the Inland Rules of the United States.

(b) No vessel shall meet another vessel within the area between the caution signs at bridges or within any area that is designated as a no meeting area by the Manager or the Corporation.

(c) Except as instructed by the traffic controller, no vessel shall overtake and pass or attempt to overtake and pass another vessel—

(1) In any canal;

(2) Within 600 m of a canal or lock entrance; or

(3) After the order of passing through has been established by the vessel traffic controller.

[39 FR 10900, Mar. 22, 1974, as amended at 45 FR 52378, Aug. 7, 1980; 49 FR 30936, Aug. 2, 1984; 55 FR 48599, Nov. 21, 1990; 65 FR 52915, Aug. 31, 2000; 73 FR 9953, Feb. 25, 2008; 90 FR 1883, Jan. 10, 2025]

§ 401.32 Cargo booms—deck cargo.

(a) Every vessel shall have cargo booms secured in a manner that affords maximum visibility from the wheelhouse.

(b) Cargo or containers carried, forward or aft, on deck shall be stowed in a manner that:

(1) Affords an unrestricted view from the wheelhouse for the purpose of navigation; and

(2) Does not interfere with mooring equipment.

(c) Seaway Traffic Control Center shall be notified of the height of deck cargo prior to transiting the Seaway or when departing from a Port or Wharf within the Seaway.

[39 FR 10900, Mar. 22, 1974, as amended at 41 FR 12227, Mar. 24, 1976; 77 FR 40804, July 11, 2012]

§ 401.33 Special instructions.

No vessel of unusual design, vessel, or part of a vessel under tow, or vessel whose dimensions exceed the maximum vessel dimensions § 401.3 shall transit the Seaway except in accordance with special instructions of the Corporation or the Manager given on the application of the representative of the vessel.

[65 FR 52914, Aug. 31, 2000]

§ 401.34 Vessels in tow.

(a) No vessel that is not self-propelled (including but not limited to tug/tows and/or dead ship/tows) shall be underway in any Seaway waters unless it is securely tied to an adequate tug or tugs, in accordance with special instructions given by the Manager or the Corporation pursuant to § 401.33 and must be equipped with an operational anchor.

(b) Every vessel in tow has to be inspected prior to every transit unless it has a valid Seaway Inspection Certificate. The owner/master shall give a 24 hour notice of arrival when an inspection is required.

(c) Every vessel in tow must be adequately manned for transit in the Seaway.

[79 FR 12660, Mar. 6, 2014, as amended at 91 FR 12691, Mar. 17, 2026]

§ 401.35 Navigation underway.

Every vessel transiting between C.I.P. 2 and Tibbetts Point and between C.I.P. 15 and 16 shall:

(a) Man the propulsion machinery of the vessel, including the main engine control station;

(b) Operate the propulsion machinery so that it can respond immediately though its full operating range;

(1) Vessels equipped with an Engine Power Limitation system (EPL) or Shaft Power Limitation system (ShaPoLi) shall override the EPL or ShaPoLi while transiting at the Seaway.

(2) For vessels equipped with the ability to shift upward the main engine limitation from the engine control station (e.g., increase limitation button), all members of the bridge team must be aware of this functionality and be capable of activating it on request or if needed. The bridge team shall also ensure that the pilot onboard is advised of the system's existence and function.

(c) Man the wheelhouse of the vessel at all times by either the master or certified deck officer, and a helmsman, and;

(d) Have sufficient well rested crewmembers available for mooring operations and other essential duties.

[49 FR 30936, Aug. 2, 1984, as amended at 68 FR 36749, June 19, 2003; 70 FR 12972, Mar. 17, 2005; 90 FR 1883, Jan. 10, 2025; 91 FR 12691, Mar. 17, 2026]

§ 401.36 Order of passing through.

Vessels shall advance to a lock in the order instructed by the traffic controller.

[73 FR 9954, Feb. 25, 2008]

§ 401.37 Mooring at tie-up walls.

(a) Upon arrival at a lock, a vessel awaiting instructions to advance shall moor at the tie-up wall, close up to the designated limit or approach sign or to the ship preceding it, whichever is specified by the traffic controller or an officer.

(b) Crew members being put ashore on landing booms and handling mooring lines on tie-up walls shall wear approved personal flotation devices.

(c) Should the situation arise where a tie up at an approach wall is provided by Seaway personnel at the Canadian Locks, synthetic mooring lines should be used.

[39 FR 10900, Mar. 22, 1974, as amended at 47 FR 51122, Nov. 12, 1982; 65 FR 52914, Aug. 31, 2000; 70 FR 12972, Mar. 17, 2005; 73 FR 9954, Feb. 25, 2008; 81 FR 13746, Mar. 15, 2016; 91 FR 12691, Mar. 17, 2026]

§ 401.38 Limit of approach to a lock.

A vessel approaching a lock shall comply with directions indicated by the signal light system associated with the lock and in no case shall its stem pass the designated limit of approach sign while a red light or no light is displayed.

[74 FR 18995, Apr. 27, 2009]

§ 401.39 Preparing mooring lines for passing through.

Before a vessel enters a lock:

(a) Winches shall be capable of paying out and heaving in at a minimum speed of 46 m per minute; and

(b) The eye of each mooring line shall be passed outward through the fairleads at the side.

(68 Stat. 93-96, 33 U.S.C. 981-990, as amended and secs. 4, 5, 6, 7, 8, 12 and 13 of sec. 2 of Pub. L. 95-474, 92 Stat. 1471)

[39 FR 10900, Mar. 22, 1974, as amended at 47 FR 51122, Nov. 12, 1982; 70 FR 12972, Mar. 17, 2005; 76 FR 13089, Mar. 10, 2011]

§ 401.39-1 Raising fenders.

Every vessel equipped with fenders that are not permanently attached shall raise its fenders when passing a lock gate or HFM equipment.

[90 FR 1883, Jan. 10, 2025]

§ 401.40 Entering, exiting or position in lock.

(a) Unless directed by the Manager and the Corporation, no vessel shall proceed into a lock in such a manner that the stem passes the stop symbol on the lock wall nearest the closed gates.

(b) On being cast off in a lock, no vessel shall be allowed to fall back in such a manner that the stern passes the stop symbol on the lock wall nearest the closed gates.

(c) Every vessel proceeding into a lock shall be positioned and moored as directed by the officer in charge of the mooring operation.

(d) Vessel Self Spotting (VSS) displays at the Canadian Locks are meant to assist vessels to spot positions of the vessel's stem in the lock. The VSS display does not relive the Master of the responsibility of ensuring that the vessel's stem does not pass the stop symbol marked on the Lock wall as required in paragraph (a) of this section by using its own spotting method such as visual sport by vessel's crew.

(e) No vessel shall use thrusters when passing a lock gate or a Hands Free Mooring (HFM) unit.

[45 FR 52378, Aug. 7, 1980, and 47 FR 51122, Nov. 12, 1982, as amended at 48 FR 20691, May 9, 1983; 72 FR 2620, Jan. 22, 2007; 73 FR 9954, Feb. 25, 2008; 76 FR 13089, Mar. 10, 2011; 88 FR 14268, Mar. 8, 2023; 91 FR 12692, Mar. 17, 2026]

§ 401.41 Tandem lockage.

Where two or more vessels are being locked together, vessels astern of the leading vessel shall:

(a) Come to a full stop a sufficient distance from the preceding vessel to avoid a collision; and

(b) Be moved into mooring position as directed by the officer in charge of the lock.

§ 401.42 Passing hand lines.

(a) At locks, hand lines shall be secured to the mooring lines and passed as follows:

(1) A downbound vessel shall use its own hand lines, secured to the eye at the end of the mooring lines, by means of a bowline, which hand lines shall be passed to the linehandlers at the lock as soon as the vessel passes the open gates;

(i) For the #4 mooring wire, the hand line shall be passed to the linehandlers at the lock as soon as the vessel's aft fairleads pass the open gates.

(ii) For the #2 mooring wire, the hand line shall be passed to the linehandlers at the lock as soon as the forward fairleads pass the last HFM unit.

(2) Hand lines shall be passed to upbound vessels by the linehandlers as soon as the vessel passes the last HFM unit, and secured, by means of a clove hitch, to the mooring lines 60 cm behind the splice of the eye;

(3) At Iroquois Lock and Lock 8, Welland Canal, both upbound and downbound vessels shall use their own hand lines as provided in paragraph (a)(1) of this section; and

(4) Upbound vessels of overall length in excess of 218 m in Locks 4 and 5, Welland Canal, shall secure the hand lien to the eye of the No. 1 mooring wire by means of a bowline.

(b) Mooring lines shall not be passed over the side of a vessel in a manner dangerous to a lock crew.

[39 FR 10900, Mar. 22, 1974, as amended at 47 FR 51122, Nov. 12, 1982; 55 FR 48599, Nov. 21, 1990; 61 FR 19551, May 2, 1996; 70 FR 12972, Mar. 17, 2005; 90 FR 1883, Jan. 10, 2025]

§ 401.43 Mooring table.

Unless otherwise directed by an officer, vessels passing through the locks shall moor at the side of the tie-up wall or lock as shown in the table to this section.

South Shore | Beauharnois | Wiley-Dondero Iroquois

St. Lambert | Cote St. Catharine | Lower | Pool | Upper | Snell | Eisenhower | Iroquois

Locks:

Upbound | Port | Port | Starboard | Starboard | Starboard | Starboard | Port.

Downbound | Starboard | Starboard | Port | Port | Port | Port | Starboard.

Tieup walls:

Upbound | ...do | ...do | ...do | Port | Starboard | Starboard | ...Do.

Downbound | Port | Port | Starboard | Starboard | Port | Port | Port.

Welland Canal

1 | 2 | 3 | 4 | 5 | 6 | 7 | Guard Gate Cut | 8

Locks:

Upbound | Starboard | Starboard | Port | Port | Port | Port | Port | Starboard.

Downbound | Port | Port | Starboard | ...do | ...do | ...do | Starboard | Port.

Tieup walls:

Upbound | Starboard | Starboard | ...do | Starboard | ...do | Starboard | Port or starboard.

Downbound | Port | Port | Port | Starboard | ...do | Port | Do.

(68 Stat. 93-96, 33 U.S.C. 981-990, as amended and secs. 4, 5, 6, 7, 8, 12 and 13 of Sec. 2 of Pub. L. 95-474, 92 Stat. 1471)

[39 FR 10900, May 22, 1974, as amended at 40 FR 11721, Mar. 13, 1975; 45 FR 52378, Aug. 7, 1980; 49 FR 30936, Aug. 2, 1984; 55 FR 48599, Nov. 21, 1990; 61 FR 19551, May 2, 1996]

§ 401.44 Mooring in locks.

(a) The primary means of securing vessels in the locks is by way of the Hands-Free Mooring (HFM) system. Vessels being moored by HFM must have a minimum of one well rested crew member on deck during the lockage to assist the Bridge team.

(b) Single tugs, tug/barge combinations, and small vessels (less than 160m in overall length) that are not eligible to use HFM are to be processed without mooring lines at the Canadian Locks with the exception of upbound lockages at Locks 4, 5 and 6 in the Welland Canal.

(c) Vessels being moored by the Hands-Free Mooring system (HFM) or passing through a lock without the use of mooring lines shall have a minimum of one (1) well rested crew member on deck during the lockage to assist the bridge team.

(d) Vessels requiring the use of mooring lines shall be processed as follows:

(1) Mooring lines shall only be placed on mooring posts as directed by the officer in charge of the mooring operation.

(2) No winch from which a mooring line runs shall be operated until the officer in charge of a mooring operation has signaled that the line has been placed on a mooring post.

(3) Once the mooring lines are on the mooring posts, lines shall be kept slack until the “all clear” signal is given by the lock personnel. When casting off signal is received, mooring lines shall be kept slack until the “all clear” signal is given by the lock personnel.

[89 FR 15961, Mar. 6, 2024, as amended at 90 FR 1883, Jan. 10, 2025]

§ 401.45 Emergency procedure.

When the speed of a vessel entering a lock chamber has to be checked, the master shall take all necessary precautions to stop the vessel in order to avoid contact with lock structures. At no time shall the vessel deploy its anchors to stop the vessel when entering a lock chamber.

[81 FR 13746, Mar. 15, 2016]

§ 401.46 Attending lines.

(a) Lines of a vessel shall be under visual control and attended by members of its crew during the time the vessel is passing through a lock.

(b) While a vessel is within a lock chamber and lines are hand held for tension control, each line shall be attended by at least one member of the vessel's crew.

(c) Mooring lines on deck must be individually attended unless the vessel is equipped with side control and visual contact must be maintained for signal from lock employees taking or letting go of mooring lines.

[39 FR 10900, Mar. 22, 1974, as amended at 79 FR 12660, Mar. 6, 2014]

§ 401.47 Leaving a lock.

(a) Mooring lines shall only be cast off as directed by the officer in charge of a mooring operation.

(b) No vessel shall proceed out of a lock until the exit gates, ship arresters and the bridge, if any, are in a fully open position and the lock operator gives the “all clear” instruction.

(c) When “Hands Free Mooring system (HFM) is used, no vessel shall use its engine(s) until the lock operator provides the “all clear” instruction.

(68 Stat. 93-96, 33 U.S.C. 981-990, as amended and secs. 4, 5, 6, 7, 8, 12 and 13 of sec. 2 of Pub. L. 95-474, 92 Stat. 1471)

[81 FR 13746, Mar. 15, 2016, as amended at 89 FR 15961, Mar. 6, 2024]

§ 401.48 Turning basins.

No vessel shall be turned about in any canal, except:

(a) With permission from the traffic controller; and

(b) At the locations set out in the table to this section.

Table 1 to § 401.48

1. South Shore Canal:

(a) Turning Basin No. 1—Opposite Brossard.

(b) Turning Basin No. 2—Immediately below Côte St. Catherine Lock.

2. Welland Canal:

(a) Turning Basin No. 1—Between Lock 7 and the Guard Gate Cut for vessels up to 180 m in overall length.

(b) Turning Basin No.2—Immediately south of Port Robinson (mile 13).

(c) Turning Basin No. 3—North of Lock No. 8 for vessels up to 140 m in overall length.

(d) For vessels up to 80 m in overall length:

(1) North end of Wharf No. 1.

(2) Tie-up wall above Lock 1.

(2) Tie-up wall below Lock 2.

(4) Wharf No. 9.

(5) Between the southerly extremities of Wharves 18-2 and 18-3.

[39 FR 10900, Mar. 22, 1974, as amended at 47 FR 51123, Nov. 12, 1982; 48 FR 20691, May 9, 1983; 49 FR 30936, Aug. 2, 1984; 73 FR 9954, Feb. 25, 2008; 91 FR 12692, Mar. 17, 2026]

§ 401.49 Dropping anchor or tying to canal bank.

Except in an emergency, no vessel shall drop anchor in any canal or tie-up to any canal bank unless authorized to do so by the traffic controller. If the anchor is dropped, the Master of the vessel shall immediately report it to the nearest seaway station. Every anchor shall be suitably rigged for immediate release, holding and efficient retrieval.

[91 FR 12692, Mar. 17, 2026]

§ 401.50 Anchorage areas.

Except in an emergency, or unless authorized to do so by the traffic controller, no vessel shall drop anchor in any part of the Seaway except in the following designated anchorage areas:

(a) Point Fortier (Lake St. Louis).

(b) Melocheville (Beauharnois Canal).

(c) St. Zotique, Dickerson Island and Stonehouse Point (Lake St. Francis).

(d) Wilson Hill Island and Morrisburg (Lake St. Lawrence).

(e) Prescott, Union Park and Carleton Island (St. Lawrence River).

(f) Off Tibbetts point (Lake Ontario).

(g) Off Port Weller (Lake Ontario).

(h) Off Port Colborne (Lake Erie).

[39 FR 10900, Mar. 22, 1974, as amended at 40 FR 25813, June 19, 1975; 73 FR 9954, Feb. 25, 2008; 84 FR 8984, Mar. 13, 2019]

§ 401.51 Signaling approach to a bridge.

(a) Unless a vessel's approach has been recognized by a flashing signal, the master shall signal the vessel's presence to the bridge operator by VHF radio when it comes abreast of any of the bridge whistle signs.

(b) The signs referred to in paragraph (a) of this section are placed at distances varying between 550 m and 2990 m upstream and downstream from moveable bridges at sites other than lock sites.

(68 Stat. 93-96, 33 U.S.C. 981-990, as amended and secs. 4, 5, 6, 7, 8, 12 and 13 of sec. 2 of Pub. L. 95-474, 92 Stat. 1471)

[48 FR 20691, May 9, 1983, as amended at 49 FR 30936, Aug. 2, 1984; 73 FR 9954, Feb. 25, 2008; 76 FR 13089, Mar. 10, 2011]

§ 401.52 Limit of approach to a bridge.

(a) No vessel shall pass the limit of approach sign at any movable bridge until the bridge is in a fully open position and the signal light shows green.

(b) No vessel shall pass the limit of approach sign at the twin railway bridges on the South Shore Canal at Kahnawake, until both bridges are in a fully open position and both signal lights show green.

[39 FR 10900, Mar. 22, 1974, as amended at 61 FR 19551, May 2, 1996; 65 FR 52914, Aug. 31, 2000; 79 FR 12660, Mar. 6, 2014]

§ 401.53 Obstructing navigation.

No vessel shall be operated, drop anchor or be fastened or moored in a manner that obstructs or hinders navigation.

§ 401.54 Interference with navigation aids.

(a) Aids to navigation shall not be interfered with or used as moorings.

(b) No person shall, unless authorized by the Corporation or the Manager, set out buoys or navigation markers on the Seaway.

[39 FR 10900, Mar. 22, 1974, as amended at 65 FR 52914, 52915, Aug. 31, 2000]

§ 401.55 Searchlights.

No searchlight shall be used in such a manner that its rays interfere with the operators at a Seaway structure or on any vessel.

§ 401.56 Damaging or defacing Seaway property.

The master of every vessel shall:

(a) Navigate so as to avoid damage to Seaway property; and

(b) Prevent defacement of Seaway property by any member of the vessel's crew.

§ 401.57 Disembarking or boarding.

(a) Except as authorized by an officer, no person, other than a member of the crew of a vessel passing through, shall disembark or board any vessel while the vessel is passing through.

(b) No member of the crew of a vessel passing through shall disembark or board except for the purpose of carrying out essential duties as directed by the Master.

(c) Persons disembarking or boarding shall be assisted by a member of the vessel's crew under safe conditions.

(d) Persons intending on disembarking or boarding a vessel shall only do so after they have confirmed with the Captain that the vessel is fully secured in the lock with Hands-Free Mooring or with mooring lines.

[39 FR 10900, Mar. 22, 1974, as amended at 70 FR 12972, Mar. 17, 2005; 76 FR 13089, Mar. 10, 2011; 89 FR 15961, Mar. 6, 2024]

§ 401.58 Pleasure craft scheduling.

(a) At the U.S. locks, the transit of pleasure craft shall be scheduled by the traffic controller or the officer in charge of a lock and may be delayed in order to avoid interference with other vessels; and

(b) Every pleasure craft seeking to transit Canadian locks shall first make a reservation on the Seaway website according to the available schedule.

[90 FR 1883, Jan. 10, 2025]

§ 401.59 Pollution.

(a) No vessel shall:

(1) Emit sparks or excessive smoke; or

(2) Blow boiler tubes.

(b) No vessel shall discharge into Seaway waters any substance not in conformity with applicable United States Federal Regulations and Canadian Regulations with the exception of the waters of the Welland Canal where two specific zones are established in which no substances shall be discharged, namely,

(1) From Lock 7 (Thorold) to mile 17 (Welland); and

(2) From Lock 8 (Port Colborne) to the outer Port Colborne Piers (Lake Erie).

(c) A record shall be kept by the vessel of each location within the Seaway or adjacent waters where bilge water has been discharged.

(d) Except as authorized by the Corporation or the Manager, no vessel shall discharge garbage, ashes, ordure, litter or other materials.

(e) Except as authorized by the Manager or the Corporation, no over the side painting shall be allowed in the Seaway.

(68 Stat. 93-96, 33 U.S.C. 981-990, as amended and secs. 4, 5, 6, 7, 8, 12 and 13 of sec. 2 of Pub. L. 95-474, 92 Stat. 1471)

[39 FR 10900, Mar. 22, 1974, as amended at 45 FR 52379, Aug. 7, 1980; 65 FR 52914, 52915, Aug. 31, 2000; 77 FR 40805, July 11, 2012]

§ 401.60 Listening watch and notice of arrival.

(a) Vessels shall be on radio listening watch on the applicable assigned frequency while within a Seaway traffic control sector as shown on the General Seaway Plan and shall give notice of arrival in the manner prescribed in § 401.64 upon reaching any designated calling in point.

(b) Notice of arrival shall be deemed to have been given when it is acknowledged by a Seaway station.

§ 401.61 Assigned frequencies.

The Seaway stations operate on the following assigned VHF frequencies:

156.8 MHz—(channel 16)—Distress and Calling.

156.7 MHz—(channel 14)—Working (Canadian stations in Sector 1 and the Welland Canal).

156.65 MHz—(channel 13)—Working (U.S. station in Lake Ontario).

156.6 MHz—(channel12)—Working (U.S. station in Lake Ontario).

156.6 MHz—(channel 12)—Working (U.S. stations in Sector 2 of the River); and

156.55 MHz—(channel 11)—Working (Canadian stations in Sector 3, Lake Ontario and Lake Erie).

[80 FR 4500, Jan. 28, 2015]

§ 401.62 Seaway stations.

The Seaway stations are located as follows:

VDX20 (Seaway Beauharnois)—Upper Beauharnois Lock—Traffic Control Sector No. 1. KEF (Seaway Eisenhower)—Eisenhower Lock—Traffic Control Sector No. 2. VDX21 (Seaway Iroquois)—Iroquois Lock—Traffic Control Sector No. 3. WAG (Seaway Clayton)—Clayton, N.Y.—Traffic Control Sector No. 4. WAG (Seaway Sodus)—Sodus, N.Y.—Traffic Control Sector No. 4. VDX72 (Seaway Newcastle)—Port Hope, Ontario-Traffic Control Sector No. 5. VDX70 (Seaway Newcastle)—Port Weller, Ontario-Traffic Control Sector No. 5. VDX22 (Seaway Welland)—St. Catharines, Ontario—Traffic Control Sector No. 6. VDX68 (Seaway Long Point)—Port Colborne, Ontario—Traffic Control Sector No. 7.

(68 Stat. 93-96, 33 U.S.C. 981-990, as amended and secs. 4, 5, 6, 7, 8, 12 and 13 of sec. 2 of Pub. L. 95-474, 92 Stat. 1471)

[39 FR 10900, Mar. 22, 1974, as amended at 40 FR 25813, June 19, 1975; 45 FR 52379, Aug. 7, 1980]

§ 401.63 Radio procedures.

Every vessel shall use the channels of communication in each control sector as listed in the table to this section.

Channels of Communication

Station | Control sector number | Sector limits | Call in | Work | Listening watch

Seaway Beauharnois | 1 | C.I.P No. 2 to C.I.P No. 6-7 | Ch. 14 | Ch. 14 | Ch. 14.

Seaway Eisenhower | 2 | C.I.P. No. 6-7 to C.I.P. No. 10-11 | Ch. 12 | Ch. 12 | Ch. 12.

Seaway Iroquois | 3 | C.I.P. No. 10-11 To Crossover Island | Ch. 11 | Ch. 11 | Ch. 11.

Seaway Clayton | 4 | Crossover Island to Cape Vincent | Ch. 13 | Ch. 13 | Ch. 13.

Seaway Sodus | 4 | Cape Vincent to Mid Lake Ontario | Ch. 12 | Ch. 12 | Ch. 16.

Seaway Newcastle | 5 | Mid Lake Ontario To C.I.P. No. 15 | Ch. 11 | Ch. 11 | Ch. 16.

Seaway Welland | 6 | C.I.P. No. 15 to C.I.P. No. 16 | Ch. 14 | Ch. 14 | Ch. 14.

Seaway Long Point | 7 | C.I.P. No. 16 to Long Point | Ch. 11 | Ch. 11 | Ch. 16.

[75 FR 10690, Mar. 9, 2010]

§ 401.64 Calling in.

(a) Every vessel, intending to transit or in transit, shall report on the assigned frequency to the designated Seaway station when opposite any calling in point or checkpoint (indicated on the General Seaway Plan) and, when reporting, shall give the information indicated in Schedule III.

(b) Changes in information provided under paragraph (a), including updated ETAs that vary from the ETAs provided under that paragraph by 30 minutes or more, shall be reported to the appropriate Seaway station.

(c) A down bound vessel in St. Lambert Lock shall switch to channel 10 (156.5 MHz) for a traffic report from Quebec Vessel Management Center.

(d) After obtaining the situation report referred to in paragraph (c) of this section, the downbound vessel shall return to guarding channel 14 (156.7 MHz) and remain on that channel until it is clear of St. Lambert Lock chamber.

(e) When the downbound vessel has cleared the downstream end of the lower approach wall of St. Lambert Lock, the master of the vessel shall call “Seaway Beauharnois” and request permission to switch to channel 10 (156.5 MHz).

(f) Seaway Beauharnois shall grant the permission requested pursuant to paragraph (e) of this section and advise the downbound vessel of any upbound traffic that may be cleared for Seaway entry but not yet at C.I.P. 2.

(g) In the event of an expected meeting of vessels between the downstream end of the lower approach wall and C.I.P. 2, the downbound vessel shall remain on channel 14 (156.7 MHz) until the meeting has been completed.

(h) After the meeting, the downbound vessel shall call “Seaway Beauharnois” before switching to channel 10 (156.5 MHz).

(68 Stat. 93-96, 33 U.S.C. 981-990, as amended and secs. 4, 5, 6, 7, 8, 12 and 13 of sec. 2 of Pub. L. 95-474, 92 Stat. 1471)

[39 FR 10900, Mar. 22, 1974, as amended at 43 FR 25818, June 15, 1978; 47 FR 51123, Nov. 12, 1982; 61 FR 19551, May 2, 1996; 82 FR 12420, Mar. 3, 2017]

§ 401.65 Communication—ports, docks and anchorages.

(a) Every vessel entering or leaving a lake port shall report to the appropriate Seaway station at the following check points:

(1) For the lake ports of Toronto and Hamilton, 1 nautical mile outside the harbor limits; and

(2) For other lake ports, when crossing the harbor entrance.

(b) Every vessel arriving at a port, dock, or anchorage shall report to the appropriate Seaway station, giving an estimated time of departure if possible.

(c) At least four hours prior to departure from a port, dock, or anchorage, every vessel shall report to the appropriate Seaway station its destination and its expected time of arrival at the next check point.

(d) Every vessel intending to conduct a dive operation and/or Remotely Operated Vehicle (ROV) inspection at a dock, wharf or approach wall shall provide a 24-hour minimum notice of diving operations to the appropriate Seaway Traffic control Centre.

[39 FR 10900, Mar. 22, 1974, as amended at 47 FR 51123, Nov. 12, 1982; 55 FR 48599, Nov. 21, 1990; 61 FR 19551, May 2, 1996; 76 FR 13089, Mar. 10, 2011; 88 FR 14268, Mar. 8, 2023; 89 FR 15961, Mar. 6, 2024; 90 FR 1883, Jan. 10, 2025]

§ 401.66 Applicable laws.

(a) Where a vessel on the seaway is involved in an accident or a dangerous occurrence, the master of the vessel shall report the accident or occurrence, pursuant to the requirements of the Transportation Safety Board Regulations, to the nearest Seaway station and Transport Canada Marine Safety and Security or U.S. Coast Guard office as soon as possible and prior to departing the Seaway system.

(b) Every vessel carrying dangerous cargo, as described in §§ 401.66 through 401.73, and all tankers carrying liquid cargo in bulk, shall file with the Corporation and the Manager a copy of the current load plan as described in § 401.72(e).

[45 FR 52379, Aug. 7, 1980, as amended at 61 FR 19551, May 2, 1996; 65 FR 52915, Aug. 31, 2000; 83 FR 12485, Mar. 22, 2018]

§ 401.67 Carrying explosives.

A vessel carrying explosives, either Government or commercial, as defined in the Dangerous Cargo Act of the United States and in the International Maritime Dangerous Goods Code, Class 1, Divisions 1.1 to 1.5 inclusive, shall be deemed for the purpose of these Regulations to be an explosive vessel.

§ 401.68 Explosives permission letter.

(a) A Seaway Explosives Permission Letter is required for an explosive vessel in the following cases:

(1) For all vessels carrying any quantity of explosives with a mass explosive risk, up to a maximum of 2 tonnes (IMO Class 1, Division 1.1 and 1.5);

(2) For all vessels carrying more than 10 tonnes and up to a maximum of 50 tonnes of explosives that do not explode en masse (IMO Class 1, Division 1.2);

(3) For all vessels carrying more than 100 tonnes and up to a maximum of 500 tonnes of explosives having a fire hazard without explosive effect (IMO Class 1, Division 1.3); and

(4) For all vessels carrying more than 100 tonnes and up to a maximum of 500 tonnes of safety explosives and shop goods (IMO Class 1, Divisions 1.4).

(b) When an explosive vessel is carrying quantities of explosives above the maximum mentioned in paragraph (a) of this section, no Seaway Explosives Permission Letter shall be granted and the vessel shall not transit.

(c) A written application for a Seaway Explosives Permission Letter certifying that the cargo is packed, marked and stowed in accordance with the Transportation of Dangerous Goods Regulations (Canada), the United States regulations under the Dangerous Cargo Act and the International Maritime Dangerous Goods Code may be made to The St. Lawrence Seaway Management Corporation, 202 Pitt Street, Cornwall, Ontario, K6J 3P7, or to the Great Lakes St. Lawrence Seaway Development Corporation, P.O. Box 520, Massena, New York, U.S.A., 13662.

(d) A signed copy of a Seaway Explosives Permission Letter and a true copy of any certificate as to the loading of dangerous cargo shall be kept on board every explosive vessel in transit and shall be made available to any officer requiring production of such copies.

(Approved by the Office of Management and Budget under control number 2135-0004)

[45 FR 52379, Aug. 7, 1980, as amended at 47 FR 51123, Nov. 12, 1982; 48 FR 20691, May 9, 1983; 49 FR 30936, Aug. 2, 1984; 55 FR 48599, Nov. 21, 1990; 65 FR 52914, Aug. 31, 2000; 70 FR 12972, Mar. 17, 2005; 72 FR 2620, Jan. 22, 2007; 79 FR 12660, Mar. 6, 2014; 88 FR 14268, Mar. 8, 2023]

§ 401.69 Hazardous cargo vessels.

For the purpose of these Regulations, a vessel shall be deemed to be a hazardous cargo vessel in the following cases:

(a) A tanker carrying fuel oil, gasoline, crude oil or other flammable liquids in bulk, having a flashpoint below 61 °C, including a tanker that is not gas free where its previous cargo had a flashpoint below 61 °C;

(b) A tanker carrying compressed liquefied gases, bulk acids or liquefied chamicals;

(1) In excess of 50 tonnes of gases, compressed, liquified or dissolved under pressure (IMO Class 2),

(2) In excess of 50 tonnes of flammable liquids having a flashpoint below 61 °C (IMO Class 3),

(3) In excess of 50 tonnes of flammable solids, spontaneously combustible material or substances emitting combustible gases when wet (IMO Class 4),

(4) In excess of 50 tonnes of oxidizing substances or organic peroxides (IMO Class 5),

(5) Any quantity of poisonous (toxic) substances and infectious substances (IMO Class 6),

(6) Any quantity of radioactive substances (IMO Class 7),

(7) In excess of 50 tonnes of corrosive substances (IMO Class 8),

(8) Any quantity of metal turnings, borings, cuttings, or shavings in bulk having a temperature on loading or in transit in excess of 65.5 °C, and

(9) Any quantity of grain that is under fumigation, where the chemical being used is hazardous to human life.

(10) Any quantity of direct reduced iron (DRI).

[45 FR 52379, Aug. 7, 1980, as amended at 47 FR 51123, Nov. 12, 1982; 48 FR 20691, May 9, 1983]

§ 401.70 Fendering—explosive and hazardous cargo vessels.

All explosive vessels requiring a Seaway Explosives Permission Letter in accordance with § 401.68 and all tankers carrying cargo with a flashpoint of up to 61 °C, except those carrying such cargo in center tanks with gas free wing tanks, shall be equipped with a sufficient number of non-metallic fenders on each side to prevent any metallic part of the vessel from touching the side of a dock or lock wall.

[72 FR 2620, Jan. 22, 2007]

§ 401.71 Signals—explosive or hazardous cargo vessels.

An explosive or hazardous cargo vessel shall display at the masthead or at an equivalent conspicuous position a “B” flag.

[61 FR 19551, May 2, 1996]

§ 401.72 Reporting—explosive and hazardous cargo vessels.

(a) Every explosive vessel or hazardous cargo vessel shall, when reporting information related to cargo as required by § 401.64(a), report the nature and tonnage of its explosive or hazardous cargo where applicable. Every vessel carrying grain which is under fumigation shall declare to the nearest traffic control center the nature of the fumigant, its properties and cargo holds affected.

(b) Every explosive vessel requiring a Seaway Explosives Permission Letter shall, when reporting in, give the number of its Seaway Explosives Permission Letter.

(c) Every hazardous cargo vessel carrying metal turnings, shavings, cuttings or borings in bulk shall, when reporting information related to cargo as required by § 401.64(a), give the high temperature reading of each compartment at that time, together with the high temperature reading in each compartment taken on completion of loading.

(d) Every vessel carrying radioactive substances shall, when reporting in, give the number and date of issue of any required certificate issued by the Canadian Nuclear Safety Commission (CNSC) and/or the U.S. Nuclear Regulatory Commission (USNRC) authorizing such shipment.

(e) Every vessel carrying dangerous cargo, as defined in § 401.66, and all tankers carrying liquid cargo in bulk, and all vessels carrying grain under fumigation shall, prior to transiting any part of the Seaway, file with the Manager a copy of the current load plan that includes the following information:

(1) The name of the cargo, its IMO class and UN number as set out in the IMDG Code, if applicable, or, if the cargo is not classed by the IMO and does not have a UN number, the words “NOT CLASSED”;

(2) The approximate total weight in metric tonnes or total volume in cubic meters and the stowage location of each commodity;

(3) The approximate weight in metric tonnes or the approximate volume in cubic meters in each hold or tank;

(4) The flashpoint of the cargo, if applicable; and

(5) The estimated date of entry into the Seaway and the date and time that the load plan was last issued or amended.

(6) Tankers in ballast shall report the previous cargo of each cargo hold on a plan as described in this paragraph (e).

(f) For tankers, the information required under this section shall be detailed on a plan showing the general layout of the tanks, and a midships cross-section showing the double bottom tanks and ballast side tanks.

(g) If a Safety Data Sheet (SDS) on a hazardous cargo that a vessel is carrying is not available in a Seaway Traffic Control Center, the vessel shall provide information enabling the preparation of an SDS.

(h) Every vessel shall submit its load plan to the nearest Seaway Traffic Control Center from which it will be distributed to all other Seaway Traffic Control Centers. Any changes in stowage, including loading and discharging during a transit, the ship shall submit an updated plan before departing from any port between St. Lambert and Long Point.

(i) Failure to comply with the requirements in this section may result in unnecessary delays or transit refusal.

[45 FR 52379, Aug. 7, 1980, as amended at 61 FR 19551, May 2, 1996; 65 FR 52915, Aug. 31, 2000; 70 FR 12972, Mar. 17, 2005; 72 FR 2620, Jan. 22, 2007; 77 FR 40805, July 11, 2012; 86 FR 15412, Mar. 23, 2021]

§ 401.73 Cleaning tanks—hazardous cargo vessels.

(a) Prohibitions. Cleaning and gas freeing of tanks shall not take place:

(1) In a canal or a lock;

(2) In an area that is not clear of other vessels or structures; and

(3) Before gas freeing and tank cleaning has been reported to the nearest Seaway station.

(b) Acceptance of hot work. Before any hot work, defined as any work that uses flame or that can produce a source of ignition, cutting or welding, is carried out by any vessel on any designated St. Lawrence Seaway Management Corporation (SLSMC) approach walls, Cote St. Catherine wharf or wharves in the Welland Canal, a written request must be sent to SLSMC, preferably 24 hours prior to the vessel's arrival on SLSMC approach walls or wharves. The hot work shall not commence until the hot work request is accepted and acknowledged by SLSMC Traffic Control Centre.

(1) The SLSMC Traffic Control Centre will accept the request to perform hot work under the following conditions:

(i) Copy of vessel's “Hot Work Permit” is provided to the SLSMC before welding commences;

(A) In the Welland Canal, send to: nerie@seaway.ca and nrshipinspectors@seaway.ca.

(B) In the MLO Section, send to: cdo@seaway.ca and inspecteursvm@seaway.ca.

(ii) Name of company performing the hot work is provided;

(iii) Effective fire watch is maintained;

(iv) Welding operations shall temporarily cease during vessel meets and lockages;

(v) Welding operations shall cease at the direction of a Traffic Controller; and

(vi) All sparks and/or flames are to be contained on the vessel.

(2) [Reserved]

(c) Special requirements for tankers performing hot work. Prior to arriving at any SLSMC designated approach wall or wharf, a tanker must be gas free or have tanks inerted. The gas-free certificate must be sent to the SLSMC Traffic Control Center in order to obtain clearance for the vessel to commence hot work.

[78 FR 16182, Mar. 14, 2013, as amended at 87 FR 12591, Mar. 7, 2022; 88 FR 14268, Mar. 8, 2023; 90 FR 1884, Jan. 10, 2025; 91 FR 12692, Mar. 17, 2026]

§ 401.74 Transit declarations.

(a) A Seaway e-business Transit Declaration (Cargo) shall be completed and submitted to the Manager by the representative of a vessel for each vessel that has an approved preclearance, except non-cargo vessels, within fourteen (14) days after the vessel enters the Seaway on any upbound ordown bound transit. The e-business Transit Declaration must be filed directly on the St. Lawrence Seaway website www.greatlakes-seaway.com via e-business. The use of the Harmonized System (HS Codes) and the UN Location Codes on the e-business Transit Declaration is mandatory to identify cargo and ports respectively.

(b) The loaded or manifest weight of cargo shall be shown on the Seaway e-business Transit Declaration, except in the case of petroleum products where gallonage meters are not available at the point of loading, in which case offloaded weights may be shown on the e-business Transit Declaration.

(c) Where a vessel carried cargo to or from an overseas port, an electronic copy of the cargo manifest, duly certified, shall be submitted with the Seaway e-business Transit Declaration.

(d) A Weight-Scale Certificate or similar document issued in the place of a cargo manifest or a bill of lading may be accepted in lieu thereof.

(e) Where a submitted Seaway e-business Transit Declaration is found to be inaccurate concerning the destination or cargo, the representative shall immediately forward to the Manager a revision of the submitted Declaration.

(f) Submitted Seaway e-business Transit Declarations shall be used in assessing fees in accordance with the St. Lawrence Seaway Schedule of Tolls, and fees invoices shall be forwarded to the representative or its designated agent.

(g) Where government aid cargo is declared, appropriate Canadian or U.S. customs form or a stamped and signed certification letter from the U.S. or Canada Customs must accompany the e-business Transit Declaration or notification must be made to the Manager.

[91 FR 12692, Mar. 17, 2026]

§ 401.75 Payment of tolls.

(a) Every toll invoice shall be paid in Canadian funds within forty-five days after the vessel enters the Seaway, and any adjustment of the amount payable shall be provided for in a subsequent invoice.

(b) Fees, established by agreement between Canada and the United States, and known as the St. Lawrence Seaway Schedule of Tolls, shall be paid by pleasure crafts for the transits of each Canadian lock using the pleasure craft reservation system available on the Seaway website. At U.S. locks, the fee is paid in U.S. funds or the pre-established equivalent in Canadian funds or through payment via Pay.gov on the Seaway website.

(c) Fees for Seaway arranged security guard in compliance with Transport Canada Security regulations shall be paid in Canadian funds within 30 days of billing.

(d) Vessel representatives with past due toll accounts, unpaid after 45 days, may be subject to the suspension of preclearance for each vessel of which a preclearance has been given and/or the immediate removal of the waved security for the toll charges set in § 401.26(c) and § 401.26(d.)

[61 FR 19552, May 2, 1996, as amended at 65 FR 52915, Aug. 31, 2000; 66 FR 15329, Mar. 16, 2001; 70 FR 12973, Mar. 17, 2005; 74 FR 18995, Apr. 27, 2009; 79 FR 12661, Mar. 6, 2014; 87 FR 12591, Mar. 7, 2022]

§ 401.76 In-transit cargo.

Cargo that is carried both upbound and downbound in the course of the same voyage shall be reported in the Seaway Transit Declaration Form, but is deemed to be ballast and not subject to toll assessment.

§ 401.77 [Reserved]

§ 401.78 Required information.

(a) Documentary evidence, comprising inspection certificates, load line certificates, crew lists, dangerous cargo manifest and the cargo stowage plan, shall be carried on board and shall be made available to any officer requiring production of such evidence.

(b) Documentary evidence, comprising evidence of cargo declared, cargo manifest, dangerous cargo manifest and bills of lading, shall be kept by the agent, owner or operator for a period of five years, or until an audit has been performed by the Corporation or the Manager, whichever occurs first, and such documents shall be made available to an officer requiring production of such evidence.

(c) When a Declaration of Security (DoS) is required between a vessel and the St. Lawrence Seaway, it shall be completed prior to entry into the first lock and will remain in effect until the vessel exits the St. Lawrence Seaway at the St. Lambert Lock or the Welland Canal at Port Colborne.

(68 Stat. 93-96, 33 U.S.C. 981-990, as amended and secs. 4, 5, 6, 7, 8, 12 and 13 of sec. 2 of Pub. L. 95-474, 92 Stat. 1471)

[45 FR 52380, Aug. 7, 1980, as amended at 65 FR 52915, Aug. 31, 2000; 84 FR 8984, Mar. 13, 2019]

§ 401.79 Advance notice of arrival, vessels requiring inspection.

(a) USCG Advance Notice of Arrival—All foreign flagged ships of 300 GRT or above intending to transit the Seaway shall submit one completed United States Coast Guard (USCG) Electronic Notice of Arrival (ENOA) prior to entering at call in point 2 (CIP 2) as follows:

(1) If your voyage time to CIP 2 is 96 hours or more, you must submit an ENOA 96 hours before entering the Seaway at CIP 2.

(2) If your voyage time to CIP 2 is less than 96 hours, you must submit an ENOA before departure, but at least 24 hours before entering the Seaway at CIP 2.

(3) If there are changes to the ENOA, submit them as soon as practicable but at least 12 hours before entering the Seaway at CIP 2.

(4) The NOA must be provided electronically following the USCG National Vessel Movement Center's (NVMC) procedures (http://www.nvmc.uscg.gov).

(5) To complete the ENOA correctly for Seaway entry, select the following:

(i) “CIP 2” as the Arrival Port,

(ii) “Foreign to Saint Lawrence Seaway” as the Voyage Type, and

(iii) “Saint Lawrence Seaway Transit” as the Arrival State, City and Receiving Facility.

(b) For the Vessel Inspection Program:

(1) Foreign flagged vessels are subject to an Enhanced Ship Inspections (ESI)—physical ship inspection once every two navigation seasons. Agents must provide the Seaway Ship Inspectors via email an initial 120 hours' notice of inspection (ESI or self-inspection) prior to the vessel's arrival at CIP2. An additional 24 hours' notice for an ESI (physical inspection) prior to the vessel arriving at CIP 2 is also required. (email to: inspecteursvm@seaway.ca and to vtc@dot.gov).

(2) Foreign flagged vessels may be permitted a Self-Inspection in the interim season subject to satisfactory performance. As such, vessels must complete and submit the “Seaway Ship Inspection Report” electronically to inspecteursvm@seaway.ca and to vtc@dot.gov 120 hours prior to transiting the Seaway.

(3) The ESI or self-inspection is required on the first transit of the navigation season.

(4) Inland domestic vessels which are approved by the Seaway for the “Self-Inspection Program” and are ISM certified and have a company quality management system, must submit the “Seaway Ship Inspection Report” every 2 navigation seasons and not later than 30 days after “fit out”. A “Seaway Ship Inspection Report” must be submitted electronically to nrshipinspectors@seaway.ca.

(5) Inland domestic vessels not participating in the “Self-Inspection Program” are subject to a Seaway inspection every 2 navigation seasons.

(6) Tug/barge combinations not on the “Seaway Approved Tow” list are subject to Seaway inspection prior to every transit of the Seaway unless provided with a valid Inspection Report for a round trip transit.

(7) A tall vessel, passenger vessel, or vessel of an unusual design is subject to Seaway yearly ESI.

(8) The ESI or self-inspection is required on the first transit of the navigation season.

[89 FR 15961, Mar. 6, 2024, as amended at 91 FR 12692, Mar. 17, 2026]

§ 401.80 Reporting dangerous cargo.

(a) The master of any explosive vessel or hazardous cargo vessel shall report to a Seaway station, as set out in Schedule III, the nature, quantity, and IMO classification of the dangerous cargo and where it is stowed on the vessel.

(b) The master of any vessel, that takes on explosive or hazardous cargo while in the Seaway, shall report to the nearest Seaway station at least four hours prior to commencing transit from a port, dock or wharf, the nature, quantity and IMO classification of the dangerous cargo and where it is stowed on the vessel.

(c) Vessels carrying “Certain Dangerous Cargo” (CDC) as defined in the United States Coast Guard regulations 33 CFR 160.202, which is the same as the definition in the Transport Canada “Marine Transportation Security Regulations” (MTSR's), shall report the “Certain Dangerous Cargo” to the nearest Seaway station prior to a Seaway transit.

(68 Stat. 93-96, 33 U.S.C. 981-990, as amended and secs. 4, 5, 6, 7, 8, 12 and 13 of sec. 2 of Pub. L. 95-474, 92 Stat. 1471)

[48 FR 20691, May 9, 1983, as amended at 81 FR 13746, Mar. 15, 2016]

§ 401.81 Reporting an accident.

(a) Where a vessel on the Seaway is involved in an accident or a dangerous occurrence, the master of the vessel shall report the accident or occurrence, pursuant to the requirements of the Transportation Safety Board Regulations, to the nearest Seaway station and Transport Canada Marine Safety or U.S. Coast Guard office as soon as possible and prior to departing the Seaway system.

(b) Where a vessel approaching the Seaway with intent to transit has been involved in an accident in the course of its last voyage that might affect its ability to transit safely and expeditiously, the master of the vessel shall report the accident to the nearest Seaway station before entering the Seaway.

[39 FR 10900, Mar. 22, 1974, as amended at 40 FR 11721, Mar. 13, 1975; 65 FR 52915, Aug. 31, 2000; 70 FR 12973, Mar. 17, 2005; 71 FR 5607, Feb. 2, 2006; 74 FR 18995, Apr. 27, 2009]

§ 401.82 Reporting mast height.

A vessel, any part of which extends more than 33.5 m above water level, shall not transit any part of the Seaway until precise information concerning the height of the vessel has been furnished to the nearest Seaway station.

(68 Stat. 93-96, 33 U.S.C. 981-990, as amended and secs. 4, 5, 6, 7, 8, 12 and 13 of sec. 2 of Pub. L. 95-474, 92 Stat. 1471)

[48 FR 20691, May 9, 1983]

§ 401.83 Reporting position at anchor, wharf, etc.

A vessel anchoring in a designated anchorage area, or elsewhere, and a vessel mooring at a wharf or dock, tying-up to a canal bank or being held on a canal bank in any manner shall immediately report its position to the traffic controller and it shall not resume its voyage without the traffic controller's permission.

[73 FR 9954, Feb. 25, 2008]

§ 401.84 Reporting of impairment or other hazard by vessels transiting within the Seaway.

While transiting the Seaway, the master of a vessel shall immediately report to the nearest Seaway station:

(a) Any condition of the vessel that might impair its ability to transit safely and expeditiously;

(b) Any hazardous condition of the vessel;

(c) Any malfunction of equipment on the vessel;

(d) Any modification or malfunction on the vessel of equipment and machinery that is noted as operational in the current “Enhanced Ship Inspection” or “Self-Inspection” of the vessel;

(e) Any difficulty on the part of the vessel in controlling its tow or tows;

(f) Any hazard, dangerous situation or malfunctioning aid to navigation which has not been published in a Notice to Mariners;

(g) Any loss of anchor with particulars of the precise location of the loss; and

(h) Any location where visibility is less than one nautical mile.

[45 FR 52380, Aug. 7, 1980, as amended at 47 FR 51124, Nov. 12, 1982; 61 FR 19552, May 2, 1996; 65 FR 52915, Aug. 31, 2000; 77 FR 40805, July 11, 2012; 89 FR 15962, Mar. 6, 2024; 90 FR 1884, Jan. 10, 2025]

§ 401.85 Reporting of impairment or other hazard by vessels intending to transit the Seaway.

The master of any vessel which intends to transit the Seaway shall report to the nearest Seaway Station, prior to entering the Seaway, any of the conditions set out in paragraphs (a) through (d) of § 401.84.

(68 Stat. 93-96, 33 U.S.C. 981-990, as amended and secs. 4, 5, 6, 7, 8, 12 and 13 of sec. 2 of Pub. L. 95-474, 92 Stat. 1471)

[45 FR 52380, Aug. 7, 1980]

§ 401.86 Security for damages or injury.

An officer may detain a vessel that causes:

(a) Damage to property of the Corporation;

(b) Damage to goods or cargo stored on property of the Corporation; or

(c) Injury to employees of the Corporation; until security satisfactory to the Corporation has been provided.

[39 FR 10900, Mar. 22, 1974, as amended at 65 FR 52915, Aug. 31, 2000]

§ 401.87 Detention for toll arrears or violations.

(a) An officer may detain a vessel where:

(1) The tolls or charges levied against the vessel have not been paid; or

(2) A violation of these Regulations has taken place in respect of the vessel.

(b) A vessel detained pursuant to paragraph (a)(1) of this section shall be released when the unpaid tolls or charges are paid.

(c) A vessel detained pursuant to paragraph (a)(2) of this section may be released when a sum of money in an amount, determined by the Corporation to be the maximum fine or civil penalty that may be imposed for the violation in respect of which the vessel has been detained, is deposited with the Corporation as security for the payment of any fine or civil penalty that may be imposed.

(d) Where a sum of money has been deposited pursuant to paragraph (c) of this section, the Corporation may:

(1) Return the deposit;

(2) Hold the deposit in trust as security for the payment of any fine that may be imposed; or

(3) Retain the deposit if the depositor agrees to retention by the Corporation of the sum deposited.

(e) Although the depositor may have agreed to retention by the Authority of an amount deposited under paragraph (c) of this section, he may bring an action for the recovery of the amount deposited on the ground that there has been no violation of the regulations in this part.

[39 FR 10900, Mar. 22, 1974, as amended at 65 FR 52915, Aug. 31, 2000]

§ 401.88 Power of sale for toll arrears.

(a) Where a vessel has been detained pursuant to § 401.87(a) and payment of the tolls and charges or the fine imposed has not been made within a reasonable time after

(1) The time of the detention, in the case of arrears of tolls and charges, or

(2) The imposition of the fine or penalty, in the case of a violation, the Corporation may direct that the vessel or its cargo or any part thereof be seized and sold subject to and in accordance with an order of a court of competent jurisdiction.

(b) The Corporation may, after giving such notice as it deems reasonable to the representative of the vessel, sell the vessel or cargo seized pursuant to paragraph (a) of this section.

(c) An amount equal to the cost of the detention, seizure and sale, and

(1) The tolls and charges payable, or

(2) The fine or penalty imposed on conviction, shall be deducted from the proceeds of a sale pursuant to paragraph (b) of this section, and the balance shall be paid to the owner of the vessel or cargo or the mortgagee thereof, as the case may be.

(68 Stat. 93-96, 33 U.S.C. 981-990, as amended and secs. 4, 5, 6, 7, 8, 12 and 13 of sec. 2 of Pub. L. 95-474, 92 Stat. 1471)

[39 FR 10900, Mar. 22, 1974, as amended at 41 FR 12227, Mar. 24, 1976; 47 FR 51124, Nov. 12, 1982; 65 FR 52915, Aug. 31, 2000]

§ 401.89 Transit refused.

(a) An officer may refuse to allow a vessel to transit when,

(1) The vessel is not equipped in accordance with §§ 401.5 to 401.19 and subsections (e) to (j) of Schedule I of subpart A of this part when transiting the Canadian waters of the Seaway;

(2) The vessel, its cargo, equipment or machinery are in a condition that will prevent safe or expeditious transit by that vessel; or

(3) The vessel is manned with a crew that is incompetent or inadequate.

(4) The vessel is not in compliance with Transport Canada Marine Safety and Security, flag state and/or classification society regulations.

(b) [Reserved]

[39 FR 10900, Mar. 22, 1974, as amended at 61 FR 19552, May 2, 1996; 65 FR 52915, Aug. 31, 2000; 77 FR 40805, July 11, 2012; 82 FR 12420, Mar. 3, 2017]

§ 401.90 Boarding for inspections.

(a) For the purpose of enforcing these Regulations in this part in both Canadian and U.S. waters, an officer may board any vessel and:

(1) Examine the vessel, its equipment and cargo; and

(2) Determine that the vessel is adequately manned.

(b) In addition to § 401.90(a)(1) and (2) in Canadian waters, a Manager's officer may also:

(1) Require any person appearing to be in charge of the vessel to produce for inspection, or for the purpose of making copies or extracts, any log book, document or paper; and

(2) In carrying out an inspection:

(i) Use or cause to be used any computer system or data processing system on the vessel to examine any data contained in, or available to, the system;

(ii) Reproduce any record, or cause it to be reproduced from the data, in the form of a print-out or other intelligible output and remove the print-out or other output for examination or copying; and

(iii) Use or cause to be used any copying equipment in the vessel to make copies of any books, records, electronic data or other documents.

(c) In Canadian waters, the owner or person who is in possession or control of a vessel that is inspected, and every person who is found on the vessel, shall:

(1) Give the officer all reasonable assistance to enable the officer to carry out the inspection and exercise any power conferred by the Canada Marine Act; and

(2) Provide the officer with any information relevant to the administration of these practices and procedures that the officer may reasonably require.

(d) Vessels shall provide a safe and approved means of boarding. Pigeon holes are not accepted as a means of boarding and an alternate safe means of access shall be provided.

[65 FR 52915, Aug. 31, 2000; 65 FR 56486, Sept. 19, 2000, as amended at 75 FR 10690, Mar. 9, 2010; 88 FR 14268, Mar. 8, 2023]

§ 401.91 Removal of obstructions.

The Corporation or the Manager may, at the owner's expense, move any vessel, cargo, or thing that obstructs or hinders transit on any part of the Seaway.

[61 FR 19552, May 2, 1996, as amended at 65 FR 52915, Aug. 31, 2000]

§ 401.92 Wintering and laying-up.

No vessel shall winter within the Seaway or lay-up within the Seaway during the navigation season except with the written permission of the Manager or the Corporation and subject to the conditions and charges that may be imposed.

[77 FR 40805, July 11, 2012]

§ 401.93 Access to Seaway property.

(a) Except as authorized by an officer, no person shall load or unload goods on property of the Corporation or the Manager.

(b) Except as authorized by an officer or by the Seaway Property Regulations or its successors, no person shall enter upon any land or structure of the Manager or the Corporation or in any Seaway canal or lock area.

[39 FR 10900, Mar. 22, 1974, as amended at 65 FR 52915, Aug. 31, 2000; 72 FR 2620, Jan. 22, 2007]

§ 401.94 Keeping copies of documents.

(a) A paper copy of the vessel's valid Ship Inspection Report shall be kept on board every vessel in transit. It must be easily accessible in the wheelhouse.

(b) A paper or electronic copy of this subpart (the “Rules and Regulations”) and the Seaway Notices for the current navigation year shall be kept easily accessible in the wheelhouse of every vessel in transit.

(c) Onboard every vessel transiting the Seaway, a duplicate set of the vessel's Fire Control Plans shall be permanently stored in a prominently marked weather-tight enclosure outside the deckhouse for the assistance of shore side fire-fighting personnel.

[90 FR 1884, Jan. 10, 2025]

§ 401.95 Compliance with regulations.

The master or owner of a vessel shall ensure that all requirements of these Regulations and Seaway Notices applicable to that vessel are complied with.

[70 FR 12973, Mar. 17, 2005]

§ 401.96 Definitions.

In § 410.97:

(a) Clearance date means the date designated in each year by the Corporation and the Manager as the date by which vessels must report at the applicable calling in point referred to in § 401.97(c) for final transit of the Montreal-Lake Ontario Section of the Seaway;

(b) Closing date means the date designated in each year by the Corporation and the Manager as the date on which the Seaway is closed to vessels at the end of the navigation season;

(c) Closing period means the period that commences on the date designated in each year by the Corporation and the Manager as the date on which the closing procedures in § 401.97 apply and that ends on the closing date;

(d) Montreal-Lake Ontario Section of the Seaway means the portion of the Seaway between the Port of Montreal and mid-Lake Ontario;

(e) Wintering vessel means a vessel that enters the Seaway upbound after a date designated each year by the Corporation and the Manager and transits above Iroquois Lock.

(68 Stat. 92-97, 33 U.S.C. 981-990, as amended and sec. 104, Pub. L. 95-474, sec. 2, 92 Stat. 1472; 68 Stat. 93-96, 33 U.S.C. 981-990, as amended and secs. 4, 5, 6, 7, 8, 12 and 13 of sec. 2 of Pub. L. 95-474, 92 Stat. 1471)

[47 FR 51124, Nov. 12, 1982, as amended at 65 FR 52915, Aug. 31, 2000; 74 FR 18995, Apr. 27, 2009]

§ 401.97 Closing procedures and ice navigation.

(a) No wintering vessel shall return downbound through the Montreal-Lake Ontario Section of the Seaway in the same navigation season in which it entered the Seaway unless the transit is authorized by the Corporation and the Manager.

(b) No vessel shall transit the Montreal-Lake Ontario Section of the Seaway during the closing period in a navigation season unless

(1) It reports at the applicable calling in point referred to in paragraph (c) of this section on or before the clearance date in that navigation season; or

(2) It reports at the applicable calling in point referred to in paragraph (c) of this section within a period of 96 hours after the clearance date in that navigation season, it complies with the provisions of the agreement between Canada and the United States, known as the St. Lawrence Seaway Tariff of Tolls and the transit is authorized by the Corporation and the Manager.

(c) For the purposes of paragraph (b) of this section, the calling in point is,

(1) In the case of an upbound vessel, Cape St. Michel; and

(2) In the case of a downbound vessel, Cape Vincent.

(d) No vessel shall transit the Montreal-Lake Ontario Section of the Seaway after the period of 96 hours referred to in paragraph (b)(2) of this section unless the transit is authorized by the Corporation and the Manager.

(e) Every vessel that, during a closing period, enters the Montreal-Lake Ontario Section of the Seaway, upbound or downbound, or departs upbound from any port, dock, wharf or anchorage in that Section shall,

(1) At the time of such entry or departure, report to the nearest Seaway station the furthermost destination of the vessel's voyage and any intermediate destinations within that Section; and

(2) At the time of any change in those destinations, report such changes to the nearest Seaway station.

(f) Where ice conditions restrict navigation,

(1) No upbound vessel that has a power to length ratio of less than 24:1 (kW/meter) and a forward draft of less than 50 dm, and

(2) No downbound vessel that has a power to length ratio of less than 15:1 (kW/meter) and a forward draft of less than 25 dm shall transit between the St. Lambert Lock and the Iroquois Lock of the Montreal-Lake Ontario Section of the Seaway and CIP 15 and CIP 16 of the Welland Canal.

(68 Stat. 93-96, 33 U.S.C. 981-990, as amended and secs. 4, 5, 6, 7, 8, 12 and 13 of sec. 2 of Pub. L. 95-474, 92 Stat. 1471)

[47 FR 51124, Nov. 12, 1982, as amended at 48 FR 20691, May 9, 1983; 48 FR 39934, Sept. 2, 1983; 65 FR 52915, Aug. 31, 2000; 74 FR 18995, Apr. 27, 2009]

§ 401.101 Criminal penalty.

(a) A person who willfully and knowingly violates a regulation shall be fined not more than $50,000 for each violation or imprisoned for not more than five years, or both, and any person who, in the willful and knowing violation of this Act or any regulation issued hereunder, uses a dangerous weapon, or engages in conduct that causes bodily injury or fear of imminent bodily injury to any officer authorized to enforce the provisions of this Act or the regulations issued hereunder, shall, in lieu of the penalties prescribed in this paragraph be fined not more than $100,000 or imprisoned for not more than ten years, or both.

(b) For the purpose of paragraph (a) of this section, a “person” is deemed to be anyone who

(1) Handles any vessel contrary to the provisions of these regulations or of any rules or directions of the Corporation, or an officer thereof, given under the regulations;

(2) Is a party to any act described in paragraph (b)(1) of this section; or

(3) Is the owner, charterer or master of any vessel by means of which any act described in paragraph (b)(1) of this section is committed.

[39 FR 12746, Apr. 8, 1974, as amended at 47 FR 20582, May 23, 1982]

§ 401.102 Civil penalty.

(a) A person, as described in § 401.101(b) who violates a regulation in this chapter is liable to a civil penalty of not more than $117,608.

(b) In assessing or collecting any civil penalty incurred under paragraph (a) of this section, the Corporation may, in its discretion, remit, mitigate or compromise any penalty.

(c) Upon failure to collect a penalty levied under this section, the Corporation may request the United States Attorney General to commence any action for collection in any district court of the United States. A vessel by means of which a violation of a regulation is committed shall be liable in rem and may be proceeded against accordingly.

[39 FR 12746, Apr. 8, 1974, as amended at 47 FR 20582, May 23, 1982; 61 FR 54734, Oct. 22, 1996; 67 FR 67113, Nov. 4, 2002; 71 FR 66113, Nov. 13, 2006; 81 FR 41818, June 28, 2016; 82 FR 4173, Jan. 13, 2017; 83 FR 60743, Nov. 27, 2018; 84 FR 37070, July 31, 2019; 86 FR 1755, Jan. 11, 2021; 86 FR 23251, May 3, 2021; 87 FR 15865, Mar. 21, 2022; 88 FR 1124, Jan. 6, 2023; 88 FR 89559, Dec. 28, 2023; 89 FR 106293, Dec. 30, 2024]

§ 401.201 Delegation of authority.

(a) The Secretary of Transportation, by 49 CFR 1.52 (a) has delegated to the Administrator of the Saint Lawrence Seaway Development Corporation the authority vested in the Secretary under sections 4, 5, 6, 7, 8, 12 and 13 of Sec. 2 of the Port and Tanker Safety Act of 1978, Pub. L. 95-474 (92 Stat. 1471), as it pertains to the operation of the Saint Lawrence Seaway.

(b) The Administrator hereby authorizes the Corporation's Associate Administrator to administer this statute in accordance with the procedures set forth in this subpart.

(68 Stat. 93-96, 33 U.S.C. 981-990, as amended; sec. 104, Pub. L. 92-340, 86 Stat. 424 and secs. 12 and 13 at sec. 2 of Pub. L. 95-474, 92 Stat. 1471, and 49 CFR 1.52)

[50 FR 10963, Mar. 19, 1985, as amended at 51 FR 4340, Feb. 4, 1986]

§ 401.202 Statute providing for assessment, mitigation or remission of civil penalties.

Section 13 of sec. 2 of the Port and Tanker Safety Act of 1978 authorizes the assessment and collection of a civil penalty of not more than $25,000 from anyone who violates a regulation issued under that section.

(68 Stat. 93-96, 33 U.S.C. 981-990, as amended; and secs. 12 and 13 of sec. 2 of Pub. L. 95-474, 92 Stat. 1471)

[47 FR 20582, May 13, 1982]

§ 401.203 Reports of violations of Seaway regulations and instituting and conducting civil penalty proceedings.

(a) Violations of Seaway Regulations, Subpart A of this part, will be brought to the attention of the alleged violator at the time of detection whenever possible. When appropriate, there will be a written notification of the fact of the violation. This notification will set forth the time and nature of the violation and advise the alleged violator relative to the administrative procedure employed in processing civil penalty cases. The alleged violator will be advised that he or she has 15 days in which to appear before the Associate Administrator or submit a written statement for consideration. The Associate Administrator shall, upon expiration of the 15-day period, determine whether there has been a violation of the Seaway Regulations.

(b) If the Associate Administrator decides that a violation of Seaway Regulations has occurred, a determination will be made as to whether to invoke no penalty at all and close the case or whether to invoke a part or full statutory penalty. In either event, a written notice of the decision shall be given to advise the violator. If a penalty is assessed, such notice will advise the violator of the right to petition for relief within 15 days or such longer period as the Associate Administrator, in his or her discretion, may allow. The Associate Administrator may mitigate the penalty or remit it in full, except as the latter action is limited to paragraph (f) of this section. The violator may appear in person before the Associate Administrator. If the violator does not apply for relief but instead maintains that he or she has not committed the violation(s) charged, and the Associate Administrator, upon review, concludes that invocation of the penalty was proper, no remission or mitigation action will be taken. On the other hand, should the violator petition the Associate Administrator for relief without contesting the determination that violation did, in fact, occur, relief may be granted as the circumstances may warrant.

(c) When the penalty is mitigated, such mitigation will be made conditional upon payment of the balance within 15 days of notice or within such other longer period of time as the Associate Administrator, in his or her discretion, may allow.

(d) The violator may appeal to the Administrator from the action of the Associate Administrator. Any such appeal shall be submitted to the Administrator through the Associate Administrator within 15 days of the date of notification by the Associate Administrator, or such longer period of time as the Associate Administrator, in his or her discretions, may allow.

(e) Should the alleged violator require additional time to present matters favorable to the case at any stage of these penalty proceedings, a request for additional time shall be addressed to the Associate Administrator who will grant a reasonable extension of time where sufficient justification is shown.

(f) Under the following circumstances, the Corporation's Chief Counsel shall forward cases involving violations of the Seaway Regulations to the United States Attorney with the recommendation that action be taken to collect the assessed statutory penalty:

(1) When, within the prescribed time, the violator does not explain the violation, appeal for mitigation or remission, or otherwise respond to written notices from the Associate Administrator; or

(2) When, having responded to such inquiries, the violator fails or refuses to pay the assessed or mitigated penalty, or to appeal to the Administrator, within the time prescribed; or

(3) When the violator denies that the violation(s) was committed by him or her, the Associate Administrator, upon review, disagrees and the violator thereafter fails to appeal to the Administrator, or to remit payment of the assessed penalty within the time prescribed (see paragraph (b) of this section); or

(4) When the violator fails to pay within the prescribed time the penalty as determined by the Administrator after consideration of the violator's appeal from the action of the Associate Administrator.

(g) If a report of boarding or an investigation report submitted by a Corporation employee or investigative body discloses evidence of violation of a Federal criminal statute, the Corporation's Chief Counsel, in accordance with § 401.204, shall refer the findings to the United States Attorney for appropriate action.

(68 Stat. 93-96, 33 U.S.C. 981-990, as amended sec. 104, Pub. L. 92-340 86 Stat. 424 and secs. 12 and 13 of sec. 2 of Pub. L. 95-474, 92 Stat. 1471, and 49 CFR 1.52)

[50 FR 10963, Mar. 19, 1985, as amended at 51 FR 4340, Feb. 4, 1986]

§ 401.204 Criminal penalties.

(a) Prosecution in the Federal courts for violations of Seaway Regulations enforced by the Corporation that provide, upon conviction, for punishment by fine or imprisonment is a matter finally determined the Department of Justice. This final determination consists of deciding whether and under what conditions to prosecute or to abandon prosecution.

(b) The Corporation's Chief Counsel is hereby authorized to determine whether or not a violation of the Seaway Regulations carrying a criminal penalty is one that would justify referral of the case to the U.S. Attorney.

(c) The Corporation's Chief Counsel will identify the regulations that were violated and make specific recommendations concerning the proceedings to be instituted by the U.S. Attorney in every case.

(d) Referral of a case to the U.S. Attorney for prosecution terminates the Corporation's authority with respect to the criminal aspects of a violation.

(68 Stat. 93-96, 33 U.S.C. 981-990, as amended sec. 104, Pub. L. 92-340 86 Stat. 424 and secs. 12 and 13 of sec. 2 of Pub. L. 95-474, 92 Stat. 1471, and 49 CFR 1.52)

[50 FR 10963, Mar. 19, 1985]

§ 401.205 Civil and criminal penalties.

(a) If the violation of the Seaway Regulations carries a criminal penalty, the Corporation's Chief Counsel is hereby authorized to determine whether to refer the case to the U.S. Attorney for prosecution in accordance with § 401.204, which outlines the appropriate procedure for handling criminal cases.

(b) The decision of the U.S. Attorney as to whether to institute criminal proceedings shall not bar the initiation of civil penalty proceedings by the Associate Administrator.

(68 Stat. 93-96, 33 U.S.C. 981-990, as amended sec. 104, Pub. L. 92-340 86 Stat. 424 and secs. 12 and 13 of sec. 2 of Pub. L. 95-474, 92 Stat. 1471, and 49 CFR 1.52)

[50 FR 10963, Mar. 19, 1985, as amended at 51 FR 4341, Feb. 4, 1986]

§ 401.206 Procedure for payment of civil penalty for violation of the Seaway regulations.

(a) The payment must be by money order or certified check payable to the order of the Saint Lawrence Seaway Development Corporation and mailed to the Comptroller. If the payment is made in person at the offices of the Saint Lawrence Seaway Development Corporation, the payment may be in cash or by postal money order or check payable to the order of the Saint Lawrence Seaway Development Corporation.

(b) The payment of any penalty will be acknowledged by written receipt.

(c) If the penalty paid is determined by the Associate Administrator to have been improperly or excessively imposed, the payor will be notified and requested to submit an application for a refund which should be mailed to the Saint Lawrence Seaway Development Corporation, attention of the Chief Engineer. Such application must be made by the payor within one year of the date of notification provided for in this section.

(d) In the event the alleged violator is about to leave the jurisdiction of the United States, he or she will be required, before being allowed to depart, to post a bond in the amount and manner suitable to the Associate Administrator, from which bond any subsequent assessed or mitigated penalty may be satisfied.

(68 Stat. 93-96, 33 U.S.C. 981-990, as amended sec. 104, Pub. L. 92-340 86 Stat. 424 and secs. 12 and 13 of sec. 2 of Pub. L. 95-474, 92 Stat. 1471, and 49 CFR 1.52)

[50 FR 10964, Mar. 19, 1985, as amended at 51 FR 4341, Feb. 4, 1986]