CFR 2020 Title33 Vol3

Title 33
Navigation and Navigable Waters

Part 200 to End
Revised as of July 1, 2020
Containing a codification of documents

of general applicability and future effect
As of July 1, 2020
Published by the Office of the Federal Register

National Archives and Records Administration
as a Special Edition of the Federal Register
kpayne on VMOFRWIN702 with $$_JOB
VerDate Sep<11>2014 12:40 Aug 20, 2020 Jkt 250139 PO 00000 Frm 00001 Fmt 8091 Sfmt 8091 Q:\33\33V3.TXT PC31
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Table of Contents
Page
Explanation ................................................................................................ v
Title 33:
Chapter II—Corps of Engineers, Department of the Army, Depart-

ment of Defense ........................................................................... 3
Chapter IV—Saint Lawrence Seaway Development Corporation,

Department of Transportation .................................................... 697
Finding Aids:
Table of CFR Titles and Chapters ....................................................... 747
Alphabetical List of Agencies Appearing in the CFR ......................... 767
List of CFR Sections Affected ............................................................. 777

iii
Cite this Code: CFR
To cite the regulations in

this volume use title,
part and section num-
ber. Thus, 33 CFR
203.11 refers to title 33,
part 203, section 11.
iv
Explanation
The Code of Federal Regulations is a codification of the general and permanent
rules published in the Federal Register by the Executive departments and agen-
cies of the Federal Government. The Code is divided into 50 titles which represent
broad areas subject to Federal regulation. Each title is divided into chapters
which usually bear the name of the issuing agency. Each chapter is further sub-
divided into parts covering specific regulatory areas.
Each volume of the Code is revised at least once each calendar year and issued
on a quarterly basis approximately as follows:
Title 1 through Title 16..............................................................as of January 1
Title 17 through Title 27 .................................................................as of April 1
Title 28 through Title 41 ..................................................................as of July 1
Title 42 through Title 50 .............................................................as of October 1
The appropriate revision date is printed on the cover of each volume.
LEGAL STATUS
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vi
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OLIVER A. POTTS,
Director,
Office of the Federal Register
July 1, 2020
vii
THIS TITLE
Title 33—NAVIGATION AND NAVIGABLE WATERS is composed of three volumes.

The contents of these volumes represent all current regulations codified under
this title of the CFR as of July 1, 2020. The first and second volumes, parts 1–
124 and 125–199, contain current regulations of the Coast Guard, Department of
Homeland Security. The third volume, part 200 to end, contains current regula-
tions of the Corps of Engineers, Department of the Army, Department of Defense
and the Saint Lawrence Seaway Development Corporation, Department of Trans-
portation.
For this volume, Gabrielle E. Burns was Chief Editor. The Code of Federal
Regulations publication program is under the direction of John Hyrum Martinez,
assisted by Stephen J. Frattini.
ix
Title 33—Navigation
and Navigable Waters
(This book contains part 200 to end)
Part
CHAPTER II—Corps of Engineers, Department of the Army,

Department of Defense ....................................................... 203
CHAPTER IV—Saint Lawrence Seaway Development Corpora-
tion, Department of Transportation .................................. 401
CROSS REFERENCE: For research and development, laboratory research and development and
tests, work for others regulations, see 32 CFR part 555.
ABBREVIATION USED IN CHAPTER II:

CE = Corps of Engineers.
CHAPTER II—CORPS OF ENGINEERS,
DEPARTMENT OF THE ARMY, DEPARTMENT OF
DEFENSE
EDITORIAL NOTE: Other regulations issued by the Department of the Army appear in Title
32, Chapter V; Title 33, Chapter II; and Title 36, Chapter III, of the Code of Federal Regula-
tions.
Part Page
200–202 [Reserved]
203 Emergency employment of Army and other re-
sources, natural disaster procedures .................... 5
207 Navigation regulations ........................................... 26
208 Flood control regulations ....................................... 106
209 Administrative procedure ....................................... 135
210 Procurement activities of the Corps of Engineers .. 160
214 Emergency supplies of drinking water .................... 178
220 Design criteria for dam and lake projects ............... 180
221 Work for others ....................................................... 181
222 Engineering and design ........................................... 198
223 Boards, commissions, and committees .................... 295
230 Procedures for implementing NEPA ....................... 296
236 Water resource policies and authorities: Corps of
Engineers participation in improvements for en-
vironmental quality ............................................. 308
238 Water resources policies and authorities: Flood
damage reduction measures in urban areas ......... 310
239 Water resources policies and authorities: Federal
participation in covered flood control channels .. 313
240 General credit for flood control .............................. 315
241 Flood control cost-sharing requirements under the
ability to pay provision ........................................ 321
242 Flood Plain Management Services Program estab-
lishment of fees for cost recovery ........................ 327
245 Removal of wrecks and other obstructions ............. 328
263 Continuing authorities programs ............................ 332
273 Aquatic plant control .............................................. 350

274 Pest control program for civil works projects ........ 355
33 CFR Ch. II (7–1–20 Edition)
Part Page
276 Water resources policies and authorities: Applica-
tion of section 134a of Public Law 94–587 .............. 359
277 Water resources policies and authorities: Naviga-
tion policy: Cost apportionment of bridge alter-
ations ................................................................... 362
279 Resource use: Establishment of objectives ............. 370
320 General regulatory policies ..................................... 375
321 Permits for dams and dikes in navigable waters of
the United States ................................................. 388
322 Permits for structures or work in or affecting nav-
igable waters of the United States ....................... 389
323 Permits for discharges of dredged or fill material
into waters of the United States .......................... 397
324 Permits for ocean dumping of dredged material ..... 404
325 Processing of Department of the Army permits ..... 405
326 Enforcement ............................................................ 435
327 Public hearings ....................................................... 446
328 Definition of waters of the United States ............... 449
329 Definition of navigable waters of the United States 453
330 Nationwide permit program .................................... 458
331 Administrative appeal process ................................ 469
332 Compensatory mitigation for losses of aquatic re-
sources ................................................................. 484
334 Danger zone and restricted area regulations .......... 514
335 Operation and maintenance of Army Corps of Engi-
neers civil works projects involving the dis-
charge of dredged or fill material into waters of
the U.S. or ocean waters ...................................... 631
336 Factors to be considered in the evaluation of Army
Corps of Engineers dredging projects involving
the discharge of dredged material into waters of
the U.S. and ocean waters .................................... 633
337 Practice and procedure ........................................... 640
338 Other Corps activities involving the discharge of
dredged material or fill into waters of the U.S. ... 647
384 Intergovernmental review of Department of the
Army Corps of Engineers programs and activities 648
385 Programmatic regulations for the comprehensive
Everglades Restoration Plan ................................ 650
386–399 [Reserved]
PARTS 200–202 [RESERVED] 203.72 Eligibility criteria and procedures.
Subpart G—Local Interests/Cooperation

PART 203—EMERGENCY EMPLOY- Agreements
MENT OF ARMY AND OTHER RE-
SOURCES, NATURAL DISASTER 203.81 General.
PROCEDURES 203.82 Requirements of local cooperation.
203.83 Additional requirements.
203.84 Forms of local participation—cost
Subpart A—Introduction
sharing.
Sec. 203.85 Rehabilitation of Federal flood con-
203.11 Purpose. trol projects.
203.12 Authority. 203.86 Transfer of completed work to local
203.13 Available assistance. interests.
203.14 Responsibilities of non-Federal inter-
ests. AUTHORITY: 33 U.S.C. 701n.
203.15 Definitions. SOURCE: 68 FR 19359, Apr. 21, 2003, unless
203.16 Federally recognized Indian Tribes otherwise noted.
and the Alaska Native Corporations.
Subpart B—Disaster Preparedness Subpart A—Introduction

203.21 Disaster preparedness responsibilities § 203.11 Purpose.
of non-Federal interests.
This part prescribes administrative
Subpart C—Emergency Operations policies, guidance, and operating proce-
203.31 Authority. dures for natural disaster preparedness,
203.32 Policy. response, and recovery activities of the
United States Army Corps of Engi-
Subpart D—Rehabilitation Assistance for neers.
Flood Control Works Damaged by
Flood or Coastal Storm: The Corps Re- § 203.12 Authority.
habilitation and Inspection Program Section 5 of the Flood Control Act of
203.41 General. 1941, as amended, (33 U.S.C. 701n) (69
203.42 Inspection of non-Federal flood con- Stat. 186), commonly and hereinafter
trol works. referred to as Public Law 84–99, author-
203.43 Inspection of Federal flood control izes an emergency fund to be expended
works. at the discretion of the Chief of Engi-
203.44 Rehabilitation of non-Federal flood
control works.
neers for: preparation for natural disas-
203.45 Rehabilitation of Federal flood con- ters; flood fighting and rescue oper-
trol works. ations; repair or restoration of flood
203.46 Restrictions. control works threatened, damaged, or
203.47 Modifications to non-Federal flood destroyed by flood, or nonstructural al-
control works. ternatives thereto; emergency protec-
203.48 Inspection guidelines for non-Federal tion of federally authorized hurricane
flood control works.
203.49 Rehabilitation of Hurricane and or shore protection projects which are
Shore Protection Projects. threatened, when such protection is
203.50 Nonstructural alternatives to reha- warranted to protect against imminent
bilitation of flood control works. and substantial loss to life and prop-
203.51 Levee owner’s manual. erty; and repair and restoration of fed-
203.52 [Reserved] erally authorized hurricane or shore
protection projects damaged or de-
Subpart E—Emergency Water Supplies:
stroyed by wind, wave, or water of
Contaminated Water Sources and
other than ordinary nature. The law
Drought Assistance
includes provision of emergency sup-
203.61 Emergency water supplies due to con- plies of clean water when a contami-
taminated water source. nated source threatens the public
203.62 Drought assistance. health and welfare of a locality, and
activities necessary to protect life and
Subpart F—Advance Measures

improved property from a threat re-
203.71 Policy. sulting from a major flood or coastal
§ 203.13 33 CFR Ch. II (7–1–20 Edition)
storm. This law authorizes the Sec- status that are damaged in a flood or
retary of the Army (Secretary) to con- coastal storm event. Subpart D ad-
struct wells and to transport water dresses Rehabilitation Assistance and
within areas determined by the Sec- the RIP.
retary to be drought-distressed. The (d) Emergency water supplies due to
Secretary of the Army has delegated contaminated water source. The Corps
the authority vested in the Secretary may provide emergency supplies of
under Public Law 84–99 through the As- clean water to any locality confronted
sistant Secretary of the Army (Civil with a source of contaminated water
Works) to the Chief of Engineers, sub- causing, or likely to cause, a substan-
ject to such further direction as the tial threat to the public health and
Secretary may provide. welfare of the inhabitants of the local-
ity. Subpart E addresses emergency
§ 203.13 Available assistance.
water supply assistance.
Corps assistance provided under au- (e) Drought assistance. Corps assist-
thority of Public Law 84–99 is intended ance may be provided to drought-dis-
to be supplemental to State and local tressed areas (as declared by the Sec-
efforts. The principal assistance pro- retary of the Army or his delegated
grams and activities of the Corps are nominee) to construct wells and to
described in this section. transport water for human consump-
(a) Disaster preparedness. Technical tion. Subpart E addresses drought as-
assistance for many types of disasters sistance.
is available to State and local inter- (f) Advance Measures. Advance Meas-
ests. Primary Corps efforts are focused ures assistance may be provided to pro-
on technical assistance for, and inspec-
tect against imminent threats of pre-
tions of, flood control works, and re-
dicted, but unusual, floods. Advance
lated flood fight preparedness and
Measures projects must be justified
training activities. Technical assist-
from an engineering and economic
ance for specialized studies, project de-
standpoint, and must be capable of
velopment, and related activities, and
completion in a timely manner. Ad-
requirements for long term assistance,
vance Measures assistance may be pro-
are normally beyond the scope of dis-
vided only to protect against loss of
aster preparedness assistance, and are
life and/or significant damages to im-
appropriately addressed by other Corps
authorities and programs. Subpart B proved property due to flooding. Sub-
addresses disaster preparedness respon- part F of this part addresses Advance
sibilities and activities. Measures assistance.
(b) Emergency operations. Emergency
§ 203.14 Responsibilities of non-Fed-
operations, consisting of Flood Re- eral interests.
sponse (flood fight and rescue oper-
ations) and Post Flood Response assist- Non-Federal interests, which include
ance, may be provided to supplement State, county and local governments;
State and local emergency operations federally recognized Indian Tribes; and
efforts. Subpart C of this part address- Alaska Native Corporations, are re-
es emergency operations assistance. quired to make full use of their own re-
(c) Rehabilitation. The Corps may resources before Federal assistance can
habilitate flood control works damaged be furnished. The National Guard, as
or destroyed by floods and coastal part of the State’s resources when it is
storms. The Corps Rehabilitation and under State control, must be fully uti-
Inspection Program (RIP) incorporates lized as part of the non-Federal re-
both disaster preparedness activities sponse. Non-Federal responsibilities in-
and Rehabilitation Assistance. The clude the following:
RIP consists of a process to inspect (a) Disaster preparedness. Disaster pre-
flood control works; a status deter- paredness is a basic tenet of State and
mination, i.e., an inspection-based de- local responsibility. Disaster prepared-
termination of qualification for future ness responsibilities of non-Federal in-
potential Rehabilitation Assistance; terests include:
and the provision of Rehabilitation As- (1) Operation and maintenance of

sistance to those projects with Active flood control works;
Corps of Engineers, Dept. of the Army, DoD § 203.14
(2) Procurement and stockpiling of control projects are usually not re-
sandbags, pumps, and/or other mate- quired to furnish written assurances of
rials or equipment that might be need- local cooperation, if the PCA for the
ed during flood situations; original construction of the project is
(3) Training personnel to operate, sufficient. (NOTE: The PCA may also be
maintain, and patrol projects during referred to as a local cooperation
crisis situations, and preparation of agreement (LCA), cooperation and par-
plans to address emergency situations; ticipation agreement (C&P), or similar
(4) Taking those actions necessary terms.) In lieu of a new PCA, the Corps
for flood control works to gain and will notify the sponsor of the sponsor’s
maintain an Active status in the Corps standing requirements, including such
Rehabilitation and Inspection Program items as LERRD’s, costs attributable
(RIP), as detailed in subpart D of this to deficient or deferred maintenance,
part; and, removal of temporary works, reloca-
(5) Responsible regulation, manage- tions, and any cost-sharing require-
ment, and use of floodplain areas. ments contained in subpart G of
(b) Emergency operations. During § 203.82. Modifications to the existing
emergency operations, non-Federal in- Operation and Maintenance Manual
terests must commit available re- may be required based on the Rehabili-
sources, to include work force, sup- tation Assistance required.
plies, equipment, and funds. Requests
(e) Emergency water supplies due to
for Corps emergency operations assist-
contaminated water source. Except for
ance will be in writing from the appro-
federally recognized Indian Tribes or
priate State, tribal, or local official.
Alaska Native Corporations, Non-Fed-
For flood fight direct assistance and
eral interests must first seek emer-
Post Flood Response assistance, non-
Federal interests must furnish formal gency water assistance through the
written assurances of local cooperation Governor of the affected State. If the
by entering into Cooperation Agree- State is unable to provide the needed
ments (CA’s), as detailed in subpart G assistance, then the Governor or his or
of this regulation. (For Corps work au- her authorized representative must re-
thorized under Public Law 84–99, the quest Corps assistance in writing.
term ‘‘Cooperation Agreement’’ is used Similarly, requests for Corps assist-
to differentiate this agreement from a ance for Indian Tribes or Alaska Native
Project Cooperation Agreement (PCA) Corporations must be submitted in
that addresses the original construc- writing. A CA (see subpart G of this
tion of a project.) Following Flood Re- part) is required prior to assistance
sponse or Post Flood Response assist- being rendered. Requests for assistance
ance, it is a non-Federal responsibility must include information concerning
to remove expedient flood control the criteria prescribed by subpart E of
structures and similar works installed this part.
by the Corps under Public Law 84–99. (f) Drought assistance. Except for fed-
(c) Rehabilitation of non-Federal flood erally recognized Indian Tribes or Alas-
control projects. Prior to Corps rehabili- ka Native Corporations, non-Federal
tation of non-Federal flood control interests must first seek emergency
projects, non-Federal interests must drinking water assistance through the
furnish formal written assurances of Governor of the affected State. Re-
local cooperation by entering into a quests for Corps assistance will be in
CA, as detailed in subpart G of this writing from the Governor or his or her
part. Requirements of local participa- authorized representative. Similarly,
tion include such items as provision of requests for Corps assistance for Indian
lands, easements, rights-of-way, reloca- Tribes or Alaska Native Corporations
tions, and suitable borrow and dredged must be submitted in writing. A CA
or excavated material disposal areas (see subpart G of this part) is required
(LERRD’s), applicable cost-sharing, prior to assistance being rendered. As-
and costs attributable to deficient and/ sistance can be provided to those
or deferred maintenance. drought-distressed areas (as declared
(d) Rehabilitation of Federal flood con- by the Secretary of the Army) to con-
trol projects. Sponsors of Federal flood struct wells and to transport water for
§ 203.15 33 CFR Ch. II (7–1–20 Edition)
human consumption. Requests for as- wave action, storm surge, wind, and
sistance must include information con- the complicating factors of extraor-
cerning the criteria prescribed by sub- dinary high tides. HSPP’s include
part E of this part. projects known as shore protection
(g) Advance Measures. Advance Meas- projects, shore protection structures,
ures assistance should complement the periodic nourishment projects, shore
maximum non-Federal capability. Re- enhancement projects, and similar
quests for assistance must be made by terms. Components of an HSPP may
the Governor of the affected State, ex- include both hard (permanent con-
cept requests for assistance on tribal struction) and soft (sacrificial, i.e.,
lands held in trust by the United sand) features.
States, or on lands of the Alaska Na- Non-Federal project. A project con-
tives, may be submitted directly by the structed with non-Federal funds, or a
affected Federally recognized Indian project constructed by tribal, State,
Tribe or Alaska Native Corporation, or local, or private interests, or a compo-
through the regional representative of nent of such a project. A project con-
the Bureau of Indian Affairs, or structed under Federal emergency dis-
through the Governor of the State in aster authorities, such as Public Law
which the lands are located. A CA (see 84–99 or the Robert T. Stafford Disaster
subpart G of this part) is required prior Relief and Emergency Assistance Act,
to assistance being rendered. Non-Fed- as amended (42 U.S.C. 5121, et seq.)
eral participation may include either (hereinafter referred to as the Stafford
financial contribution or commitment Act), is a non-Federal project unless it
of non-Federal physical resources, or repairs or replaces an existing Federal
both. project. Works Progress Administra-
tion (WPA) projects, and projects fund-
§ 203.15 Definitions. ed completely or partially by other
The following definitions are applica- (non-Corps) Federal agencies, are con-
ble throughout this part: sidered non-Federal projects for the ap-
Federal project. A project constructed plication of Public Law 84–99 author-
by the Corps, and subsequently turned ity.
over to a local sponsor for operations Non-Federal sponsor. A non-Federal
and maintenance responsibility. This sponsor is a public entity that is a le-
definition also includes any project gally constituted public body with full
specifically designated as a Federal authority and capability to perform
project by an Act of Congress. the terms of its agreement as the non-
Flood control project: A project de- Federal partner of the Corps for a
signed and constructed to have appre- project, and able to pay damages, if
ciable and dependable effects in pre- necessary, in the event of its failure to
venting damage from irregular and un- perform. A non-Federal sponsor may be
usual rises in water level. For a multi- a State, County, City, Town, Federally
purpose project, only those components recognized Indian Tribe or tribal orga-
that are necessary for the flood control nization, Alaska Native Corporation,
function are considered eligible for Re- or any political subpart of a State or
habilitation Assistance. group of states that has the legal and
Governor. All references in part 203 to financial authority and capability to
the Governor of a State also refer to: provide the necessary cash contribu-
the Governors of United States com- tions and LERRD’s necessary for the
monwealths, territories, and posses- project.
sions; and the Mayor of Washington, Repair and rehabilitation. The term
D.C. ‘‘repair and rehabilitation’’ means the
Hurricane/Shore Protection Project repair or rebuilding of a flood control
(HSPP). A flood control project de- structure, after the structure has been
signed and constructed to have appre- damaged by a flood, hurricane, or
ciable and predictable effects in pre- coastal storm, to the level of protec-
venting damage to developed areas tion provided by the structure prior to
from the impacts of hurricanes, the flood, hurricane, or coastal storm.
tsunamis, and coastal storms. These ef- ‘‘Repair and rehabilitation’’ does not
fects are primarily to protect against include improvements (betterments) to
the structure, nor does ‘‘repair and responsibility. The Corps is normally a
habilitation’’ include any repair or re- last resort option for obtaining such
building of a flood control structure materials. Local interests should re-
that, in the normal course of usage, quest such materials from State assets
has become structurally unsound and prior to seeking Corps assistance.
is no longer fit to provide the level of Local interests are responsible for re-
protection for which it was designed. imbursing (either in kind or in cash)
the Corps for expendable flood fight
§ 203.16 Federally recognized Indian supplies and materials, and returning
Tribes and the Alaska Native Cor-
porations. items such as pumps. When a flood is of
sufficient magnitude to receive a Staf-
Requests for Public Law 84–99 assist- ford Act emergency or disaster declara-
ance on tribal lands held in trust by tion, then the District Engineer may
the United States, or on lands of the waive reimbursement of expendable
Alaska Natives, may be submitted to supplies.
the Corps directly by the affected fed- (c) Training and plans. Training per-
erally recognized Indian Tribe or Alas- sonnel to operate, maintain, and patrol
ka Native Corporation, or through the flood control projects during crisis sit-
appropriate regional representative of uations is a non-Federal responsibility.
the Bureau of Indian Affairs, or Specific plans should be developed and
through the Governor of the State. in place to address known problem
areas. For instance, the non-Federal
Subpart B—Disaster Preparedness sponsor of a levee reach prone to boils
should have personnel specifically
§ 203.21 Disaster preparedness respon- trained in flood fighting boils. In addi-
sibilities of non-Federal interests.
tion, contingency plans must be made
Disaster preparedness is a basic tenet when needed to address short term sit-
of State and local responsibility. As- uations. For instance, if a culvert
sistance provided under authority of through a levee is being replaced, then
Public Law 84–99 is intended to be sup- the contingency plan should address all
plemental to the maximum efforts of actions needed should a flood event
State and local interests. Assistance occur during the construction period
under Public Law 84–99 will not be pro- when levee integrity is lacking.
vided when non-Federal interests have (d) Corps Rehabilitation and Inspection
made insufficient efforts to address the Program for Flood Control Works. To be
situation for which assistance is re- eligible for Rehabilitation Assistance
quested. Assistance under Public Law under Public Law 84–99, it is a non-Fed-
84–99 will not be provided when a re- eral responsibility to take those ac-
quest for such assistance is based en- tions necessary for flood control works
tirely on a lack of fiscal resources with to gain and maintain an Active status
which to address the situation. Non- in the Corps Rehabilitation and Inspec-
Federal interests’ responsibilities are tion Program (RIP), as detailed in sub-
addressed in detail as follows: part D of this part.
(a) Operation and maintenance of flood
control works. Flood control works
must be operated and maintained by Subpart C—Emergency
non-Federal interests. Maintenance in- Operations
cludes both short-term activities (nor-
mally done on an annual cycle, or more § 203.31 Authority.
frequently) such as vegetation control Emergency operations under Public
and control of burrowing animals, and Law 84–99 apply to Flood Response and
longer term activities such as repair or Post Flood Response activities. Flood
replacement of structural components Response activities include flood fight-
(e.g., culverts) of the project. ing, rescue operations, and protection
(b) Procurement/stockpiling. Procure- of Corps-constructed hurricane/shore
ment and stockpiling of sandbags, protection projects. Post Flood Re-
pumps, and/or other materials or equip- sponse activities include certain lim-
ment that might be needed during ited activities intended to prevent im-
flood situations is a non-Federal re- minent loss of life or significant public
§ 203.32 33 CFR Ch. II (7–1–20 Edition)
property, or to protect against signifi- public facilities has not abated; re-
cant threats to public health and wel- moval of debris blockages of critical
fare, and are intended to bridge the water supply intakes, sewer outfalls,
time frame between the occurrence of a etc.; clearance of the minimum
disaster and the provision of disaster amounts of debris necessary to reopen
relief efforts under authority of The critical transportation routes or public
Stafford Act. services/facilities; other assistance re-
(a) Flood Response. Flood Response quired to prevent imminent loss of life
measures are applicable to any flood or significant damage to public prop-
control work where assistance is sup- erty, or to protect against significant
plemental to tribal, State, and local ef- threats to public health and welfare.
forts, except that Corps assistance is Post Flood Response assistance is sup-
not appropriate to protect flood con- plemental to the maximum efforts of
trol works constructed, previously re- non-Federal interests.
paired, and/or maintained by other
Federal agencies, where such agencies § 203.32 Policy.
have emergency flood fighting author- Prior to, during, or immediately fol-
ity. Further, Flood Response measures lowing flood or coastal storm activity,
(except technical assistance) are not
emergency operations may be under-
appropriate for flood control works
taken to supplement State and local
protecting strictly agricultural lands.
activities. Corps assistance is limited
Corps assistance in support of other
to the preservation of life and prop-
Federal agencies, or State and local in-
erty, i.e., residential/commercial/indus-
terests, may include the following:
trial developments, and public facili-
technical advice and assistance; lend-
ties/services. Direct assistance to indi-
ing of flood fight supplies, e.g., sand-
vidual homeowners, individual prop-
bags, lumber, polyethylene sheeting, or
erty owners, or businesses is not per-
stone; lending of Corps-owned equip-
mitted. Assistance will be temporary
ment; hiring of equipment and opera-
tors for flood operations; emergency to meet the immediate threat, and is
contracting; and similar measures. not intended to provide permanent so-
(b) Post Flood Response. The Corps lutions. All Corps activities will be co-
may furnish Post Flood Response as- ordinated with the State Emergency
sistance for a period not to exceed 10 Management Agency or equivalent. Re-
days (the statutory limitation) from imbursement of State or local emer-
the date of the Governor’s request to gency costs is not authorized. The local
the Federal Emergency Management assurances required for the provision of
Agency for an emergency or disaster Corps assistance apply only to the
declaration under authority of the work performed under Public Law 84–
Stafford Act. Requests for Post Flood 99, and will not prevent State or local
Response assistance must be made by governments from receiving other Fed-
the Governor of the affected State, ex- eral assistance for which they are eligi-
cept that requests for assistance on ble.
lands held in trust by the United (a) Flood Response. Requests for Corps
States, or on lands of the Alaska Na- assistance will be in writing from the
tives, may be submitted directly by the appropriate requesting official, or his
affected federally recognized Indian or her authorized representative. When
Tribe or Alaska Native Corporation, or time does not permit a written request,
through the appropriate regional rep- a verbal request from a responsible
resentative of the Bureau of Indian Af- tribal, State, or local official will be
fairs, or through the Governor of the accepted, followed by a written con-
State in which the lands are located. firmation.
Assistance from the Corps may include (1) Corps assistance may include
the following: provision of technical operational control of flood response
advice and assistance; cleaning of activities, if requested by the respon-
drainage channels, bridge openings, or sible tribal, State, or local official.
structures blocked by debris deposited However, legal responsibility always
during a flood event, where the imme- remains with the tribal, State, and
diate threat of flooding of or damage to local officials.
10
(2) Corps assistance will be termi- maintained condition, or with funds to

nated when the flood waters recede pay for such maintenance. The Corps
below bankfull, absent a short term may waive the non-Federal interest’s
threat (e.g., a significant storm front responsibility to pay for or perform
expected to arrive within a day or two) maintenance if a Stafford Act Presi-
likely to cause additional flooding. dential emergency or disaster declara-
(3) Removal of ice jams is a local re- tion has already been made for the af-
sponsibility. Corps technical advice fected locality, and the waiver is con-
and assistance, as well as assistance sidered feasible and reasonable.
with flood fight operations, can be pro- (3) Expendable supplies that are lent,
vided to supplement State and local ef- such as sandbags, will be replaced in
forts. The Corps will not perform ice kind, or paid for by local interests. The
jam blasting operations for local inter- Corps may waive the local interest’s
ests. replacement/payment if a Stafford Act
(b) Post Flood Response. A written re- Presidential disaster declaration has
quest from the Governor is required to been made for the affected locality,
receive Corps assistance. Corps assist- and the waiver is considered feasible
ance will be limited to major floods or and reasonable. All unused expendable
coastal storm disasters resulting in life supplies will be returned to the Corps
threatening situations. The Governor’s when the operation is terminated.
request will include verification that
the Federal Emergency Management Subpart D—Rehabilitation Assist-
Agency (FEMA) has been requested to ance for Flood Control Works
make an emergency or disaster dec-
laration; a statement that the assist-
Damaged by Flood or Coast-
ance required is beyond the State’s ca- al Storm: The Corps Rehabili-
pability; specific damage locations; and tation and Inspection Pro-
the extent of Corps assistance required gram
to supplement State and local efforts.
Corps assistance is limited to 10 days § 203.41 General.
following receipt of the Governor’s (a) Authority. Public Law 84–99 au-
written request, or on assumption of thorizes repair and restoration of the
activities by State and local interests, following types of projects to ensure
whichever is earlier. After a Governor’s their continued function:
request has triggered the 10-day period, (1) Flood control projects.
subsequent request(s) for additional as- (2) Federally authorized and con-
sistance resulting from the same flood structed hurricane/shore protection
or coastal storm event will not extend projects.
the 10-day period, or trigger a new 10- (b) Implementation of authority. The
day period. The Corps will deny any Rehabilitation and Inspection Program
Governor’s request for Post Flood Re- (RIP) implements Public Law 84–99 au-
sponse if it is received subsequent to a thority to repair and rehabilitate flood
Stafford Act Presidential disaster dec- control projects damaged by floods and
laration, or denial of such a declara- coastal storm events. The RIP consists
tion. Shoreline or beach erosion dam- of a process to inspect flood control
age reduction/prevention actions under work; a status determination, i.e., an
Post Flood Response will normally not inspection-based determination of
be undertaken unless there is an imme- qualification for future Rehabilitation
diate threat to life or critical public fa- Assistance; and the provision of Reha-
cilities. bilitation Assistance to those projects
(c) Loan or issue of supplies and equip- with Active status that are damaged in
ment. (1) Issuance of Government- a flood or coastal storm event.
owned equipment or materials to non- (c) Active status. In order for a flood
Federal interests is authorized only control work to be eligible for Reha-
after local resources have been fully bilitation Assistance, it must be in an
committed. Active status at the time of damage
(2) Equipment that is lent will be re- from a flood or coastal storm event. To
turned to the Corps immediately after gain an Active status, a non-Federal

the flood operation ceases, in a fully flood control work must meet certain
11
§ 203.42 33 CFR Ch. II (7–1–20 Edition)
engineering, maintenance, and quali- tenance program is adequate. A rating

fication criteria, as determined by the of Acceptable or Minimally Acceptable
Corps during an Initial Eligibility In- (see § 203.48) on a CEI is required in
spection (IEI). To retain an Active sta- order to retain an Active status in the
tus, Federal and non-Federal flood con- RIP.
trol works must continue to meet in- (b) Advice and reporting. Information
spection criteria set by the Corps, as on the results of IEI and CEI inspec-
determined by the Corps during a Con- tions will be furnished in writing to
tinuing Eligibility Inspection (CEI). non-Federal sponsors, and will be
All flood control works not in an Ac- maintained in Corps district offices.
tive status are considered to be Inac- (1) Non-Federal sponsors will be in-
tive, regardless of whether or not they
formed that an IEI rating of Unaccept-
have previously received a Corps in-
able will cause the flood control work
spection, or Corps assistance.
to remain in an Inactive status, and in-
(d) Modification of flood control
projects. Modification of a flood control eligible for Rehabilitation Assistance.
project to increase the level of protec- (2) Non-Federal sponsors will be in-
tion, or to provide protection to a larg- formed that a CEI rating of Unaccept-
er area, is beyond the scope of Public able will cause the flood control work
Law 84–99 assistance. Such modifica- to be placed in an Inactive status, and
tions to Federal projects are normally ineligible for Rehabilitation Assist-
accomplished under congressional au- ance.
thorization and appropriation, or under (3) Non-Federal sponsors will be in-
Continuing Authorities Programs of formed that maintenance deficiencies
the Corps. Such modifications to non- found during CEI’s may negatively im-
Federal projects are normally accom- pact on eligibility of future Rehabilita-
plished by the non-Federal sponsor and tion Assistance, and the degree of local
local interests. Modifications nec- cost-sharing participation in any pro-
essary to preserve the structural integ- posed work. Follow-up inspections can
rity of an existing non-Federal flood be made by the Corps to monitor
control project may be funded by the progress in correcting deficiencies
RIP, but such work must meet the cri- when warranted.
teria established in § 203.47 to be eligi-
ble for funding under Public Law 84–99. § 203.43 Inspection of Federal flood
control works.
§ 203.42 Inspection of non-Federal
flood control works. (a) Required inspections. A completed
Federal flood control project, or com-
(a) Required inspections. The Corps
pleted functional portions thereof, is
will conduct inspections of non-Federal
granted Active status in the RIP upon
flood control works. These inspections
are IEI’s and CEI’s. Conduct of IEI’s transfer of the operation and mainte-
and CEI’s will be as provided for in nance of the project (or functional por-
§ 203.48. tion thereof) to the non-Federal spon-
(1) Corps involvement with any non- sor. Federal flood control works will be
Federal flood control work normally periodically inspected in accordance
begins when the sponsor requests an with 33 CFR 208.10 and Engineer Regu-
IEI. The Corps will conduct an IEI to lation (ER) 1130–2–530, Flood Control
determine if the flood control work Operations and Maintenance Policies.
meets minimum engineering and main- These periodic inspections of Federal
tenance standards and is capable of flood control works are also, for sim-
providing the intended degree of flood plicity, known as CEI’s. If a Federal
protection. An Acceptable or Mini- project is found to be inadequately
mally Acceptable rating (see § 203.48) on maintained on a CEI, then it will be
the IEI is required to allow the project placed in an Inactive status in the RIP.
to gain an Active status in the RIP. [NOTE: This is a separate and distinct
(2) CEI’s are conducted periodically action from project deauthorization,
to ensure that projects Active in the which is not within the scope of PL 84–
RIP continue to meet Corps standards, 99 activities.] A Federal project will re-
and to determine if the sponsor’s main- main in an Inactive status until such
12
time as an adequate maintenance pro- (e) Cooperation Agreements. A Co-

gram is restored, and the project is de- operation Agreement is required in ac-
termined by the Corps to be adequately cordance with subpart G of this part.
maintained.
(b) Advice and reporting. Information § 203.45 Rehabilitation of Federal
on the results of CEI inspections will flood control works.
be furnished in writing to non-Federal Rehabilitation of Federal flood con-
sponsors, and will be maintained in trol projects will be identical to reha-
Corps district offices. Non-Federal bilitation of non-Federal projects
sponsors will be informed that a CEI (§ 203.44), except for those conditions
rating of Unacceptable will cause the contained in subpart G of this part con-
flood control work to be placed in an cerning cooperation agreements, when
Inactive status, and not eligible for Re- the original PCA for the Federal
habilitation Assistance. Non-Federal project is sufficient. Additional re-
sponsors will be informed that mainte- quirements for Hurricane/Shore Pro-
nance deficiencies found during CEI’s tection Projects are covered in § 203.49.
may negatively impact on eligibility of
future Rehabilitation Assistance, and § 203.46 Restrictions.
the degree of local cost-sharing partici-
pation in any proposed work. Follow- (a) Restrictions to flood control works.
up inspections can be made by the Flood control works are designed and
Corps to monitor progress in correcting constructed to have appreciable and de-
deficiencies when warranted. pendable protection in preventing dam-
age from irregular and unusual rises in
§ 203.44 Rehabilitation of non-Federal water levels. Structures built pri-
flood control works. marily for the purposes of channel
(a) Scope of work. The Corps will pro- alignment, navigation, recreation, fish
vide assistance in the rehabilitation of and wildlife enhancement, land rec-
non-Federal projects only when repairs lamation, habitat restoration, drain-
are clearly beyond the normal physical age, bank protection, or erosion protec-
and financial capabilities of the project tion are generally ineligible for Public
sponsor. The urgency of the work re- Law 84–99 Rehabilitation Assistance.
quired will be considered in deter- (b) Non-flood related rehabilitation. Re-
mining the sponsor’s capability. habilitation of flood control structures
(b) Eligibility for Rehabilitation Assist- damaged by occurrences other than
ance. A flood control project is eligible floods, hurricanes, or coastal storms
for Rehabilitation Assistance provided will generally not be provided under
that the project is in an Active status Public Law 84–99.
at the time of the flood event, the dam- (c) Maintenance and deterioration defi-
age was caused by the flood event, the ciencies. Rehabilitation under Public
work can be economically justified, Law 84–99 will not be provided for ei-
and the work is not otherwise prohib- ther Federal or non-Federal flood con-
ited by this subpart D. trol projects that, as a result of poor
(c) Work at non-Federal expense. At maintenance or deterioration, require
the earliest opportunity prior to com- substantial reconstruction. All defi-
mencement of or during authorized re- cient or deferred maintenance existing
habilitation work, the Corps will in- when flood damage occurs will be ac-
form the project sponsor of any work complished by, or at the expense of, the
that must be accomplished at non-Fed- non-Federal sponsor, either prior to or
eral cost. This includes costs to correct concurrently with authorized rehabili-
maintenance deficiencies, and any tation work. When work accomplished
modifications that are necessary to by the Corps corrects deferred or defi-
preserve the integrity of the project. cient maintenance, the estimated de-
(d) Nonconforming works. Any non- ferred or deficient maintenance cost
Federal project constructed or modi- will not be included as contributed
fied without the appropriate local, non-Federal funds, and will be in addi-
State, tribal, and/or Federal permits, tion to cost-sharing requirements ad-
or waivers thereof, will not be rehabili- dressed in § 203.82. Failure of project

tated under Public Law 84–99. sponsors to correct deficiencies noted
13
§ 203.47 33 CFR Ch. II (7–1–20 Edition)
during Continuing Eligibility Inspec- for conducting required inspections.

tions may result in ineligibility to re- The results of these inspections deter-
ceive Rehabilitation Assistance under mine Active status in the RIP, and
Public Law 84–99. thus determine eligibility for Rehabili-
(d) Economic justification. No flood tation Assistance. The contents of this
control work will be rehabilitated un- section are applicable to both IEI’s and
less the work required satisfies Corps CEI’s.
criteria for a favorable benefit-to-cost (b) Level of detail. Evaluations of non-
ratio, and the construction cost of the Federal flood control works will be
work required exceeds $15,000. Con- made through on site inspections and
struction costs greater than $15,000 do technical analyses by Corps technical
not preclude the Corps from making a personnel. The level of detail required
determination that the required work in an inspection will be commensurate
is a maintenance responsibility of the with the complexity of the inspected
non-Federal sponsor, and not eligible project, the potential for catastrophic
for Corps Rehabilitation Assistance. failure to cause significant loss of life,
the economic benefits of the area pro-
§ 203.47 Modifications to non-Federal tected, and other special circumstances
flood control works. that may occur. Technical evaluation
Modifications necessary to preserve procedures are intended to establish
the structural integrity of existing the general capability of a non-Federal
non-Federal projects may be con- flood control work to provide reliable
structed at additional Federal and non- flood protection.
Federal expense in conjunction with (c) Purposes. The IEI assesses the in-
approved rehabilitation work. The ad- tegrity and reliability of the flood con-
ditional Federal cost will be limited to trol work. In addition, other essential
not more than one-third of the esti- information required to help determine
mated Federal construction cost of re- the Federal interest in future repairs/
habilitation to preflood level of protec- rehabilitation to the flood control
tion, or $100,000, whichever is less. The work will be obtained. The IEI will es-
modification work must be economi- tablish the estimated level of protec-
cally justified. Non-Federal interests tion and structural reliability of the
are required to contribute a minimum existing flood control work. Subse-
of 25% of the total construction costs quent CEI’s will seek to detect changed
of the modification, LERRD’s, and any project conditions that may have an
additional funds necessary to support impact on the reliability of the flood
the remaining cost of the modification protection provided by the flood con-
beyond what the Corps can provide. En- trol work, to include the level of main-
gineering and design costs will be at tenance being performed on the flood
Corps cost. control work.
(a) Cash contributions. Non-Federal (d) Inspection components—(1) Hydro-
contributions will be only in cash. In- logic/hydraulic analyses. The level of
kind services are not permitted for protection provided by a non-Federal
modification work. flood control work will be evaluated
(b) Protection of additional areas. and expressed in terms of exceedence
Modifications designed to provide pro- frequency (e.g., a 20% chance of a levee
tection to additional area are not au- being overtopped in any given year).
thorized. These analyses also include an evalua-
tion of existing or needed erosion con-
§ 203.48 Inspection guidelines for non- trol features for portions of a project
Federal flood control works. that may be threatened by stream
(a) Intent. The intent of these guide- flows, overland flows, or wind gen-
lines is to facilitate inspections of the erated waves.
design, construction, and maintenance (2) Geotechnical analyses. The
of non-Federal flood control works. Geotechnical evaluation will be based
The guidelines are not intended to es- primarily on a detailed visual inspec-
tablish design standards for non-Fed- tion. As a minimum, for levees, the IEI
eral flood control works, but to provide will identify critical sections where
uniform procedures within the Corps levee stability appears weakest and
14
will document the location, reach, and neers, such rehabilitation is warranted
cross-section at these points. for the adequate functioning of the
(3) Maintenance. Project maintenance project.
analysis will evaluate the maintenance (b) Policies. (1) Rehabilitation of
performance of the non-Federal spon- HSPP’s is limited to the repair/restora-
sor, and deficiencies of the project. tion of the HSPP to a pre-storm condi-
This evaluation should reflect the level tion that allows for the adequate func-
of maintenance needed to assure the tioning of the project, provided that
intended degree of flood protection, the damage was caused by an extraor-
and assess the performance of recent dinary storm.
maintenance on the project. The ef- (2) To be eligible for Rehabilitation
fects of structures on, over, or under Assistance, HSPP’s must be:
the flood control work, such as buried (i) A completed element of a Feder-
fiber optic cables, gas pipelines, etc., ally authorized project; or,
will be evaluated for impact on the sta- (ii) A portion of a Federally author-
bility of the structure. ized project constructed by non-Fed-
(4) Other structural features. Other fea- eral interests when approval of such
tures that may be present, such as construction was obtained from the
pump stations, culverts, closure struc- Commander, Headquarters, U.S. Army
tures, etc., will be evaluated. Corps of Engineers (HQUSACE), or his
(e) Ratings. Inspected flood control designated representative; or,
works will receive a rating in accord- (iii) A portion of a Federally author-
ance with the table below. The table ized project constructed by non-Fed-
below provides the general assessment eral interests and designated by an Act
parameters used in assigning a rating of Congress as a Federal project; and
to the inspected flood control work. (3) Rehabilitation Assistance for sac-
rificial features will be limited to that
Rating Assessment
necessary to reduce the immediate
A—Acceptable ....... No immediate work required, other threat to life and property, or restora-
than routine maintenance. The flood tion to pre-storm conditions, which-
control project will function as de-
signed and intended, and necessary
ever is less.
cyclic maintenance is being ade- (4) To be eligible for rehabilitation,
quately performed. the sacrificial features of an HSPP
M—Minimally Ac- One or more deficient conditions exist must be substantially eroded by wind,
ceptable. in the flood control project that need
to be improved/corrected. However,
wave, or water action of an other than
the project will essentially function as ordinary nature. The determination of
designed and intended. whether a storm qualifies as extraor-
U—Unacceptable ... One or more deficient conditions exist dinary will be made by the Director of
which can reasonably be foreseen to
prevent the project from functioning Civil Works, and may be delegated to
as designed, intended, or required. the Chief, Operations Division, Direc-
torate of Civil Works.
(f) Sponsor reclama. If the results of a (5) Rehabilitation will not be pro-
Corps evaluation are not acceptable to vided for uncompleted HSPP’s. An
the project sponsor, the sponsor may HSPP (or separable portion thereof) is
choose, at its own expense, to provide a considered completed when transferred
detailed engineering study, preferably to the non-Federal sponsor for oper-
certified by a qualified Professional ation and maintenance.
Engineer, as a reclama to attempt to (6) Definition of extraordinary storm.
change the Corps evaluation. An extraordinary storm is a storm
that, due to prolongation or severity,
§ 203.49 Rehabilitation of Hurricane creates weather conditions that cause
and Shore Protection Projects. significant amounts of damage to a
(a) Authority. The Chief of Engineers Hurricane/Shore Protection Project.
is authorized to rehabilitate any Feder- ‘‘Prolongation or severity’’ means a
ally authorized hurricane or shore pro- Category 3 or higher hurricane as
tection structure damaged or destroyed measured on the Saffir-Simpson scale,
by wind, wave, or water action of an or a storm that has an exceedance fre-
other than ordinary nature when, in quency equal to or greater than the de-
the discretion of the Chief of Engi- sign storm of the project. ‘‘Significant
15
§ 203.50 33 CFR Ch. II (7–1–20 Edition)
amounts of damage’’ have occurred other Federal agency. The NSAP spon-
when: sor must demonstrate that it has the
(i) The cost of the construction effort legal authority and financial capa-
to effect repair of the HSPP or sepa- bility to provide for the required items
rable element thereof (exclusive of of local cooperation.
dredge mobilization and demobilization (3) The Corps shall not be responsible
costs) exceeds $1 million and is greater for the operation, maintenance, or
than two percent of the original con- management of any NSAP imple-
struction cost (expressed in current mented in accordance with this sec-
day dollars) of the HSPP or separable tion.
element thereof; or, (4) The Corps may, in its sole discre-
(ii) The cost of the construction ef- tion, reject any request for an NSA
fort to effect repair of the HSPP or sep- that would:
arable element thereof (exclusive of (i) Lead to significantly increased
dredge mobilization and demobilization flood protection expenses or flood
costs) exceeds $6 million; or, fighting expenses for public agencies,
(iii) More than one-third of the flood control works sponsors, public
planned or historically placed sand for utilities, or the Federal Government;
renourishment efforts for the HSPP (or or,
separable element thereof) is lost. (ii) Threaten or have a significant ad-
(c) Procedural requirements. Rehabili- verse impact on the integrity, sta-
tation of HSPP’S will be done in ac- bility, or level of protection of adja-
cordance with § 203.45, except as modi- cent or nearby flood control works; or,
fied by this section. (iii) Lead to increased risk of loss of
(d) Combined rehabilitation and peri- life or property during flood events.
odic nourishment. In some cases, the (5) The principal purposes of an
non-Federal sponsor may wish to fully NSAP are for:
restore the sacrificial features of a (i) Floodplain restoration;
project where only a partial restora- (ii) Provision or restoration of
tion is justifiable as Rehabilitation As- floodways; and,
sistance. In these cases, a cost alloca-
tion between Rehabilitation Assistance NOTE TO PARAGRAPHS (b)(5)(i) AND (ii):
and periodic nourishment under the Habitat restoration is recognized as being a
terms of the project PCA will be deter- significant benefit that can be achieved with
an NSAP, and may be a significant compo-
mined by the Director of Civil Works.
nent of an NSAP, but is not considered to be
a principal purpose under PL 84–99 authority.
§ 203.50 Nonstructural alternatives to
rehabilitation of flood control (iii) Reduction of future flood dam-
works. ages and associated flood control works
(a) Authority. Under Public Law 84–99, repair costs.
the Chief of Engineers is authorized, (c) Limitation on Corps expenditures.
when requested by the non-Federal Exclusive of the costs of investigation,
sponsor, to implement nonstructural report preparation, engineering and de-
alternatives (NSA’s) to the rehabilita- sign work, and related costs, Corps ex-
tion, repair, or restoration of flood con- penditures for implementation of an
trol works damaged by floods or coast- NSAP are limited to the lesser of the
al storms. Federal share of rehabilitation con-
(b) Policy. (1) The option of imple- struction costs of the project were the
menting an NSA project (NSAP) in lieu flood control work to be structurally
of a structural repair or restoration is rehabilitated in accordance with sub-
available only to non-Federal sponsors part D of this part, or the Federal
of flood control works eligible for Re- share of computed benefits which
habilitation Assistance in accordance would be derived from such structural
with this regulation, and only upon the rehabilitation. This limitation on
request of such non-Federal sponsors. Corps expenditures may be waived by
(2) A sponsor is required for imple- the Director of Civil Works or the
mentation of an NSAP. The NSAP Chief, Operations Division, Directorate
sponsor must be either a non-Federal of Civil Works when compelling rea-

sponsor as defined in § 203.15, or an- sons exist.
16
(d) Responsibilities of the NSAP non- (3) Demolition and removal of struc-
Federal sponsor. (1) Operate and main- tures, including utility connections
tain the NSAP; and related items.
(2) Provide, or arrange for and ob- (4) Debris removal and debris reduc-
tain, all funding required to implement tion.
the NSAP in excess of the limitation (5) Removal, protection, and/or relo-
established in paragraph (c) of this sec- cation of highways, roads, utilities,
tion. cemeteries, and railroads.
(3) Accept the transfer of ownership (6) Construction to promote, en-
of any lands or interests in lands ac- hance, control, or modify water flows
quired by the Corps and determined by into, out of, through, or around the
the Corps to be necessary to implement nonstructural project area.
the NSAP. (7) Nonstructural habitat restora-
(e) Responsibilities of other Federal tion, to include select planting of na-
agencies acting as NSAP sponsor. The tive and desirable plant species, native
Corps may participate with one or species nesting site enhancements, etc.
more Federal agencies in NSAP’s. If (8) Total or partial removal or razing
the Corps is the lead Federal agency, of existing reaches of levee, to include
based on mutual agreement of the Fed- removal of bank protection features
eral agencies, then a non-Federal and/or riprap.
NSAP sponsor is required. (See para- (9) Protection/floodproofing of essen-
graph (d) of this section.) If another tial structures and facilities.
Federal agency is the lead Federal (10) Supervision, administrative, and
agency, then Corps participation in the contract administration costs of other
NSAP will be based on the content of expenses allowed in this subparagraph.
this section, with appropriate allow- (h) Time limitation. Corps participa-
ances for effecting an NSAP in accord- tion in development and implementa-
ance with the authority and ultimate tion of an NSAP may cease, at the sole
goal of the lead Federal agency. In discretion of the Corps, one year after
such cases, a Memorandum of Agree- the date of approval of rehabilitation
ment between the Corps and the lead of the damaged flood control work or
Federal agency is required, in accord- the date of receipt of the flood control
ance with paragraph (1) of this section. work public sponsor’s request for an
(f) Responsibilities of the requesting NSAP, whichever is earlier, if insuffi-
flood control work project sponsor. (1) cient progress is being made to develop
The flood control work project sponsor and implement the NSAP for reasons
must request the Corps undertake an beyond the control of the Corps. In
NSA project in lieu of rehabilitation of such circumstances, the Corps may, at
its sole discretion, determine that Re-
the flood control work, in accordance
habilitation Assistance for the dam-
with the sponsor’s applicable laws, or-
aged flood control project may also be
dinances, rules, and regulations.
denied.
(2) If not also the NSAP sponsor, the
(i) Participation and involvement of
flood control work project sponsor
other Federal, State, tribal, local, and pri-
must:
vate agencies. Nothing in this section
(i) Divest itself of responsibility to shall be construed to limit the partici-
operate and maintain the flood control pation of other Federal, State, tribal,
work involved in the NSAP; and local, and private agencies in the de-
(ii) Provide to the NSAP sponsor velopment, implementation, or future
such lands or interests in lands as it operations and maintenance of an
may have which the Corps determines NSAP under this section, subject to
are necessary to implement the NSAP. the limitations of such participating
(g) Allowable Public Law 84–99 expenses agency’s authorities and regulations.
for NSAP’s. (1) Acquisition of land or (j) Future assistance. After transfer of
interests in land. NSAP operation and maintenance re-
(2) Removal of structures, including sponsibility to the NSAP sponsor or
manufactured homes, for salvage and/ the lead Federal agency, flood-related
or reuse purposes. assistance pursuant to Public Law 84–
17
§ 203.51 33 CFR Ch. II (7–1–20 Edition)
99 will not be provided anywhere with- non-Federal interests from accepting

in the formerly protected area of the funding from other Federal agencies, so
flood control work, except for rescue long as the provision of such other Fed-
operations provided in accordance with eral agency funding is not prohibited
§ 203.13(b). As an exception, on a case- by statute.
by-case basis, certain structural flood (6) Contributed funds. Contributed
control works (or elements thereof) refunds may be accepted without further
paired or set back as part of the imple- approval by the Chief of Engineers
mentation of an NSAP having a non- upon execution of the CA by all par-
Federal sponsor may be considered for ties. The required certificate of the dis-
future flood-related assistance. trict commander will cite 33 U.S.C.
(k) Environmental considerations. 701h as the pertinent authority.
NSAP’s are subject to the same envi- (7) Obligation of contributed funds. In
ronmental requirements, restrictions, accordance with OMB Circular A–34, all
and limitations as are structural reha- contributed funds must be received in
bilitation projects. cash and deposited with the Treasury
(l) Requirements for Cooperation Agree- before any obligations can be made
ment (CA)/Items of Local Cooperation—(1) against such funds.
Requirement for Local Cooperation. In (8) Prohibition of future assistance. The
order to clearly define the obligations prohibition of future assistance de-
of the Corps and of non-Federal inter- scribed in paragraph (j) of this section
ests, a CA with the NSAP non-Federal must be included in the NSAP CA.
sponsor is required. Requirements are (9) Assurance of compliance with Exec-
addressed in paragraphs (l)(2) through utive Order 11988. NSAP CA’s shall in-
(10) of this section. When another Fed- clude acknowledgment of, and a state-
eral agency is the lead Federal agency, ment of planned adherence to, Execu-
a Memorandum of Agreement (MOA) tive Order 11988, Floodplain Manage-
between the Corps and that agency is ment, 3 CFR 117 (1977 Compilation), or
required. Wording of MOA’s will be as it may be revised in the future, by
similar to, and consistent with, re- the NSAP sponsor.
quirements detailed in paragraphs (l)(2) (10) The CA must include a statement
through (10) of this section for CA’s, of legal restrictions placed on formerly
with appropriate modifications based protected lands that would preclude fu-
on the other Federal agencies’ author- ture use and/or development of such
ized expenditures and programs. lands in a fashion incompatible with
(2) The CA requirements of subpart G the purposes of the NSAP.
of this part are not applicable to (m) Acquisition of LERRD’s. (1) For
NSAP’s. the acquisition of LERRD’s, reimburse-
(3) Items of Local Cooperation. For ment may be made to the non-Federal
NSAP’s, non-Federal interests shall: sponsor of an NSAP. Such reimburse-
(i) Provide without cost to the ments are subject to the normal Corps
United States all borrow sites and land acquisition process, funding caps
dredged or excavated material disposal set forth in (c) of this section, and
areas necessary for the project; availability of appropriations.
(ii) Hold and save the United States (2) For the acquisition of LERRD’s,
free from damages due to the project, Corps funding may be combined with
except for damages due to the fault or the funding of other Federal agencies,
negligence of the United States or its absent specific statutory language or
contractor; and principle prohibiting such combina-
(iii) Maintain and operate the project tions, under the terms of the MOA with
after completion in a manner satisfac- other Federal agencies.
tory to the Chief of Engineers.
(4) Cost sharing. The Corps may as- § 203.51 Levee owner’s manual.
sume up to 100 percent of the costs of (a) Authority. In accordance with sec-
implementing an NSAP, subject to the tion 202(f) of Public Law 104–303, the
limitations set forth in paragraph (c) of Corps will provide a levee owner’s man-
this section. ual to the non-Federal sponsor of all
(5) Eligibility under other Federal pro- flood control works in an Active status
grams. NSAP CA’s shall not prohibit in the RIP.
18
(b) Policies—(1) Active non-Federal mental Protection Agency pursuant to

projects. A levee owner’s manual devel- the Safe Drinking Water Act (see 40
oped and distributed by the Corps will CFR 141), is exceeded.
be provided to all sponsors of Active (ii) The water supply has been identi-
non-Federal projects. The levee own- fied as a source of illness by a tribal,
er’s manual will include the standards State, or Federal public health official.
that must be met to maintain an Ac- The specific contaminant does not have
tive status in the Rehabilitation and to be identified.
Inspection Program. Levee owner’s (iii) An emergency (e.g., a flood or
manuals will also be provided, upon re- chemical spill) has occurred that has
quest, to sponsors of Inactive non-Fed- resulted in either: one or more con-
eral projects so that the sponsors may taminants entering the source on a suf-
evaluate their projects and prepare for ficient scale to endanger health; or, the
an IEI to gain an Active status in the emergency has made inoperable the
RIP. equipment necessary to remove known
(2) Federal projects. The Operation and contaminants.
Maintenance Manual specified by 33 (iv) The presence of a contaminant is
CFR 208.10(a)(10) will fulfill the re- indicated on the basis of other informa-
quirement of providing a levee owner’s tion available.
manual if the Corps has not provided a (3) Corps assistance will be directed
separate levee owner’s manual to the toward the provision of the minimum
sponsor of a Federal project. amount of water required to maintain
(c) Procedural requirements. Levee the health and welfare requirements of
Owner’s Manuals will be initially pro- the affected population. The quantity
vided to non-Federal sponsors of Active of water and the means of distribution
flood control works during scheduled will be at the discretion of the respon-
CEI’s and IEI’s. Sponsors of Inactive sible Corps official, who will consider
projects and private levee owners will the needs of the individual situation,
be provided manuals upon written re- the needs of the affected community,
quest to the responsible Corps district. and the cost effectiveness of providing
water by various methods.
§ 203.52 [Reserved] (4) If a locality has multiple sources
of water, assistance will be furnished
Subpart E—Emergency Water Sup- only to the extent that the remaining
plies: Contaminated Water sources, with reasonable conservation
Sources and Drought Assist- measures, cannot provide adequate
ance supplies of drinking water.
(5) Loss of water supply is not a basis
§ 203.61 Emergency water supplies due for assistance under this authority.
to contaminated water source. (6) Water will not be furnished for
(a) Authority. The Chief of Engineers commercial processes, except as inci-
is authorized to provide emergency dental to the use of existing distribu-
supplies of clean water to any locality tion systems. This does not prohibit
confronted with a source of contami- the furnishing of water for drinking by
nated water causing, or likely to cause, employees and on-site customers.
a substantial threat to the public Water for preparing retail meals and
health and welfare of the inhabitants similar personal needs may be provided
of the locality. to the extent it would be furnished to
(b) Policies. (1) Any locality faced individuals.
with a threat to public health and wel- (7) The permanent restoration of a
fare from a contaminated source of safe supply of drinking water is the re-
drinking water is eligible for assist- sponsibility of local interests.
ance. (8) Corps assistance is limited to 30
(2) Eligibility for assistance will be days, and requires the local interests
based on one or more of the following to provide assurances of cooperation in
factors: a CA. (See subpart G of this part.) Ex-
(i) The maximum contaminant level tension of this 30-day period requires
or treatment technique for a contami- agreement (as an amendment to the

nant, as established by the Environ- previously signed CA) between the
19
§ 203.62 33 CFR Ch. II (7–1–20 Edition)
State and the Corps. This agreement emergency water supplies will only be
must cover specified services and re- considered when non-Federal interests
sponsibilities of each party, and provi- have exhausted reasonable means for
sion of a firm schedule for local inter- securing necessary water supplies, in-
ests to provide normal supplies of cluding assistance and support from
water. other Federal agencies.
(9) State, tribal, and local govern- (2) Before Corps assistance is consid-
ments must make full use of their own ered under this authority, the applica-
resources, including National Guard bility of other Federal assistance au-
capabilities. thorities must be evaluated. If these
(c) Governor’s request. A letter signed programs cannot provide the needed as-
by the Governor, or his or her author- sistance, then maximum coordination
ized representative, requesting Corps should be made with appropriate agen-
assistance and addressing the State’s cies in implementing Corps assistance.
commitments and capabilities in re- (c) Governor’s request. A letter signed
sponse to the emergency situation, is by the Governor, requesting Corps as-
required. All requests should identify sistance and addressing the State’s
the following information: commitments and capabilities with re-
(1) Describe the local and State ef- sponse to the emergency situation, is
forts undertaken. Verify that all rea- required. All requests should identify
sonably available resources have been the following information:
committed. (1) A description of local and State
(2) Identify the specific needs of the efforts undertaken. A verification that
State, and the required Corps assist- all available resources have been com-
ance. mitted, to include National Guard as-
(3) Identify additional commitments sets.
to be accomplished by the State. (2) Identification of the specific needs
(4) Identify the project sponsor(s). of the State, and the required Corps as-
(d) Non-Federal responsibilities. Non- sistance.
Federal interests are responsible for (3) Identification of the additional
restoration of the routine supply of commitments to be accomplished by
clean drinking water, including cor- the State.
recting any situations that cause con- (4) Identification of the project spon-
tamination. If assistance is furnished sor(s).
by the Corps, local interests must fur- (d) Definitions applicable to this sec-
nish the basic requirements of local co- tion—(1) Construction. This term in-
operation as detailed in the Coopera- cludes initial construction, reconstruc-
tion Agreement. In all cases, reason- tion, or repair.
able water conservation measures must (2) Drought-distressed area. An area
be implemented. Local interests will be that the Secretary of the Army deter-
required to operate and maintain any mines, due to drought conditions, has
loaned equipment, and to remove and an inadequate water supply that is
return such equipment to Federal in- causing, or is likely to cause, a sub-
terests, in a fully maintained condi- stantial threat to the health and wel-
tion, after the situation is resolved. fare of the inhabitants of the impacted
area, including the threat of damage or
§ 203.62 Drought assistance. loss of property.
(a) Authority. The Chief of Engineers, (3) Eligible applicant. Any rancher,
acting for the Secretary of the Army, farmer or political subdivision within a
has the authority under certain statu- designated drought-distressed area
tory conditions to construct wells for that is experiencing an inadequate sup-
farmers, ranchers, political subdivi- ply of water due to drought.
sions, and to transport water to polit- (4) Farmer or rancher. An individual
ical subdivisions, within areas deter- who realizes at least one-third of his or
mined to be drought-distressed. her gross annual income from agricul-
(b) General policy. (1) It is a non-Fed- tural sources, and is recognized in the
eral responsibility for providing an community as a farmer or rancher. A
adequate supply of water to local in- farming partnership, corporation, or

habitants. Corps assistance to provide similar entity engaged in farming or
20
ranching, which receives its majority a period of years, not to exceed 30, as
income from such activity, is also con- the Secretary of the Army deems ap-
sidered to be a farmer or rancher, and propriate.
thus an eligible applicant. (v) The applicant has obtained all
(5) Political subdivision. A city, town, necessary Federal, State and local per-
borough, county, parish, district, asso- mits.
ciation, or other public body created (2) The financing of the cost of con-
by, or pursuant to, Federal or State struction of a well by the Corps under
law, having jurisdiction over the water this authority should be secured by the
supply of such public body. project applicant.
(6) Reasonable cost. In connection (3) The project applicant will provide
with the Corps construction of a well, the necessary assurances of local co-
means the lesser of: operation by signing a Cooperation
(i) The cost of the Chief of Engineers Agreement (subpart G of this part)
to construct a well in accordance with prior to the start of Corps work under
these regulations, exclusive of: this authority.
(A) The cost of transporting equip- (4) Equipment owned by the United
ment used in the construction of wells, States will be utilized to the maximum
and extent possible in exercising the au-
(B) The cost of investigation and re- thority to drill wells, but can only be
port preparation to determine the suit- used when commercial firms cannot
ability to construct a well, or, provide comparable service within the
(ii) The cost to a private business of time needed to prevent the applicant
constructing such a well. from suffering significantly increased
(7) State. Any State, the District of hardships from the effects of an inad-
Columbia, the Commonwealth of Puer- equate water supply.
to Rico, the Virgin Islands, Guam, (f) Guidance—transport of water. (1)
Northern Marianas Islands, American Assistance to an applicant in the trans-
Samoa, and the Trust Territory of the portation of water may be provided if:
Pacific Islands. (i) It is in response to a written re-
(e) Guidance—construction of wells. (1) quest by a political subdivision for
Assistance to an eligible applicant for transportation of water.
the construction of a well may be pro- (ii) The applicant is located within
vided on a cost-reimbursable basis if: an area that the Secretary of the Army
(i) It is in response to a written re- has determined to be drought-dis-
quest by a farmer, rancher, or political tressed.
subdivision for construction of a well (iii) The Secretary of the Army has
under Public Law 84–99. made a determination that, as a result
(ii) The applicant is located within of the drought, the applicant has an in-
an area that the Secretary of the Army adequate supply of water for human
has determined to be drought-dis- consumption, and the applicant cannot
tressed. obtain water.
(iii) The Secretary of the Army has (2) Transportation of water by vehi-
made a determination that: cles, small diameter pipe line, or other
(A) The applicant, as a result of the means will be at 100 percent Federal
drought, has an inadequate supply of cost.
water. (3) Corps assistance in the transpor-
(B) An adequate supply of water can tation of emergency water supplies will
be made available to the applicant be provided only in connection with
through the construction of a well. water needed for human consumption.
(C) As a result of the drought, a pri- Assistance will not be provided in con-
vate business could not construct the nection with water needed for irriga-
well within a reasonable time. tion, recreation, or other non-life sup-
(iv) The applicant has secured the porting purposes, or livestock con-
necessary funding for well construction sumption.
from commercial or other sources, or (4) Corps assistance will not include
has entered into a contract to pay to the purchase of water, nor the cost of
the United States the reasonable cost loading or discharging the water into
of such construction with interest over or from any Government conveyance,
21
§ 203.71 33 CFR Ch. II (7–1–20 Edition)
to include Government-leased convey- required. All requests should identify

ance. the following information:
(5) Equipment owned by the United (1) Describe the non-Federal efforts
States will be utilized to the maximum undertaken. Verify that all available
extent possible in exercising the au- resources have been committed.
thority to transport water, consistent (2) Identify the specific needs, and
with lowest total Federal cost. the required Corps assistance.
(g) Request for assistance. A written (3) Identify additional commitments
request must be made to the district to be accomplished by the non-Federal
commander with Civil Works responsi- interests.
bility for the affected area. Upon re- (4) Identify the non-Federal spon-
ceipt of a written request, the appro- sor(s).
priate State and Federal agencies will (c) Feasibility. The proposed work
be notified, and coordination will con- should be temporary in nature, tech-
tinue as appropriate throughout the as- nically feasible, designed to deal effec-
sistance. tively and efficiently with the specific
threat, and capable of construction in
[68 FR 36468, June 18, 2003]
time to prevent anticipated damages.
(d) Economic justification. All work
Subpart F—Advance Measures undertaken under this category must
have a favorable benefit-to-cost ratio,
§ 203.71 Policy. under Corps of Engineers economic
Advance Measures consists of those guidelines.
activities performed prior to a flood (e) Local cooperation/responsibilities.
event, or potential flood event, to pro- Subpart G of this part provides require-
tect against loss of life and/or signifi- ments for a Cooperation Agreement
cant damages to improved property needed to provide local assurances. The
from flooding. Emergency work under project sponsor must remove tem-
this authority will be considered when porary works constructed by the Corps
requested by the Governor of a State when the operation is over, at no cost
confronted with an imminent threat of to the Corps.
unusual flooding. Corps assistance will (f) Contingency planning efforts for po-
be to complement the maximum efforts tential Advance Measures activities. Oc-
of tribal, State, and local authorities. casionally weather phenomena occur
Projects will be designed for the spe- which produce a much higher than nor-
cific threat, normally of expedient- mal probability or threat of flooding
type construction, and typically tem- which may be predicted several months
porary in nature. in advance of occurrence or significant
impact. Impacts on specific locations
§ 203.72 Eligibility criteria and proce- may be unpredictable, but regional im-
dures. pacts may have a high likelihood of oc-
(a) Threat of flooding. An imminent currence. In such situations, the Corps
threat of unusual flooding must exist may provide technical and contingency
before Advance Measures projects can planning assistance to tribal, State,
be approved. The threat may be estab- and local agencies, commensurate with
lished by National Weather Service the predicted weather phenomenon,
predictions, or by Corps of Engineers based on requests for assistance from
determinations of unusual flooding such tribal, State, and local agencies.
from adverse or unusual conditions. Specific Advance Measures projects
The threat must be clearly defined to must be addressed as specified in para-
the extent that it is readily apparent graph (b) of this section.
that damages will be incurred if pre- (g) Definitions—(1) Imminent threat. A
ventive action is not taken imme- subjective statistical evaluation of how
diately. quickly a threat scenario can develop,
(b) Governor’s request. A letter signed and how likely that threat is to de-
by the Governor, requesting Corps as- velop in a given geographical location.
sistance and addressing the State’s Implicit in the timing aspect can be
commitments and capabilities with re- considerations of available time (when

sponse to the emergency situation, is the next flood or storm event is likely
22
to occur), season (e.g., a snowpack that § 203.82 Requirements of local co-

will melt in the coming spring runoff), operation.
or of known cyclical activities.
It is Corps policy that provision of
(2) Unusual flooding. A subjective de-
termination that considers potential assistance under Public Law 84–99 will,
ability to approach an area’s flood of insofar as feasible, require local inter-
record, a catastrophic level of flooding, ests to: provide without cost to the
or a greater than 50-year level of flood- United States all LERRD’s necessary
ing. for the authorized work; hold and save
the United States free from damages
Subpart G—Local Interests/ due to the authorized work, exclusive
Cooperation Agreements of damages due to the fault or neg-
ligence of the United States or its con-
§ 203.81 General. tractor; maintain and operate, in a
(a) Requirements for Cooperation Agree- manner satisfactory to the Chief of En-
ments. In order to maintain a firm un- gineers, all the works after completion.
derstanding between the Corps and When assistance includes the construc-
non-Federal interests concerning the tion of temporary protective works,
responsibilities of each party in re- the maintain and operate clause is
sponding to or recovering from a nat- modified by adding (or substituting, as
ural disaster, division or district com- applicable) the requirement for local
manders shall negotiate a cooperation interests to remove any temporary
agreement (CA) with a non-Federal works constructed by the Corps under
sponsor whenever assistance (other Public Law 84–99. If any permanent
than short term technical assistance) works are constructed, then the spon-
is furnished. CA’s do not require ap- sor is required to operate and maintain
proval by HQUSACE unless they con- the project in accordance with require-
tain special or unusual conditions. For ments determined by the Corps.
assistance to other than a public enti-
(a) Furnishing of LERRD’s. This item
ty, a public agency is required to be
the non-Federal sponsor, co-sign the provides for sites of structures, for bor-
agreement, and be responsible, from row and disposal areas, and for access.
the Corps perspective, for accomplish- It also provides for all other rights in,
ment of all work and conditions re- upon, through, or over private property
quired in the CA. Project sponsors as needed by the United States in con-
must meet the definition contained in nection with the authorized work. Per-
§ 203.15. formance by the local interests under
(b) Request for assistance. (1) For ur- their assurance to furnish LERRD’s
gent situations involving Flood Re- will normally not be considered a con-
sponse activities, division/district com- tribution. If more advantageous to the
manders may respond to oral requests Federal Government, borrow and dis-
from responsible representatives of posal areas may be assumed as a Fed-
local interests. However, all oral re- eral responsibility. Easements must be
quests must be confirmed in writing. provided for future Federal inspection
Assistance can be furnished before the of maintenance or removal. If a public
written statement is received. agency sponsors a project for a non-
(2) Before furnishing assistance public applicant, the applicant must
(other than short term technical as- provide an easement to the sponsor for
sistance) under Advance Measures, or
future maintenance or removal, as well
under Emergency Water Supplies, the
as for Federal inspection. Easements
district/division commander must re-
ceive a request, signed by the Governor should extend to the life of the project.
(or the Governor’s representative for (b) Hold and save clause. This clause
Emergency Water assistance due to a serves as legal protection of the gov-
contaminated source), identifying the ernment. Where property concerned is
problem, verifying that all available under tenancy, both the property
State and local resources have been owner and the tenant should acknowl-
committed, and requesting Federal as- edge the non-Federal sponsor’s signed
sistance. CA.
23
§ 203.83 33 CFR Ch. II (7–1–20 Edition)
(c) Maintain and operate clause. This The sponsor’s share is in addition to
item is intended to protect the invest- providing costs for LERRD’s, and any
ment of government resources and pro- costs for correction of any deferred/de-
vide proper stewardship of resources ficient maintenance. The Corps will de-
entrusted to the Corps. This clause termine the dollar value of any in-kind
must include: ‘‘It is understood that services provided by the local sponsor.
the foregoing maintenance and oper- (2) For those unusual occasions
ation requirement extends to inter- where permanent construction (vice
related features of all protective work the temporary standard) for Advance
under the control of (insert name of Measures projects is employed, the
sponsor, and owner if appropriate).’’ local sponsor will normally be required
(d) Removal of temporary works. Local to provide 25 percent of the project
interests are responsible for the re- cost, in addition to LERRD’s.
moval of all temporary works con-
structed by the Corps, which are un- § 203.83 Additional requirements.
suitable for upgrade to permanent (a) Maintenance deficiencies. Rehabili-
structures. Structures may be deemed tation, Emergency Water, Post Flood
unsuitable due to inherent health, ac- Response, and Advance Measures au-
cess, or safety problems that could re- thorities may not be used to correct
sult from their location. The wording deferred or deficient maintenance.
of this clause must not preclude the Such correction must be accomplished
use of other Federal assistance pro- by, or at the expense of, local interests.
grams to fund removal. This may include restoring normal
(e) Request for retention of temporary levee or dune height after subsidence,
flood control works. Local interests may replacement of deteriorated compo-
ask to retain a temporary structure for nents such as outlet structures and
protection from future floods. This will pipes, removal of debris, and new con-
not be approved by the Corps unless struction items such as protection
the works are upgraded to meet all against erosion. This restriction on use
Corps criteria for permanent projects. of these authorities does not preclude
Public Law 84–99 funds will not be used furnishing flood fight assistance during
to upgrade the structure. An upgraded an emergency.
project must comply with permitting, (b) Areas of minor damage, flood control
environmental, and other regulatory works. Separable areas with minor
and legal requirements. Unless up- damage will be included in the mainte-
graded, such projects are not eligible nance program of local interests.
for rehabilitation, and must be re- (c) Minor completion items. Local in-
moved in accordance with paragraph terests should be responsible for minor
(d) of this section. Unless upgraded, completion items, such as dressing
temporary projects which are not re- fills, placing sod, or seeding completed
moved by the local sponsor will cause work.
all projects with the same sponsor to (d) Adequacy of requirements of local
lose eligibility for Public Law 84–99 as- cooperation. In determining the ade-
sistance. Local interests must initiate quacy of the pledge of local coopera-
action to upgrade or remove the tem- tion, district/division commanders
porary works within 30 days after the must consider the local sponsor’s per-
flood threat has passed. formance capability, taking into ac-
(f) Cost sharing. (1) The Federal Gov- count any shortcomings in meeting
ernment may assume up to 80 percent prior commitments. Local sponsors
of the eligible construction costs for should make provisions to establish
rehabilitation of non-Federal flood and provide resources for a ‘‘Contin-
control projects, and up to 100 percent gency Fund’’ to meet future mainte-
of the eligible construction costs for nance requirements if apparent inad-
rehabilitation of Federal flood control equacies of protective works indicate
projects. The Federal Government may maintenance costs will be unusually
assume up to 100 percent of the eligible high. Local sponsors should make pro-
construction costs for rehabilitation of visions to establish and provide re-
HSPP’s. Sponsors will provide their sources for a ‘‘Capital Improvement

share of costs as provided for in § 203.84. Fund’’ to meet future costs of capital
24
improvement projects such as replace- Public Law 84–99 limits the term to a
ment of culverts in levees, pump sta- maximum of 30 years.
tion equipment, etc. (c) Provision of work or services in
(e) Eligibility under other Federal pro- kind. To the extent practicable, local
grams. The Cooperation Agreement interests should be allowed to mini-
must be worded to allow local interests mize the amount of contributed funds
to accept funding from other Federal by providing equivalent work or serv-
programs for meeting the local respon- ices in kind. Such services do not in-
sibility. For example, removal of tem- clude LERRD’s.
porary works will be without cost
under Corps Public Law 84–99 assist- § 203.85 Rehabilitation of Federal
flood control projects.
ance, but will not be ‘‘at no cost to the
United States.’’ Use of another Federal Some sponsors of Federal flood con-
agency’s funds is contingent upon that trol projects are not required to fur-
agency providing the Corps written as- nish written assurances of local co-
surance that such usage does not vio- operation, when such assurances al-
late any existing laws or rules con- ready exist from the PCA of the origi-
cerning the usage or expenditure of nal construction of the project. In lieu
such funds. of a new PCA, the Corps will notify the
sponsor, in writing, of the sponsor’s
§ 203.84 Forms of local participation— standing requirements. These require-
cost sharing. ments include such items as LERRD’s,
costs attributable to deficient or de-
In addition to the standard require-
ferred maintenance, removal of tem-
ments of local cooperation and accord-
porary works, cost-sharing require-
ing to the circumstances, local partici-
ments, and any other requirements
pation in project work may be in the
contained in § 203.82. The project spon-
form of: contributed funds; the fur-
sor must acknowledge its responsibil-
nishing of materials, equipment, or
ities prior to the provision of Rehabili-
services; and/or accomplishment of
tation Assistance. If the existing PCA
work either concurrently or within a
does not adequately address respon-
specified reasonable period of time.
sibilities, then a CA will be required.
The final terms agreed upon will be set
forth in writing and made a part of the § 203.86 Transfer of completed work to
CA before commencement of work. local interests.
(a) Contributed funds. Contributed Responsibility for operation and
funds may be accepted, or refunded, maintenance of a project for which
without further reference or approval emergency work under Public Law 84–
by the Chief of Engineers. The required 99 is undertaken will always remain
certificate of the district commander with the non-Federal sponsor through-
will cite 33 U.S.C. 701h as the pertinent out the process, and thereafter. The
authority. Corps will notify the non-Federal spon-
(b) Obligation of contributed funds. Per sor by letter when repair/rehabilita-
OMB Circular A–34, all contributed tion/work efforts are completed. De-
funds must be received in cash and detailed instructions, and suggestions
posited with the Treasury before any relative to proper maintenance and op-
obligations can be made against such eration, may be furnished as an enclo-
funds. Public Law 84–99 assistance for sure to this letter. The letter will re-
well construction is exempted from mind the local interests that they are
this requirement because financing is responsible for satisfactory mainte-
specifically authorized. However, the nance of the flood control works in ac-
CA for such well construction assist- cordance with the terms of the PCA or
ance (see subpart G of this part) must CA. In appropriate cases for Federal
be signed in advance of any obliga- projects, refer to the ‘‘Flood Control
tions. To reduce administrative prob- Regulation for Maintenance and Oper-
lems, CA terms for well construction ation of Flood Control Works: (33 CFR
should be for no longer a period than 208)’’ or the project’s Operation and
that which will allow for payments Maintenance Manual. Reporting re-
within the means of the applicant. quirements placed on the non-Federal
25
Pt. 207 33 CFR Ch. II (7–1–20 Edition)
sponsor will vary according to organi- west Passes; use, administration, and
zation and other circumstances. navigation.
207.249 Ouachita and Black Rivers, Ark. and
La., Mile 0.0 to Mile 338.0 (Camden, Ark.)
PART 207—NAVIGATION above the mouth of the Black River; the
REGULATIONS Red River, La., Mile 6.7 (Junction of Red,
Atchafalaya and Old Rivers) to Mile 276.0
Sec. (Shreveport, La.); use, administration,
207.9 Mystic River, Mass.; dam of Common- and navigation.
wealth of Massachusetts, Metropolitan 207.260 Yazoo Diversion Canal, Vicksburg,
District Commission. Miss., from its mouth at Kleinston Land-
207.10 Charles River, Mass.; dam of Charles ing to Fisher Street; navigation.
River Basin Commission. 207.270 Tallahatchie River, Miss., between
207.20 Cape Cod Canal, Mass.; use, adminis- Batesville and the mouth; logging.
tration, and navigation. 207.275 McClellan-Kerr Arkansas River navi-
gation system: use, administration, and
207.50 Hudson River Lock at Troy, N.Y.;
navigation.
navigation.
207.300 Ohio River, Mississippi River above
207.60 Federal Dam, Hudson River, Troy,
Cairo, Ill., and their tributaries; use, ad-
N.Y.; pool level.
ministration, and navigation.
207.100 Inland waterway from Delaware
207.306 Missouri River; administration and
River to Chesapeake Bay, Del. and Md.
navigation.
(Chesapeake and Delaware Canal); use,
207.310 Mississippi River at Keokuk, Iowa;
administration, and navigation.
operation of power dam by Mississippi
207.160 All waterways tributary to the At-
River Power Co.
lantic Ocean south of Chesapeake Bay 207.320 Mississippi River, Twin City Locks
and all waterways tributary to the Gulf and Dam, St. Paul and Minneapolis,
of Mexico east and south of St. Marks, Minn.; pool level.
Fla.; use, administration, and naviga- 207.330 Mississippi River between
tion. Winnibigoshish and Pokegama dams,
207.169 Oklawaha River, navigation lock Leech River between outlet of Leech
and dam at Moss Bluff, Fla.; use, admin- Lake and Mississippi River, and
istration and navigation. Pokegama reservoir; logging.
207.170 Federal Dam, Oklawaha River, Moss 207.340 Reservoirs at headwaters of the Mis-
Bluff, Fla.; pool level. sissippi River; use and administration.
207.170a Eugene J. Burrell Navigation Lock 207.350 St. Croix River, Wis. and Minn.
in Haines Creek near Lisbon, Florida; 207.360 Rainy River, Minn.; logging regula-
use, administration, and navigation. tions for portions of river within juris-
207.170b Apopka-Beauclair Navigation Lock diction of the United States.
in Apopka-Beauclair Canal in Lake 207.370 Big Fork River, Minn.; logging.
County, Fla.; use, administration, and 207.380 Red Lake River, Minn.; logging regu-
navigation. lations for portion of river above Thief
207.170c Kissimmee River, navigation locks River Falls.
between Lake Tohopekaliga and Lake 207.390 [Reserved]
Okeechobee, Fla.; use, administration, 207.420 Chicago River, Ill.; Sanitary District
and navigation. controlling works, and the use, adminis-
207.170d Taylor Creek, navigation lock (S– tration, and navigation of the lock at the
193) across the entrance to Taylor Creek mouth of river, Chicago Harbor.
at Lake Okeechobee, Okeechobee, Fla.; 207.425 Calumet River, Ill.; Thomas J.
use, administration, and navigation. O’Brien Lock and Controlling Works and
207.175a Carlson’s Landing Dam navigation the use, administration and navigation
lock, Withlacoochee River, Fla.; use, ad- of the lock.
ministration, and navigation. 207.440 St. Marys Falls Canal and Locks,
207.180 All waterways tributary to the Gulf Mich.; use, administration, and naviga-
of Mexico (except the Mississippi River, tion.
its tributaries, South and Southwest 207.441 St. Marys Falls Canal and Locks,
Passes and the Atchafalaya River) from Mich.; security.
St. Marks, Fla., to the Rio Grande; use, 207.460 Fox River, Wis.
administration, and navigation. 207.470 Sturgeon Bay and Lake Michigan
207.185 Taylors Bayou, Tex., Beaumont Ship Canal, Wis.; use and navigation.
Navigation District Lock; use, adminis- 207.476 The Inland Route—lock in Crooked
tration and navigation. River, Alanson, Mich.; use, administra-
207.187 Gulf Intracoastal Waterway, Tex.; tion, and navigation.
special floodgate, lock and navigation 207.480 Lake Huron, Mich.; Harbor of refuge,
regulations. Harbor Beach; use and navigation.

207.200 Mississippi River below mouth of 207.560 Sandusky Harbor, Ohio; use, admin-
Ohio River, including South and South- istration, and navigation.
26
207.565 Vermilion Harbor, Ohio; use, admin- exact draft of water at such portions of
istration, and navigation. the vessel. Gages set into the walls or
207.570 Harbors of Huron, Lorain, Cleveland, the locks, both upstream and down-
Fairport, Ashtabula, Conneaut, Ohio;
use, administration, and navigation.
stream of each gate, indicate the depth
207.580 Buffalo Harbor, N.Y.; use, adminis- in feet of water over the sill of the
tration, and navigation. gate.
207.590 Black Rock Canal and Lock at Buf- (d) Vessels denied lockage. The super-
falo, N.Y.; use, administration and navi- intendent may deny passage through
gation. the locks to any craft with sharp,
207.600 Rochester (Charlotte) Harbor, N.Y.; rough projecting corners, overhanging
use, administration, and navigation. equipment or cargo, or any craft or two
207.610 St. Lawrence River, Cape Vincent
Harbor, N.Y.; use, administration, and
that is in sinking condition or in any
navigation of the harbor and U.S. break- way unseaworthy or insufficiently
water. manned and equipped, or any craft fail-
207.640 Sacramento Deep Water Ship Chan- ing to comply with the regulations in
nel Barge Lock and Approach Canals; this section or with any orders given in
use, administration, and navigation. pursuance thereof.
207.680 Willamette River, Oreg.; use, admin- (e) Protection of lock gates. (1) In no
istration, and navigation of canal and
case shall boats be permitted to enter
locks at Willamette Falls, Oreg.
207.718 Navigation locks and approach chan- or leave any of the locks until directed
nels, Columbia and Snake Rivers, Oreg. to do so by the superintendent. Boats
and Wash. shall not be permitted to enter or start
207.750 Puget Sound Area, Wash. to leave until the lock gates are at rest
207.800 Collection of navigation statistics. within the gate recesses. All persons,
AUTHORITY: 33 U.S.C. 1; 33 U.S.C. 555; 28 whether in charge of vessels or not, are
U.S.C. 2461 note. prohibited from willfully or carelessly
damaging the locks or any of the ap-
§ 207.9 Mystic River, Mass.; dam of purtenances or the grounds adjacent
Commonwealth of Massachusetts, thereto, and from throwing or allowing
Metropolitan District Commission. any material of any kind to fall from
(a) Definition and authority of super- the barge, scow or other vessel into the
intendent. The term superintendent as locks.
used in the regulations in this section (2) No person shall permit or suffer
shall mean himself and/or his personnel any vessel, scow, raft, or float to come
then on duty at the dam. The posi- in contract with any gate or any of the
tioning and movements of all locks of the Amelia Earhart Dam.
watercraft of every description while in (f) Damage to walls. The sides of all
the locks or within 100 yards of the craft passing through the locks must
locks or dam shall be subject to the di- be free from projection of any kind
rection of the superintendent whose or- which might injure the lock walls. All
ders must be obeyed. This order does craft must be provided with suitable
not relieve the master of the responsi- fenders. One or more men as the super-
bility for the safety of his vessel. intendent may direct shall be kept at
(b) Description of locks. There are the head of every tow until it has
three (3) locks to be used for the pas- cleared the lock and guide walls, and
sage of vessels; one large lock 325 feet shall protect the walls by use of the
long, 45 feet wide, shall be used for ves- fenders.
sels with draft up to seventeen (17) (g) Unnecessary delay at locks. No per-
feet; two small locks each 120 feet long son shall cause or permit any craft of
and 22 feet wide shall be used for boats which he is in charge to remain in the
up to six (6) feet draft. locks or their approaches for a longer
(c) Maximum draft. Vessels drawing period of time than is necessary for the
within six (6) inches of depth over the passage of the locks unless he is espe-
sills shall not be permitted lockage ex- cially permitted to do so by the super-
cept under special permission of the su- intendent, and if such craft is, in the
perintendent. Every vessel using the opinion of such superintendent, in a po-
locks and drawing more than ten (10) sition to obstruct navigation, it shall
feet shall be accurately and distinctly be removed at once as requested or di-

marked at bow and stern showing the rected by the superintendent.
27
§ 207.9 33 CFR Ch. II (7–1–20 Edition)
(h) Procedure at locks. The locks shall check the way on any vessel greater
be operated promptly for the passage of than 30 gross tons.
all craft upon signal, excepting only in (4) Vessels less than 30 gross tons
such cases as are specifically provided may fasten lines to the floating moor-
for in the regulations in this section. ings in the large or small locks. All
All registered merchant vessels shall persons shall keep off the floating
pass through the locks in the order di- moorings at all times.
rected by the superintendent. Other (5) No line shall be attached to any-
craft shall be allowed to pass through thing on or a part of the dam except
the locks at the discretion of the super- the fixtures provided for this purpose.
intendent. (6) Equipment of each craft shall in-
(i) Navigation of the locks. (1) All clude a sufficient bow line and stern
barges navigating the locks whether line.
approaching or leaving the locks are (j) Mooring. When a craft is in posi-
required to be assisted by one or more tion in the lock, it shall be securely
tugs of sufficient power to insure full fastened in a manner satisfactory to
control at all times. All craft ap- the superintendent to prevent the craft
proaching the locks while any other moving about while the lock is being
vessel going in the opposite direction is filled or emptied, and the lines, cables,
in or about to enter shall be stopped or hawsers used for this purpose shall
where they will not obstruct the free be attended as far as is necessary or re-
passage of such other vessel. quired while the filling or empting is in
progress.
(2) All vessels over 100 gross tons in-
(k) [Reserved]
cluding those which are accompanied
(l) Signals. (1) All craft desiring lock-
by towboats must attach not less than
age shall, on approaching the locks,
two good and sufficient lines, cables, or signal by two long and two short blasts
hawsers to the bollards or other fix- of a whistle or other sound device. Two
tures provided for the purpose to check long blasts from the lock in reply will
the speed of the vessel and to stop it as indicate a delayed opening and direct
soon as it has gone far enough to per- the craft not to enter the lock.
mit the lock gate behind it to be (2) Lights are located at each end of
closed. Each line, cable, or hawser shall each lock and will normally show red.
be attended on board while passing into No vessel shall come within 100 feet of
the lock by one or more of the vessel’s the outside of any gate when the signal
crew. Where vessels are so long that in is red except when so directed by the
order to get them wholly within the superintendent.
locks it is necessary to go within 100 (3) Fireboats and craft owned by the
feet of the lock gate ahead, the speed of U.S. Government shall be given prompt
the vessel must be slow and the vessel and preferential lockage when they
must be fully under control at all sound four long blasts.
times by the lines, cables or hawsers. (4) No vessel shall move into or out of
All towboats and vessels less than 100 any lock until the controlling signal is
gross tons may enter the locks without green. A green light in addition to
having lines out subject to the discre- audio loud speakers, operated by the
tion of the superintendent. The master superintendent or his assistants, will
or person in charge of a vessel shall ar- direct craft through the locks.
range to have any line, cable, or haw- (5) It shall be the duty of every mas-
ser handed or thrown from the lock ter or person in charge of any vessel to
walls by the superintendent, or his as- ascertain by personal observation that
sistants, made fast on the vessel as re- the lock gate is fully open before pro-
quested or directed, so that in cases of ceeding.
emergency such line, cable, or hawser (m) Operating machinery. Lock em-
may also be used to check the speed of ployees only shall be permitted to op-
and stop the vessel. erate the lock gates, signals or other
(3) Operators of vessels less than 200 appliances. No person shall deface or
gross tons may use the floating moor- injure any part of the Amelia Earhart
ings in the large lock to fasten lines or Dam, or any pier, wall or other struc-
hawsers, but they shall not be used to ture or any mechanism connected
28
therewith; nor shall any person, with- lashed to prevent their falling into the
out the consent of the superintendent, lock and interfering with the gates.
make fast to the dam, guard, guide (e) All vessels approaching the lock
wall, pier, or any appurtenance thereof while any other vessel going in the op-
any vessel, scow, raft, or float. posite direction is in or about to enter
(n) Vessel to carry regulations. A copy it shall be stopped where they will not
of the regulations in this section shall obstruct the free passage of such other
be kept at all times on board each ves- vessel.
sel regularly engaged in navigating the (f) It shall be the duty of every mas-
locks. Copies may be obtained without ter or person in charge of any vessel
charge from the superintendent; the upon approaching the lock from the up-
Commonwealth of Massachusetts, stream end to ascertain by personal ob-
M.D.C. Parks Division, Boston, Mass.; servation whether or not the upper
New England Division, Corps of Engi- lock gate is open, and a vessel shall not
neers, Division Engineer, Waltham, be permitted to come within 100 feet of
Mass. the upper lock gate until the gate has
[32 FR 8716, June 17, 1967, as amended at 56 been wholly withdrawn into its recess.
FR 13764, Apr. 4, 1991] (g) All towboats, whether towing or
not, and other steam vessels of less
§ 207.10 Charles River, Mass.; dam of than 100 tons gross may enter the lock
Charles River Basin Commission. under their own power and without
(a) The movements of all vessels or having lines out, but all other vessels,
boats in and near the lock shall be including those which are accompanied
under the direction of the super- by towboats, must attach not less than
intendent in charge of these structures two good and sufficient lines, cables, or
and his assistants, whose orders and hawsers to the bollards or other fix-
signals shall be obeyed. tures provided for the purpose to check
(b) Every vessel using the lock and the speed of the vessel and to stop it as
drawing more than 10 feet shall be ac- soon as it has gone far enough to per-
curately and distinctly marked at the mit the lock gate behind it to be
bow and stern, showing the exact draft closed, and each line, cable, or hawser
of water at such portions of the vessel. shall be attended on board while pass-
(c) All steam vessels desiring to pass ing into the lock by one or more of the
through the lock shall signal for the vessel’s crew. Where vessels are so long
same by two long and two short blasts that in order to get them wholly with-
of the whistle. in the lock it is necessary to approach
(d)(1) All vessels passing through the within 150 feet of the lock gate ahead,
lock shall have their outboard spars, if the speed of the vessel must be slow
any, rigged in, and booms amidships, and fully under control by the lines,
and secured. All standing and running cables, or hawsers. Steam vessels of
rigging must be triced in to keep it more than 100 tons gross, not including
from blowing out and fouling the draw- towboats, will not be permitted to turn
bridge. Every vessel of 200 tons and their propellers on entering the lock
under shall be provided with at least after the bow of the vessel has entered,
two, and every vessel of more than 200 but will be drawn in by means of cap-
tons shall be provided with at least stans on the lock walls or otherwise,
four good and sufficient lines, cables, and their speed must be checked and
or hawsers. Anchors shall either be the vessel stopped by lines, cables, or
stowed or shall hang from hawse pipes, hawsers as in other cases. All steam
hauled up close, clear of the water if vessels may leave the lock under their
possible. Vessels with anchors under own power. The master or person in
foot or hanging from catheads will not charge of a vessel shall arrange to have
be permitted to enter the lock. any line, cable, or hawser handed or
(2) All vessels must be sufficiently thrown from the lock walls by the su-
manned and must have a sufficient perintendent or his assistants, made
number of round and fore-and-aft fend- fast on the vessel as requested or di-
ers to protect the lock from injury. All rected, so that in cases of emergency
heavy rope fenders must be securely such line, cable, or hawser may also be
29
§ 207.20 33 CFR Ch. II (7–1–20 Edition)
used to check the speed of and stop the upon signal excepting only in such
vessel. cases as are specifically provided for in
(h) When a vessel is in position in the this section.
lock it shall be securely fastened in a [Regs., May 6, 1909]
manner satisfactory to the super-
intendent, or his assistant in charge of § 207.20 Cape Cod Canal, Mass.; use,
the lock at the time, to prevent the administration, and navigation.
vessel from moving about while the (a) Limit of Canal. The canal, includ-
lock is being filled or emptied, and the ing approaches, extends from the Canal
lines, cables, and hawsers used for this Station Minus 100 in Cape Cod Bay, ap-
purpose shall be attended as far as is proximately one and six-tenths (1.6)
necessary or required while the filling statute miles seaward of the Canal
or emptying is in progress. Breakwater Light, through dredged
(i) No vessel which has iron or irons channels and land cuts to Cleveland
projecting from it or lumber or other Ledge Light in Buzzards Bay approxi-
cargo projecting over its sides shall mately four (4) statute miles southwest
enter the lock, except at such time and of Wings Neck.
with such precautions to prevent dam- (b) Supervision. (1) The movement of
age to the lock or its appurtenances as ships, boats and craft of every descrip-
the superintendent, or the assistant in tion through the canal and the oper-
charge of the lock at the time, may re- ation and maintenance of the water-
quire. way and all property of the United
(j) All persons, whether in charge of States pertaining thereto shall be
vessels or not, are prohibited from will- under the supervision of the Division
fully or carelessly damaging the lock, Engineer, U.S. Army Engineer Divi-
any of its appurtenances or the sion, New England, Corps of Engineers,
grounds adjacent thereto, and from Waltham, Massachusetts, or the au-
throwing any material of any kind into thorized representative of the division
the lock. No line shall be attached to engineer, the Engineer-In-Charge of the
anything except the bollards and other Cape Cod Canal. The division engineer
fixtures provided for the purpose. or the Engineer-In-Charge from time to
(k) Upon each passage through the time will prescribe rules governing the
lock, the master or clerk of a vessel dimensions of vessels which may tran-
shall make a statement of the kind and sit the waterway, and other special
tonnage of the freight carried. conditions and requirements which will
(l) No person shall cause or permit govern the movement of vessels using
any vessel or boat of which he is in the waterway.
charge to remain in the lock or its ap- (2) The Engineer-In-Charge, through
proaches for a longer time than is nec- the marine traffic controller on duty,
essary for the passage of the lock, un- will enforce these regulations and mon-
less he is especially permitted to do so itor traffic through the canal. The ma-
by the superintendent or the assistant rine traffic controller on duty is the in-
in charge of the lock at the time, and dividual responsible for interpretation
if such vessel or boat is, in the opinion of these regulations with respect to
of such superintendent or assistant, in vessels transiting the canal. Vessels
a position to obstruct navigation it transiting the canal must obey the or-
shall be removed at once as requested ders of the marine traffic controller.
or directed by such superintendent or (3) The government has tugs sta-
assistant. tioned at the West Boat Basin for
(m) All registered merchant vessels emergency use on an on-call basis. A
shall pass through the lock in the order patrol vessel is manned and oper-
directed by the superintendent or the ational 24-hours a day.
assistant in charge of the lock at the (c) Communications. There is a marine
time. Unregistered craft will not be al- traffic controller on duty 24 hours a
lowed to pass through the lock sepa- day, seven days a week, in the traffic
rately unless especially permitted by control center located at the Canal Ad-
such superintendent or assistant. ministrative Office. The primary meth-
(n) The lock shall be operated od of communications between the

promptly for the passage of all vessels canal and vessels transiting will be by
30
VHF-FM Marine radio. The traffic con- safe handling of the tows. No towboat
troller can also be contacted by tele- will be allowed to enter the waterway
phone. with more than two barges in tow un-
(1) For radio communications, call less prior approval is granted by the
the traffic controller on channel 16 to Engineer-In-Charge; requests must be
establish contact. The transmissions submitted 12 hours in advance of the
will then be switched to channel 12 or passage.
14 as the working channel to pass infor- (2) The maximum length of pontoon
mation. Channel 13 is also available at rafts using the canal will be limited to
the canal office; however, the use of 600 feet, and the maximum width to 100
channel 13 should be limited to emer- feet. Pontoon rafts exceeding 200 feet
gency situations or whenever vessels in length will be required to have an
do not have one of the other channels. additional tug on the stern to insure
All four channels are monitored con- that the tow is kept in line. The tugs
tinuously by the traffic controller. used must have sufficient power to
Radio discipline will be adhered to in handle the raft safely.
accordance with FCC rules and regula- (3) Dead ships are required to transit
tions. the canal during daylight hours and
(2) For telephone communications must be provided with the number of
with the traffic controller, call (617) tugs sufficient to afford safe passage
759–4431. through the canal. (A dead ship will
(3) Vessels shall maintain a radio not be allowed to enter the canal un-
guard on Marine VHF-FM channel 13 less prior approval is granted by the
during the entire passage through the Engineer-In-Charge; requests must be
canal. submitted 12 hours in advance of the
(4) All radio communications in the passage).
vicinity of the canal are tape recorded
(f) Dangerous cargoes. The master or
for future reference.
pilot of any vessel or tow carrying dan-
(d) Vessels allowed passage. The canal
gerous cargoes must notify the Marine
is open for passage to all adequately
Traffic Controller prior to entering the
powered vessels properly equipped and
seaworthy, of sizes consistent with safe canal. Dangerous cargoes are defined as
navigation as governed by the control- those items listed in 33 CFR 126.10
ling depths and widths of the channel when carried in bulk (i.e., quantities
and the vertical and horizontal clear- exceeding 110 U.S. gallons in one tank)
ances of the bridges over the waterway. plus Class A explosives (commercial or
The granting of permission for any ves- military) as listed in 49 CFR 173.53
sel to proceed through the waterway (commercial) and 46 CFR 146.29–100
shall not relieve the owners, agents (military), liquified natural gas and
and operators of full responsibility for liquified petroleum gas. Transpor-
its safe passage. No vessel having a tation of dangerous cargoes through
greater draft forward than aft will be the canal shall be in strict accordance
allowed to transit the canal. Craft of with existing regulations prescribed by
low power and wind driven are required law. In addition, vessels carrying dan-
to have and use auxiliary power during gerous cargoes shall comply with the
passage throughout the canal as de- following requirements.
fined in paragraph (a) of this section. (1) They must have sufficient horse-
Low powered vessels will be required to power to overcome tidal currents or
await slack water or favorable current they will be required to wait for favor-
for canal transit. able current conditions.
(e) Tows. (1) Tows shall be made-up (2) Transits will be during daylight
outside the canal entrances. All vessels hours.
engaged in towing other vessels not (3) No transit will be permitted when
equipped with a rudder shall use two visibility conditions are unstable or
lines or a bridle and one tow line. If the less than 2 miles at the approaches and
vessel in tow is equipped with a rudder throughout the entire length of the
or a ship shaped bow, one tow line may canal.
be used. All tow lines of hawsers must (4) Transits must await a clear canal
be hauled as short as practicable for for passage.
31
§ 207.20 33 CFR Ch. II (7–1–20 Edition)
(g) Obtaining clearance. (1) Vessels been obtained from the marine traffic
under 65 feet in length may enter the controller.
canal without obtaining clearance. All (h) Traffic lights. There are three sets
craft are required to make a complete of traffic lights showing red, green, and
passage through the canal except ex- yellow that are operated on a contin-
cursion craft which may operate and uous basis at the canal. The traffic
change direction within the canal in lights apply to all vessels 65 feet in
accordance with procedures coordi- length and over. The traffic lights are
nated with the marine traffic con- a secondary system that is operated in
troller on duty. When the railroad support of the radio communications
bridge span is in the closed (down) posi- system. The traffic lights are located
tion, all vessels are directed not to pro- at the easterly canal entrance, Sand-
ceed beyond the points designated by wich, and at the westerly entrance to
stop signs posted east and west of the Hog Island Channel at Wings Neck. A
railroad bridge. Vessels proceeding third traffic light is located at the
with a fair tide (with the current) Canal Electric Terminal basin on the
should turn and stem the current at south side of the canal in Sandwich,
the designated stop points until the and applies only to vessels arriving and
railroad bridge is in the raised (open) departing that terminal.
position. (1) Westbound traffic. When the green
(2) Vessels 65 feet in length and over light is on at the eastern (Cape Cod
shall not enter the canal until clear- Bay) entrance, vessels may proceed
ance has been obtained from the ma- westward through the canal. When the
rine traffic controller by radio. See red light is on, any type of vessel 65
paragraph (c) ‘‘Communications’’ for feet in length and over must stop clear
procedures. If a vessel, granted prior of the Cape Cod Bay entrance channel.
clearance, is delayed or stops at the When the yellow light is on, vessels 65
mooring basins, state pier, or the Sand- feet in length and over and drawing
wich bulkhead, a second clearance less than 25 feet may proceed as far as
must be obtained prior to continuing the East Mooring Basin where they
passage through the canal. must stop. Prior to continuing passage
(3) Vessels will be given clearance in through the canal, clearance must be
the order of arrival, except when condi- obtained from the marine traffic con-
tions warrant one-way traffic, or for troller.
any reason an order of priority is nec- (2) Eastbound traffic. When the green
essary, clearance will be granted in the light is on at Wings Neck, vessels may
following order. proceed eastward through the canal.
(i) First—To vessels owned or oper- When the red light is on, vessels 65 feet
ated by the United States, including and over in length and drawing less
contractors’ equipment employed on than 25 feet must keep southerly of
canal maintenance or improvement Hog Island Channel Entrance Buoys
work. Nos. 1 and 2 and utilize the general an-
(ii) Second—To passenger vessels. chorage areas adjacent to the improved
(iii) Third—To tankers and barges channel. Vessel traffic drawing 25 feet
docking and undocking at the Canal and over are directed not to enter the
Electric Terminal. canal channel at the Cleveland Ledge
(iv) Fourth—To merchant vessels, Light entrance and shall lay to or an-
towboats, commercial fishing vessels, chor in the vicinity of Buzzards Bay
pleasure boats and miscellaneous craft. Buoy No. 11 (FLW & Bell) until clear-
(4) Procedures in adverse weather: ance is granted by the canal marine
Vessels carrying flammable or combus- traffic controller or a green traffic
tible cargoes as defined in 46 CFR 30.25 light at Wings Neck is displayed. When
will be restricted from passage through the yellow light is on, vessels may pro-
the canal when visibility is less than 1⁄2 ceed through Hog Island Channel as far
mile. Other vessels may transit the as the West Mooring Basin where they
canal in thick weather by use of radar must stop. Prior to continuing passage
with the understanding that the U.S. through the canal, clearance must be
Government will assume no responsi- obtained from the marine traffic con-
bility: And provided, That clearance has troller.
32
(i) Railroad Bridge Signals. The fol- portion of the canal between stations
lowing signals at the Buzzards Bay 35 and 661, within the period of one-half
Railroad Bridge will be given strict at- hour before or after the predicted time
tention. of slack water as given in the National
(1) The vertical lift span on the rail- Ocean Survey publication ‘‘Current Ta-
road bridge is normally kept in the bles, Atlantic Coast, North America.’’
raised (open) position except when it is The minimum running time during a
lowered for the passage of trains, or for head tide or a fair tide shall apply to
maintenance purposes. Immediately any vessel which enters that portion of
preceding the lowering of the span, the the canal between Station 35 and 661 at
operator will sound two long blasts of any time other than designated above
an air horn. Immediately preceding the for time requirements at slack tide.
raising of the span, the operator will Vessels of any kind unable to make a
sound one long blast of an air horn. through transit of the land cut portion
When a vessel or craft of any type is of the canal against a head current of
approaching the bridge with the span 6.0 knots within a maximum time limit
in the down (closed) position and the of 2 hours 30 minutes shall be required
span cannot be raised immediately, the to obtain the assistance of a helper tug
operator of the bridge will so indicate at the vessel owner’s expense or await
by sounding danger signals of four favorable tide conditions prior to re-
short blasts in quick succession. ceiving clearance from the marine traf-
(2) When the lift span is in the down fic controller. In the event vessels
(closed) position in foggy weather or within the confines of the canal fail to
when visibility is obscured by vapor, perform and are unable to make suffi-
there will be four short blasts sounded cient headway against the currents,
from the bridge every two minutes. the marine traffic controller may acti-
(j) Speed. All vessels are directed to vate a helper tug in accordance with
pass mooring and boat basin facilities, paragraph (k) of this section.
the state pier, and all floating plant (k) Management of vessels. (1) Vessels
engaged in maintenance operations of within the limits of the canal shall
the waterway at a minimum speed con- comply with applicable navigation
sistent with safe navigation. In order rules.
to coordinate scheduled rail traffic (2) Vessels within the limits of the
with the passage of vessels, to mini- canal shall comply with the applicable
mize erosion of the canal banks and requirements for the use of pilots es-
dikes from excessive wave wash and tablished by the Coast Guard, includ-
suction, and for the safety of vessels ing but not limited to those contained
using the canal, the following speed in 46 CFR 157.20–40. Vessels will not be
regulations must be observed by ves-
granted clearance to enter the canal
sels of all types, including pleasure
until the marine traffic controller has
craft. The minimum running time for
been notified of the name of the pilot
the land cut between the East Mooring
who will be handling the vessel.
Basin (Station 35) and the Administra-
(3) The master of a vessel will be re-
tion Office in Buzzards Bay (Station
sponsible for notifying the marine traf-
388) is prescribed as follows:
fic controller as soon as an emergency
Head Tide—60 Minutes situation appears to be developing.
Fair Tide—30 Minutes When in the opinion of the marine traf-
Slack Tide—45 Minutes fic controller an emergency exists, he/
The minimun running time between she can require the master to accept
the Administration Office (Station 388) the assistance of a helper vessel.
and Hog Island Channel westerly en- Whether or not assistance is provided
trance Buoy No. 1 (Station 661) is pre- by a government vessel or by a private
scribed as follows: firm under contract to the government,
the government reserves the right to
Head Tide—46 Minutes seek compensation from the vessel
Fair Tide—23 Minutes
Slack Tide—35 Minutes owners for all costs incurred.
(4) Right-of-Way: All vessels pro-
The running time at slack water will ceeding with the current shall have the
apply to any vessel which enters that right-of-way over those proceeding
33
§ 207.20 33 CFR Ch. II (7–1–20 Edition)
against the current. All craft up to 65 troller. Mooring in the West Boat
feet in length shall be operated so as Basin at Buzzards Bay, near the rail-
not to interfere with the navigation of road bridge, is not permitted except in
vessels of greater length. an emergency. Fishing boats, yachts,
(5) Passing of vessels: The passing of cabin cruisers and other craft utilizing
one vessel by another when proceeding the East Boat Basin on the south side
in the same direction is prohibited ex- of the canal at Sandwich, Massachu-
cept when a leading low powered ship is setts are not permitted to tie up at the
unable to make sufficient headway. Corps of Engineers landing float or an-
However, extreme caution must be ob- chor in a manner to prevent canal
served to avoid collision, and consider- floating plant from having ready access
ation must be given to the size of the to the float. All vessels or barges left
ship to be overtaken, velocity of cur- unattended must be securely tied with
rent and wind, and atmospheric condi- adequate lines or cables. The United
tions. Masters of vessels involved shall States assumes no liability for dam-
inform the marine traffic controller on ages which may be sustained by any
duty of developing situations to facili- craft using the bulkhead at Sandwich
tate coordination of vessel movement. or the canal mooring or boat basin fa-
Meeting or passing of vessels at the cilities. Vessels shall not be left unat-
easterly end of the canal between Sta- tended along the face of the govern-
tion Minus 40 and Station 60 will not be ment bulkhead. A responsible person
permitted, except in cases of extreme with authority to authorize and/or ac-
emergency, in order to allow vessels to complish vessel movement must re-
utilize the center line range to mini- main onboard at all times.
mize the effects of hazardous eddies (l) Grounded, wrecked or damaged ves-
and currents. Due to bank suction and sels. In the event a vessel is grounded,
tidal set, meeting and passing of ves- or so damaged by accident as to render
sels at the following locations will be it likely to become an obstruction and/
avoided: or hazard to navigation in the water-
(i) Sagamore Bridge. way, the division engineer or the divi-
(ii) Bourne Bridge. sion engineer’s authorized representa-
(iii) Railroad Bridge. tive shall supervise and direct all oper-
(iv) Mass Maritime Academy. ations that may be necessary to re-
(6) Unnecessary delay in canal: Ves- move the vessel to a safe locality.
sels and other type crafts must not ob- (m) [Reserved]
struct navigation by unnecessarily (n) Deposit of refuse. No oil or other
idling at low speed when entering or allied liquids, ashes, or materials of
passing through the canal. any kind shall be thrown, pumped or
(7) Stopping in the waterway: An- swept into the canal or its approaches
choring in the Cape Cod Canal Channel from any vessel or craft using the wa-
is prohibited except in emergencies. terway, nor shall any refuse be depos-
For the safety of canal operations it is ited on canal grounds, marine struc-
mandatory that the masters of all ves- tures, or facilities.
sels anchoring in or adjacent to the (o) Trespass to property. Subject to
canal channel (Cape Cod Bay to Cleve- the provisions of paragraph (q) of this
land Ledge Light) for any reason, im- section trespass upon the canal prop-
mediately notify the marine traffic erty is prohibited.
controller. (p) Bridges over the canal. The govern-
(8) Utilization of mooring and boat ment owns, operates and maintains all
basins and the Sandwich Bulkhead: bridges across the canal which include
Vessels mooring or anchoring in the one railroad bridge and two highway
mooring or boat basins at the Sand- bridges. The division engineer or his/
wich bulkhead must do so in a manner her authorized representative may es-
not to obstruct or impede vessel move- tablish rules and regulations governing
ments to and from facilities. These fa- the use of these bridges.
cilities are of limited capacity and per- (q) Recreational use of canal—(1) Pol-
mission to occupy them for periods ex- icy. (i) It is the policy of the Secretary
ceeding 24 hours must be obtained in of the Army acting through the Chief
advance from the marine traffic con- of Engineers to provide the public with
34
safe and healthful recreational oppor- States and the Commonwealth of Mas-
tunities within all water resource de- sachusetts will be enforced.
velopment projects administered by (6) Hunting. Hunting is permitted in
the Chief of Engineers, including the accordance with game laws of the
canal and government lands part there- United States and the Commonwealth
of. Any recreational use of the canal of Massachusetts.
and those lands shall be at the users (7) Fires. No open fires will be allowed
own risk. at any time except by special permis-
(ii) All water resource development sion and then shall be continuously
projects open for recreational use shall overseen and in compliance with state
be available to the public without re- or town laws.
gard to sex, race, creed, color or na- (8) Control of animals and pets. (i) No
tional origin. No lessee, licensee, or person shall bring or have horses in
concessionaire providing a service to camping, picnic, swimming beaches or
the public shall discriminate against developed recreation areas.
any person or persons because of sex, (ii) No person shall bring dogs (except
race, creed, color or national origin in seeing eye dogs), cats, or other pets
the conduct of operations under the into developed recreation areas unless
lease, license or concession contract. penned, caged, or on a leash no longer
(2) Motor vehicles. Operation of motor than six feet or otherwise under phys-
vehicles, motorcycles, minibikes, ical restrictive controls at all time.
mopeds, motorbikes, snowmobiles, and (9) Restrictions. (i) The division engi-
all types of off-road vehicles is prohib- neer may establish a reasonable sched-
ited on government lands and service ule of visiting hours for all or portions
roads except in areas specifically des- of the project area and close or restrict
ignated for such operation. the public use of all or any portion of
the project by the posting of appro-
(3) Swimming. Swimming, skin diving,
priate signs indicating the extent and
snorkling, and scuba diving in the
scope of closure. All persons shall ob-
canal between the east entrance in
serve such posted restrictions.
Cape Cod Bay and the west entrance at
(ii) The operation or use of any audio
Cleveland Ledge Light are prohibited. or other noise producing device includ-
Diving operations may be authorized ing, but not limited to, communica-
by the Engineer-In-Charge in conjunc- tions media and vehicles in such a
tion with operation and maintenance manner as to unreasonably annoy, en-
of the canal. danger persons or affect vessel traffic
(4) Camping. Overnight tenting or through the canal is prohibited.
camping on governmment land is pro- (10) Explosives, firearms, other weapons
hibited except in areas designated by and fireworks. (i) The possession of
the division engineer. Bourne Scenic loaded firearms, ammunition, projec-
Park and Scusset Beach State Reserva- tile firing devices, bows and arrows,
tion are designated camping areas. Per- crossbows, and explosives of any kind
sons asleep during hours of darkness in is prohibited unless in the possession of
or out of vehicles shall be considered as a law enforcement officer or Govern-
campers. ment employee on official duty or used
(5) Fishing. Persons may fish with rod for hunting during the hunting season
and line from the banks of the canal on as permitted under paragraph (q)(6) of
Federally owned property except areas this section, or unless written permis-
designated by the division engineer. sion has been received from the divi-
Fishing and lobstering by boat in the sion engineer.
Cape Cod Canal between the east en- (ii) The possession or use of fireworks
trance in Cape Cod Bay and the west is prohibited unless written permission
entrance at Cleveland Ledge Light are has been received from the division en-
prohibited. Fishing by boat is per- gineer.
mitted in the area west of the State (11) Public property. Destruction, in-
Pier in Buzzards Bay, provided that all jury, defacement or removal of public
craft stay out of the channel defined by property including natural formations,
U.S. Coast Guard buoys and beacons. historical and archeological features
Fish and game laws of the United and vegetative growth is prohibited
35
§ 207.50 33 CFR Ch. II (7–1–20 Edition)
without written permission of the divi- has been received from the division en-
sion engineer. gineer.
(12) Abandonment of personal property. (15) Commercial activities. The engag-
(i) Abandonment of personal property ing in or solicitation of business with-
is prohibited. Personal property shall out the written permission of the divi-
not be left unattended upon the lands sion engineer is prohibited.
or waters of the project except in ac- (16) Unauthorized structures. The con-
cordance with this regulation. After a struction or placing of any structure of
period of 24 hours, abandoned or unat- any kind under, upon or over the
tended personal property shall be im- project lands or water is prohibited un-
pounded and stored at a storage point less a permit has been issued by the di-
designated by the division engineer. vision engineer. Structures not under
The division engineer shall assess a permit are subject to summary re-
reasonable impoundment fee, which moval by the division engineer.
shall be paid before the impounded (17) Special events. Prior approval
property is returned to its owners. must be obtained from the Engineer-In-
(ii) The division engineer shall, by Charge for special events, recreational
public or private sales or otherwise, programs and group activities. The
dispose of all lost, abandoned, or un- public shall not be charged any fee by
claimed personal property that comes the sponsor of such event unless the di-
into his/her custody or control. How- vision engineer has approved in writing
ever, efforts should be made to find the the proposed schedule of fees.
owner, the owner’s heirs or next of kin, (18) Interference with government em-
or legal representatives. If the owner, ployees. Interference with any govern-
heirs or next of kin, or legal represent- ment employee in the conduct of offi-
ative is determined but not found, the cial duties pertaining to the adminis-
property may not be disposed of until tration of these regulations is prohib-
the expiration of 120 days after the ited.
date when notice, giving the time and
place of the intended sale or other dis- [45 FR 51552, Aug. 4, 1980; 45 FR 60430, Sept.
position, has been sent by certified or 12, 1980, as amended at 56 FR 13765, Apr. 4,
registered mail to that person at last 1991]
known address. When diligent effort to
determine the owner, owner’s heirs or § 207.50 Hudson River Lock at Troy,
N.Y.; navigation.
next of kin, or legal representative is
unsuccessful, the property may be dis- (a) Authority of lockmaster. The
posed of without delay, except that if it lockmaster shall be charged with the
has a fair market value of $25 or more immediate control and management of
the property generally may not be dis- the lock, and of the area set aside as
posed of until three months after the the lock area, including the lock ap-
date it is received at the Cape Cod proach channels. He shall see that all
Canal Administrative Office. The net laws, rules and regulations for the use
proceeds from the sale of property shall of the lock and lock area are duly com-
be placed into the Treasury of the plied with, to which end he is author-
United States as miscellaneous re- ized to give all necessary orders and di-
ceipts. rections in accordance therewith, both
(13) Lost and found articles. All aban- to employees of the Government and to
doned/lost articles shall be deposited any and every person within the limits
by the finder at the Canal Administra- of the lock or lock area, whether navi-
tion office or with Canal ranger. The gating the lock or not. No one shall
finder shall leave his/her name, ad- cause any movement of any vessel,
dress, and phone number. All lost arti- boat, or other floating thing in the
cles shall be disposed of in accordance lock or approaches except by or under
with procedures set forth in paragraph the direction of the lockmaster or his
(q)(12) of this section. assistants.
(14) Advertisement. Advertising by the (b) Signals. Steamboats or tows desir-
use of billboards, signs, markers, audio ing lockage in either direction shall
devices or any other means whatever is give notice to the lock tenders, when
prohibited unless written permission not more than three-fourths mile from
36
the lock, by one long blast of (10 sec- to its maximum. Lockage of pleasure
onds’ duration), followed by one short craft may be made with commercial
blast (of three seconds’ duration), or a craft carrying petroleum products
whistle or horn. When the lock is ready other than gasoline, provided a clear
for entrance a green light will be distance of at least 100 feet between
shown from the river wall. An amber such vessels can be maintained in the
light will indicate that the lock is lock. If, after the arrival of such craft,
being made ready for entrance. A red no separate or combined lockage can
light will indicate that the approach- be accomplished within a reasonable
ing vessel must wait. Whenever local time, not to exceed the time required
conditions make it advisable the visual for three other lockages, then separate
signals will be supplemented by sound lockage shall be made.
signals as follows: (f) Stations while waiting. Boats wait-
(1) One long blast of a horn to indi- ing their turn to enter the lock must
cate that the vessel must wait. lie at a sufficient distance from the
(2) One short blast of a horn to indi- lock and in such a position as to leave
cate that the lock is being made ready sufficient room for the passage of boats
for entrance. leaving the lock.
(3) Two short blasts of a horn to indi- (g) Unnecessary delay. (1) Boats must
cate permission to enter the lock. not cause delay in entering or leaving
(4) Four short and rapid blasts to at- the lock. Masters and pilots will be
tract attention, indicate caution, and held to a strict accountability in this
signal danger. matter, and those with tows must pro-
(c) Draft of boats. Deep-draft boats vide enough men to move barges
must clear the miter sills by at least 3 promptly. Boats failing to enter the
inches. Boats drawing too much water lock with reasonable promptness after
will not be allowed to lighter cargo in being signaled will lose their turn.
the entrances. (2) Tugboats arriving with their tows
(d) Precedence at the lock. The vessel in a condition which will delay locking
arriving first at the lock shall be first shall lose their turn if so ordered by
to lock through; but precedence shall the lock tender. Leaking boats may be
be given to vessels belonging to the excluded until put in shape to be
United States and to commercial ves- passed through safely.
sels in the order named. Arrival posts (h) Mooring. Boats in the lock or
or markers may be established ashore waiting in the entrance shall be
above or below the lock. Vessels arriv- moored where directed by the lock ten-
ing at or opposite such posts or mark- der, by bow, stern, and spring lines, to
ers will be considered as having arrived the snubbing posts or line hooks. Tying
at the lock within the meaning of this boats to the lock ladders is strictly
paragraph. If the traffic is crowded in prohibited.
both directions; up and down lockages (i) Protection of lock gates. Boats will
will usually be made alternately, but not be permitted to enter or leave the
the lock tender may permit two or lock until the lock gates are at rest in
more lockages to be made at one time the gate recesses and the lock tender
in the same direction when this will has directed the boat to start.
not cause unreasonable delay. In case (j) Damage to walls, etc. All craft pass-
two or more boats or tows are to enter ing through the lock must be free from
for the same lockage, they shall enter projections or sharp corners which
as directed by the lock tender. No boat might scar the walls or injure other
shall run ahead of another while in the parts. Steamboats must be provided
lock. The boat that enters first shall with suitable fenders, etc. One man
leave first. shall be kept at the head of every tow
(e) Lockage of pleasure boats. The till it has cleared the lock and guide
lockage of pleasure boats, house boats walls, and shall use the fender to pre-
or like craft shall be expedited by lock- vent scarring the walls.
ing them through with commercial (k) Handling machinery. None but em-
craft (other than barges carrying gaso- ployees of the United States will be al-
line or highly hazardous materials) in lowed to move any valve, gate, or other
order to utilize the capacity of the lock machinery belonging to the lock.
37
§ 207.60 33 CFR Ch. II (7–1–20 Edition)
(l) Refuse in lock. Throwing ashes, (d) The regulations of the pool level
refuse, or other obstruction in the en- and the maintenance of flashboards
trances or in the lock, or on the walls shall be subject to the supervision and
thereof, and passing coal from flats or approval of the District Engineer, New
barges to a steamboat while in the lock York City.
is prohibited. [Regs., Dec. 2, 1924, as amended at 25 FR 8907,
(m) [Reserved] Sept. 16, 1960]
(n) Trespass on U.S. property. Trespass
on U.S. property, or willful injury to § 207.100 Inland waterway from Dela-
the banks, masonry, fences, trees, ware River to Chesapeake Bay, Del.
houses, machinery, or other property and Md. (Chesapeake and Delaware
Canal); use, administration, and
of the United States at or near the lock navigation.
is strictly prohibited.
(o) Penalties. In addition to the pen- (a) Applicability. The regulations in
alties prescribed by law, boats which this section are applicable to that part
fail to comply with the regulations in of the inland waterway from Delaware
this section will thereafter be refused River to Chesapeake Bay, Del. and Md.,
lockage until assurances have been re- between Reedy Point, Delaware River,
ceived, satisfactory to the District En- and Old Town Point Wharf, Elk River.
gineer, Corps of Engineers, New York, (b) Supervision. The District Engi-
New York, that the regulations will be neer, Corps of Engineers, Philadelphia,
complied with. Pa., has administrative supervision
over the waterway and is charged with
[Regs., Mar. 24, 1916, as amended at 16 FR the enforcement of these regulations.
7210, July 24, 1951; 26 FR 352, Jan. 18, 1961; 56 The District Engineer from time to
FR 13765, Apr. 4, 1991] time will prescribe rules governing the
dimensions of vessels which may tran-
§ 207.60 Federal Dam, Hudson River,
Troy, N.Y.; pool level. sit the waterway, and other special
conditions and requirements which will
(a) Whenever the elevation of the govern the movement of vessels using
pool created by the Federal dam at the waterway. The District Engineer’s
Troy, N.Y., shall fall to a point level representative is the Chesapeake City
with the crest of the main spillway, the Resident Engineer. The Chesapeake
elevation of which is + 14.33 feet mean City Resident Engineer through the
sea level, the operation of the power dispatcher on duty will enforce these
plant shall cease and further operation regulations and monitor traffic
thereof shall be suspended until such through the canal.
time as the water level rises to or (c) Safe navigation required. Clearance
above + 14.43 feet mean sea level. for any vessel to enter or pass through
(b) Flashboards may be maintained any part of the waterway will be con-
on the section of the spillway of the tingent on the vessel’s having adequate
dam having an elevation of + 14.33 feet personnel, machinery, and operative
mean sea level in order to increase the devices for safe navigation. In the
elevation of this section to an ele- event of question as to the ability of
vation equal to that of the auxiliary any vessel to navigate the waterway
spillway, or + 16.33 feet mean sea level: safely, a ruling will be made by the dis-
Provided, That the flashboards are so patcher. The owner, agent, master,
erected as to drop automatically when pilot, or other person in charge of the
the pool level rises to an elevation of + vessel concerned may appeal the dis-
18.5 feet mean sea level, and conform in patcher’s ruling to the District Engi-
other respects to the plans attached neer whose decision shall be final. A
thereto. clearance by the dispatcher for a ves-
(c) The tide staff to be used in deter- sel’s passage through the waterway
mining the elevation of the pool shall shall not relieve the owners, agents,
be the ceramic tide staff now located and operators of the vessel of full re-
on the westerly face of the east lock sponsibility for its safe passage.
wall north of the northerly gates, the (d) Radio equipment. Requirements for
zero of which is set 2 feet below mean radio equipment on vessels transiting
sea level. the waterway are as described in rules
38
governing traffic through the water- the canal will be in accordance with
way issued by the District Engineer. regulations promulgated by the U.S.
Vessels not having the mandatory Coast Guard, § 117.235a Chesapeake and
radio equipment will not be permitted Delaware Canal, Del., of this chapter.
to transit the canal. (l) [Reserved]
(e) Anchorage and wharfage facilities. (m) Refuse and oil. The depositing of
The anchorage basin at Chesapeake trash, refuse, debris, oil, or other mate-
City and free wharfage facilities on the rial in the waterway or upon the banks
west side of the anchorage basin are or right-of-way is prohibited. Violators
available for small vessels only. These are subject to penalties as prescribed
facilities are of limited capacity, and by Federal law.
permission to occupy them for periods (n) Damage to waterway property.
exceeding 24 hours must be obtained in Damage to the waterway, lands, banks,
advance from the dispatcher at Chesa- bridges, jetties, piers, fences, buildings,
peake City. trees, telephone lines, lighting struc-
(f) Projections from vessels. No vessel tures, or any other property of the
carrying a deck load which overhangs United States pertaining to the water-
or projects beyond the sides of the ves- way is prohibited.
sel will be permitted to enter or pass
(o) Fish and game. The fish and game
through the waterway. Vessels car-
laws of the United States and of the
rying rods, poles, or other gear extend-
States of Delaware and Maryland,
ing above the top of the vessel’s mast
within their respective bounds, will be
will be required to lower such equip-
enforced upon the waters and lands
ment to a level with the top of the
mast before entering the waterway. pertaining to the waterway owned by
(g) [Reserved] the United States.
(h) Tows—(1) Integrated pusher-type (p) Grounded, wrecked, or damaged ves-
tows. The maximum overall length and sels. In the event a vessel is grounded
extreme breadth of this type of tow or wrecked in the waterway or is dam-
which may transit the canal are as de- aged by accident or successive mechan-
scribed in rules governing traffic ical breakdown, the owner, agent, or
through the waterway issued by the operator shall take prompt action to
District Engineer. prevent the vessel from becoming or
(2) All other types of tows. All ships or remaining an obstruction to naviga-
tugs engaged in towing vessels not tion, and such persons shall also re-
equipped with a rudder, whether light spond to such instructions as may be
or loaded, shall use two towlines or a issued by the District Engineer to pre-
bridle on one towline. If the vessel in vent the vessel from becoming or re-
tow is equipped with a rudder, one tow- maining a menace to navigation. The
line without a bridle may be used. All lack of reasonable response from
towlines must be hauled as short as owner, agent, or operator may be
practicable for safe handling of the deemed sufficient cause for the District
tows. No towboat will be permitted to Engineer to undertake repair or re-
enter the waterway with more than moval of the vessel as he may deter-
two loaded, or three light barges. Two mine to be in the best interest to the
or more barges or other vessels, not Government.
self-propelled, shall be towed abreast (q)–(s) [Reserved]
and not in tandem, using two towlines (t) Pilotage. Any pilot who pilots in
unless the towboat is made fast along- the canal shall comply with State laws
side the tow. or Coast Guard regulations and must
(i) [Reserved] be licensed for this waterway by the
(j) Traffic lights. Traffic lights are lo- U.S. Coast Guard.
cated at Reedy Point and Old Town (u) Vessels difficult to handle. Vessels
Point Wharf. These traffic lights are which are observed by the pilot or mas-
described in the rules governing traffic ter in charge, to be difficult to handle,
through the waterway issued by the or which are known to have handled
District Engineer. badly on previous trips, must transit
(k) Drawbridges. Operation of the the canal during daylight hours and
Penn Central vertical lift bridge across must have tug assistance. Such vessels
39
§ 207.160 33 CFR Ch. II (7–1–20 Edition)
must obtain permission from the dis- The cities in which the U.S. District
patcher to enter the canal and must be Engineers are located are as follows:
provided with the number of tugs suffi- U.S. District Engineer, Norfolk, Virginia.
cient to afford safe passage. Agents U.S. District Engineer, Wilmington, North
must make their own arrangements for Carolina.
tug assistance. Such eastbound vessels U.S. District Engineer, Charleston, South
must clear Reedy Point Bridge, and Carolina.
such westbound vessels the Chesapeake U.S. District Engineer, Savannah, Georgia.
City Bridge, before dark. U.S. District Engineer, Jacksonville, Flor-
ida.
[37 FR 9670, May 16, 1972, as amended at 42
FR 57961, Nov. 7, 1977; 56 FR 13765, Apr. 4, (c) [Reserved]
1991] (d) Bridges. (For regulations gov-
erning the operation of bridges, see
§ 207.160 All waterways tributary to §§ 117.1, 117.240 and 117.245 of this title.)
the Atlantic Ocean south of Chesa- (e) Locks—(1) Authority of
peake Bay and all waterways tribu- lockmasters—(i) Locks staffed with Gov-
tary to the Gulf of Mexico east and ernment personnel. The provisions of
south of St. Marks, Fla.; use, admin- this subparagraph apply to all water-
istration, and navigation.
ways in this Section except for the seg-
(a) Description. This section applies to ment of the Atlantic Intracoastal Wa-
the following: terway identified in (e)(1)(ii). The
(1) Waterways. All navigable waters of lockmaster shall be charged with the
the United States, natural or artificial, immediate control and management of
including bays, lakes, sounds, rivers, the lock, and of the area set aside as
creeks, intracoastal waterways, as well the lock area, including the lock ap-
as canals and channels of all types, proach channels. He/she shall see that
which are tributary to or connected by all laws, rules and regulations for the
other waterways with the Atlantic use of the lock and lock area are duly
Ocean south of Chesapeake Bay or with complied with, to which end he/she is
the Gulf of Mexico east and south of authorized to give all necessary orders
St. Marks, Florida. and directions in accordance therewith,
(2) Locks. All Government owned or both to employees of the Government
operated locks and hurricane gate and to any and every person within the
chambers and appurtenant structures limits of the lock and lock area, wheth-
in any of the waterways described in er navigating the lock or not. No one
paragraph (a)(1) of this section. shall cause any movement of any ves-
(3) U.S. property. All river and harbor sel, boat, or other floating thing in the
lands owned by the United States in or lock or approaches except by or under
along the waterways described in para- the direction of the lockmaster or his/
graph (a)(1) of this section, including her assistants.
lock sites and all structures thereon, (ii) Locks staffed with contract per-
other sites for Government structures sonnel. The provisions of this subpara-
and for the accommodation and use of graph apply to the segment of the At-
employees of the United States, and lantic Intracoastal Waterway com-
rights of way and spoil disposal areas prising the Albermarle and Chesapeake
to the extent of Federal interest there- Canal and the Dismal Swamp Canal in-
in. cluding Great Bridge Lock, Chesa-
(4) Vessels and rafts. The term ‘‘ves- peake, Virginia; Deep Creek Lock,
sel’’ as used in this section includes all Chesapeake, Virginia; and South Mills
floating things moved over these wa- Lock, North Carolina. Contract per-
terways other than rafts. sonnel shall give all necessary orders
(b) Authority of District Engineers. The and directions for operation of the
use, administration, and navigation of locks. No one shall cause any move-
these waterways, Federal locks and ment of any vessel, boat or other float-
hurricane gate chambers shall be under ing thing in the locks or approaches ex-
the direction of the officers of the cept by or under the direction of the
Corps of Engineers, U.S. Army, de- contract lock operator. All duties and
tailed in charge of the respective sec- responsibilities of the lockmaster set

tions, and their authorized assistants. forth in this section shall be performed
40
by the contract lock operator except in charge of rafts shall cause no undue
that the responsibility for enforcing all delay in entering or leaving the lock,
laws, rules and regulations shall be and will be held to a strict account-
vested in a government employee des- ability that the approaches are not at
ignated by the Norfolk District Engi- any time unnecessarily obstructed by
neer. The District Engineer will notify parts of a tow awaiting lockage or al-
waterway users and the general public ready passed through. They shall pro-
through appropriate notices and media vide sufficient men to move through
concerning the location and identity of the lock promptly without damage to
the designated government employee. the structures. Vessels or tows that
(2) Signals. Vessels desiring lockage fail to enter the locks with reasonable
in either direction shall give notice to promptness after being signalled to do
the lockmaster at not more than three- so will lose their turn.
quarters of a mile nor less than one- (5) Lockage of vessels. (i) Vessels must
quarter of a mile from the lock, by two enter and leave the locks carefully at
long and two short blasts of a whistle. slow speed, must be provided with suit-
When the lock is available, a green able lines and fenders, must always use
light, semaphore or flag will be dis- fenders to protect the walls and gates,
played; when not available, a red light, and when locking at night must be pro-
semaphore or flag will be displayed. No vided with suitable lights and use them
vessels or rafts shall approach within as directed.
300 feet of any lock entrance unless sig- (ii) Vessels which do not draw at
nalled to do so by the lockmaster. least six inches less than the depth on
(3) Precedence at locks. (i) The vessel miter sills or breast walls, or which
arriving first at a lock shall be first to have projections or sharp corners liable
lock through; but precedence shall be to damage gates or walls, shall not
given to vessels belonging to the enter a lock or approaches.
United States and to commercial ves- (iii) No vessel having chains or lines
sels in the order named. Arrival posts either hanging over the sides or ends,
or markers may be established ashore or dragging on the bottom, for steering
above or below the locks. Vessels arriv- or other purposes, will be permitted to
ing at or opposite such posts or mark- pass a lock or dam.
ers will be considered as having arrived (iv) Power vessels must accompany
at the locks within the meaning of this tows through the locks when so di-
paragraph. rected by the lockmaster.
(ii) The lockage of pleasure boats, (v) No vessel whose cargo projects be-
house boats or like craft shall be expe- yond its sides will be admitted to lock-
dited by locking them through with age.
commercial craft (other than barges (vi) Vessels in a sinking condition
carrying petroleum products or highly shall not enter a lock or approaches.
hazardous materials) in order to utilize (vii) The passing of coal from flats or
the capacity of the lock to its max- barges to steamers while in locks is
imum. If, after the arrival of such prohibited.
craft, no separate or combined lockage (viii) Where special regulations for
can be accomplished within a reason- safeguarding human life and property
able time not to exceed the time re- are desirable for special situations, the
quired for three other lockages, then same may be indicated by printed
separate lockage shall be made. signs, and in such cases such signs will
(4) Entrance to and exit from locks. No have the same force as other regula-
vessel or raft shall enter or leave the tions in this section.
locks before being signalled to do so. (ix) The lockmaster may refuse to
While waiting their turns, vessels or lock vessels which, in his judgment,
rafts must not obstruct traffic and fail to comply with this paragraph.
must remain at a safe distance from (6) Lockage of rafts. Rafts shall be
the lock. They shall take position in locked through in sections as directed
rear of any vessels or rafts that may by the lockmaster. No raft will be
precede them, and there arrange the locked that is not constructed in ac-
tow for locking in sections if nec- cordance with the requirements stated
essary. Masters and pilots of vessels or in paragraph (g) of this section. The
41
§ 207.160 33 CFR Ch. II (7–1–20 Edition)
party in charge of a raft desiring lock- (2) No section of a raft will be per-
age shall register with the lockmaster mitted to be towed over any portion of
immediately upon arriving at the lock a waterway unless the logs float suffi-
and receive instructions for locking. ciently high in the water to make it
(7) Number of lockages. Tows or rafts evident that the section will not sink
locking in sections will generally be al- en route.
lowed only two consecutive lockages if (3) Frequent inspections will be made
one or more single vessels are waiting by the person in charge of each raft to
for lockage, but may be allowed more insure that all fastenings remain se-
in special cases. If tows or rafts are cure, and when any one is found to
waiting above and below a lock for have loosened, it shall be repaired at
lockage, sections will be locked both once. Should any log or section be lost
ways alternately whenever practicable. from a raft, the fact must be promptly
When there are two or more tows or reported to the District Engineer, giv-
rafts awaiting lockage in the same di- ing as definitely as possible the exact
rection, no part of one shall pass the point at which the loss occurred. In all
lock until the whole of the one pre- cases the owner of the lost log or sec-
ceding it shall have passed. tion will take steps immediately to re-
(8) Mooring. (i) Vessels and rafts when move the same from the waterway.
in the lock shall be moored where di- (4) The length and width of rafts
rected by the lockmaster by bow, stern shall not exceed such maximum dimen-
and spring lines to the snubbing posts sions as may be prescribed by the Dis-
or hooks provided for that purpose, and trict Engineer.
lines shall not be let go until signal is (5) All rafts shall carry sufficient
given for vessel or raft to leave. Tying men to enable them to be managed
boats to the lock ladders is prohibited. properly, and to keep them from being
an obstruction to other craft using the
(ii) The mooring of vessels or rafts
waterway. To permit safe passage in a
near the approaches to locks except
narrow channel rafts will, if necessary,
while waiting for lockage, or at other
stop and tie up alongside the bank.
places in the pools where such mooring
Care must be exercised both in towing
interferes with general navigation of and mooring rafts to avoid the possi-
the waterway is prohibited. bility of damage to aids to navigation
(9) Maneuvering locks. The lock gates, maintained by the United States or
valves, and accessories will be moved under its authorization.
only under the direction of the (6) When rafts are left for any reason
lockmaster; but if required, all vessels with no one in attendance, they must
and rafts using the locks must furnish be securely tied at each end and at as
ample help on the lock walls for han- many intermediate points as may be
dling lines and maneuvering the var- necessary to keep the timbers from
ious parts of the lock under the direc- bagging into the stream, and must be
tion of the lockmaster. moored so as to conform to the shape
(f) [Reserved] of the bank. Rafts moored to the bank
(g) Rafts, logging. (1) Rafts will be shall have lights at 500-foot intervals
permitted to navigate a waterway only along their entire length. Rafts must
if properly and securely assembled. The not be moored at prominent projec-
passage of ‘‘bag’’ or ‘‘sack’’ rafts, tions of the bank, or at critical sec-
‘‘dog’’ rafts, or of loose logs over any tions.
portion of a waterway, is prohibited. (7) Logs may be stored in certain
Each section of a raft will be secured tributary streams provided a clear
within itself in such a manner as to channel at least one-half the width of
prevent the sinking of any log, and so the channel be left clear for navigation
fastened or tied with chains or wire along the tributary. Such storage
rope that it cannot be separated or bag spaces must be protected by booms
out so as to materially change its and, if necessary to maintain an open
shape. All dogs, chains and other channel, piling should also be used. Au-
means used in assembling rafts shall be thority for placing these booms and
in good condition and of ample size and piling must be obtained by written per-
strength to accomplish their purposes. mit from the District Engineer.
42
(8) The building, assembling, or ans, Louisiana, if between Suwanee

breaking up of a raft in a waterway River and St. Marks, Florida.
will be permitted only upon special au- (j) Trespass on property of the United
thority obtained from the District En- States. Trespass on waterway property
gineer, and under such conditions as he or injury to the banks, locks, bridges,
may prescribe. piers, fences, trees, houses, shops or
(h) Dumping of refuse or oil in water- any other property of the United
way, obstructions. Attention is invited States pertaining to the waterway is
to the provisions of sections 13 and 20 strictly prohibited. No business, trad-
of the River and Harbor Act of March 3, ing or landing of freight or baggage
1899 (30 Stat. 1152, 1154; 33 U. S. C. 407, will be allowed on or over Government
415), and of sections 2, 3, and 4 of the piers, bridges, or lock walls.
Oil Pollution Act of June 7, 1924 (43 (k) Copies of regulations. Copies of the
Stat. 604, 605; 33 U.S.C. 432–434), which regulations in this section will be fur-
prohibit the depositing of any refuse nished free of charge upon application
matter in these waterways or along to the nearest District Engineer.
their banks where liable to be washed [Regs., Apr. 30, 1938, as amended at 8 FR
into the waters; authorize the imme- 15381, Nov. 9, 1943; 25 FR 8908, Sept. 16, 1960;
diate removal or destruction of any 26 FR 353, Jan. 18, 1961; 34 FR 4967, Mar. 7,
sunken vessel, craft, raft, or other 1969; 42 FR 57961, Nov. 7, 1977; 48 FR 6335, Feb.
similar obstruction, which stops or en- 11, 1983; 56 FR 13765, Apr. 4, 1991]
dangers navigation; and prohibit the
discharge of oil from vessels into the § 207.169 Oklawaha River, navigation
lock and dam at Moss Bluff, Fla.;
coastal navigable waters of the United use, administration, and navigation.
States.
(i) Damage. Masters and owners of (a) The owner of or agency control-
vessels using the waterways are re- ling the lock shall not be required to
sponsible for any damage caused by operate the navigation lock except
their operations to canal revetments, from 7 a.m. to 7 p.m. during the period
lock piers and walls, bridges, hurricane of February 15 through October 15 each
gate chambers, spillways, or ap- year, and from 8 a.m. to 6 p.m. during
proaches thereto, or other Government the remaining months of the year. Dur-
structures, and for displacing or dam- ing the above hours and periods the
aging of buoys, stakes, spars, range lock shall be opened upon demand for
lights or other aids to navigation. the passage of vessels. The hours of op-
Should any part of a revetment, lock, eration are based on local time.
bridge, hurricane gate chamber, spill- (b) The owner of or agency control-
way or approach thereto, be damaged, ling the lock shall place signs of such
they shall report the fact, and furnish size and description as may be des-
a clear statement of how the damage ignated by the District Engineer, U.S.
occurred, to the nearest Government Army Engineer District, Jacksonville,
lockmaster or bridge tender, and by Fla., at each side of the lock indicating
mail to the District Engineer, U.S. En- the nature of the regulations of this
gineer Office, in local charge of the wa- section.
terway in which the damage occurred. [35 FR 10520, June 27, 1970, as amended at 38
Should any aid to navigation be dam- FR 5468, Mar. 1, 1973]
aged, they shall report that fact imme-
diately to the Superintendent of Light- § 207.170 Federal Dam, Oklawaha
houses at Norfolk, Virginia, if north of River, Moss Bluff, Fla.; pool level.
New River Inlet, North Carolina; to the (a) The level of the pool shall nor-
Superintendent of Lighthouses at mally be maintained at elevation 56.5
Charleston, South Carolina, if between feet above sea level: Provided, That the
New River Inlet, North Carolina, and level of the pool may be raised to not
St. Lucie Inlet, Florida; to the Super- exceeding 58.5 feet above sea level at
intendent of Lighthouses at Key West, such times as may be authorized in
Florida, if between St. Lucie Inlet and writing by the District Engineer, Jack-
Suwanee River, Florida; and to the Su- sonville, Fla., and subject to such con-
perintendent of Lighthouses, New Orle- ditions as he may specify.
43
§ 207.170a 33 CFR Ch. II (7–1–20 Edition)
(b) When, in the opinion of the Dis- this lock indicating the nature of the
trict Engineer, an emergency exists re- regulations.
quiring the lowering of the pool level [24 FR 5151, June 24, 1959]
to an elevation less than 56.5 above sea
level either to safeguard the dikes or to § 207.170c Kissimmee River, navigation
increase the discharge from Lake Grif- locks between Lake Tohopekaliga
fin in times of high water, the dis- and Lake Okeechobee, Fla.; use, ad-
charge past the dam shall be regulated ministration, and navigation.
in such manner as he may direct until (a) The owner of or agency control-
he shall declare the emergency passed. ling the locks shall be required to open
the navigation locks upon demand for
[Regs., Dec. 3, 1928]
passage of vessels during the following
§ 207.170a Eugene J. Burrell Naviga- hours and periods:
tion Lock in Haines Creek near Lis-
bon, Fla.; use, administration, and Locks S–61, S–65, and S–65E
navigation.
Monday through Friday All year ............. 7:00 a.m. to
(a) The owner of or agency control- 6:00 p.m.
ling the lock shall not be required to Saturday and Sunday ... Mar. 1 through 5:30 a.m. to
operate the navigation lock except Oct. 31. 7:30 p.m.
Do .......................... Nov. 1 through 5:30 a.m. to
from 7 a.m. to 12 noon, and from 1 p.m. Feb. 28. 6:30 p.m.
to 7 p.m., during the period of February
15 through October 15 each year; and Lock S–65A
from 8 a.m. to 12 noon, and from 1 p.m. Seven days a week ...... All year ............. 8:00 a.m. to
to 6 p.m., during the remaining months 5:00 p.m.
of each year. During the above hours
Locks S–65B, S–65C, and S–65D
and periods the lock shall be opened
upon demand for the passage of vessels. Monday through Friday All year ............. 8:00 a.m. to
(b) The owner of the lock shall place 5:00 p.m.
Saturday and Sunday ... Mar. 1 through 5:30 a.m. to
signs, of such size and description as Oct. 31. 7:30 p.m.
may be designated by the District En- Do .......................... Nov. 1 through 5:30 a.m. to
gineer, U.S. Army Engineer District, Feb. 28. 6:30 p.m.
Jacksonville, Florida, at each side of
this lock indicating the nature of the (b) The owner of or agency control-
regulations of this section. ling the locks shall place signs, of such
size and description as may be des-
[24 FR 1461, Feb. 27, 1959] ignated by the District Engineer, U.S.
Army Engineer District, Jacksonville,
§ 207.170b Apopka-Beauclair Naviga- Florida, at each side of the locks indi-
tion Lock in Apopka-Beauclair cating the nature of the regulations of
Canal in Lake County, Fla.; use, ad- this section.
ministration, and navigation.
[29 FR 2384, Feb. 12, 1964, as amended at 31
(a) The owner of or agency control- FR 7566, May 26, 1966; 33 FR 7626, May 23,
ling the lock shall not be required to 1968]
operate the navigation lock except
from 7:00 a.m. to 12:00 noon, and from § 207.170d Taylor Creek, navigation
1:00 p.m. to 7:00 p.m., during the period lock (S–193) across the entrance to
of February 15 through October 15 each Taylor Creek at Lake Okeechobee,
year; and from 8:00 a.m. to 12 noon, and Okeechobee, Fla.; use, administra-
tion, and navigation.
from 1:00 p.m. to 6:00 p.m., during the
remaining months of each year. During (a) The owner of or agency control-
the above hours and periods the lock ling the lock shall not be required to
shall be opened upon demand for the operate the navigation lock except
passage of vessels. from 5:30 a.m. to 8:00 p.m. daily. During
(b) The owner of the lock shall place the above hours the lock shall be
signs, of such size and descriptions as opened upon demand for the passage of
may be designated by the District En- vessels.
gineer, U.S. Army Engineer District, (b) The owner of the lock shall place
Jacksonville, Florida, at each side of signs, of such size and description as
44
may be designated by the District En- (3) Bridges, wharves, and other struc-
gineer, U.S. Army Engineer District, tures. All bridges, wharves, and other
Jacksonville, Florida at each side of structures in or over these waterways.
this lock indicating the nature of the (4) Vessels. The term ‘‘vessels’’ as
regulations of this section. used in this section includes all float-
[Regs., July 17, 1973, 1522–01 (Taylor Creek, ing craft other than rafts.
Fla.) DAEN-CWO-N] (5) Rafts. The term ‘‘raft’’ as used in
(Sec. 7, 40 Stat. 266; 33 U.S.C. 1) this section includes any and all types
[38 FR 21404, Aug. 8, 1973]
of assemblages of floating logs or tim-
ber fastened together for support or
§ 207.175a Carlson’s Landing Dam conveyance.
navigation lock, Withlacoochee (b) Authority of District Engineers. The
River, Fla.; use, administration, and use, administration, and navigation of
navigation. the waterways and structures to which
(a) The owner of or agency control- this section applies shall be under the
ling the lock shall not be required to direction of the officers of the Corps of
operate the navigation lock except Engineers, U.S. Army, in charge of the
from 7 a.m. to 12 noon, and from 1 p.m. respective districts, and their author-
to 7 p.m., during the period of February ized assistants. The location of these
15 through October 15 each year; and
Engineer Districts, and the limits of
from 8 a.m. to 12 noon, and from 1 p.m.
their jurisdiction, are as follows:
to 6 p.m., during the remaining months
of each year. During the above hours (1) U.S. District Engineer, Mobile, Ala.
and periods the lock shall be opened The St. Marks River, Fla., to the Pearl
upon demand for the passage of vessels. River, Mississippi and Louisiana; and
(b) The owner of or agency control- the Gulf Intracoastal Waterway from
ling the lock shall place signs, of such Apalachee Bay, Fla., to mile 36.4 east
size and description as may be des- of Harvey Lock.
ignated by the District Engineer, U.S. (2) U.S. District Engineer, Vicksburg,
Army Engineer District, Jacksonville, Miss. The Pearl River and its tribu-
Fla., at each side of the lock indicating taries, Mississippi and Louisiana.
the nature of the regulations in this (3) U.S. District Engineer, New Orleans,
section. La. From Pearl River, Mississippi and
[30 FR 6161, May 1, 1965] Louisiana, to Sabine River, Louisiana
and Texas; and the Gulf Intracoastal
§ 207.180 All waterways tributary to Waterway from mile 36.4 east of Harvey
the Gulf of Mexico (except the Mis- Lock, to mile 266 west of Harvey Lock.
sissippi River, its tributaries, South
and Southwest Passes and the (4) U.S. District Engineer, Galveston,
Atchafalaya River) from St. Marks, Tex. The Sabine River, Louisiana and
Fla., to the Rio Grande; use, admin- Texas, to the Rio Grande, Tex.; and the
istration, and navigation. Gulf Intracoastal Waterway from mile
(a) The regulations in this section 266 west of Harvey Lock, to Browns-
shall apply to: ville, Tex.
(1) Waterways. All navigable waters of (c) [Reserved]
the U.S. tributary to or connected by (d) Locks and floodgates. (1) The term
other waterways with the Gulf of Mex- ‘‘lock’’ as used in this section shall in-
ico between St. Marks, Fla., and the clude locks, floodgates, and appur-
Rio Grande, Tex. (both inclusive), and tenant structures, and the area des-
the Gulf Intracoastal Waterway; except
ignated as the lock area including the
the Mississippi River, its tributaries,
lock approach channels.
South and Southwest Passes, and the
Atchafalaya River above its junction (2) Authority of lockmasters. The term
with the Morgan City-Port Allen ‘‘lockmaster’’ as used in this section
Route. means the official in charge of oper-
(2) Locks and floodgates. All locks, ating a lock or floodgate. The
floodgates, and appurtenant structures lockmaster is responsible for the im-
in the waterways described in para- mediate management and control of

graph (a)(1) of this section.
45
§ 207.180 33 CFR Ch. II (7–1–20 Edition)
the lock and lock area and for the en- in paragraphs (d) (3) and (4) of this sec-
forcement of all laws, rules, and regu- tion.
lations for the use of the lock. He is au- (6) Precedence at locks. The order of
thorized to give all necessary and ap- precedence for locking is:
propriate orders and instructions to (i) U.S. Government vessels, pas-
every person in the lock area, whether senger vessels, commercial vessels,
navigating the lock or not; and no one rafts, and pleasure craft.
shall cause any movement of any ves- (ii) The vessel arriving first at a lock
sel within the lock area unless in- will be locked through first. When ves-
structed to do so by the lockmaster or sels approach simultaneously from op-
his duly authorized assistants. The posite directions, the vessel approach-
lockmaster may refuse passage ing at the same elevation as the water
through the lock to any vessel which, in the lock chamber will be locked
in his judgment, fails to comply with through first. In order to achieve the
the regulations of this section. most efficient utilization of the lock,
(3) Sound signals. Vessels desiring the lockmaster is authorized to depart
passage through a lock shall notify the from the normal order of locking prec-
lockmaster by three long and distinct edence, stated in paragraph (d)(6)(i) of
blasts of a horn, whistle, or calls this section, as in his judgment is war-
through a megaphone, when within a ranted.
reasonable distance from the lock. (iii) The lockage of pleasure boats,
When the lock is ready for entrance, houseboats, or like craft may be expe-
the lockmaster shall reply with three dited by locking them through with
long blasts of a horn, whistle, or calls commercial craft (other than vessels
through a megaphone. When the lock is carrying dangerous cargoes, as de-
not ready for entrance, the lockmaster scribed in 46 CFR part 146). If, after the
shall reply by four or more short, dis- arrival of such craft, no combined lock-
tinct blasts of a horn, whistle, or calls age can be made within reasonable
through a megaphone (danger signal). time, not to exceed three other
Permission to leave the lock shall be lockages, then separate lockage shall
indicated by the lockmaster by one be made.
long blast. (7) Entrance to and exits from locks. No
(4) Visual signals. Signal lights and vessel or tow shall enter or exit from a
discs shall be displayed at all locks as lock before being signaled to do so.
follows: While awaiting turn, vessels or tows
(i) From sunset to sunrise. One green must not obstruct navigation and must
light shall indicate the lock is open to remain at a safe distance from the
approaching navigation; one red light lock, taking position to the rear of any
shall indicate the lock is closed to ap- vessel or tows that precede them; and
proaching navigation. rearranging the tow for locking in sec-
(ii) From sunrise to sunset. Large tions, if necessary. Masters and pilots
discs, identical in color and number to of vessels or tows shall enter or exit
the light signals prescribed in para- from a lock with reasonable prompt-
graph (d)(4)(i) of this section will be ness after receiving the proper signal.
displayed from a mast on or near the Appropriate action will be taken to in-
lock wall. sure that the lock approaches are not
(5) Radiophone. Locks will moior obstructed by sections of a tow either
continously VHF—Channel 14 (‘‘Safety awaiting lockage or already locked
and Calling’’ Channel) and/or AM–2738 through. Masters of vessels shall pro-
kHz for initial communication with vide sufficient men to assist in the
vessels. Upon arrival at a lock, a vessel locking operation when deemed nec-
equipped with radio-phone will imme- essary by the lockmaster. Care shall be
diately advise the lock by radio of its taken to insure prompt and safe pas-
arrival so that the vessel may be sage of the vessel without damage to
placed on proper turn. Information the structure.
transmitted or received in these com- (8) Lockage and passage of vessels. Ves-
munications shall in no way affect the sels or tows shall enter and exit from
requirements for use of sound signals locks under sufficient control to pre-
or display of visual signals, as provided vent damage to the lock, gates, guide
46
walls, fenders, or other parts of the sories or controls will be operated un-
structure. Vessels shall be equipped less under his direction.
with and use suitable fenders and ade- (13) [Reserved]
quate lines to protect the lock and to (14) Lockage of rafts. Rafts shall be
insure safe mooring during the locking locked through as directed by the
operation. Vessels shall not meet or lockmaster. No raft will be locked that
pass anywhere between the gate walls is not constructed in accordance with
or fender system or in the approaches the requirements stated in paragraph
to locks. (f) of this section. The person in charge
(9) Vessels prohibited from locks. The of a raft desiring lockage shall register
following vessels shall not be per- with the lockmaster immediately upon
mitted to enter locks or approach arriving at the lock and receive in-
channels: structions for locking.
(i) Vessels in a sinking condition. (e) Waterways. (1)–(5)(i) [Reserved]
(ii) Vessels leaking or spilling cargo. (ii) Algiers Canal between the Mis-
(iii) Vessels not having a draft of at sissippi River and Bayou Barataria,
least three (3) inches less than the La., and on Harvey Canal, Gulf Intra-
depth over the sills or breast walls. coastal Waterway, mile 0 to mile 6
(iv) Vessels having projection or WHL, tows 74 feet in width will be al-
cargo loaded in such a manner that is lowed. Tows in excess of 55 feet wide
liable to damage the structure. desiring to move over Algiers Canal or
(v) Vessels having chains, links, or Harvey Canal will obtain clearance
drags either hanging over the sides or from the lockmaster at Algiers Lock or
ends or dragging on the bottom for Harvey Lock, respectively, before en-
steering or other purposes.
tering the canal. Overwidth tows will
(vi) Vessels containing flammable or report clearing Algiers or Harvey Canal
dangerous cargo must have the hatch to the respective lockmaster and will
covers in place and securely fastened. rearrange tows to conform to pre-
(10) Number of lockages. Tows locking scribed dimensions immediately upon
in sections will generally be allowed leaving the canal. The lockmaster will
only two consecutive lockages if other withhold permission for additional
vessels are waiting for lockage unless tows over 55 feet wide until all pre-
otherwise decided by the lockmaster. If
viously authorized tows moving in the
other tows are waiting above and below
opposite direction have cleared the wa-
a lock, lockages will be made both
terway.
ways alternately whenever practicable.
(iii)–(vi) [Reserved]
(11) Mooring in locks. (i) When in a
lock, vessels and tows shall be moored (vii) Vessels or tows shall not navi-
where directed by the lockmaster by gate through a drawbridge until the
bow, stern, and spring lines to the movable span is fully opened.
snubbing posts or hooks provided for (6) Projections from vessels. Vessels or
that purpose, and lines shall not be let tows carrying a deck load which over-
go until the signal is given for the ves- hangs or projects over the side, or
sel to exit. Tying to the lock ladders is whose rigging projects over the side, so
prohibited. as to endanger passing vessels,
(ii) Mooring near the approaches to wharves, or other property, shall not
locks is prohibited except when the enter or pass through any of the nar-
vessels or tows are awaiting lockage. row parts of the waterway without
(12) Lock operating personnel. Vessels prior approval of the District Engineer.
and tows using the locks may be re- (7) Meeting and passing. Passing ves-
quired to furnish personnel to assist in sels shall give the proper signals and
locking through; however, the oper- pass in accordance with the Federal
ation of the structure is the responsi- Rules of the Road. At certain intersec-
bility of the lockmaster, and personnel tions where strong currents may be en-
assisting in the lockage of the vessels countered, sailing directions may be
and tows will follow the direction of issued through navigation bulletins or
the appropriate official on duty at the signs posted on each side of the inter-
lock. No gates, valves or other acces- section.
47
§ 207.185 33 CFR Ch. II (7–1–20 Edition)
(f) Rafts. The navigation regulations pairs in the vicinity of locks so long as
in this paragraph shall apply fully to navigation is not impeded thereby.
the movement of rafts. (j) Liability. The regulations of this
(1) Rafts will be permitted to navi- section will not affect the liability of
gate a waterway only if properly and the owners and operators of vessels for
securely assembled. Each raft shall be any damage caused by their operations
so secured as to prevent the loss or to the waterway or to the structures
sinking of logs. therein.
(2) All rafts shall carry sufficient
[36 FR 8866, May 14, 1971, as amended at 37
men to enable them to be managed
FR 26419, Dec. 12, 1972; 42 FR 57961, Nov. 7,
properly. It will be the responsibility of 1977; 48 FR 6707, Feb. 15, 1983; 54 FR 6519, Feb.
the owner to remove logs from the wa- 13, 1989; 56 FR 13765, Apr. 4, 1991]
terway that have broken loose from
the raft. § 207.185 Taylors Bayou, Tex., Beau-
(3) Building, assembling, or breaking mont Navigation District Lock; use,
up of a raft within a waterway may be administration, and navigation.
permitted; however, the work must be (a) Between March 15 and September
done in an area that will not restrict 15 each year, pleasure boats, house-
the use of the waterway by other users. boats, and other craft not employed for
The work area must be cleared of loose commercial purposes, will be locked
logs so that they will not enter the wa- through only at 6:00 and 11:45 a.m., and
terway and become a hazard to naviga- 6:30 p.m., except in cases of emergency;
tion. but whenever a lockage is made for a
(g) Damage. Should any damage be commercial boat, other craft may like-
done to a revetment, lock, floodgates, wise pass through if there is room in
bridge, or other federally owned or op- the lock. At all other times lockages
erated structure, the master of the ves- shall be made in accordance with
sel shall report the accident to the § 207.180.
nearest lockmaster or bridgetender as (b) The lock tender or one in charge
soon as possible after the accident. of the lock shall be the judge as to
Damage to aids to navigation and to whether the boat presenting itself for
nonfederally owned bridges must be re- lockage is a commercial or pleasure
ported to the Commander, Eighth boat.
Coast Guard District, New Orleans, La.
(h) Marine accidents. Masters, mates, [4 FR 1719, Apr. 29, 1939]
pilots, owners, or other persons using
the waterways covered by this section § 207.187 Gulf Intracoastal Waterway,
shall report to the District Engineer at Tex.; special floodgate, lock and
navigation regulations.
the earliest possible date any accident
on the waterway which causes any ves- (a) Application. The regulations in
sel to become an obstruction to naviga- this section shall apply to the oper-
tion. The information to be furnished ation of the Brazos River Floodgates
the District Engineer shall include the and the Colorado River Locks at Mile
name of the vessel, its location, and 400.8 and Mile 441.5, respectively, west
the name and address of the owner. The of Harvey Lock, La., on the Gulf Intra-
owner of a sunken vessel shall properly coastal Waterway, and navigation of
mark the vessel as soon as practicable the tributary Colorado River Channel
after sinking. in the vicinity of said locks.
(i) Trespass on U.S. property. (1) Tres- (b) Definitions. The term current
pass on or injury to waterway property means the velocity of flow of water in
of the United States is prohibited. No the river. It is expressed in statute
business, trading, or landing of freight, miles per hour. The term ‘‘head dif-
will be allowed on Government prop- ferential’’ means the difference meas-
erty without permission of the District ured in feet between the water level in
Engineer. the river and that in the waterway
(2) The District Engineer may estab- when the floodgates or lock gates are
lish policy pertaining to mooring, ex- closed. The term ‘‘Lockmaster’’ means
changing crews, loading and unloading the official in charge of the floodgates
supplies, and making emergency re- or locks.
48
(c) Operation of floodgates and locks— (4) Mooring facilities. Mooring facili-
(1) Unlimited passage. The floodgates ties located on both banks of the Gulf
and locks shall be opened for the pas- Intracoastal Waterway on the ap-
sage of single vessels and towboats proaches to the floodgates and locks
with single or multiple barges when are for the mooring of vessels when the
the current in the river is less than 2 floodgates or locks are closed to navi-
miles per hour and the head differen- gation or tows are limited to single
tial is less than 0.7 foot. When the head barges. Vessels awaiting passage shall
differential is less than 0.7, the Colo- be moored parallel to the bank and as
rado River locks shall normally be op- close to the bank as possible. Barges
erated as floodgates, using only the shall be moored fore and aft with two
riverside gates of each lock. lines, each to a separate mooring facil-
(2) Limited passage. When the current ity. Beaching of vessels in lieu of moor-
in either river exceeds 2 miles per hour ing them is prohibited. The mooring fa-
or the head differential at the Brazos cilities are numbered and vessels mak-
River floodgates is between the limits ing fast to them shall notify the
of 0.7 foot and 1.8 feet, both inclusive, Lockmaster giving the number of each
or the head differential at the Colorado facility being used.
River locks is 0.7 foot or greater, pas- (5) [Reserved]
sage shall be afforded only for single (6) Communication—(i) Radio. The
vessels or towboats with single loaded floodgates and locks are equipped with
barges or two empty barges. When two short wave radio equipment transmit-
barges are rigidly assembled abreast of ting and receiving on VHF—FM Chan-
each other and the combined width of nels 12, 13, 14 and 16. Call letters for the
both together is 55 feet or less, they floodgates are WUI 411 and for the
shall be considered as one barge. Each locks are WUI 412.
section of an integrated barge shall be (ii) Telephone. The floodgates and
considered as one barge, except when it locks are equipped with telephone fa-
is necessary to attach a rake section to cilities. The floodgates may be reached
a single box section to facilitate pas- by phoning Freeport, Tx, 713–233–1251;
sage, the two sections shall be consid- the locks may be reached by phoning
ered as one barge. It shall be the re- Matagorda, Tx, 713–863–7842.
sponsibility of the master, pilot or (7) Arrival posts. Arrival posts 10 feet
other person in charge of a vessel to de- high and 10 inches in diameter have
termine whether a safe passage can be been established on the approaches to
effected, give due consideration to the the locks and floodgates. They are
vessel’s power and maneuverability, painted with alternate horizontal
and prevailing current velocity, head bands of red and white 3 inches wide.
differential, weather and visibility. If Arrival at the floodgates or locks shall
conditions are not favorable, passage be determined as provided in paragraph
shall be delayed until conditions im- (d)(4) of § 207.180.
prove and a safe crossing is assured. (d) Navigation of the Colorado River
(3) Gate closures. The Brazos River Channel—(1) Traffic signals. (i) Light
Floodgates shall be closed to naviga- and sound signals directed both up-
tion when the head differential exceeds stream and downstream on the Colo-
1.8 feet. The Colorado River Locks rado River are mounted on top of a gal-
shall be closed to navigation when the vanized skeleton steel tower 85 feet
current in the river exceeds a critical high located on the northeast point of
velocity as determined by the District land at the Gulf Intracoastal Waterway
Engineer, U.S. Army Engineer District, crossing of the river. They will be oper-
Galveston, Tex. The Brazos River ated from the control house of the East
Floodgates or the Colorado River Lock of the Colorado River Locks to
Locks shall be closed to navigation direct the interchange of traffic in the
when in the opinion of said District En- Colorado River and the Gulf Intra-
gineer it is required for the protection coastal Waterway.
of life and property, or it is to the ad- (ii) Vessels navigating the Colorado
vantage of the Government to permit River and desiring passage either up-
uninterrupted emergency or mainte- stream or downstream through the

nance operations, including dredging. crossing, or into the crossing and
49
§ 207.200 33 CFR Ch. II (7–1–20 Edition)
through a lock into the Gulf Intra- § 207.200 Mississippi River below
coastal Waterway, shall give notice to mouth of Ohio River, including
the Lockmaster by two long and dis- South and Southwest Passes; use,
tinct blasts of a whistle or horn when administration, and navigation.
within a distance of not more than one- (a) Mississippi River bank protection
half mile nor less than one-fourth mile works provided by United States. Except
from the Gulf Intracoastal Waterway in case of great emergency, no vessel or
crossing. When the locks and the cross- craft shall anchor over revetted banks
ing are clear of vessels, the of the river, and no floating plant other
Lockmaster shall reply by two long than launches and similar small craft
and distinct blasts of a whistle or horn shall land against banks protected by
and display a green light from the sig- revetment except at regular commer-
cial landings. In all cases, every pre-
nal tower indicating that the vessel in
caution to avoid damage to the revet-
the river may proceed across the cross-
ment works shall be exercised. The
ing or into the main stem of the Gulf
construction of log rafts along
Intracoastal Waterway either east- mattressed or paved banks or the tying
bound or westbound. When there are up and landing of log rafts against such
vessels in the river crossing or in the banks shall be performed in such a
locks, the Lockmaster shall reply by manner as to cause no damage to the
four or more short blasts of a whistle mattress work or bank paving. Gen-
or horn (danger signal) and display a erally, mattress work extends out into
red light from the signal tower indi- the river 600 feet from the low water
cating the vessel in the river shall wait line. Information as to the location of
at least a quarter of a mile from the revetted areas may be obtained from,
crossing for clearance. When the locks and will be published from time to
and crossing are clear of vessels, the time by, the District Engineers, Corps
lockmaster shall indicate to the wait- of Engineers, New Orleans, Louisiana,
ing vessel by two long and distinct Vicksburg, Mississippi, and Memphis,
blasts of a whistle or horn and display Tennessee, and the President, Mis-
of a green light from the signal tower sissippi River Commission, Vicksburg,
indicating that the vessel may proceed Mississippi.
across the crossing or into the main (b) Mississippi River below Baton
stem of the Gulf Intracoastal Water- Rouge, La., including South and South-
way either eastbound or westbound. west Passes—(1) Supervision. The use,
During periods when the red light may administration, and navigation of the
waterways to which this paragraph ap-
be obscured by fog, mist, or rain, an
plies shall be under the supervision of
audible signal consisting of a long blast
the District Engineer, Corps of Engi-
followed by a short blast of a whistle or neers, New Orleans, Louisiana.
horn, repeated every 30 seconds, shall (2)–(3) [Reserved]
be sounded from the signal tower as an (4) Cable and pipeline crossings. Any
adjunct to the red light. cable or pipeline crossing or extending
(2) Signs. Large signs with silver re- into the waterways shall be marked by
flective background and stop sign red large signs with 12-inch black letters
letters are erected one-fourth mile upon a white background readable from
stream and downstream from the Gulf the waterway side, placed on each side
Intracoastal Waterway on the Colorado of the river near the point where the
River. The legend states ‘‘DO NOT cable or pipeline enters the water, and
PROCEED BEYOND THIS POINT at a sufficient height to be readable
WHEN SIGNAL TOWER LIGHT IS above any obstructions normally to be
RED.’’ These signs must be obeyed. expected at the locality such as weeds
NOTE: The foregoing regulations are sup- or moored vessels.
plementary to the regulations in § 207.180. (5) Marine accidents. Masters, mates,
pilots, owners, or other persons using
[31 FR 15310, Dec. 7, 1966, as amended at 34 the waterway to which this paragraph
FR 15797, Oct. 14, 1969; 48 FR 6707, Feb. 15,
applies shall notify the District Engi-
1983]
neer by the most expeditious means
available of all marine accidents, such
50
as fire, collision, sinking, or stranding, shall be performed by the contract lock

where there is possible obstruction of operator except that the responsibility
the channel or interference with navi- for enforcing all laws, rules and regula-
gation or where damage to Government tions shall be vested in an offsite gov-
property is involved, furnishing a clear ernment employee designated by the
statement as to the name, address, and Vicksburg District Engineer.
ownership of the vessel or vessels in- (2) Sound signals. (i) Vessels desiring
volved, the time and place, and the ac- passage through a lock in either direc-
tion taken. In all cases, the owner of tion shall give notice to the
the sunken vessel shall take immediate lockmaster by one long and one short
steps properly to mark the wreck. distinct blast of a horn or whistle when
[15 FR 3325, May 30, 1950, as amended at 17 not less than three-fourths mile from
FR 6594, July 18, 1952; 27 FR 3166, Apr. 3, 1962; the lock. When carrying dangerous
33 FR 10456, July 23, 1968; 42 FR 51773, Sept. cargo, the signal will be one long and
29, 1977; 42 FR 57961, 57962, Nov. 7, 1977] two short blasts of the horn or whistle.
When the lock is ready for entrance,
§ 207.249 Ouachita and Black Rivers,
Ark. and La., Mile 0.0 to Mile 338.0 the lockmaster shall reply with one
(Camden, Ark.) above the mouth of long blast of a horn or whistle. When
the Black River; the Red River, La., the lock is not ready for entrance, the
Mile 6.7 (Junction of Red, lockmaster shall reply by four or more
Atchafalaya and Old Rivers) to Mile short, distinct blasts of a horn or whis-
276.0 (Shreveport, La.); use, admin- tle (danger signal). Permission to leave
istration, and navigation.
the lock shall be indicated by the
(a) [Reserved] lockmaster by one short blast. A dis-
(b) Locks—(1) Authority of lockmasters. tinct blast is defined as a clearly audi-
(i) Locks staffed with Government per- ble blast of any length. A long blast
sonnel. The lockmaster shall be means a blast of from 4 to 6 seconds’
charged with the immediate control duration. A short blast is of about 1
and management of the lock and of the second’s duration.
area set aside as the lock area, includ- (ii) Vessels that are not equipped
ing the lock approach channels. He with a sound signal desiring passage
shall insure that all laws, rules, and through a lock shall give notice to the
regulations for the use of the lock and
lockmaster by one long blast of the
lock area are duly complied with, to
horn located at either end of the lock
which end he is authorized to give all
wall. The horn may be activated by
necessary orders and directions in ac-
pulling the properly marked chain or
cordance therewith both to employees
rope hanging from the horn down to
of the Government and to any and
the water surface. One long blast
every person within the limits of the
means a blast of from 4 to 6 seconds’
lock or lock area, whether navigating
the lock or not. No one shall cause any duration.
movement of any vessel or other float- (3) Visual signals. Signal lights will be
ing thing in the lock or approaches ex- displayed outside each lock gate to
cept by or under the direction of the supplement the sound signals, as fol-
lockmaster or his assistants. For the lows:
purpose of the regulations in this sec- (i) One green light to indicate that
tion, the ‘‘lock area’’ is considered to the lock is open to approaching naviga-
extend from the downstream to the up- tion.
stream arrival posts. (ii) One red light to indicate that the
(ii) Locks staffed with contract per- lock is not open to approaching naviga-
sonnel. Contract lock operators shall tion. Vessels shall stand clear.
give all necessary orders and direction (iii) Navigation over the dam is pos-
for operation of the locks. No one shall sible during high water. When this con-
cause any movement of any vessel or dition exists, a continuous flashing red
other floating object in the locks or ap- light, visible upstream and down-
proaches except by or under the direc- stream, will be displayed to indicate
tion of the contract lock operator. All that traffic will bypass the lock and
duties and responsibilities of the pass over the dam on the Ouachita and
lockmasters set forth in this section Black Rivers.
51
§ 207.249 33 CFR Ch. II (7–1–20 Edition)
(iv) A navigation pass is not provided required for three other lockages, then
as part of the Red River Locks and Dams. separate lockages shall be made. Dan-
When water levels rise to within 2 feet gerous cargoes are described in 46 CFR
of the top of the lock walls, operation part 146.
of the locks will cease until the water (iii) Vessels, tows, or rafts navigating
level falls below this level. These on the Ouachita and Black Rivers with
stages can reasonably be expected to overall dimensions greater than 80 feet
occur once in 10 years. No vessel, tow, wide, 600 feet long, and 9 feet draft, or
or raft shall attempt to navigate over tows or rafts requiring breaking into
the lock or other structures at high two or more sections to pass through
river stages. United States Coast the lock may transit the lock at such
Guard radiotelephone broadcasts and time as the lockmaster determines
U.S. Army Corps of Engineers naviga- that they will neither unduly delay the
tion bulletins should be monitored for transit of craft of lesser dimensions,
information on lock operations. nor endanger the lock structure and
(4) Radiotelephone. Two-way radio appurtenances because of wind, cur-
equipment is provided at all locks. The rent, or other adverse conditions.
‘‘Safety and Calling’’ channel (Channel These craft are also subject to such
16, frequency of 156.8 mhz), will be mon- special handling requirements as the
itored at all times for initial commu- lockmaster finds necessary at the time
nication with vessels. Information of transit.
transmitted or received in these com- (iv) The maximum dimensions on the
munications shall in no way affect the Red River Waterway of a vessel tow at-
requirements for the use of sound sig- tempting to pass through the lock dur-
nals or display of visual signals as pro- ing normal pool stages in a single pas-
vided in paragraphs (b)(2) and (3) of this sage are 80 feet wide, 705 feet long, and
section. 9 feet draft. Tows requiring breaking
(5) Precedence at locks. (i) The vessel into two or more sections to pass
arriving first at a lock will be first to through the lock may transit the lock
lock through. In the case of vessels ap- at such times as the lockmaster/lock
proaching the lock simultaneously operator determines that they will nei-
from opposite directions, the vessel ap- ther unduly delay the transit of craft
proaching at the same elevation as the of lesser dimensions, nor endanger the
water in the lock chamber will be lock structure and appurtenances be-
locked through first. Precedence shall cause of wind, current, or other adverse
be given to vessels belonging to the conditions. These craft are also subject
United States, passenger vessels, com- to such special handling requirements
mercial vessels, rafts, and pleasure as the lockmaster/lock operator finds
craft, in the order named. Arrival posts necessary at the time of transit.
or markers will be established ashore (6) Entrance to an exit from locks. No
above and below the locks. Vessels ar- vessel or raft shall enter or leave locks
riving at or opposite such posts or before being signaled to do so. While
markers will be considered as having waiting their turn, vessels or rafts
arrived at the lock within the meaning must not obstruct navigation and must
of this paragraph (b)(5). The remain at a safe distance from locks.
lockmaster may prescribe such depar- Before entering a lock they shall take
ture from the normal order of prece- position in the rear of any vessels or
dence stated above, as in his judgment, rafts that precede them, and there ar-
is warranted under prevailing cir- range the tow for locking in sections if
cumstances to achieve best lock utili- necessary. Masters and pilots of vessels
zation. or persons in charge of rafts shall cause
(ii) The lockage of pleasure boats, no undue delay in entering or leaving
houseboats, or like craft may be expe- locks upon receiving the proper signal.
dited by locking them through with They shall take such action as will in-
commercial craft (other than barges sure that the approaches are not at any
carrying dangerous cargoes). If, after time unnecessarily obstructed by parts
the arrival of such craft, no combined of a tow awaiting lockage or already
lockage can be accomplished within a passed through. They shall provide suf-
reasonable time, not to exceed the time ficient men to move through locks
52
promptly without damage to the struc- age in the same direction, no part of
tures. Vessels or tows shall enter locks one shall pass the lock until the whole
with reasonable promptness after being of the one preceding it shall have
signaled to do so. passed.
(7) Lockage and passage of vessels. (i) (9) Mooring. (i) Vessels and rafts when
Vessels shall enter and leave locks in a lock shall be moored where di-
under such control as to prevent any rected by the lockmaster by bow,
damage to the locks, gates, guide stern, and spring lines to the bitts pro-
walls, guard walls, and fenders. Vessels vided for that purpose and lines shall
shall be provided with suitable lines not be let go until the signal is given
and fenders, shall always use fenders to for the vessel or raft to leave. Tying to
protect the walls and gates, and when the lock ladders is prohibited.
locking at night shall be provided with
(ii) The mooring of vessels or rafts
suitable lights and use them as di-
near the approaches to locks except
rected. Fenders on vessels shall be
water-soaked or otherwise fire proofed while waiting for lockage, or at other
before being utilized in the lock or ap- places in the pools where such mooring
proaches. Vessels shall not meet or interfers with general navigation, is
pass each other anywhere between the prohibited.
guide walls or fender system at the ap- (10) Operating locks. The lock gates,
proaches to locks. valves, and accessories will be moved
(ii) Vessels which do not have a draft only under the direction of the
of at least 2 feet less than the depth lockmaster; but, if required, all vessels
over sills, or which have projections and rafts using the locks shall furnish
liable to damage gates, walls, or fend- ample help on the lock walls for han-
ers, shall not enter the approaches to dling lines under the direction of the
or pass through locks. Information lockmaster.
concerning depth over sills may be ob- (c) Trespass on U.S. property. Trespass
tained from the lockman on duty. on lock grounds or other waterway
(iii) Vessels having chains, lines, or property or injury to the banks, lock
drags either hanging over the sides or entrances, locks, cribs, dams, piers,
ends or dragging on the bottom for fences, trees, buildings, or any other
steering or other purposes will not be property of the United States per-
permitted to pass locks or dams. taining to the waterway is strictly pro-
(iv) Towing vessels shall accompany hibited. No landing of freight, pas-
all tows or partial tows through locks. sengers, or baggage will be allowed on
(v) No vessel whose cargo projects be- or over Government piers, lock walls,
yond its sides will be admitted to lock- guide or guard walls, except by permis-
age. sion of the lockmaster. No person ex-
(vi) Vessels in a sinking condition cept employees of the United States or
shall not enter locks or approaches. persons assisting with the locking op-
(vii) The lockmaster may refuse to erations under the direction of the
lock vessels which in his judgment fail lockmaster will be allowed on the dam,
to comply with the regulations in this lock walls, guide walls, guard walls,
paragraph.
abutments, or appurtenant structures.
(viii) This section shall not affect the
(d) Vessels to carry regulations. A copy
liability of the owners and operators of
boats for any damage caused by their of the regulations in this section shall
operations to locks or other structures. be kept at all times on board each ves-
(8) Number of lockages. Tows or rafts sel regularly navigating the waterways
locking in sections will generally be al- to which the regulations in this section
lowed only two consecutive lockages if apply. Copies may be obtained free of
individual vessels are waiting for lock- charge at any of the locks or from the
age, but may be allowed more in spe- Vicksburg District Engineer, Vicks-
cial cases. If tows or rafts are waiting burg, Mississippi, upon request.
above and below a lock for lockage, [37 FR 14778, July 25, 1972, as amended at 52
sections will be locked both ways alter-
FR 18235, May 14, 1987; 52 FR 34775, Sept. 15,

nately whenever practicable. When two 1987; 56 FR 13765, Apr. 4, 1991; 63 FR 24428,
or more tows or rafts are waiting lock- May 4, 1998]
53
§ 207.260 33 CFR Ch. II (7–1–20 Edition)
§ 207.260 Yazoo Diversion Canal, Latitude 32°20′12″, Longitude 90°53′41″,

Vicksburg, Miss., from its mouth at which is approximately 750 feet from
Kleinston Landing to Fisher Street; the mouth of the canal. When tied up,
navigation. boats, barges, or rafts shall be moored
(a) Signals. Vessels navigating the by bow and stern lines parallel to the
canal will be governed by the Pilot bank and as close in as practicable.
Rules for Western Rivers (rivers Lines shall be secured at sufficiently
emptying into the Gulf of Mexico and close intervals to insure the vessel or
their tributaries) prescribed by the raft will not be drawn away from the
U.S. Coast Guard. (See part 95 of this bank by winds, current, or other pass-
title.) 1 ing vessels. No vessel or raft shall be
(b) Rafts. Rafts will be permitted to moored along the banks of the canal
navigate the canal only if properly and for a period longer than five (5) cal-
securely assembled. Each section of a endar days without written permission
raft shall be so secured within itself as from the District Engineer, Corps of
to prevent the sinking of any log, and Engineers, Vicksburg District Office,
so fastened with chains or wire rope 4155 E. Clay St., Vicksburg, Mississippi
that it cannot be separated or bag out 39180–3435.
or materially change its shape. All (d) [Reserved]
logs, chains, and other means used in (e) Refuse in canal. No person shall
assembling rafts shall be in good condi- roll or throw any stones, ashes, cin-
tion and of ample size and strength to ders, barrels, logs, log butts, sawdust,
accomplish their purpose. No section of shavings, refuse, or any other material
a raft will be permitted to be towed un- into the canal or the approach thereto,
less the logs float sufficiently high in or place any such material on the bank
the water to make it evident that the or berm so that it is liable to be rolled,
section will not sink en route. Rafts thrown, or washed into the canal.
shall not be of greater dimensions than (f) Preservation of works of improve-
50 feet wide by 600 feet long, and if ment. Masters and pilots of all craft
longer than 300 feet they shall be han- using the canal shall avoid damaging
dled by two tugs; and in all cases they any revetment, dike, floodwall, or
must be handled by sufficient tug other work of improvement placed in
power to make headway and guide the or adjacent to the canal. They shall
raft so as to give half the channel to not disturb any gages or marks set as
passing vessels. aids to navigation in the canal or ap-
(c) Mooring. At stages below 20 feet proaches thereto.
on the Vicksburg Gage, no vessel or
(g) Fairway. A clear channel not less
raft shall be moored along the west
than 175 feet wide as established by the
bank of the canal between points Lati-
District Engineer shall be left open at
tude 32°21′16″, Longitude 90°53′05″ and
all times to permit free and unob-
Latitude 32°20′55″, Longitude 90°53′18″,
structed navigation by all types of ves-
which is approximately 1200 feet above
sels.
and 1200 feet below the public boat
launch (foot of Clay Street) at Vicks- [13 FR 9562, Dec. 31, 1948; 42 FR 57962, Nov. 7,
burg City Front. No vessel or raft shall 1977, as amended at 63 FR 24428, May 4, 1998]
be moored along the west bank of the
canal at any stage from the mouth of § 207.270 Tallahatchie River, Miss., be-
the Yazoo Diversion Canal where it en- tween Batesville and the mouth;
logging.
ters into the Mississippi River to Lati-
tude 32°20′21″, Longitude 90°53′44″, which (a) The floating of ‘‘sack’’, rafts, or of
is approximately 1200 feet from the loose timbers, logs, or cribs is prohib-
mouth of the canal. No vessel or raft ited.
shall be moored along the east bank of (b) Rafts shall be made up of logs par-
the canal at any stage from the mouth allel with each other, secured, and held
of the Yazoo Diversion Canal where it closely together by cross sticks,
enters into the Mississippi River to chains, or cables placed across each
crib and at the joints between cribs. No
1 Part 95 was removed by CGD 82–029, 47 FR raft shall be over 60 feet wide or 800
19519, May 6, 1982. feet long.
54
(c) In rafting nonbuoyant timber plies shall be under the direction of the
each crib must contain self-buoyant officers of the Army Corps of Engi-
logs in such proportion of ‘‘floaters’’ to neers, detailed in charge of the respec-
‘‘sinkers’’ as will safely float the tive districts, and their authorized as-
whole; and in assembling such cribs, sistants. The cities in which these dis-
extra strong connections must be used trict engineers are located, and the
to prevent the breaking up of a crib or limits of their jurisdictions, are as fol-
the detachment of individual logs. lows:
(d) No raft shall be moved at river (1) District Engineer, U.S. Army Engi-
stages less than that corresponding to neer District, Little Rock, Arkansas.
a reading of 34⁄10 feet on the U.S. From Mississippi River, Arkansas, to
Weather Bureau gage at Greenwood,
Arkansas-Oklahoma State line at Fort
Miss.
Smith, Arkansas.
(e) A raft in transit must be accom-
panied by sufficient men, or by power (2) District Engineer, U.S. Army Engi-
boats of sufficient capacity to properly neer District, Tulsa, Oklahoma. From Ar-
manage the movement of the raft and kansas-Oklahoma State line at Fort
to keep it from being an obstruction to Smith, Arkansas, to Catoosa, Okla-
other craft navigating the river, or homa.
from forming jams at bridges. (c) Authority of lockmasters. The
(f) Rafts in transit must be so float- lockmaster shall be charge with the
ed, and when not in transit be so tied immediate control and management of
to the bank, as not to interfere with the lock and of the area set aside as
the passage of boats. the lock area. The lockmaster shall en-
(g) When rafts are left with no one in sure that all laws, rules, and regula-
attendance they must be securely tied tions for the use of the lock and lock
at each end and at as many inter- area are duly complied with, to which
mediate points as will prevent them end he/she is authorized to give all nec-
from bagging into the stream. When essary orders and directions both to
left at night a white light shall be ex- employees of the Government and to
posed at each end of the raft. any person within the limits of the
(h) This section shall apply to the lock area, whether navigating the lock
portion of the Tallahatchie River, or not. No one shall cause any move-
Miss., between Batesville, Panola ment of any vessel or other floating
County, Miss., and the mouth. thing in the lock area except by or
[Regs. Feb. 18, 1918, as amended at 25 FR 8908, under the direction of the lockmaster.
Sept. 16, 1960] Failure to comply with directions
given by the lockmaster pursuant to
§ 207.275 McClellan-Kerr Arkansas
River navigation system: use, ad- the regulations in this section may re-
ministration, and navigation. sult in refusal of lockage. For the pur-
pose of the regulations in this section,
(a) Applicability of regulations. These
the ‘‘lock area’’ is considered to be be-
regulations apply to all locks and ap-
tween the upstream and downstream
purtenant structures, wharves, and
arrival points. The district engineer
other Corps of Engineers structures in
the following waterways: The White may extend the limits of the lock area
River between Mississippi River and consistent with the safe and efficient
Arkansas Post Canal, Arkansas; Ar- use of the waterway.
kansas Post Canal, Arkansas; Arkansas (d) Precedence at locks. (1) Precedence
River between Dam No. 2, Arkansas, shall be given to vessels owned by the
and Verdigris River, Oklahoma; Verdi- United States, licensed commercial
gris River between Arkansas River and passenger vessels operating on a pub-
Catoosa, Oklahoma; and reservoirs on lished schedule or regularly operating
these waterways between Mississippi in the ‘‘for hire’’ trade, commercial
River, Arkansas, and Catoosa, Okla- tows, rafts, and pleasure craft, in the
homa. order named. Precedence being equal,
(b) Authority of district engineers. The the first vessel to arrive at a lock will
use, administration, and navigation of normally be the first to lock through;

the structures to which this section ap- however, the lockmaster may depart
55
§ 207.275 33 CFR Ch. II (7–1–20 Edition)
from this procedure to achieve opti- (3) Fenders shall be water-soaked or

mum utilization of the lock or in ac- otherwise spark proofed.
cordance with the order of precedence (4) Smoking, open flames, chipping,
stated above and in paragraphs (d)(2) or other spark producing activity are
and (h) of this section. Arrival points prohibited in the ‘‘lock area.’’
have been established ashore upstream (5) Simultaneous lockage of other
and downstream of the locks. Vessels vessels with vessels carrying dangerous
arriving at these markers or the moor- cargoes or containing flammable va-
ing cells immediately upstream and pors shall normally not be permitted. if
downstream of the lock will be consid- significant delays are occurring at a
ered as having arrived at the lock with- lock, such simultaneous lockages, ex-
in the meaning of this subparagraph. cept with pleasure craft, may be per-
(2) Vessels or tows, with overall di- mitted by the lockmaster, when he/she
mensions greater than 105 feet wide or determines such action safe and appro-
595 feet long may transit the lock at priate, provided:
such time as the lockmaster deter- (i) The first vessel entering or the
mines that they will neither unduly last vessel exiting shall be secured be-
delay the transit of craft of lesser di- fore the other enters or leaves.
mensions, nor endanger the lock struc- (ii) All masters involved have agreed
ture and appurtenances because of to the joint use of the lock.
wind, current, or other adverse condi- (g) General locking procedures. (1) In
tions. These craft are also subject to case two or more boats or tows are to
such special handling requirements as enter for the same lockage, their order
the lockmaster deems necessary at the of entry and exit shall be determined
time of transit. by the lockmaster.
(e) Safety rules for vessels using naviga- (2) Tows entering a lock shall come
tion locks. (1) Leaking vessels may be to a complete stop at a point des-
excluded from the locks. ignated by the district engineer before
(2) Smoking, open flames, and activi- proceeding to the mooring position.
ties capable of producing a flammable (3) When entering or exiting locks,
atmosphere such as painting will not tow speeds shall not exceed 200 feet per
be permitted in the lock chamber. minute (rate of slow walk) or the rate
(3) All deckhands handling lines dur- of travel whereby the tow can be
ing locking procedures shall wear a stopped by checking should mechanical
personal flotation device. difficulties develop. When navigating
(f) Dangerous cargo barges. The fol- over Norrell Dam during high water,
lowing rules are prescribed for all tows vessels shall reduce speed to the min-
containing dangerous cargoes as de- imum necessary to maintain steerage-
fined in Title 46, Code of Federal Regu- way. Pilots should check with the indi-
lations. These rules are applicable to vidual lockmasters concerning pre-
both loaded barges and empty barges. vailing conditions. It is also rec-
(1) All hatches on barges used to ommended that pilots check their abil-
transport dangerous cargoes shall be ity to reverse their engines prior to be-
closed before the tow enters the lock ginning an approach. Towboat engines
area. shall not be turned off in the lock un-
(2) Prior to entering the lock area, less authorized by lockmaster.
towboat pilots shall furnish the name (4) The sides and ends of all vessels
of product, the source of shipment, the passing through any lock shall be free
company which made the shipment, from protrusions of any kind which
and the consignee. If a towboat is not might damage the lock structure.
equipped with a radio or its radio is out (5) All vessels shall be provided with
of service, pilots shall furnish this in- suitable fenders. When entering and
formation to the lockmaster while the exiting locks, one deckhand, or more if
tow is in the lock chamber. The ship- the lockmaster so directs, shall be sta-
ping papers required by title 46, Code of tioned at the bow and stern of tows.
Federal Regulations, shall be available These deckhands shall maintain their
for review by the lockmaster. Lockage stations while tows are moving adja-
shall be refused when this information cent to any part of a lock. They shall
is not furnished to the lockmaster. protect the lock walls by the use of
56
hand-held fenders. In all cases, two through with commercial vessels, ex-
deckhands shall be stationed at the cept vessels carrying volatile cargoes
bows of tows 100 feet wide or wider or other substances likely to emit
when entering locks. They shall remain toxic, flammable, or explosive vapors.
at their stations until the bows of such If the lockage of pleasure craft cannot
tows pass the recessed miter gates. be accomplished within the time re-
(6) Masters and pilots must use every quired for three single lockages, a sep-
precaution to prevent unnecessary arate lockage of pleasure craft shall be
delay in entering or leaving locks. Ves- made. Pleasure craft operators are ad-
sels failing to enter locks with reason- vised that the locks have a pull chain
able promptness when signaled to do so located at the end of each river wall
shall lose their turn. Rearranging or which signals the lockmaster that
switching of barges in the locks or in lockage is desired.
approaches is prohibited unless ap- (i) Locking rafts and floating dredge
proved or directed by the lockmaster. discharge line. While awaiting lockage,
(7) No vessel shall enter a lock unless rafts and tows containing floating
its draft is at least two feet less than dredge discharge line shall not obstruct
the least depth of water over the sills. the lock approaches. They shall be
Information concerning controlling properly and securely assembled to as-
depth over sills can be obtained from sure adequate control while entering
the lockmaster at each lock or by in- and exiting locks. The passage of loose
quiry at the office of the district engi- logs through a lock is prohibited.
neer of the district in which the lock is Lockage will be refused to rafts unless
located. the logs float sufficiently high to make
(8) Vessels awaiting their turn to it evident that the raft will not sink.
lock shall be positioned so that they (j) Mooring—(1) At locks. (i) When in
will not interfere with vessels leaving the locks, all vessels shall be moored as
the lock. However, to the extent prac- directed by the lockmaster. Vessels
ticable under the prevailing conditions, shall be moored with bow and stern
vessels and tows shall be positioned so lines leading in opposite directions to
as to minimize approach time. prevent the vessel from ‘‘running’’ in
(9) Number of lockages. (i) Tows or the lock. All vessels will have one addi-
rafts locking in sections will generally tional line available on the head of the
be allowed only two consecutive tow for emergency use. The pilot of a
lockages if other vessels are waiting vessel shall remain at his station in
lockage, but may be allowed more in the pilot house and the deckhands shall
special cases. No part of a tow shall stand by the mooring lines during the
pass a lock until the whole of the one entire locking procedure. When the
preceding it shall have passed. The vessel is securely moored, the pilot
lockmaster may prescribe a departure shall not cause movement of the pro-
from the normal order of precedence to peller except in an emergency or unless
achieve the best lock utilization. directed by the lockmaster. Tying to
(ii) One deckhand, or more if the lock ladders is strictly prohibited.
lockmaster so directs, shall tend the (ii) Mooring of any vessel will not be
lines at the bow and stern of each sec- permitted at or between the arrival
tion of a tow that transits a lock or points without permission of the
moors to the river walls. lockmaster.
(10) Vessels shall enter and leave (2) Outside of locks. (i) Vessels over 40
locks under such control as to prevent feet in length shall not land or anchor
any damage to the walls and gates. against revetted banks without written
(11) Placing or discharging refuse of permission of the district engineer, ex-
any description into the lock, on the cept in case of emergency. When an
lock walls, on the esplanade, or on any emergency landing is necessary, adja-
other government property is prohib- cent locks shall be notified. In all
ited. cases, every precaution to avoid dam-
(h) Lockage of pleasure craft. In order age to the revetment works shall be ex-
to fully utilize the capacity of the lock, ercised. The construction of log rafts
lockmasters may expedite the lockage along mattressed or paved banks or the
of pleasure craft by locking them tying up and landing of log rafts
57
§ 207.275 33 CFR Ch. II (7–1–20 Edition)
against such banks require the permis- (iv) Five or more short and rapid
sion of the district engineer. blasts of the lock horn will be used as
(ii) Government mooring facilities at a means of attracting attention, to in-
the junction of main stem and sec- dicate caution, or to signal danger.
ondary channels are to provide tem- This signal will be used to attract the
porary mooring for tows awaiting attention of the masters and crews of
transfer of barges to or from ports, vessels using the lock or navigating in
docks, or fleeting areas located on the the lock area and to indicate that
secondary channels. These facilities something unusual involving danger or
shall not be used for storage of barges requiring special caution is happening
or fleeting activities. The maximum or is about to happen. When this signal
permissible time of mooring at the fa- is given by the lockmaster, the masters
cilities shall be determined by the dis- and crews of vessels in the vicinity
trict engineer. shall immediately become alert to de-
(k) Locking signals. Vessels must ap- termine the reason for the signal and
proach the locks with caution and not shall take the necessary steps to cope
enter or leave the locks until signaled with the situation.
to do so by the lockmaster. (3) Visual signals. Signal lights are
(1) Signal by radio. Requests for lock- displayed outside each lock gate to
age by radio will be the primary signal supplement the radio and sound sig-
for vessels equipped with VHF-FM ra- nals. Vessels will be governed as fol-
dios operating in the FCC authorized lows:
Maritime Band. District engineers will (i) One flashing green light to indi-
advise all known interested parties of cate that the lock is open to approach-
the channels available for use in coming navigation.
municating with the locks. Pilots of (ii) One flashing red light to indicate
commercial tows should contact the that the lock is not open to approach-
locks at least one-half hour before ar- ing navigation. Vessels shall stand
rival in order that they may be in- clear.
formed of current river and traffic con- (iii) Flashing amber and green lights
ditions that may affect the safe pas- to indicate that one or both lock gates
sage of their tows. can not be fully recessed or other un-
(2) Sound signals. In addition to radio usual conditions exist. Vessels can
communication, the following sound enter the lock with caution.
signals are prescribed for use during (iv) In the absence of any of the
lockage. Sound signals given by vessels above visual signals, pilots shall signal
and locks shall be given by means of a for lockage by radio or horn and wait
horn. The term prolonged blast means for the lockmaster to acknowledge
a blast of from four to six second’s du- their signal.
ration. The term short blast means a (l) Navigation lights on locks and dams.
blast of about one second’s duration. (1) The following navigation lights will
(i) Vessels desiring a single lockage be displayed at all locks except Norrell
shall give notice to the lockmaster by Lock and Lock No. 2 during hours of
one prolonged blast of the horn fol- darkness and heavy fog.
lowed by one short blast. If a double (i) Three green lights visible through
lockage is required, vessels shall give an arc of 360 degrees arranged in a
one prolonged blast of the horn fol- vertical line on the end of the up-
lowed by two short blasts. These sig- stream river wall.
nals are not required from pleasure (ii) Two green lights visible through
craft not equipped with horns. Locking an arc of 360 degrees arranged in a
procedures for pleasure craft are pre- vertical line on the end of the down-
scribed in paragraph (h). stream river wall.
(ii) When the lock is ready for en- (iii) A single red light visible through
trance, the lockmaster shall give one an arc of 360 degrees on the ends of the
prolonged blast of the horn to signal upstream and downstream land walls.
permission to enter the lock chamber. (2) The following navigation lights
(iii) The lockmaster shall give per- will be displayed at Lock No. 2 during
mission to leave the lock chamber by hours of darkness and heavy fog. They
one short blast of the horn. shall also be displayed at Norrell Lock
58
during hours of darkness and heavy fog United States property pertaining to
except when navigation is passing over the locks or dams is strictly prohibited
the dam. except in those areas specifically per-
(i) Three green lights visible through mitted by the lockmaster. Any person
an arc of 360 degrees arranged in a committing a willful injury to any
vertical line on the end of the up- United States property or personnel
stream river wall. will be prosecuted.
(ii) Two green lights visible through (2) No fishing will be permitted from
an arc of 360 degrees arranged in a the lock or dam structures.
vertical line on the end of the down- (3) No one but employees of the
stream river wall. United States shall move any lock ma-
(iii) A single red light visible through chinery unless directed by the
an arc of 360 degrees on the dolphin lo- lockmaster. Tampering or meddling
cated furthest upstream in line with with the machinery or other parts of
the land wall and on the dolphin lo- the lock is strictly forbidden.
cated furthest downstream in line with (o) Repair and construction of naviga-
the land wall. tion structures. To avoid damage to
(3) The following navigation lights plant and structures connected with
will be displayed at Norrell Lock and the construction or repair of locks and
Dam during hours of darkness and dams, vessels passing structures in the
heavy fog when navigation is passing process of construction or repair shall
over the dam. During daylight hours a reduce their speed and navigate with
yellow and black disc will be displayed special caution while in the vicinity of
on each end (upstream and down- such work.
stream) of the river wall to signal navi- (p) Reporting the navigation incidents.
gation over the dam. In furtherance of maintaining naviga-
(i) Three red lights visible through an tion safety the following rules are pre-
arc of 360 degrees arranged in a vertical scribed for all navigation interests:
line on the end of the upstream river (1) Any incident resulting in uncon-
wall. trolled barges shall immediately be re-
(ii) Two red lights visible through an ported to the nearest lock and the ap-
arc of 360 degrees arranged in a vertical propriate U.S. Coast Guard Office. The
line on the end of the downstream river report shall include information as to
wall. the number of loose barges, their
(iii) A single red light visible through cargo, and the time and location where
an arc of 360 degrees on the dolphin lo- they broke loose. The lockmaster shall
cated furthest upstream in line with be kept informed of the progress being
the land wall and on the dolphin lo- made in bringing the barges under con-
cated furthest downstream in line with trol so that he/she can initiate what-
the land wall. ever actions may be warranted.
(iv) A single, flashing blue light visi- (2) Masters, owners, or other persons
ble through an arc of 360 degrees lo- using the waterways to which the regu-
cated on the end of the dam opposite lations in this section apply shall re-
the lock. port to the nearest lockmaster or the
(m) Restricted areas at locks and dams. district engineer by the most expedi-
All waters immediately above and tious means available all marine acci-
below each dam, as posted by the re- dents; such as fire, collision, sinking,
spective district engineers, are hereby or grounding, where there is possible
designated as restricted areas. No ves- obstruction of the channel or inter-
sel or other floating craft shall enter ference with navigation; furnishing a
any such restricted area without per- clear statement as to the name, ad-
mission of the lockmaster. The limits dress, and ownership of the vessel or
of the restricted areas at each dam will vessels involved; the time and place;
be determined by the responsible dis- and the action taken. In all cases, the
trict engineer and marked by signs in- owner of a sunken vessel shall take im-
stalled in conspicuous and appropriate mediate steps to mark the wreck prop-
locations. erly.
(n) Trespass on lock and dam property. (i) Sunken or sinking barges shall be
(1) Trespass on locks or dams or other reported to the nearest lock both
59
§ 207.300 33 CFR Ch. II (7–1–20 Edition)
downstream and upstream of the loca- Cordell Hull Lock located at Mile 313.5
tion in order that traffic passing those on the Cumberland River in Tennessee.
points may be advised of the hazards. The lockmaster shall be charged with
The appropriate U.S. Coast Guard Of- the immediate control and manage-
fice shall also be notified. ment of the lock, and of the area set
(ii) Whenever it is necessary to re- aside as the lock area, including the
port an incident involving uncon- lock approach channels. He/she shall
trolled, sunken or sinking barges, the see that all laws, rules, and regulations
cargo in the barges shall be precisely for the use of the lock and lock area
identified. are duly complied with, to which end
(iii) The owners or masters of vessels
he/she is authorized to give all nec-
sunk in the navigable waters of the
essary orders and directions in accord-
United States shall provide the appro-
priate district engineer with a copy of ance therewith, both to employees of
the sunken vessel report furnished to the government and to any and every
the appropriate U.S. Coast Guard Ma- person within the limits of the lock
rine Inspection Office. and lock area, whether navigating the
(q) [Reserved] lock or not. No one shall cause any
(r) Liability for damage. This section movement of any vessel, boat, or other
shall not affect the liability of the floating thing in the lock or ap-
owners and operators of vessels for any proaches except by or under the direc-
damage caused by their operations. tion of the lockmaster or his/her assist-
Should any Government property be ants. In the event of an emergency, the
damaged as the result of the operation lockmaster may depart from these reg-
of a vessel, the master of the vessel ulations as he deems necessary. The
shall report the accident to the nearest lockmasters shall also be charged with
lockmaster or the appropriate district the control and management of feder-
engineer. ally constructed mooring facilities.
(s) Persistent violation of regulations. If (2) Locks staffed with contract per-
the owner or operator of any vessel sonnel. The provisions of this para-
persistently violates the regulations of graph apply to Cordell Hull Lock lo-
this section or any orders given in pur- cated at Mile 313.5 on the Cumberland
suance thereof, after due notice of
River in Tennessee. Contract personnel
same, lockage may be refused by the
shall give all necessary orders and di-
district engineer. The lockmaster may
refuse lockage if deemed necessary to rections for operation of the lock. No
protect government property in the vi- one shall cause any movement of any
cinity of the lock. vessel, boat or other floating thing in
(t) Vessels to carry regulations. A copy the locks or approaches except by or
of these regulations shall be kept at all under the direction of the contract
times on board each commercial vessel lock operator. All duties and respon-
engaged in navigating the waterway. sibilities of the lockmaster set forth in
Copies may be obtained from any lock this section shall be performed by the
or district engineer’s office on request. contract lock operator except that re-
Masters of such vessels are also responsibility for enforcing all laws,
quired to have on board current copies rules, and regulations shall be vested
of the navigation charts and applicable in a government employee designated
Notices to Navigation Interest. by the Nashville District Engineer. The
[51 FR 30639, Aug. 28, 1986, as amended at 56 district engineer will notify waterway
FR 13765, Apr. 4, 1991] users and the general public through
appropriate notices and media con-
§ 207.300 Ohio River, Mississippi River cerning the location and identity of the
above Cairo, Ill., and their tribu- designated government employee.
taries; use, administration, and
navigation. (b) Safety rules for vessels using naviga-
tion locks. The following safety rules
(a) Authority of lockmasters—(1) Locks are hereby prescribed for vessels in the
staffed with Government personnel. The
locking process, including the act of

provisions of this paragraph apply to
approaching or departing a lock:
all waterways in this section except for
60
(1) Tows with flammable or hazardous (1) Any incident resulting in uncon-
cargo barges, loaded or empty. (i) Strip- trolled barges shall immediately be re-
ping barges or transferring cargo is ported to the nearest lock. The report
prohibited. shall include information as to the
(ii) All hatches on barges used to number of loose barges, their cargo,
transport flammable or hazardous ma- and the time and location where they
terials shall be closed and latched, ex- broke loose. The lockmaster or locks
cept those barges carrying a gas-free shall be kept informed of the progress
certificate. being made in bringing the barges
(iii) Spark-proof protective rubbing under control so that he can initiate
fenders (‘‘possums’’) shall be used. whatever actions may be warranted.
(2) All vessels. (i) Leaking vessels may (2) Whenever barges are temporarily
be excluded from locks until they have moored at other than commercial ter-
been repaired to the satisfaction of the minals or established fleeting areas,
lockmaster. and their breaking away could endan-
ger a lock, the nearest lock shall be so
(ii) Smoking, open flames, and chip-
notified, preferably the downstream
ping or other spark-producing activi-
lock.
ties are prohibited on deck during the
(3) Sunken or sinking barges shall be
locking cycle.
reported to the nearest lock both
(iii) Painting will not be permitted in downstream and upstream of the loca-
the lock chamber during the locking tion in order that other traffic passing
cycle. those points may be advised of the haz-
(iv) Tow speeds shall be reduced to a ards.
rate of travel such that the tow can be (4) In the event of an oil spill, notify
stopped by checking should mechanical the nearest lock downstream, speci-
difficulties develop. Pilots should fying the time and location of the inci-
check with the individual lockmasters dent, type of oil, amount of spill, and
concerning prevailing conditions. It is what recovery or controlling measures
also recommended that pilots check are being employed.
their ability to reverse their engines (5) Any other activity on the water-
prior to beginning an approach. En- ways that could conceivably endanger
gines shall not be turned off in the lock navigation or a navigation structure
until the tow has stopped and been shall be reported to the nearest lock.
made fast. (6) Whenever it is necessary to report
(v) U.S. Coast Guard regulations re- an incident involving uncontrolled,
quire all vessels to have on board life sunken or sinking barges, the cargo in
saving devices for prevention of drown- the barges shall be accurately identi-
ing. All crew members of vessels re- fied.
quired to carry work vests (life jack- (d) Precedence at locks. (1) The vessel
ets) shall wear them during a lockage, arriving first at a lock shall normally
except those persons in an area en- be first to lock through, but precedence
closed with a handrail or other device shall be given to vessels belonging to
which would reasonably preclude the the United States. Licensed commer-
possibility of falling overboard. All cial passenger vessels operating on a
deckhands handling lines during lock- published schedule or regularly oper-
ing procedure shall wear a life jacket. ating in the ‘‘for hire’’ trade shall have
Vessels not required by Coast Guard precedence over cargo tows and like
regulations to have work vests aboard craft. Commercial cargo tows shall
shall have at least the prescribed life have precedence over recreational
saving devices, located for ready access craft, except as described in paragraph
and use if needed. The lockmaster may (f) of this section.
refuse lockage to any vessel which fails (2) Arrival posts or markers may be
to conform to the above. established ashore above and/or below
(c) Reporting of navigation incidents. the locks. Vessels arriving at or oppo-
In furtherance of increased safety on site such posts or markers will be con-
waterways the following safety rules sidered as having arrived at the locks
are hereby prescribed for all navigation within the meaning of this paragraph.
interests: Precedence may be established visually
61
§ 207.300 33 CFR Ch. II (7–1–20 Edition)
or by radio communication. The tion seems safe and appropriate, pro-

lockmaster may prescribe such depar- vided:
ture from the normal order of prece- (1) The first vessel or tow in and the
dence as in his judgment is warranted last vessel or tow out are secured be-
to achieve best lock utilization. fore the other enters or leaves.
(e) Unnecessary delay at locks. Masters (2) Any vessel or tow carrying dan-
and pilots must use every precaution gerous cargoes is not leaking.
to prevent unnecessary delay in enter- (3) All masters involved have agreed
ing or leaving locks. Vessels failing to to the joint use of the lock chamber.
enter locks with reasonable prompt- (h) Stations while awaiting a lockage.
ness when signalled to do so shall lose Vessels awaiting their turn to lock
their turn. Rearranging or switching of shall remain sufficiently clear of the
barges in the locks or in approaches is structure to allow unobstructed depar-
prohibited unless approved or directed ture for the vessel leaving the lock.
by the lockmaster. This is not meant However, to the extent practicable
to curtail ‘‘jackknifing’’ or set-overs under the prevailing conditions, vessels
where normally practiced. and tows shall position themselves so
(f) Lockage of recreational craft. In as to minimize approach time when
order to fully utilize the capacity of signaled to do so.
the lock, the lockage of recreational (i) Stations while awaiting access
craft shall be expedited by locking through navigable pass. When navigable
them through with commercial craft: dams are up or are in the process of
Provided, That both parties agree to being raised or lowered, vessels desir-
joint use of the chamber. When rec- ing to use the pass shall wait outside
reational craft are locked simulta- the limits of the approach points un-
neously with commercial tows, the less authorized otherwise by the
lockmaster will direct, whenever prac- lockmaster.
ticable, that the recreational craft
(j) Signals. Signals from vessels shall
enter the lock and depart while the tow
ordinarily be by whistle; signals from
is secured in the lock. Recreational
locks to vessels shall be by whistle, an-
craft will not be locked through with
other sound device, or visual means.
vessels carrying volatile cargoes or
when a whistle is used, long blasts of
other substances likely to emit toxic
the whistle shall not exceed 10 seconds
or explosive vapors. If the lockage of
recreational craft cannot be accom- and short blasts of the whistle shall
plished within the time required for not exceed 3 seconds. Where a lock is
three other lockages, a separate lock- not provided with a sound or visual sig-
age of recreational craft shall be made. nal installation, the lockmaster will
Recreational craft operators are ad- indicate by voice or by the wave of a
vised that many locks have a pull hand when the vessel may enter or
chain located at each end of the lock leave the lock. Vessels must approach
which signals the lockmaster that the locks with caution and shall not
lockage is desired. Furthermore, many enter nor leave the lock until signaled
Mississippi River locks utilize a strobe to do so by the lockmaster. The fol-
light at the lock to signal recreational lowing lockage signals are prescribed:
type vessels that the lock is ready for (1) Sound signals by means of a whistle.
entry. Such lights are used exclusively These signals apply at either a single
to signal recreational craft. lock or twin locks.
(g) Simultaneous lockage of tows with (i) Vessels desiring lockage shall on
dangerous cargoes. Simultaneous lock- approaching a lock give the following
age of other tows with tows carrying signals at a distance of not more than
dangerous cargoes or containing flam- one mile from the lock;
mable vapors normally will only be (a) If a single lockage only is re-
permitted when there is agreement be- quired: One long blast of the whistle
tween the lockmaster and both vessel followed by one short blast.
masters that the simultaneous lockage (b) If a double lockage is required:
can be executed safely. He shall make a One long blast of the whistle followed
separate decision each time such ac- by two short blasts.
62
(ii) When the lock is ready for en- control use of the riverward lock. Navi-
trance, the lock will give the following gation will be governed as follows:
signals: (i) Red light. Lock cannot be made
(a) One long blast of the whistle indi- ready immediately. Vessel shall stand
cates permission to enter the lock clear.
chamber in the case of a single lock or (ii) Amber light. Lock is being made
to enter the landward chamber in the ready. Vessel may approach but under
case of twin locks. full control.
(b) Two long blasts of the whistle in- (iii) Green light. Lock is ready for en-
dicates permission to enter the trance.
riverward chamber in the case of twin (iv) Green and amber. Lock is ready
locks. for entrance but gates cannot be re-
(iii) Permission to leave the locks cessed completely. Vessel may enter
will be indicated by the following sig- under full control and with extreme
nals given by the lock: caution.
(3) Radio communications. VHF-FM ra-
(a) One short blast of the whistle in-
dios, operating in the FCC authorized
dicates permission to leave the lock
Maritime Band, have been installed at
chamber in the case of a single lock or
all operational locks (except those on
to leave the landward chamber in the
the Kentucky River and Lock 3, Green
case of twin locks.
River). Radio contact may be made by
(b) Two short blasts of the whistle in- any vessel desiring passage. Commer-
dicates permission to leave the cial tows are especially requested to
riverward chamber in the case of twin make contact at least one half hour be-
locks. fore arrival in order that the pilot may
(iv) Four or more short blasts of the be informed of current river and traffic
lock whistle delivered in rapid succes- conditions that may affect the safe
sion will be used as a means of attract- passage of his tow.
ing attention, to indicate caution, and (4) All locks monitor 156.8 MHz (Ch.
to signal danger. This signal will be 16) and 156.65 MHz (Ch. 13) and can
used to attract the attention of the work 156.65 MHz (Ch. 13) and 156.7 MHz
captain and crews of vessels using or (Ch. 14) Ch. 16 is the authorized call,
approaching the lock or navigating in reply and distress frequency, and locks
its vicinity and to indicate that some- are not permitted to work on this fre-
thing unusual involving danger or re- quency except in an emergency involv-
quiring special caution is happening or ing the risk of immediate loss of life or
is about to take place. When this signal property. Vessels may call and work
is given by the lock, the captains and Ch. 13, without switching, but are cau-
crews of vessels in the vicinity shall tioned that vessel to lock traffic must
immediately become on the alert to de- not interrupt or delay Bridge to Bridge
termine the reason for the signal and traffic which has priority at all times.
shall take the necessary steps to cope (k) Rafts. Rafts to be locked through
with the situation. shall be moored in such manner as not
(2) Lock signal lights. At locks where to obstruct the entrance of the lock,
density of traffic or other local condi- and if to be locked in sections, shall be
tions make it advisable, the sound sig- brought to the lock as directed by the
nals from the lock will be supple- lockmaster. After passing the lock the
mented by signal lights. Flashing sections shall be reassembled at such
lights (showing a one-second flash fol- distance beyond the lock as not to
lowed by a two-second eclipse) will be interfere with other vessels.
located on or near each end of the land (l) Entrance to and exit from locks. In
wall to control use of a single lock or case two or more boats or tows are to
of the landward lock of double locks. In enter for the same lockage, their order
addition, at double locks, interrupted of entry shall be determined by the
flashing lights (showing a one-second lockmaster. Except as directed by the
flash, a one-second eclipse and a one- lockmaster, no boat shall pass another
second flash, followed by a three-sec- in the lock. In no case will boats be
ond eclipse) will be located on or near permitted to enter or leave the locks
each end of the intermediate wall to until directed to do so by the
63
§ 207.300 33 CFR Ch. II (7–1–20 Edition)
lockmaster. The sides of all craft pass- ty of equipment using such tracks, to
ing through any lock shall be free from telephone poles or power poles, or to
projections of any kind which might bridges or similar structures used by
injure the lock walls. All vessels shall the public.
be provided with suitable fenders, and (iii) Except in case of great emer-
shall be used to protect the lock and gency, no vessel or craft shall anchor
guide walls until it has cleared the over revetted banks of the river, and no
lock and guide walls. floating plant other than launches and
(m) Mooring—(1) At locks. (i) All ves- similar small craft shall land against
sels when in the locks shall be moored banks protected by revetment except
as directed by the lockmaster. Vessels at regular commercial landings. In all
shall be moored with bow and stern cases, every precaution to avoid dam-
lines leading in opposite directions to age to the revetment works shall be ex-
prevent the vessel from ‘‘running’’ in ercised. The construction of log rafts
the lock. All vessels will have one addi- along mattressed or paved banks or the
tional line available on the head of the tying up and landing of log rafts
tow for emergency use. The pilothouse against such banks shall be performed
shall be attended by qualified per- in such a manner as to cause no dam-
sonnel during the entire locking proce- age to the mattress work or bank pav-
dure. When the vessel is securely ing. Generally, mattress work extends
moored, the pilot shall not cause move- out into the river 600 feet from the low
ment of the propellers except in emer- water line.
gency or unless directed by the (iv) Any vessel utilizing a federally
lockmaster. Tying to lock ladders is constructed mooring facility (e.g.,
strictly prohibited. cells, buoys, anchor rings) at the points
(ii) Mooring of unattended or nonpro- designated on the current issue of the
pelled vessels or small craft at the Corps’ navigation charts shall advise
upper or lower channel approaches will the lockmaster at the nearest lock
not be permitted within 1200 feet of the from that point by the most expedi-
lock. tious means.
(2) Outside of locks. (i) No vessel or (n) Draft of vessels. No vessel shall at-
other craft shall regularly or perma- tempt to enter a lock unless its draft is
nently moor in any reach of a naviga- at least three inches less than the least
tion channel. The approximate center- depth of water over the guard sills, or
line of such channels are marked as the over the gate sills if there be no guard
sailing line on Corps of Engineers’ sills. Information concerning control-
navigation charts. Nor shall any float- ling depth over sills can be obtained
ing craft, except in an emergency, from the lockmaster at each lock or by
moor in any narrow or hazardous sec- inquiry at the office of the district en-
tion of the waterway. Furthermore, all gineer of the district in which the lock
vessels or other craft are prohibited is located.
from regularly or permanently moor- (o) Handling machinery. No one but
ing in any section of navigable water- employees of the United States shall
ways which are congested with com- move any lock machinery except as di-
mercial facilities or traffic unless it is rected by the lockmaster. Tampering
moored at facilities approved by the or meddling with the machinery or
Secretary of the Army or his author- other parts of the lock is strictly for-
ized representative. The limits of the bidden.
congested areas shall be marked on (p) Refuse in locks. Placing or dis-
Corps of Engineers’ navigation charts. charging refuse of any description into
However, the District Engineer may the lock, on lock walls or esplanade,
authorize in writing exceptions to any canal or canal bank is prohibited.
of the above if, in his judgment, such (q) Damage to locks or other work. To
mooring would not adversely affect avoid damage to plant and structures
navigation and anchorage. connected with the construction or re-
(ii) No vessel or other craft shall be pair of locks and dams, vessels passing
moored to railroad tracks, to river- structures in the process of construc-
banks in the vicinity of railroad tracks tion or repair shall reduce their speed
when such mooring threatens the safe- and navigate with special caution
64
while in the vicinity of such work. The time to time in Notices to Navigation
restrictions and admonitions contained Interests. Pilots should exercise par-
in these regulations shall not affect the ticular care not to direct propeller
liability of the owners and operators of wash at river banks, levees, revet-
floating craft for any damage to locks ments, structures or other appur-
or other structures caused by the oper- tenances subject to damage from wave
ation of such craft. action.
(r) Trespass of lock property. Trespass (v) Navigation lights for use at all locks
on locks or dams or other U.S. prop- and dams except on the Kentucky River
erty pertaining to the locks or dams is and Lock 3, Green River. (1) At locks at
strictly prohibited except in those all fixed dams and at locks at all mov-
areas specifically permitted. Parties able dams when the dams are up so
committing any injury to the locks or that there is no navigable pass through
dams or to any part thereof will be re- the dam, the following navigation
sponsible therefor. Any person commit- lights will be displayed during hours of
ting a willful injury to any U.S. prop- darkness:
erty will be prosecuted. No fishing will (i) Three green lights visible through
be permitted from lock walls, guide an arc of 360° arranged in a vertical
walls, or guard walls of any lock or line on the upstream end of the river
from any dam, except in areas des- (guard) wall unless the intermediate
ignated and posted by the responsible wall extends farther upstream. In the
District Engineer as fishing areas. Per- latter case, the lights will be placed on
sonnel from commercial and rec- the upstream end of the intermediate
reational craft will be allowed on the wall.
lock structure for legitimate business (ii) Two green lights visible through
reasons; e.g., crew changes, emergency an arc of 360° arranged in a vertical
phone calls, etc. line on the downstream end of the river
(s) Restricted areas at locks and dams. (guard) wall unless the intermediate
All waters immediately above and wall extends farther downstream. In
below each dam, as posted by the re- the latter case, the lights will be
spective District Engineers, are hereby placed on the downstream end of the
designated as restricted areas. No ves- intermediate wall.
sel or other floating craft shall enter (iii) A single red light, visible
any such restricted area at any time. through an arc of 360° on each end (up-
The limits of the restricted areas at stream and downstream) of the land
each dam will be determined by the re- (guide) wall.
sponsible District Engineer and market (2) At movable dams when the dam
by signs and/or flashing red lights in- has been lowered or partly lowered so
stalled in conspicuous and appropriate that there is an unobstructed navigable
places. pass through the dam, the navigation
(t) [Reserved] lights indicated in the following para-
(u) Operations during high water and graphs will be displayed during hours
floods in designated vulnerable areas. of darkness until lock walls and weir
Vessels operating on these waters dur- piers are awash.
ing periods when river stages exceed (i) Three red lights visible through an
the level of ‘‘ordinary high water,’’ as arc of 360° arranged in a vertical line
designated on Corps of Engineers’ navi- on the upstream end of the river
gation charts, shall exercise reasonable (guard) wall.
care to minimize the effects of their (ii) Two red lights visible through an
bow waves and propeller washes on arc of 360° arranged in a vertical line
river banks; submerged or partially on the downstream end of the river
submerged structures or habitations; (guard) wall.
terrestrial growth such as trees and (iii) A single red light visible through
bushes; and man-made amenities that an arc of 360° on each end (upstream
may be present. Vessels shall operate and downstream) of the land (guide)
carefully when passing close to levees wall.
and other flood protection works, and (3) After lock walls and weir piers are
shall observe minimum distances from awash they will be marked as pre-
banks which may be prescribed from scribed in paragraph (x) of this section.
65
§ 207.300 33 CFR Ch. II (7–1–20 Edition)
(4) If one or more bear traps or weirs depth of water equal to the project
are open or partially open, and may depth. Buoys will be lighted, if prac-
cause a set in current conditions at the ticable.
upper approach to the locks, this fact (y) Vessels to carry regulations. A copy
will be indicated by displaying a white of these regulations shall be kept at all
circular disk 5 feet in diameter, on or times on board each vessel regularly
near the light support on the upstream engaged in navigating the rivers to
end of the land (guide) wall during the which these regulations apply. Copies
hours of daylight, and will be indicated may be obtained from any lock office
during hours of darkness by displaying or District Engineer’s office on request.
a white (amber) light vertically under Masters of such vessels are encouraged
and 5 feet below the red light on the to have on board copies of the current
upstream end of the land (guide) wall. edition of appropriate navigation
(5) At Locks No. 1 and 2, Green River, charts.
when the locks are not in operation be-
cause of high river stages, a single red NOTES
light visible through an arc of 360° will 1. Muskingum River Lock & Dam 1 has
be displayed on each end (upstream and been removed. Ohio River slackwater pro-
downstream) of the lock river (guard) vides navigable channel for recreational
will at which time the lights referred craft to Lock 2 near Devola, Ohio.
to above will not be visible. Muskingum River Locks 2 thru 11 inclusive
(w) Navigation lights for use at locks have been transferred to the State of Ohio
and dams on the Kentucky River and and are operated during the recreational
Lock 3, Green River. A single red light boating season by the Ohio Department of
Natural Resources. Inquiries regarding
visible through an arc of 360° shall be Muskingum River channel conditions and
displayed during hours of darkness at lock availability should be directed to the
each end of the river wall or extending aforementioned Department.
guard structures until these structures 2. Little Kanawha River Lock and Dam 1
are awash. has been removed, thus permitting rec-
(x) Buoys at movable dams. (1) When- reational craft to navigate up to Lock 2 near
ever the river (guard) wall of the lock Slate, W. Va. Operation of Locks 2 thru 5 on
and any portion of the dam are awash, the Little Kanawha River has been discon-
tinued.
and until covered by a depth of water
3. Big Sandy River: Lock 1 has been re-
equal to the project depth, the limits of moved, thus permitting recreational craft to
the navigable pass through the dam navigate to Lock 2, near Buchanan, Ky. Op-
will be marked by buoys located at the eration of Lock 2 and Lock 3 near Fort Gay,
upstream and downstream ends of the W. Va. has been discontinued. Operation of
river (guard) wall, and by a single buoy Lock and Dam 1 on Levisa Fork near Gallup,
over the end or ends of the portion or Ky., and Lock and Dam 1 on Tug Fork near
portions of the dam adjacent to the Chapman, Ky. has been discontinued.
navigable pass over which project 4. Operation of the following Green River
Locks has been discontinued: Lock 4 near
depth is not available. A red nun-type Woodbury, Ky., Lock 5 near Glenmore, Ky.,
buoy will be used for such structures and Lock 6 near Brownsville, Ky.
located on the left-hand side (facing 5. Operation of Barren River Lock and Dam
downstream) of the river and a black No. 1 near Richardsville, Ky. has been dis-
can-type buoy for such structures lo- continued.
cated on the right-hand side. Buoys 6. Operation of Rough River Lock and Dam
will be lighted, if practicable. No. 1 near Hartford, Ky. has been discon-
(2) Where powerhouses or other sub- tinued.
7. Operation of Osage River Lock and Dam
stantial structures projecting consider-
1 near Osage City, Mo., has been discon-
ably above the level of the lock wall tinued.
are located on the river (guard) wall, a 8. Operation of the 34 locks in the Illinois
single red light located on top of one of and Mississippi (Hennepin) Canal, including
these structures may be used instead of the feeder section, has been discontinued.
river wall buoys prescribed above until 9. Operation of the Illinois and Michigan
these structures are awash, after which Canal has been discontinued.
they will be marked by a buoy of ap-
[40 FR 32121, July 31, 1975, as amended at 50

propriate type and color (red nun or FR 37580, Sept. 18, 1985; 56 FR 13765, Apr. 4,
black can buoy) until covered by a 1991]
66
§ 207.306 Missouri River; administra- (e) The power company when pro-
tion and navigation. posing to raise or lower the pond, ei-
ther under general authority or special
(a) [Reserved]
permission, shall give due notice to the
(b) General. The regulations in this District Engineer or his authorized
section shall implement those con- agent of its intention.
tained in paragraph(s) of § 207.300. (f) The power company shall hold all
[33 FR 17242, Nov. 21, 1968; 42 FR 57962, Nov. records relating to operations affecting
7, 1977] the river discharge open to the inspec-
tion of the District Engineer or his au-
§ 207.310 Mississippi River at Keokuk, thorized agent.
Iowa; operation of power dam by (g) It shall be the duty of the district
Mississippi River Power Co. engineer or his authorized agent to ob-
(a) All previous regulations of the serve closely and carefully the oper-
Secretary of War relating to the use of ations of the power company and to
the Mississippi River for the genera- maintain in addition to such as may be
tion of power by the Mississippi River maintained by the power company,
Power Co., including the memorandum such river and pool gages as may be ad-
of March 24, 1908, approved by the Sec- visable, and make from time to time
retary of War, March 26, 1908, are re- such examinations as may be necessary
scinded, and the following regulations for determining the effect of the oper-
will govern the operation of the dam ation of the power dam and accessories
until further orders: on the river channels.
(h) The Department of the Army ap-
(b) Excepting as specially provided in
proves the method of regulating the
this section the normal flow of the
flow below the Keokuk Dam by esti-
river shall be discharged below the dam
mating the flow 24 hours in advance
at all times of day and night.
and maintenance of the stage cor-
(c) The Mississippi River Power Co. responding to such flow as indicated by
shall not during the period of naviga- the river gage at U.S. Lock (the meth-
tion raise the level of its pond behind od employed during 1917). The general
the Keokuk Dam when the natural flow rules stated in paragraph (g) of this
of the Mississippi River is falling or section are not intended to apply to
when such natural flow is less than ap- unavoidable small compensating vari-
proximately 64,000 cubic feet per sec- ations in pond level behind the dam in-
ond, which corresponds to a normal herent in such method of regulation.
stage of 6 feet above low water at Keo-
kuk, Iowa, except upon the written [Regs., Jan. 12, 1918]
permission of the U.S. District Engi- § 207.320 Mississippi River, Twin City
neer in charge of this locality, such Locks and Dam, St. Paul and Min-
permit to state the period which such neapolis, Minn.; pool level.
ponding may cover and the maximum
In accordance with the provisions of
variation in stage below the dam which
Article 8 of Federal Power Commission
may be caused by each ponding.
License of June 7, 1923 (Project No. 362-
(d) The granting of permits by the Minn., Ford Motor Co.), this section is
District Engineer shall be governed by prescribed for the control of the pool
the provision of the law authorizing level created by the Twin City Locks
the construction of the dam and its ac- and Dam, Minneapolis, in the interest
cessories, as follows: of navigation, and supersedes rules and
SEC. 2. That the withdrawal of water from regulations made effective January 1,
the Mississippi River and the discharge of 1928, by the Secretary of War:
water into the said river, for the purpose of (a) The pool above the dam shall not
operating the said power stations and appur- be allowed to drop below elevation 744.5
tenant works, shall be under the direction (Cairo datum), except after loss or low-
and control of the Secretary of War, and
ering of flashboards and before replace-
shall at no time be such as to impede or
interfere with the safe and convenient navi- ment or raising of same, during the
navigation season; nor below elevation
gation of the said river by means of steam-

boats or other vessels or by rafts or barges. 743.3 during the period when the river
* * * (33 Stat. 713) is closed to navigation. The variation
67
§ 207.330 33 CFR Ch. II (7–1–20 Edition)
of pool level shall not exceed 0.5 foot (b) In case of the formation of a jam,
per day whenever the pool is below ele- the owner of the logs, poles, posts, ties,
vation 745.5, and in addition, during the or pulpwood, causing the jam, or the
period when the river is closed to navi- representatives in charge of the drive
gation, the maximum rate of such vari- or tow, shall cause the same to be bro-
ation shall not exceed 0.1 foot per hour; ken with the least practicable delay.
except that during the navigation sea- (c) Steamboats, launches, or other
son, increases in pool level at rates craft desiring to pass through a body of
greater than that specified may be floating logs, poles, or ties shall be
made to eliminate wasting of water given all reasonable and necessary as-
during an increase in river flow. sistance in doing so by the representa-
(b) Whenever, due to high flows, the tives in charge of the logs, poles, posts,
pool above the dam is above elevation ties, or pulpwood causing the obstruc-
746.5, all flashboards on the crest of the tion.
dam shall be removed or in the lowered (d) Any individual, firm, or corpora-
position. tion banking logs, poles, posts, ties, or
(c) To protect navigation in cases of pulpwood on the shores or within the
emergency, such as the stranding of a banks of any of the waters covered by
boat or the loss of a pool below the this section, which are to be trans-
Twin City Dam, etc., the licensee shall ported during the navigation season,
temporarily discharge water at such shall so place them as to maintain a
rates, subject to the limitations of clear navigable channel width of not
paragraph (a) of this section, as may be less than 20 feet.
directed by the U.S. District Engineer (e) Parties using the river for rafted
in charge of the locality. poles, posts, ties, or pulpwood shall not
(d) It shall be the duty of the U.S. tie rafts up to the bank two or more
District Engineer in charge of the lo- abreast; shall not tie up where there
cality to notify the licensee of the peri- will be less than 50 feet of clear water-
ods during which the river shall be conway between their raft and the other
sidered open to navigation. bank or between their raft and another
tied to the opposite bank; and shall not
(e) It shall be the further duty of the
tie more than three rafts along any
said District Engineer or his author-
bank without leaving an opening for a
ized agent, by frequent inspections, to
landing.
determine whether paragraphs (a) to
(d) of this section are being observed. [Regs., Mar. 5, 1915]
In case of noncompliance he shall so
notify the licensee and report the facts § 207.340 Reservoirs at headwaters of
to the Chief of Engineers. the Mississippi River; use and ad-
ministration.
[Regs., Feb. 24, 1938] (a) Description. These reservoirs in-
clude Winnibigoshish, Leech Lake,
§ 207.330 Mississippi River between
Winnibigoshish and Pokegama Pokegama, Sandy Lake, Pine River
dams, Leech River between outlet and Gull Lake.
of Leech Lake and Mississippi (b) Penalties. The River and Harbor
River, and Pokegama reservoir; log- Act approved August 11, 1888 (25 Stat.
ging. 419, 33 U.S.C. 601) includes the fol-
(a) Parties engaged in the transpor- lowing provisions as to the administra-
tation of loose logs, timbers, and rafts tion of the headwater reservoirs:
of logs, poles, posts, ties, or pulpwood, And it shall be the duty of the Secretary of
on the waters described in this section, War to prescribe such rules and regulations
shall conduct their operations so as to in respect to the use and administration of
interfere as little as possible with navi- said reservoirs as, in his judgment, the pub-
gation by steamboats, launches, or lic interest and necessity may require; which
rules and regulations shall be posted in some
other craft, or with the operations of
conspicuous place or places for the informa-
other parties using the waters for pur- tion of the public. And any person knowingly
poses similar to their own, and, so far
and willfully violating such rules and regula-

as may be possible, shall prevent the tions shall be liable to a fine not exceeding
formation of log jams. five hundred dollars, or imprisonment not
68
exceeding six months, the same to be en- dikes and embankments; and should
forced by prosecution in any district court of floating bodies lying above or below a
the United States within whose territorial dam constitute at any time an obstruc-
jurisdiction such offense may have been
tion or menace as beforesaid, the own-
committed.
ers of said floating bodies will be re-
(c) Previous regulations now revoked. quired to remove them immediately.
In accordance with the above act, the (g) Trespass. No one shall trespass on
Secretary of War prescribed regula- any reservoir dam, dike, embankment
tions for the use and administration of or upon any property pertaining there-
the reservoirs at the headwaters of the to.
Mississippi River under date of Feb- [78 FR 78720, Dec. 27, 2013]
ruary 11, 1931, which together with all
subsequent amendments are hereby re- § 207.350 St. Croix River, Wis. and
voked and the following substituted Minn.
therefor. (a) Logging regulations for river above
(d) Authority of officer in charge of the Lake St. Croix. (1) During the season of
reservoirs. The accumulation of water navigation from May 1 to September
in, and discharge of water from the res- 30, the full natural run of water in the
ervoirs, including that from one res- river shall be permitted to flow be-
ervoir to another, shall be under the di- tween 1 a.m. on Thursday and 4 p.m. on
rection of the U.S. District Engineer, Sunday of each week, and during the
St. Paul, Minnesota, and of his author- time between 1 p.m. on Wednesday and
ized agents subject to the following re- 4 p.m. on Sunday of each week no logs
strictions and considerations: shall be sluiced into the river between
(1) Notwithstanding any other provi- St. Croix Falls, Wis., and Stillwater,
sion of this section, the discharge from Minn.
any reservoir may be varied at any (2) Except during the period above
time as required to permit inspection mentioned, the parties engaged in han-
of, or repairs to, the dams, dikes or dling logs upon the river shall have the
their appurtenances, or to prevent right to sluice, drive, and float loose
damage to lands or structures above or logs and to regulate the flow of water
below the dams. in the river as may best suit their con-
(2) During the season of navigation venience, all reasonable caution being
on the upper Mississippi River, the vol- taken to avoid log jams.
ume of water discharged from the res- (3) This paragraph shall remain in
ervoirs shall be so regulated by the of- force until modified or rescinded. (Act
ficer in charge as to maintain as nearly of May 9, 1900, 31 Stat. 172; 33 U.S.C.
as practicable, until navigation closes, 410)
a sufficient stage of water in the navi- (b) Power dam at Taylors Falls. (1)
gable reaches of the upper Mississippi That between April 1 and October 31,
and in those of any tributary thereto whenever the natural river flow ex-
that may be navigated and on which a ceeds 1,600 feet per second, the reduced
reservoir is located. flow shall be not less than 1,600 feet per
(e) Passage of logs and other floating second, and that whenever the natural
bodies. Logs and other floating bodies flow be less than 1,600 feet per second,
may be sluiced or locked through the then the reduced flow shall not be less
dams, but prior authority for the sluic- than such natural flow: Provided, That
ing of logs must be obtained from the the District Engineer in charge of the
District Engineer when this operation locality may vary these requirements
necessitates a material change in dis- temporarily, as the interests of naviga-
charge. tion, in his judgment, require, prompt
(f) Obstructions to flow of water. No report of his action in such instances
person shall place floating bodies in a to be made to the Chief of Engineers.
stream or pond above or below a res- (2) The Northern States Power Co.
ervoir dam when, in the opinion of the shall establish automatic water-stage
officer in charge, such act would pre- recorders of a type approved by the dis-
vent the necessary flow of water to or trict engineer at the following local-
from such dam, or in any way injure ities:

the dam and its appurtenances, its (i) On the Nevers Pond near the dam.
69
§ 207.360 33 CFR Ch. II (7–1–20 Edition)
(ii) On the St. Croix hydroplant pond § 207.370 Big Fork River, Minn.; log-
near the dam. ging.
(iii) On the St. Croix hydroplant (a) During the season of navigation,
tailrace. parties engaged in handling logs upon
(iv) On the St. Croix River near Osce- the river shall have the right to sluice,
ola. drive, and float logs in such manner as
(v) On the St. Croix River near Ma- may best suit their convenience: Pro-
rine. vided, A sufficient channel is main-
(3) The gages are to be installed and tained at all times for the navigation
maintained by the Northern States of steamboats, flatboats, and other
Power Co. in a manner satisfactory to small craft.
the District Engineer, but their oper- (b) A sufficient force of men must ac-
ation and inspection is to be under the company each log drive to prevent the
sole direction of the District Engineer, formation of log jams and to maintain
who will retain the original records, an open channel for navigation.
furnishing the Northern States Power (c) This section shall remain in force
Co. with duplicates of the gage records. until modified or rescinded.
[Regs., Apr. 20, 1907, Apr. 10, 1931, as amended [Regs., Feb. 24, 1905]
at 25 FR 8908, Sept. 16, 1960]
§ 207.380 Red Lake River, Minn.; log-
§ 207.360 Rainy River, Minn.; logging ging regulations for portion of river
regulations for portions of river above Thief River Falls.
within jurisdiction of the United (a) Parties wishing to run logs on
States.
Red Lake River must provide storage
(a) During the season of navigation, booms near the head of the river to
parties engaged in handling logs upon take care of said logs.
such portion of the river shall have the (b) No one will be permitted to turn
right to sluice, drive, and float logs in into the river at any time more logs
such manner as may best suit their than he can receive at his storage
convenience: Provided, A sufficient boom.
channel for safe navigation by boats is (c) Tows arriving at the head of the
maintained between 7:00 a.m. and 11:00 river shall turn their logs into the
p.m. from the opening of navigation to river successively in the order of their
September 15th; between 8:00 a.m. and arrival, and such logs shall be at once
11:00 p.m. from September 16th to Octo- driven to the owner’s storage boom.
ber 31st; and between 9:00 a.m. and 11:00 (d) Parties authorized to run logs on
p.m. from November 1st to the close of the river shall have the use of the river
navigation. on successive days in rotation to run
(b) Owners of loose logs running in their logs from their storage boom
the river must maintain a sufficient down, but not more than 1,000,000 feet,
force of men on the river to keep the board measure, shall be released from
logs in motion and to prevent the for- the storage booms on any one day. Said
mation of log jams or accumulation of parties must provide a sufficient force
logs on the several rapids; and said log of log drivers to keep their logs in mo-
owners must also construct and main- tion throughout the section of river
tain for the control and direction of above mentioned, so as to avoid ob-
floating logs, such guide booms on said structing the general navigation of the
rapids and at other points on said river.
river, as may be considered necessary (e) When a drive is made it shall be so
by the District Engineer in charge of conducted that not more than 1,500,000
the District. feet, board measure, of logs shall pass
(c) Owners of sack and brail rafts any point on the river in 24 hours. The
must so handle the same as not to decision of the agent appointed by the
interfere with the general navigation United States shall be final as to the
of the river or with the approaches to quantity of logs running at any time.
regular boat landings. (f) This section shall remain in force
until modified or rescinded.

[Regs., Nov. 6, 1935, as amended at 25 FR 8908,
Sept. 16, 1960] [Regs., Feb. 24, 1905]
70
§ 207.390 [Reserved] laws, rules and regulations for the use

of the lock and lock area are duly com-
§ 207.420 Chicago River, Ill.; Sanitary plied with, to which end he is author-
District controlling works, and the ized to give all necessary orders and di-
use, administration, and navigation rections in accordance therewith, both
of the lock at the mouth of river,
Chicago Harbor. to employees of the Government and to
any and every person within the limits
(a) Controlling works. The controlling of the lock or lock area, whether navi-
works shall be so operated that the gating the lock or not. No one shall
water level in the Chicago River will be cause any movement of any vessel,
maintained at a level lower than that boat, or other floating thing in the
of the lake, except in times of exces- lock or approaches except by or under
sive storm run-off into the river or the direction of the lockmaster or his
when the level of the lake is below assistants.
minus 2 feet, Chicago City Datum. (4) Signals. (i) Signals from vessels for
(1) The elevation to be maintained in lockage shall be by whistle, horn or by
the Chicago River at the west end of idling or standing near the ends of the
the lock will be determined from time lock guide walls. Signals from the
to time by the U.S. District Engineer, lockmaster shall be by the traffic light
Chicago, Illinois. It shall at no time be and horn and/or by voice with or with-
higher than minus 0.5 foot, Chicago out electrical amplification. In case of
City Datum, and at no time lower than emergency, the lockmaster may signal
minus 2.0 feet, Chicago City Datum, ex- the vessel by wave of hand or lantern,
cept as noted in the preceding para- and the signals thus given shall have
graph. the same weight as though given by
(b) Lock—(1) Operation. The lock shall visual or sound devices at the lock.
be operated by the Metropolitan Sani- Vessels must approach the lock with
tary District of Chicago under the gen- caution and shall not enter or leave the
eral supervision of the U.S. District lock until signaled to do so by the
Engineer, Chicago, Illinois. The lock lockmaster. The following lockage sig-
gates shall be kept in the closed posi- nals and duration of sound signals are
tion at all times except for the passage prescribed. A long blast shall be of 4
of navigation. second duration; a short blast shall be
(2) Description of lock. of 1 second duration.
Feet (a) Vessel signals. Inbound vessels at a
distance of not more than 4,000 feet
Clear length ............................................................. 600
Clear width ............................................................... 80
from the lock and outbound vessels im-
Depth over sills ........................................................ 1 24.4 mediately after crossing under the
1 This depth is below Chicago City Datum which is the zero Lake Shore Drive bridge shall signal
of the gages mounted on the lock. The clear depth below Low for lockage by 2 long and 2 short blasts
Water Datum for Lake Michigan, which is the plane of ref- of a whistle or horn.
erence for U. S. Lake Survey Charts, is 23.0 feet.
(b) Lock signals. (1) When the lock is
The east end of the northeast guide ready for entrance, the traffic light
wall shall be marked by an intermit- will show green, and vessels under 500
tent red light, and by a traffic light gross tons shall come ahead under cau-
showing a fixed red or fixed green light. tion and enter the lock; vessels of 500
The west end of the northwest gate gross tons or more shall come to a stop
block shall be marked by a traffic light along the guide wall, as prescribed in
showing a fixed red or fixed green light. paragraph (b)(5) of this section. Should
The east end of the southeast guide the traffic light be out of order or be
wall and the west end of the southwest invisible due to thick weather, vessels
guide wall shall be marked by an inter- shall upon 1 long blast of the lock horn
mittent white light. approach and moor to the south guide
(3) Authority of lockmasters. The wall or continue into the lock if so di-
lockmaster shall be charged with the rected by the lockmaster.
immediate control and management of (2) When the lock is not ready for en-
the lock, and of the area set aside as trance, the traffic light will show red,
the lock area, including the lock ap- and vessels shall not pass beyond the
proach channels. He shall see that all end of the south guide wall: Provided,
71
§ 207.420 33 CFR Ch. II (7–1–20 Edition)
however, That vessels may approach approaching the lock shall navigate at
and moor to said wall if authorized by a speed not exceeding 2 miles per hour,
1 long blast of the lock horn. and when leaving the lock shall navi-
(3) Permission to leave the lock shall gate at a speed not exceeding 6 miles
be indicated by 1 short blast of the lock per hour. While entering or leaving the
horn. lock, the propellers of vessels of 500
(4) Caution or danger will be indi- gross tons or more shall be operated at
cated by 4 or more flashes of the red slow speed so as not to undermine or
traffic light or 4 or more short blasts of injure the concrete paving on the bot-
the lock horn delivered in rapid succes- tom of the lock chamber. Tugs assist-
sion. ing vessels in lockage, and Coast Guard
(ii) When in the lock, vessels shall and fire vessels, may navigate at a
not blow whistle signals for tugs, higher speed when authorized by the
bridges, landings, etc., without the lockmaster. Vessels of less than 500
lockmaster’s permission. gross tons shall operate at reasonable
(iii) The master and chief engineer of speed.
each vessel of 500 gross tons or more (10) Mooring. (i) Vessels shall be
shall be on duty at their respective sta- moored in the lock or along its ap-
tions when passing through the lock. proach walls in such manner as may be
(5) Stop before entering. All vessels or directed by the lockmaster. Tying to
tows of 500 gross tons or more shall lock ladders, lamp standards, or rail-
come to a full stop at the point indi- ings is strictly prohibited. Commercial
cated by the sign reading ‘‘Stop’’ on vessels and tows of 500 gross tons or
the south guide wall and shall not pro- more shall, in general, have at least
ceed into the lock until so directed by one line out when entering the lock
the lockmaster. and shall be moored in the lock with
(6) Maximum draft. Vessels drawing two bow and two stern lines, which
within 6 inches of the depth over the shall lead forward and aft at each end
sills shall not be permitted lockage ex- of the vessel or tow. When the gates
cept under special permission from the are closed, commercial vessels shall
lockmaster. not be permitted to work their wheels.
(7) Precedence at locks. The vessel ar- Said vessels shall have at least two
riving first at a lock shall be first to seamen ashore to handle the mooring
lock through; but precedence shall be lines while they are in the lock.
given to vessels belonging to the (ii) Mooring lines shall not be cast off
United States and to commercial ves- until after the lock gates have been
sels in the order named. Arrival posts opened fully into their recesses, and
or markers may be established ashore the signal given to leave the lock. The
above or below the locks. Vessels arriv- lines leading aft shall be released first.
ing at or opposite such posts or mark- The lines leading forward shall not be
ers will be considered as having arrived released until the vessel has started to
at the locks within the meaning of this move forward, so as to prevent the ves-
paragraph. sel from drifting back into the lock
(8) Lockage of pleasure boats. The gates.
lockage of pleasure boats, house boats (11) [Reserved]
or like craft shall be expedited by lock- (12) Unnecessary delay at lock. Masters
ing them through with commercial and pilots must use every precaution
craft (other than barges carrying pe- to prevent unnecessary delay in enter-
troleum products or highly hazardous ing of leaving the lock. Vessels failing
materials) in order to utilize the capac- to enter lock with reasonable prompt-
ity of the lock to its maximum. If, ness, when signaled to do so, shall lose
after the arrival of such craft, no sepa- their turn. Vessels arriving at the lock
rate or combined lockage can be ac- with their tows in such shape so as to
complished within a reasonable time, impede lockage, shall lose their turn.
not to exceed the time required for (13) Depositing refuse prohibited. The
three other lockages, then separate depositing of ashes or refuse matter of
lockage shall be made. any kind in the lock; the passing of
(9) Speed of approach and departure. coal from barges or flats while in the
Vessels of 500 gross tons or more when lock; and the emission of dense smoke
72
from any vessel while passing through City Datum, except as noted in para-
the lock, is forbidden. graph (a)(1) of this section.
(14) Vessels denied lockage. The (b) Lock—(1) Operation. The Thomas
lockmaster may deny the privilege of J. O’Brien Lock and Dam is part of the
passage through the lock to any vessel Illinois Waterway which is a tributary
with sharp or rough projecting surfaces of the Mississippi River. All rules and
of any kind, or overhanging rigging, or regulations defined in § 207.300, Ohio
any vessel which is badly leaking or in River, Mississippi River above Cairo,
a sinking condition. Illinois, and their tributaries; use, ad-
(15) Fenders. All barges and oil tank- ministration and navigation shall
ers must be provided with suitable non- apply.
metallic fenders so as to eliminate [40 FR 57358, Dec. 9, 1975]
damage to the lock or approach walls
and reduce fire hazard. Said fenders § 207.440 St. Marys Falls Canal and
shall be used as may be directed by the Locks, Mich.; use, administration,
lockmaster. and navigation.
(16) Operating machinery. Lock em- (a) The use, administration, and
ployees only shall be permitted to op- navigation of the canal and canal
erate the lock gates, valves, signals or grounds shall be under the direction of
other appliances. Tampering or med- the District Engineer, Engineer De-
dling with machinery or other parts of partment at Large, in charge of the lo-
the lock is strictly forbidden. cality, and his authorized agents. The
(17) [Reserved] term ‘‘canal’’ shall include all of the
(18) Vessels to carry regulations. A copy natural waters of the St. Marys River
of the regulations in this section shall on the U.S. side of the International
be kept at all times on board each ves- Boundary and all of the canalized wa-
sel regularly engaged in navigating terway and the locks therein between
this lock. Copies may be obtained with- the western or upstream limit, which is
out charge from the lockmaster. a north and south line tangent to the
(19) Failure to comply with regulations. west end of the Northwest Pier, and the
Any vessel failing to comply with this eastern or downstream limit, which is
section or any orders given in pursu- a north and south line tangent to the
ance thereof, may in the discretion of northeast corner of the old Fort Brady
the lockmaster be denied the privilege Reservation, the distance between lim-
of passage through or other use of the its being 1.9 miles. The term ‘‘canal
lock or appurtenant structures. grounds’’ shall include all of the United
States part and other lands, piers,
[3 FR 2139, Sept. 1, 1938, as amended at 25 FR buildings, water level regulation
8908, Sept. 16, 1960; 26 FR 354, Jan. 18, 1961; 44
FR 67657, Nov. 27, 1979; 56 FR 13765, Apr. 4,
works, hydroelectric power plant, and
1991] other appurtenances acquired or con-
structed for the channel improvement
§ 207.425 Calumet River, Ill.; Thomas J. and use of the waterway.
O’Brien Lock and Controlling NOTE: Rules and regulations governing the
Works and the use, administration movements of vessels and rafts in St. Marys
and navigation of the lock. River from Point Iroquois, on Lake Superior,
to Point Detour, on Lake Huron, prescribed
(a) Controlling Works. (1) The control- by the U.S. Coast Guard pursuant to 33
ling works shall be so operated that U.S.C. 475, are contained in part 92 of this
the water level at the downstream end title.
of the lock will be maintained at a (b) Masters of all registered vessels
level lower than that of Lake Michi- approaching and desiring to use the
gan, except in times of excessive storm locks shall, upon arriving at Sailors
run-off into the Illinois Waterway, or Encampment, Little Rapids Cut, and
when the lake level is below minus 2 Brush Point, report the name of the
feet, Chicago City Datum. vessel and its draft to the Coast Guard
(2) The elevation to be maintained at Lookout Stations at those points.
the downstream end of the lock shall (c) Approach requirements. Upon ap-
at no time be higher than minus 0.5 proaching the canal, vessel masters
feet, Chicago City Datum, and at no shall request lock dispatch by radio-
time lower than minus 2.0 feet, Chicago telephone to the Corps of Engineers
73
§ 207.440 33 CFR Ch. II (7–1–20 Edition)
Chief Lockmaster at St. Marys Falls vessels in passing through the locks
Canal dispatch tower (Radio Call WUE– may be authorized by the District En-
21). Every up bound vessel requiring gineer or his authorized agents to navi-
lock transit shall request lock dispatch gate at a higher speed when considered
immediately before initiating the turn necessary to expedite canal operations.
at Mission Point at the intersection of (2) Use of bow/stern thrusters. Bow and/
Course 1, Bayfield Channel, and Course or stern thruster use shall be kept to a
2, Little Rapids Cut. Every down bound minimum while transiting the Soo
vessel shall call when approximately Locks. Thrusters shall not be used
one-half mile downstream from Big while the thrusters are opposite lock
Point. gates. They may be used sparingly for
(d) When in the locks, vessels shall short durations within the lock to
not blow whistle signals for tugs, sup- maintain the ship position near the
ply vessels, or persons unless author- mooring wall or in an emergency.
ized to do so by the District Engineer Thrusters shall be at zero thrust during
or his authorized agents. the period the ship is stopped and
(e)(1) Manning requirements. On all moored to the wall with all lines out,
vessels of 400 gross tons or over navi- and during raising and lowering of pool
gating the canal under their own levels within the chamber.
power, the following ship’s personnel (g) For passage through the canal,
shall be on duty. In the pilot house, on vessels or boats owned or operated by
the bridge, the master. One mate and the U.S. Government may be given
one able seaman shall be on watch and precedence over all others.
available to assist; in the engine room, (h) Vessel lockage order—(1) Arrival.
the engineering watch officer. The All registered vessels will be passed
chief engineer shall be available to as- through the locks in the order of their
sist. During transit of the locks, all arrival at the dispatch point unless
vessels of 400 gross tons or over otherwise directed by the District En-
equipped with power operated mooring gineer or his authorized agents. When a
deck winches shall have, in addition to vessel that has stopped on its own busi-
the winch operators, mates or signal- ness is ready to proceed, it is not enti-
man at the forward and after ends of tled to precedence over other vessels
the vessel to direct operations from already dispatched.
points providing maximum vision of (2) Departure. The following order of
both the winch operators and canal departure procedure will apply to ves-
linesmen. sels leaving the MacArthur Lock and
(2) Linehandlers—(i) Cargo vessels Poe Lock simultaneously or at ap-
equipped with bow thrusters and friction proximately the same time:
winches. Two line handlers from the (i) The first vessel to leave will be
vessel are required on the piers under the vessel in the lock which is ready
normal weather conditions. for vessel release first. The vessel in
Lockmasters can ask for three persons the other lock will be restrained by the
under severe weather conditions. If a gates remaining closed and the wire
vessel is experiencing mechanical prob- rope fender remaining in the down po-
lems or in extreme severe weather situ- sition.
ations, the lockmaster may require (A) On down bound passages, the ves-
four vessel-supplied line handlers on sel retained shall not leave the lock
the pier. until such time as the bow of the vessel
(ii) Vessels with non-friction winches or leaving first reaches the end of the
lack of both bow and stern thrusters. East Center pier.
Four vessel-supplied line handlers are (B) On up bound passages, the vessel
required on the pier at all times. retained shall not leave the lock until
(f) Vessel restrictions—(1) Speed limits. such time as the bow of the vessel leav-
Within the limits of the canal, vessels ing first reaches the railroad bridge.
approaching the locks shall not navi- (ii) When a 1,000 foot vessel is ready
gate at a speed greater than 21⁄2 miles to depart the Poe Lock and a vessel has
per hour, and vessels leaving the locks left the MacArthur Lock already, the
shall not navigate at a speed greater 1,000 foot vessel may start to leave
than 6 miles per hour. Tugs assisting once the bow of the other vessel
74
reaches the end of the respective nose face or surfaces on it which would be
pier. liable to damage the lock walls or
(iii) Vessels will remain in radio con- canal piers.
tact with each other and with the Chief (p) No person shall cause or permit
Lockmaster at all times until clear of any vessel or boat of which he is in
the lock area. charge or on which he is employed to
(iv) The need for a deviation from the in any way obstruct the canal or delay
procedures set forth in paragraph in passing through it, except upon
(h)(2)(i) of this section will be deter- prior authority of the District Engi-
mined on a case by case basis by the neer or his authorized agents.
Chief Lockmaster. If two vessels mas- (q) No person shall enter upon any
ters agree to a different departure part of the canal grounds except as per-
scheme, they both shall notify the mitted, either generally or in specific
Chief Lockmaster and request a instances, by the District Engineer or
change. his authorized agents. No person shall
(i) Unless otherwise directed, all ves- willfully or carelessly injure, tamper
sels or boats approaching the locks with, or damage the canal or any of the
shall stop at the points indicated by Government buildings, works or struc-
signs placed on the canal piers until or- tures, trees or shrubbery, or other pub-
dered by the District Engineer or his lic property pertaining to the canal or
authorized agents to proceed into the canal grounds.
lock. (r) Tug assist procedure—(1) Self-pow-
(j) Vessels and boats shall not pro- ered vessels. Mariners are advised that
ceed to enter or leave a lock until the often times adverse local weather con-
lock gates are fully in their recesses ditions, i.e., high winds, current condi-
and the lockmaster has given directions and/or inclement weather, exists
tions for starting. as vessels approach, enter and/or de-
(k) Upon each passage through the part the Soo Locks. These conditions
canal, the master or clerk of the vessel combined with close quarters slow
or craft shall report to the canal office, speed maneuvering, particularly with
upon the prescribed form, a statement large vessels not equipped with bow or
of passengers, freight, and registered stern thrusters, may cause control dif-
tonnage, and such other statistical in- ficulties for certain classes of vessels.
formation as may be required by the Therefore, any vessel requesting lock-
blank forms provided for the purpose. age which in the opinion of the vessel
(l) No business, trading, or loading or master in consultation with the pilot
landing of freight, baggage, or pas- on board, where applicable may experi-
sengers will be allowed on or over the ence severe control problems due to the
canal piers or lock walls, or over the above conditions, must request assist-
other piers within the limits of the ance by one or more tugs to ensure full
canal grounds, except by prior author- control over the vessel at all times.
ity of the District Engineer or his au- Vessel masters and pilots must consult
thorized agents. with the lockmaster concerning local
(m) No person shall throw material of conditions well in advance of arrival at
any kind into the canal, or litter the the lock to allow tug assistance to be
grounds with any refuse. arranged if necessary. These guidelines
(n) The releasing of vessel steam, apply to all vessels.
water, or waste from side discharge (2) Non self-powered vessels. All barges
openings upon the piers or lock walls, or other vessels navigating within the
the cleaning of boiler flues in the locks canal and not operating under their
or canal, or the emission of dense own power, whether approaching or
smoke from the stack of any vessel leaving the locks, are required to be as-
while passing through the locks, is for- sisted by one or more tugs of sufficient
bidden. power to ensure full control at all
(o) No person shall enter or navigate times.
the canal with a boat or other craft (s) Smoking and open flames are pro-
which, when entering or while navi- hibited on the canal grounds within 50
gating the canal, shall have an iron or feet of any tanker transiting the canal
irons projecting from it or a rough sur- and locks, and on board the tanker
75
§ 207.441 33 CFR Ch. II (7–1–20 Edition)
transiting the locks except in such sels greater than 730 feet in length, but
places as may be designated in the not exceeding 767 feet in length to
ship’s regulations. navigate the MacArthur Lock. Masters
(t) All oil tankers, barges, and other of vessels exceeding 730 feet in length
vessels which are used for transporting shall be required to adhere to special
inflammable liquids, either with or handling procedures as prescribed by
without cargo, shall, if not equipped the District Engineer.
with fixed timber fenders, be prevented (w) The maximum overall dimensions
from contacting any unfendered pier, of vessels that will be permitted to
lock wall, or other structure by an ade- transit the New Poe Lock without spe-
quate number of suitable fenders of cial restrictions are 100 feet in width,
timber, rubber, or rope placed between including fendering, and 1,000 feet in
the vessel and such unfendered struc- length, including steering poles or
ture. other projections. Vessels having over-
(u) The locks will be opened and all widths of over 100 feet and not over
closed to navigation each year as pro- 105 feet including fendering, and over-
vided in paragraphs (u) (1) and (2) of all lengths of not more than 1,100 feet,
this section except as may be author- including projections, will be per-
ized by the Division Engineer. Consid- mitted to transit the New Poe Lock at
eration will be given to change in these such times as determined by the Dis-
dates in an emergency involving district Engineer or his authorized rep-
aster to a vessel or other extraordinary resentative that they will not unduly
circumstances. delay the transit of vessels of lesser di-
(1) Opening date. At least one lock mensions, or endanger the lock struc-
will be placed in operation for the pas- ture because of wind, ice, or other ad-
sage of vessels on March 25. Thereafter, verse conditions. These vessels also
additional locks will be placed in oper- will be subject to such special handling
ation as traffic density demands. requirements as may be found nec-
(2) Closing date. The locks will be essary by the Area Engineer at time of
maintained in operation only for the transit. Vessels over 1,000 feet in length
passage of down bound vessels depart- will be required to be equipped with six
ing from a Lake Superior port before mooring cables and winches ready for
midnight (2400 hours) of January 14, use to assist in safe transit of the lock.
and of upbound vessels passing Detour (x) Masters or other persons refusing
before midnight (2400 hours) of January to comply with the regulations in this
15. Vessel owners are requested to re- section or any orders given in pursu-
port in advance to the Engineer in ance thereof, or using profane, inde-
charge at Sault Ste. Marie, the name of cent, or abusive language, may, in the
vessel and time of departure from a discretion of the District Engineer or
Lake Superior port on January 14 be- his authorized agents, be denied the
fore midnight, and of vessels passing privileges of the locks and canal
Detour on January 15 before midnight, grounds.
which may necessitate the continued
operation of a lock to permit passage [10 FR 14451, Nov. 27, 1945, as amended at 21
FR 8285, Oct. 30, 1956; 22 FR 401, Jan. 19, 1957;
of vessel. 22 FR 864, Feb. 12, 1957; 31 FR 4346, Mar. 12,
(v) The maximum overall dimensions 1966; 34 FR 18458, Nov. 20, 1969; 40 FR 8347,
of vessels that will be permitted to Feb. 27, 1975; 40 FR 20818, May 13, 1975; 42 FR
transit MacArthur Lock are 730 feet in 6582, Feb. 3, 1977; 42 FR 12172, Mar. 3, 1977; 57
length and 75 feet in width, except as FR 10245, Mar. 24, 1992; 61 FR 55572, Oct. 28,
provided in paragraph (v)(1) of this sec- 1996; 64 FR 69403, Dec. 13, 1999]
tion. Further, any vessel of greater
length than 600 feet must be equipped § 207.441 St. Marys Falls Canal and
with deck winches adequate to safely Locks, Mich.; security.
control the vessel in the lock under all (a) Purpose and scope of the regula-
conditions including that of power fail- tions. The regulations in this section
ure. are prescribed as protective measures.
(1) Whenever the Poe Lock is out of They supplement the general regula-
service for a period exceeding 24 hours tions contained in § 207.440 the provi-
the District Engineer may allow ves- sions of which shall remain in full force
76
and effect except as modified by this September with one or two hour clo-
section. sure extensions in the early and late
(b) Restrictions on transit of vessels. seasons. Tankers carrying non-combus-
The following classes of vessels will not tible products that will not react haz-
be permitted to transit the U.S. locks ardously with water or tankers that
or enter any of the United States ap- have been purged of gas or hazardous
proach canals: fumes and certified gas free will be al-
(1)–(3) [Reserved] lowed to transit the MacArthur Lock
(4) Tanker vessels—(i) Hazardous mate- when the park is open.
rial. Cleaning and gas freeing of tanks (5) Carrying explosives. All vessels, ex-
on all hazardous material cargo vessels cept U.S. vessels of war and public ves-
(as defined in 49 CFR part 171) shall not sels as defined in 46 U.S.C. 2101, car-
take place in a lock or any part of the rying explosives are prohibited from
Soo Locks approach canals from the transiting the U.S. Locks.
outer end of the east center pier to the (c) Personnel restrictions. Masters of
outer end of the southwest pier. vessels are responsible for the conduct
(ii) Approaching. Whenever a tank of crew and passengers while transiting
vessel is approaching the Soo Locks St. Marys Falls Canal and Locks and
and within the limits of the lock piers for strict compliance with the regula-
(outer ends of the southwest and east tions. The following procedures are es-
center piers) either above or below the tablished for the control of persons em-
locks, no other vessel will be released barking or debarking from vessels
from the locks in the direction of the while transiting the locks:
approaching tank vessel, unless the (1) The master or mate and not more
tank vessel is certified gas free or is than three deckhands will be permitted
carrying non-combustible products, to go ashore from transiting vessels
until the tank vessel is within the lock and then only for normal operations
chamber or securely moored to the ap- and business incident to the transit. A
proach pier. Whenever a tank vessel is maximum of four men will be per-
within a Soo Lock Chamber, the tank mitted ashore at any one time from
vessel, unless certified gas free or is any one ship.
carrying non-combustible products, (2) Personnel—(i) Embarking. Per-
will not be released from the lock until sonnel, including technicians, repair-
the channel within the limits of the men, and company officials will be per-
lock piers either above or below the mitted to embark at the locks if they
lock, in the direction of the tank ves- are in possession of a letter addressed
sel, is clear of vessels or vessels therein to the Area Engineer, St. Marys Falls
are securely moored to the approach Canal, Sault Ste. Marie, Michigan,
pier. This limits movement to a single from the vessel’s master, the operators
vessel whenever a tank vessel is within of the vessel, or the Lake Carriers’ As-
the limits of the lock piers either sociation, requesting that the indi-
above or below the locks, unless the vidual named therein be permitted to
tank vessel is certified gas free or is embark on a particular vessel. United
carrying non-combustible products. States vessel personnel must also be in
Tank vessels to which this paragraph possession of a specially validated sea-
(b)(4)(ii) applies include those vessels man’s document issued by the U.S.
carrying fuel oil, gasoline, crude oil or Coast Guard. Their papers will be pre-
other flammable liquids in bulk, in- sented to the civilian guard on duty at
cluding vessels that are not certified the main gate on Portage Avenue who
gas free where the previous cargo was will arrange escort from the gate to
one of these liquids. the vessel. Luggage will be subject to
(iii) Locks park. Except as provided in inspection.
paragraph (b)(5) of this section, tankers (ii) Debarking. The vessel master will
with any type cargo will be permitted furnish prior notification to the Chief
to transit the MacArthur Lock when Lockmaster at St. Marys Falls Canal
the locks park is closed. The exact Tower (Radio Call WUD–31) that he has
dates and times that the park is closed vessel personnel, technicians, repair-
varies, but generally these periods are men or company officials aboard for
from midnight to 6 a.m. June through whom he requests authority to debark.
77
§ 207.460 33 CFR Ch. II (7–1–20 Edition)
If authority to debark is granted such tion seasons will commence and close
personnel will be furnished a letter by as determined by the district engineer,
the vessel master, addressed to the Corps of Engineers, in charge of the lo-
Area Engineer, St. Marys Falls Canal, cality, depending on conditions and
Sault Ste. Marie, Michigan, giving the need for lock service. Days and hours
name and position of the individual of lock operation will also be deter-
concerned. Personnel will not debark mined by the district engineer. Public
until they have been properly identi- notices will be issued announcing or re-
fied by a licensed officer of the vessel vising the opening and closing dates
and the letter furnished to the escort and operating schedules at least 10
provided from the civilian guard detail days in advance of such dates.
who will escort personnel to the gate. (2) Authority of lockmaster. The move-
In the event a person debarking for ment of all boats, vessels, tows, rafts
medical attention is a litter case, noti- and floating things, both powered and
fication will be given sufficiently in ad- nonpowered, in the canals and locks,
vance to permit the Chief Lockmaster approaches to the canals, and at or
to route the vessel to the MacArthur near the dams, shall be subject to the
Lock in order that the long carry over direction of the lockmaster or his duly
the lock gates may be avoided. The authorized representatives in charge at
Area Engineer will make the necessary the locks.
arrangements for clearance of ambu- (3) Signals. All boats approaching the
lances and medical personnel into the
locks shall signal for lockage by four
lock area.
distinct whistles of short duration.
(3) No passengers or guest passengers
Locks will not be opened on such audi-
will be permitted to embark or debark
ble signal during the period when ad-
at St. Marys Falls Canal except in
vance notice is required if the services
emergency when medical attention is
of the lock tender are required else-
required.
where to meet prior requests for
(4) Letters cited in paragraph (c)(2) of
lockages.
this section are valid only for a single
passage through the lock area. In the (4) Mooring in locks. All craft being
event frequent access to the area is re- locked shall be secured to the mooring
quired a request for extended access posts on the lock walls. Large craft
with reasons therefor will be submitted shall use one head line and at least one
to the Area Engineer, St. Marys Falls spring line. Lines shall remain fastened
Canal, Sault Ste. Marie, Michigan, who until the signal is given by the lock
may arrange for the necessary clear- tender for the craft to leave the lock.
ance. (5) Delays in canals. No boat, barge,
(5) Emergency needs to embark or de- raft or other floating craft shall tie up
bark which develop with insufficient or in any way obstruct the canals or
time to follow the procedure outlined approaches, or delay entering or leav-
in this paragraph will be approved or ing the locks, except by permission
disapproved by the Area Engineer, St. from proper authority. Boats wishing
Marys Falls Canal, Sault Ste. Marie, to tie up for some hours or days in the
Michigan, according to the cir- canals must notify the Project Engi-
cumstances of the individual case, and neer directly or through a lock tender,
requests therefor should be promptly and proper orders on the case will be
directed to him. given. Boats so using the canals must
be securely moored in the places as-
[19 FR 1275, Mar. 6, 1954, as amended at 21 FR
10253, Dec. 20, 1956; 23 FR 2300, Apr. 9, 1958; 24
signed, and if not removed promptly on
FR 4562, June 4, 1959; 32 FR 10652, July 20, due notice, will be removed, as directed
1967; 35 FR 7512, May 14, 1970; 37 FR 4194, Feb. by the Project Engineer at the owner’s
2, 1972; 41 FR 3291, Jan. 22, 1976; 66 FR 30063, expense. Boats desiring to tie up in the
June 5, 2001; 66 FR 31277, June 11, 2001] canals for the purpose of unloading car-
goes over the canal banks must, in
§ 207.460 Fox River, Wis. each case, obtain permission in ad-
(a) Use, administration and navigation vance from the District Engineer. Re-
of the locks and canals—(1) Navigation. quest for such permission shall be sub-
The Fox River and Wolf River naviga- mitted through the Project Engineer.
78
(6) Provisions for lockage service. (i) (9) Draft of boats. No boat shall enter
Commercial vessels, barges, rafts and a canal or lock whose actual draft ex-
tows engaged in commerce will be proceeds the least depth of water in the
vided lockages during the same period channel of the canal as given by the
as provided for pleasure boats (see Project Engineer.
paragraph (a)(6)(iv) of this section). (10) Right-of-way. Boats going down-
(ii) Pleasure boats, powered and non- stream shall have the right-of-way over
powered, houseboats and similar craft boats going upstream. Ordinarily, the
will be provided with not more than boats or tows arriving first at any of
one lockage each way through the the locks shall have precedence in pas-
same lock in a 24-hour period. sage except that those vessels which
(iii) All small vessels or craft, such as have given advance notice, when such
skiffs, sculls, sailing boats, etc., shall notice is required, shall have prece-
be passed through locks in groups of dence over other vessels when such no-
not less than six at one lockage, or tifying vessel is ready for passage. In
may be granted separate lockage if the all cases boats and barges belonging to
traffic load at the time permits. the United States, or employed upon
(iv) Lockage may be provided during public works, shall have precedence
certain hours other than announced at over all others, and commercial pas-
the intermediate locks provided prior senger boats shall have precedence
requests are made to the Corps of Engi- over tows. All boats not taking advan-
neers, Fox River Project Office. Re- tage of the first lawful opportunity to
quests may be made either in writing, pass shall lose their turn. When lock-
by telephone or in person to U.S. Army age has started on tows requiring mul-
Corps of Engineers, Fox River Project tiple lockages, all units of the tow will
Office, 1008 Augustine Street, be locked ahead of other vessels trav-
Kaukauna, Wisconsin 54130, telephone: eling in the same direction. In the case
414–766–3531. of tows requiring two lockages, any
(7) Injury to locks or fixtures. Vessel craft awaiting lockage in the opposite
operators shall use great care not to
direction will have priority over the
strike any part of the locks or sluice
second lockage of the tow.
walls, or any gate or appurtenance
(11) Boats and rafts without power. No
thereto, or machinery for operating the
gates, or the walls protecting the boat or raft without power except
banks of the canals. All boats using the small boats controlled by sails or oars
canals shall be free from projecting shall be brought through the canal un-
irons or rough surfaces that would be less accompanied by a power operated
liable to damage the locks or any part boat.
of the canals, and they must be pro- (12) Dumping of refuse in waterway. No
vided with fenders to be used in guard- refuse or other material shall be
ing the lock walls, etc., from injury. thrown or dumped from vessels into
Boats will not be permitted to enter or the natural river, improved channels,
leave the locks until the lock gates are canals and locks or placed on any bank
fully in the gate recesses, and the lock of the river or berm of the canals so
tender has directed the boat to pro- that it is liable to be thrown or washed
ceed. No vessel shall be raced or crowd- into the waterway. (Sec. 13 of the River
ed alongside another vessel, or be and Harbor Act of Mar. 3, 1899 (30 Stat.
moved at such speed as will cause ex- 1152; 33 U.S.C. 407), prohibits the depos-
cessive swells or wash. Speed shall be iting of any refuse matter in any navi-
kept at a minimum consistent with gable water or along the banks thereof
safe navigation. where the same shall be liable to be
(8) Handling gates. No one, unless au- washed into such navigable water.)
thorized by the lock tender, shall open (13) Drawing off water. No water shall
or close any gate, or valve, or in any be drawn by any party or parties from
way interfere with the employees in any portion of the Fox River canals, or
the discharge of their duties. The lock of the Fox River, including its lakes,
tender may call for assistance from the improved channels and unimproved
master of any boat using the lock channels, to such extent as to lower
should such aid be needed. the water surface below the crest of
79
§ 207.460 33 CFR Ch. II (7–1–20 Edition)
that dam next below the place where administration, and navigation of that
such draft of water is affected. river, so far as they may be applicable.
(14) Obstructing navigation. Anyone (2) The drydock at Kaukauna, when
who shall willfully or through careless- not required for repairs or construction
ness in any way obstruct the free navi- by the United States, may be used by
gation of the waterway, or by violation private parties or corporations under
of any of the laws or regulations gov- certain restrictions and under the su-
erning the waterway and those using pervision and direction of the U.S. Dis-
it, delay or inconvenience any boat trict Engineer in charge of the locality
having the right to use the waterway, or his authorized agent.
shall be responsible for all damages (3) The drydock will be loaned to pri-
and delays, and for all expenses for re- vate parties only when no private dry-
moving the obstructions. (Sec. 20 of the dock is available at the time and for
River and Harbor Act of Mar. 3, 1899 (30 the purpose desired. Applicants will be
Stat. 1154; 33 U.S.C. 415), authorizes the required to establish over their signa-
immediate removal or destruction of ture the fact that due effort has been
any sunken vessel, craft or similar ob- made to secure the use of a private dry-
struction, which impedes or endangers dock and none can be had.
navigation.) (4) Private parties desiring to use the
(15) [Reserved] Kaukauna drydock will give notice to
(16) Trespass on U.S. property. Tres-
the U.S. Assistant Engineer in local
pass on waterway property or injury to
charge at Appleton, Wis., as long in ad-
the banks, locks, dams, canals, piers,
vance as practicable, stating when use
fences, trees, buildings or any other
of the dock is wanted, nature of repairs
property of the United States per-
required, and the dimensions and char-
taining to the waterway is strictly pro-
acter of boat. No boat will enter the
hibited. No business, trading or landing
dock until the permission of the U.S.
of freight or baggage will be allowed on
District Engineer or the Assistant En-
or over Government property, unless a
gineer above referred to has been ob-
permit or lease approved by the Sec-
tained.
retary of the Army has been secured.
(17) Neenah dam outlet works. (i) Dur- (5) All private parties or corporations
ing periods of high water, when deter- using the Kaukauna drydock will fur-
mined to be necessary by the District nish all material and labor, including
Engineer, U.S. Army Engineer District, blocking, when necessary, required for
Chicago, to reduce the threat of flood- prompt execution of their work, and
ing, it shall be the duty of the person will also furnish all labor for properly
owning, operating, or controlling the operating, under the immediate per-
dam across the Neenah Channel of the sonal supervision of an authorized
Fox River at Neenah, Wis., acting as canal employee, gates, and sluices of
agent of the United States, to open or the drydock. No gate or sluice of the
close, or cause to be opened or closed, drydock will be operated, or in any way
pursuant to paragraph (a)(17)(ii) of this meddled with, except by permission of
section, the outlet works of said dam and under the personal supervision of
to regulate the passage of water such authorized canal employee.
through said outlet works. (6) No boat will be allowed to occupy
(ii) The outlet works of said dam the Kaukauna drydock for a longer pe-
shall be opened when and to the extent riod than 2 days when other boats are
directed by the District Engineer or his waiting to use the dock, except in cases
authorized field representatives, and when, in the opinion of the U.S. Dis-
said outlet works shall thereafter be trict Engineer or his authorized agent,
closed when and to the extent directed circumstances necessitate and justify a
by the said District Engineer or his au- longer use than 2 days. The U.S. Dis-
thorized field representative. trict Engineer or his authorized agent
(b) Use of the United States drydock on is authorized to remove from the dry-
Fox River at Kaukauna, Wis. (1) The dock any boat using or occupying such
drydock being a part of the Fox River dock without his authority, and the ex-
improvement, its use will be governed pense of such removal will be paid by
by the general regulations for the use, the party or parties owning such boat.
80
(7) The wages of all mechanics and la- (13) The dock will be considered in
borers, due from private parties for reuse by a boat from the time the dock is
pairs carried on in the Kaukauna dry- placed at its disposal until the boat is
dock, must be paid before the boat out of the dock.
leaves the dock. (14) The length of all vessels shall be
(8) Repair shop, timber shed, tools, the over-all length measured on the
etc., owned by the Government at and main deck from stem to stern.
near the drydock shall not be used by (15) The charges for the use of the
parties allowed to occupy the drydock. drydock shall be paid within 10 days
(9) Lumber and all material needed from date of bill, which will be sub-
by parties allowed to use the drydock mitted to the owner by the District En-
may be deposited in the drydock yards gineer as promptly as possible after the
at such places as may be directed, but vessel leaves the dock. If charges are
only for such time as repairs are being not so paid, the vessel shall be liable to
made, and residue must be entirely re- the amount of the charges and the cost
moved when the boat leaves the dock; of collection in the manner prescribed
general storage will not be permitted. by law, and the owner of the vessel
(10) All refuse and old material taken shall be denied the use of the drydock
from boats under repairs must be re- until all charges and the cost of collec-
moved or disposed of, as may be dition have been paid to the United
rected, by the owner of the boat or his States.
employees without expense to the Gov- (16) This section supersedes the regu-
ernment, and before the boat leaves the lations for the use of this drydock ap-
dock, and to the satisfaction of the proved April 10, 1906, which regulations
agent in charge of the dock. are hereby revoked.
(11) The Government charges for the
[Regs., Oct. 2, 1926, as amended at 33 FR
authorized and necessary use and occu- 11544, Aug. 14, 1968; 36 FR 1253, Jan. 27, 1971;
pancy of the Kaukauna drydock by pri- 43 FR 26570, June 21, 1978; 48 FR 13985, Apr. 1,
vate boats shall be, until further or- 1983; 56 FR 13765, Apr. 4, 1991]
ders, as follows:
(i) Docking charges (including lay § 207.470 Sturgeon Bay and Lake
time for the calendar day on which ves- Michigan Ship Canal, Wis.; use and
sel is docked): Tugs, motor boats, and navigation.
dredges, 75 cents per linear foot; $25 (a) Authority of canal officers. The
minimum charge. Barges, dump scows, movement of all boats and floating
and derrick boats, 65 cents per linear things in the canal and in the ap-
foot; $20 minimum charge. proaches thereto shall be under the di-
(ii) Lay-day charges (excluding Sun- rection of the superintendent or his au-
days and national holidays, unless re- thorized assistants, and their orders
pairs are made on such Sundays and and instructions must be obeyed.
holidays): For all vessels, 20 cents per (b) Signals. On entering the canal at
linear foot per calendar day or part either entrance, steamers or tugs must
thereof; $7 per calendar day or part blow their whistles for 1 minute in
thereof, minimum charge. order to warn craft approaching from
(12) The charges for all use or occu- opposite direction and give them time
pancy of the Kaukauna drydock by a to guard against collisions, by tying up
boat or private parties, after repairs on if necessary. All steamers approaching
such boat have, in the opinion of the others going in the opposite direction
U.S. District Engineer or authorized shall slacken speed so as to pass in
agent, been so far completed as to per- safety. Compliance is required with
mit safe removal from the dock, or rule V of the rules and regulations for
after such removal has been ordered by the government of pilots, adopted by
the U.S. District Engineer or his au- the U.S. Coast Guard.
thorized agent, shall be $50 per day or
Rule V. Whenever a steamer is nearing a
part of a day, in addition to any pen-
short bend or curve in the channel where,
alties incurred for violation of any of from the height of the banks or other cause,
the regulations prescribed by law for
a steamer approaching from the opposite di-

the government of the dock and those rection cannot be seen for a distance of half
using it. a mile, the pilot of such steamer, when he
81
§ 207.476 33 CFR Ch. II (7–1–20 Edition)
shall have arrived within half a mile of such (n)–(o) [Reserved]
curve or bend, shall give a signal by one long
blast of the steam whistle, which signal shall [Regs., Feb. 15, 1895, as amended Apr. 14, 1908;
be answered by a similar blast by the pilot of 42 FR 57962, Nov. 7, 1977; 56 FR 13765, Apr. 4,
any approaching steamer that may be within 1991]
hearing. Should such signal be so answered
by a steamer upon the farther side of such § 207.476 The Inland Route—lock in
bend, then the usual signals for the meeting Crooked River, Alanson, Mich.; use,
and passing shall immediately be given and administration, and navigation.
answered; but if the first alarm signal of (a) General. The use, administration,
such pilot be not answered, he is to consider and navigation of the lock shall be
the channel clear and govern himself accord-
under the direction and supervision of
ingly.
the District Engineer, U.S. Army Engi-
(c) Speed. The rate of speed while neer District, Detroit, Mich., and his
passing through the canal shall not ex- authorized agents.
ceed 5 miles per hour. (b) Authority of lockmaster. The
(d) Keeping in the center. The center lockmaster shall be charged with the
must be kept all the way through, ex- immediate control and management of
cept in passing other craft. In case of the lock, and of the area set aside as
grounding, the rapid or strong working the lock area, including the lock ap-
of boat’s engines is strictly forbidden. proach channels. He shall see that all
(e)–(g) [Reserved] laws, rules, and regulations for the use
(h) Rafts. (1) The passage of bag or of the lock and lock area are duly com-
sack rafts, or of loose logs, into or plied with, to which end he is author-
through the canal is prohibited. ized to give all necessary orders and di-
(2) Rafts shall be made up with logs rections in accordance therewith, both
parallel to each other, in the direction to the employees of the Government
of raft lengths, secured and held close- and to any and every person within the
ly together by frequent cross-sticks, limits of the lock area, whether navi-
chains, or cables. gating the lock or not. No one shall
(3) Rafts shall not be of greater di- cause any movement of any boat, craft
mensions, either way, than 50 feet wide or other floating object in the lock or
by 600 feet long, and if longer than 300 approaches except by or under the di-
feet shall be handled by two tugs. rection of the lockmaster or his assist-
(4) No raft shall pass through the ants.
canal, unless by special permission of (c) Operation. The lock operating sea-
the superintendent or his authorized son will commence and close as deter-
assistants, who will direct a time for mined by the district engineers, Corps
passing that will least interfere with of Engineers in charge of the locality,
other navigation. depending on conditions and the need
(5) Masters of tugs and other persons for lockage services. Public notices
in charge of rafts are required to avoid will be issued announcing the opening
damaging the canal revetments, and and closing dates at least 15 days in ad-
displacing buoys, spars, or the pedestal vance of such dates.
of any range light aiding navigation (d) Maximum allowable dimensions of
through the canal. They shall keep craft. (1) Overall length—60 feet.
careful watch when passing aids to (2) Overall width—16 feet.
navigation, and should any be acciden- (3) Height above water—15 feet when
tally displaced, shall report the fact at upper pool is at low water datum.
the earliest possible moment to the su- (4) Draft—6 feet when lower pool is at
perintendent or his authorized assist- low water datum.
ants. (e) Signals. (1) Craft desiring lockage
(i)–(l) [Reserved] in either direction shall give notice to
(m) Refuse in canal. No person shall the lock tenders, when not farther than
roll or throw any stones, ashes, cin- 200 yards from the lock, by one long
ders, or other material into the canal blast (of 10 seconds duration) followed
or the approaches thereto, or place any by one short blast (of 3 seconds dura-
such material on any bank or berm of tion) of whistle, horn, or siren.
the canal so that it is liable to be (2) Craft not equipped with whistle,
thrown or roll in. horn, or siren may signal for lockage
82
by use of the signal provided for this the following rule: The first steam ves-
purpose located near the extreme end sel, or the first steam vessel with con-
of the guide wall to the starboard side sort in tow, on entering the harbor for
of the craft, both upbound and shelter, will proceed to the upper end
downbound. of the breakwater. All steam vessels,
(f) The procedures for transit of lock. (1) and all steam vessels with consorts in
Stand clear of the lock while the red tow, entering later, will place them-
signal light shows. selves in a compact position close to
(2) When the green signal light shows those preceding them. Sailing craft
and the lock horn sounds three blasts, will so locate themselves that they will
approach and enter the lock. not lie in the way of other vessels en-
(3) Full control of the craft must be tering the harbor. All vessels of every
maintained while entering the lock. description will in no way place them-
(4) After entrance to the lock is com- selves so as to interfere with the work
plete, the craft shall be securely of reconstruction of piers, or repairs,
moored to the cleats and bitts situated that may be in progress at the time.
on the lock wall. (c) The use of chains in making fast
(5) While moored in the lock, the op- to the breakwater will not be per-
erator of the craft shall maintain con- mitted. Lines must be attached to the
stant attention to the mooring lines, snubbing posts only, and outboard an-
to provide slack or retain tautness as chors taken in.
needed. (d) Steam craft with barges or vessels
(6) The craft shall remain securely in tow will, if practicable, at once
moored until the exit lock gate is fully place them compactly alongside the
open and the lock horn sounds one breakwater, either taking in the tow-
blast. lines entirely or passing them on the
(7) When the exit lock gate is fully breakwater so as not to interfere in
open and the lock horn has sounded any way with the landing or departure
one blast, the craft shall immediately of boats or vessels between them. If im-
leave the lock under full control of its practicable to place them alongside the
operator. breakwater, they will each drop anchor
(g) Precedence at lock. The craft arriv- and at once take in all towlines extend-
ing first at the lock shall be first to ing from one to the other.
lock through; but precedence will be (e) Passenger boats will, in general,
given to craft belonging to the United have the preference as to location and
States or other local government enti- attention by the officer in charge.
ties, such as state, county, or munici- Rafts will give way to all documented
pality. Arrival posts may be estab- craft.
lished above and below the lock. Craft (f) All classes of boats, barges, ves-
arriving at or opposite such posts or sels, or other floating property making
markers will be considered as having fast to the breakwater must at once
arrived at the locks within the mean- place such fenders between themselves
ing of this paragraph. and the breakwater as may be thought
[32 FR 9068, June 27, 1967, as amended at 48 necessary by the officer in charge to
FR 6707, Feb. 15, 1983] prevent chafing or other damage.
(g) The unloading of wood, coal, bal-
§ 207.480 Lake Huron, Mich.; Harbor of last, stone, or freight of any class upon
refuge, Harbor Beach; use and navi- the breakwater is expressly prohibited,
gation. except in certain cases allowed by spe-
(a) All boats, barges, and vessels en- cial permission from the officer in
tering the harbor will be required to charge.
take such positions as may be assigned (h) Each and every piece of floating
them by the officer in charge, who will property made fast to the breakwater,
direct their movements, either from or anchored in the harbor, must keep
the breakwater or from the Govern- outboard from sunset to sunrise a con-
ment tug on the harbor. spicuous white light, and must have
(b) In the absence of any directions upon it and in immediate charge of it a
as to position, boats, barges, and ves- watchman during the entire time such
sels entering the harbor will observe floating property is in the harbor. All
83
§ 207.560 33 CFR Ch. II (7–1–20 Edition)
colored lights must be at once taken without the consent of the District En-
in, or covered, on dropping anchor or gineer, U.S. Army, in charge of the lo-
making fast to the breakwater. cality, or his authorized agent.
(d) No vessel shall moor or anchor in
[Regs., Apr. 3, 1906]
or along any improved channel or basin
§ 207.560 Sandusky Harbor, Ohio; use, in such manner as to interfere with im-
administration, and navigation. provement or maintenance operations
therein. Whenever in the opinion of the
(a)–(c) [Reserved] District Engineer any vessel is so
(d) No vessel shall moor or anchor to moored or anchored, the owner thereof
any structure of the United States shall cause said vessel to be moved
without the consent of the District En- upon notification from and within the
gineer, U.S. Army, in charge of the lo- time specified by said District Engi-
cality, or his authorized agent. neer.
(e) No vessel shall moor or anchor in
or along any improved channel or basin [Regs., May 5, 1938, as amended at 25 FR 8908,
Sept. 16, 1960; 42 FR 57962, Nov. 7, 1977]
in such manner as to interfere with im-
provement or maintenance operations § 207.580 Buffalo Harbor, N.Y.; use, ad-
therein. Whenever in the opinion of the ministration, and navigation.
District Engineer any vessel is so
(a)–(b) [Reserved]
moored or anchored, the owner thereof
(c) No vessel shall moor or anchor to
shall cause said vessel to be moved
any structure of the United States
upon notification from and within the
without the consent of the District En-
time specified by said District Engi-
gineer, U.S. Army, in charge of the lo-
neer.
cality, or his authorized agent.
[Regs., May 6, 1938, as amended at 25 FR 8908, (d) No vessel shall moor or anchor in
Sept. 16, 1960; 42 FR 57962, Nov. 7, 1977] or along any improved channel or basin
in such manner as to interfere with im-
§ 207.565 Vermilion Harbor, Ohio; use, provement or maintenance operations
administration, and navigation. therein. Whenever in the opinion of the
(a)–(b) [Reserved] District Engineer any vessel is so
(c) No vessel or other craft shall moored or anchored, the owner thereof
moor or anchor to any structure of the shall cause said vessel to be moved
United States without the consent of upon notification from and within the
the District Engineer, Corps of Engi- time specified by said District Engi-
neers. neer.
(d) No vessel or other craft shall [Regs., May 5, 1938, as amended at 25 FR 8908,
moor or anchor in or along any im- Sept. 16, 1960; 42 FR 57962, Nov. 7, 1977]
proved channel or basin in such a man-
ner as to interfere with the improve- § 207.590 Black Rock Canal and Lock
ment or maintenance operations thereat Buffalo, N.Y.; use, administration,
in. Whenever in the opinion of the Dis- and navigation.
trict Engineer any vessel or craft is so (a) The term ‘‘canal’’ when used in
moored or anchored, the owner thereof this section will mean all of the Black
shall cause such vessel or craft to be Rock Waterway, including Black Rock
moved upon notification from, and Lock, and all of the lands, piers, build-
within the time specified by, the Dis- ings, and other appurtenances acquired
trict Engineer. by letters patent from the State of New
[13 FR 9564, Dec. 31, 1948, as amended at 42
York, or constructed for the use of the
FR 51773, Sept. 29, 1977; 42 FR 57962, Nov. 7, waterway; the southerly limit thereof
1977] being at the southerly end of Bird Is-
land Pier, and the northerly limit
§ 207.570 Harbors of Huron, Lorain, being at the downstream end of the
Cleveland, Fairport, Ashtabula, guide pier, Black Rock Lock, a length
Conneaut, Ohio; use, administra- of 3.7 miles.
tion, and navigation. (b) The canal and all of its appur-
(a)–(b) [Reserved] tenances and the use, administration
(c) No vessel shall moor or anchor to and navigation thereof shall be in

any structure of the United States charge of the District Engineer, U.S.
84
Army Engineer District, in charge of (1) All vessels and boats which can-
the locality, or his authorized agents. not pass under the bridge shall, on ap-
(c) The movement of all vessels, proaching the bridge, reduce speed suf-
boats, or other floating things in the ficiently to enable them to come to a
canal shall be under the direction of dead stop, without touching the bridge,
the authorized agents of the District in case the movable span cannot be
Engineer in charge, and their orders lifted. If the wind is dangerously
and instructions must be obeyed. strong, passage of the bridge shall not
(d) For passage through the canal, be attempted by large vessels without
vessels or boats belonging to the U.S. the aid of a tug or tugs.
Government shall have precedence over (2) Vessels and boats bound north
all others. shall have the right-of-way and pri-
(e) All registered vessels or boats ority for passage through the bridge
must pass through the canal in order of over those bound south.
their arrival at the canal limits, unless (3) All vessels and boats desiring pas-
otherwise directed in accordance with sage through the bridge shall signal
this section. therefor by one long and two short
(f) [Reserved] whistle blasts.
(g) No vessel shall pass or approach (4) Upon receiving the opening signal,
within 1⁄4-mile of a vessel bound in the the bridge operator shall answer by
same direction in the Black Rock
giving the same signal on the bridge
Canal south of the Ferry Street Bridge.
whistle and he shall then proceed at
Tugs without tows, tugs towing a sin-
once to lift the bridge.
gle barge under 150 feet in length, and
single vessels under 150 feet in length (5) In case the bridge cannot be lifted,
are exempt from this paragraph. for any cause, the bridge operator shall
(h) No vessel or boat shall anchor in answer a vessel signal by giving five
or moor along the canal except at lo- short whistle blasts; and the vessel
calities specially designated by the shall then be stopped until the bridge
District Engineer or his agent; and no is ready to be lifted, when the bridge
business, trading, or landing of freight operator shall give the whistle signal
or baggage, except such articles as may for passage and the vessel may proceed.
be readily carried in the hand, will be (6) In case the bridge is disabled so
allowed on or over the canal lands or that it cannot be lifted for one-half
structures, without the permission of hour or more pending repairs, red flags
the District Engineer or his agent. will be displayed on the bridge in day-
(i) No person or operator of a vessel time and two red lantern lights, one
in the Black Rock Canal, lock or ap- above the other, at night; and when
proaching channels shall throw or dis- such signals are displayed no vessel or
charge or permit to be thrown or dis- boat shall signal for or attempt pas-
charged any solid material of any kind sage through the bridge.
or any petroleum product of any kind (l) Radio control of vessel movement in
into the canal, lock or appurtenant wa- Black Rock Canal. (1) The movement of
ters. vessels in the Black Rock Canal will be
(j) All vessels and tows shall be navi- controlled by radio communication be-
gated with care so as not to strike or tween the Black Rock Lock and the
disturb the channel buoys or channel vessels desiring to use the canal. Ves-
markers. If a buoy or other channel sels will not be permitted to meet or
marker is accidentally struck, dam- pass in the channel of restricted width
aged or displaced, the fact shall be re- between the southerly end of Bird Is-
ported immediately to the Black Rock land (approximately 3,500 feet north-
Lock, foot of Bridge Street, Buffalo, erly along the canal from the North
N.Y., telephone 876–5454. Breakwater South End Light) and the
(k) Ferry Street Bridge: The International Railway Bridge near the
clearheadroom under the bridge at low southerly entrance to the Black Rock
water datum is 17.3 feet for a width of Lock. Vessels less than 150 feet in
86 feet from the pivot pier, thence de- length and tugs towing a single barge
creasing to 12.3 feet at the left (west- under 150 feet in length are not to be
erly) abutment. included in this special condition. In
85
§ 207.590 33 CFR Ch. II (7–1–20 Edition)
addition to the control of vessel move- (ii) Vessels desiring to enter the
ments in the restricted section of the Black Rock Canal from either the Buf-
canal, radio communications will also falo Outer Harbor or the Buffalo River
be utilized to facilitiate the passage of shall call the Black Rock Lock on VHF
vessels through the entire canal and Channel 16 or by land telephone to 876–
the Black Rock Lock. 5454 immediately before departing a
(2) Radio communication will be the dock and again when abreast of the
only means of control of vessel traffic North Breakwater South End Light on
in the canal in order to prevent a meet- the southerly end of the North Break-
ing or passing of vessels in the re- water.
stricted area, and therefore it is man- (iii) In any radio communication
datory that all vessels over 150 feet in from a vessel to the Black Rock Lock,
length and tugs towing a barge or and VHF(FM) frequencies will be uti-
barges over 150 feet in combined length lized.
of tow be equipped with radio commu- (iv) In any radio communication
nication equipment operating on des- from a vessel to the Black Rock Lock,
ignated frequencies. Any vessel lacking the VHF (FM) frequencies will be uti-
such equipment will not be permitted lized if available in preference to the
to enter the canal unless arrangements MF (AM) frequencies.
are made with the Black Rock Lock by (v) When an initial radio contact has
land telephone to 876–5454 or marine
been made with the Black Rock Lock
ship-to-shore facilities immediately be-
the vessel entering the canal shall
fore entering the canal.
maintain a standby watch at the radio
(3) The Black Rock Lock radio com-
until the passage through the canal
munication equipment operates on
and lock is completed.
VHF(FM) frequencies as follows: VHF—
156.8 Mcs—Channel 16—Safety and Call- (vi) Failure to comply with the fore-
ing, VHF—156.7 Mcs—Channel 14— going procedures could result in con-
Working; VHF—156.6 Mcs—Channel 12 siderable delay to a vessel and possibly
Working. A listening watch is main- in a collision between vessels in the re-
tained on VHF Channel 16. stricted section of the canal.
(4) In order that positive control may (m) Black Rock Lock. All vessels and
be maintained it is mandatory that the boats desiring to use the lock shall sig-
following procedures be followed in nal by two long and two short whistle
communicating by radio with the blasts.
Black Rock Lock: (1) Northbound vessels and boats
(i) Vessels desiring to enter the Black shall not be brought to within less than
Rock Canal from either the Buffalo 300 feet of the upper lock gates, nor
Outer Harbor or the Buffalo River shall shall southbound vessels be brought to
call the Black Rock Lock on VHF within less than 200 feet of the lower
Channel 16 or by land telephone ap- lock gates, until the lock is made
proximately 15 minutes before the esti- ready and the lockmaster in charge
mated time of arrival at Buffalo Har- signals the vessel to enter the lock.
bor Traffic Lighted Bell Buoy 1 located (2) Vessels and boats shall not moor
at latitude N. 42°50.1′ and longitude W. to the approach walls of the lock at ei-
78°55.4′. Information to be furnished the ther end, for any other purpose than
Black Rock Lock Operator should in- waiting for lockage, except by direc-
clude the name of the vessel, position, tion or permission of the lockmaster.
destination, length, draft (forward and (3) Commercial vessels will receive
aft) and the type of cargo. A second perference in passage through the
call shall be made to the lock when the locks. Small vessels such as row, sail,
vessel is abreast of the Buffalo Harbor and motor boats, bent on pleasure
Light on the southerly end of the de- only, will be passed through the lock in
tached West Breakwater. Information company with commercial vessels
furnished the vessel by the Lock Oper- when small vessels can be safely
ator will assure the vessel operator of accomodated or in the absence of com-
the proper time to enter the Black mercial vessels may be passed through
Rock Canal with a view to safety and the lock individually or together in one
minimum delay. lockage on the hour if northbound and
86
on the half hour if southbound. How- (iv) No guest passengers will be per-
ever, commercial vessels will receive mitted to either board or disembark at
preference which could delay the pas- the canal or locks.
sage of pleasure craft. Pleasure craft (9) Schedule of Seasonal Operation:
will not be permitted to pass through (i) March 23 through June 14—6 a.m.
the lock with vessels carrying inflam- to 11 p.m., daily.
mable cargo. Vessels and other large (ii) June 15 through September 6–24
boats when in the lock shall fasten one hours, daily.
head line and one spring line to the (iii) September 7 through November
snubbing posts on the lock walls, and 30—6 a.m. to 11 p.m., daily.
the lines shall not be cast off until the (iv) December 1 through March 22—8
signal is given by the lockmaster for a.m. to 4:30 p.m., daily. During the
the boats to leave the lock. navigation season the hours may be ex-
(4) Vessels and boats will be passed tended by the district engineer, de-
through the lock in order of their ar- pending on conditions and the need for
rival except that the lockmaster may lockage service. Public notices will be
order a small vessel to lock through in issued announcing the opening and
company with another vessel, irrespec- closing dates at least 10 days in ad-
tive of the former’s order of arrival. vance of such dates.
(5) All vessels and boats shall be ma- (10) Non-operational hours lockings. In
neuvered with great care so as not to addition to the above schedule of oper-
strike any part of the lock walls, or ating hours, commercial vessels may
any gate or appurtenance thereto, or be locked through during non-oper-
machinery for operating the gates, or ational hours with prior arrangements
the walls protecting the lock ap- made through the U.S. Army Engineer
proaches. District, Buffalo. Requests for non-
(6) Vessels and boats shall not enter operational hours lockings shall be
or leave until the lock gates are fully made at lease 24 hours in advance by
in their recesses, and the lockmaster calling (716) 876–5454, extension 2284 or
has given direction for starting. by radio as described in paragraph (l) of
(7) [Reserved] this section, Monday through Friday, 9
(8) Trespass on lock property is a.m. to 4 p.m., except holidays. Re-
strictly prohibited. However, in that quests shall include the approximate
portion of the Black Rock Canal lying time of arrival and the name and call
between the International Railway letters of the vessel or, if the vessel is
Bridge and the northerly end of the not equipped to receive radio messages,
westerly lower guide pier, the following a telephone number at which messages
conditions shall apply to the embark- may be received for the vessel. If a re-
ing or disembarking of crew members quested lockage must be delayed,
or passengers of a vessel transiting the prompt notification shall be given by
lock: telephone or radio.
(i) Only the master or mate and two [30 FR 3382, Mar. 13, 1965; 30 FR 3881, Mar. 25,
or three linesmen will be permitted to 1965, as amended at 41 FR 34035, Aug. 12, 1976;
go ashore from transiting vessels and 42 FR 57962, Nov. 7, 1977; 45 FR 51555, Aug. 4,
then only for normal operations and 1980; 56 FR 13765, Apr. 4, 1991]
business incident to the transit. A
maximum of only four (4) men will be § 207.600 Rochester (Charlotte) Har-
permitted to go ashore from any one bor, N.Y.; use, administration, and
ship. navigation.
(ii) No crew members will be per- (a)–(b) [Reserved]
mitted to board a ship at the locks un- (c) No vessel shall moor or anchor to
less previously requested in writing by any structure of the United States
the master or owners, and approved by without the consent of the District En-
canal authorities. gineer, U.S. Army, in charge of the lo-
(iii) No crew member may leave a cality, or his authorized agent.
ship while it is in transit in the lock or (d) No vessel shall moor or anchor in
canal unless certified in advance as an or along any improved channel or basin
emergency by the vessel master and in such manner as to interfere with im-
approved by canal authorities. provement or maintenance operations
87
§ 207.610 33 CFR Ch. II (7–1–20 Edition)
therein. Whenever in the opinion of the special permission from the said Dis-
District Engineer any vessel is so trict Engineer or his representative.
moored or anchored, the owner thereof (i) Each and every vessel made fast to
shall cause said vessel to be moved the breakwater, or anchored in the har-
upon notification from and within the bor without a line made fast to the
time specified by said District Engi- shore or shore dock, must have at least
neer. one experienced person upon it during
the entire time said vessel is thus
[Regs., May 5, 1938, as amended at 25 FR 8908,
Sept. 16, 1960; 42 FR 57962, Nov. 7, 1977] moored in the harbor.
[Regs., May 6, 1938, as amended at 25 FR 8908,
§ 207.610 St. Lawrence River, Cape Sept. 16, 1960; 42 FR 57962, Nov. 7, 1977]
Vincent Harbor, N.Y.; use, adminis-
tration, and navigation of the har- § 207.640 Sacramento Deep Water Ship
bor and U.S. breakwater. Channel Barge Lock and Approach
(a)–(c) [Reserved] Canals; use, administration, and
(d) Vessels shall observe the fol- navigation.
lowing rule in mooring to the break- (a) Sacramento Deep Water Ship Chan-
water: The first self-propelled vessel nel Barge Lock and Approach Canals;
stopping at the harbor for shelter will use, administration and navigation—(1)
proceed to the upstream end of the General. The lock, its approach chan-
breakwater and moor along either side nels and all its appurtenances, includ-
of it. All similar vessels entering later ing the highway and railroad bridge,
will place themselves in a compact po- shall be under the jurisdiction of the
sition close to those preceding them. District Engineer, U.S. Army Engineer
Passenger vessels will, in general, have District, Sacramento, Federal and
preference as to location of moorage. Courts Building, 650 Capitol Avenue,
Sailing craft will so locate themselves Sacramento, California. His designated
that they will not lie in the way of representative at the locality shall be
other vessels entering the harbor. All the lockmaster, who will be in imme-
vessels of every description will place diate charge of movement and position
themselves so as not to interfere with of all water traffic while at or near the
any work of reconstruction or repair locks and in the barge canals.
that may be in progress at the time. (2) Immediate control. The lockmaster
(e) The use of chains in making fast shall be charged with the immediate
to the breakwater is prohibited. Lines control and management of the lock,
must be attached to the snubbing posts bridge, and of the area set aside as the
only, and outboard anchors taken in. lock area, including the entrance chan-
(f) Vessels with other craft in tow nels. He shall see that all laws, rules
will, if practicable, at once, moor them and regulations for the use of the lock,
compactly along the breakwater, ei- bridge and the lock area are duly com-
ther taking in the towlines or placing plied with, to which end he is author-
the slack in them upon the breakwater ized to give all necessary orders and di-
in such a manner as not to interfere rections in accordance therewith, both
with other vessels. If necessary to to employees of the Government and to
moor alongside of other vessels moored any and every person within the Gov-
to the breakwater, the towlines shall ernment lock area. Crews shall render
be taken in or disposed of in such a such assistance in the lockage of their
manner as not to interfere with the de- craft as may be required by the
parture of vessels moored between lockmaster.
them and the breakwater. (3) Signals—(i) Sound. All craft desir-
(g) Vessels of every description mooring lockage shall signal by two long
ing to the breakwater, must place suit- blasts followed by two short blasts of
able fenders between themselves and the whistle, delivered at a distance of
the breakwater to protect the timber one-half mile from the lock. When the
walings on the breakwater from dam- lock is ready for entrance, notice will
age. be given by one long blast from the
(h) The unloading of freight of any control house. Permission to leave the
class upon the breakwater is expressly lock will be one short blast given by
prohibited, except in accordance with the lockmaster.
88
(ii) Visual lock traffic signals. Visual the center of the lock. A vessel must
signals are located outside of each lock not attempt to enter the lock if its
gate on the north guide wall, and will beam or length is greater than indi-
be used in conjunction with sound sig- cated above, or if its draft exceeds the
nals. When the red light is flashing, depth of water indicated by the gages,
lock cannot be made ready for entrance with due allowance for clearance.
immediately, vessel must stand clear. (5) Precedence at lock. Ordinarily,
When the amber light is flashing, lock craft will be locked through in order of
is being made ready, prepare for lock- arrival; however, depending upon
age. When the green light is flashing, whether the lock is full or empty, this
lock is ready for entrance, the vessel precedence may be modified at the dis-
may proceed with caution into the cretion of the lockmaster if boats are
lock. approaching from the opposite direc-
(iii) Visual river traffic signals. Visual tion and are within reasonable distance
signals are located on the south bank of the lock at the time of the approach
of the barge canal at the confluence by the first boat. When several craft
with the Sacramento River and also are to pass, precedence shall be given
1,950 feet upstream on the west bank of as follows:
the Sacramento River. When the red First: Government owned or controlled craft.
light is on, a river-bound vessel of a Second: Commercial craft.
size making passing in the canal haz- Third: Passenger boats.
ardous is in the lock or canal. Ap- Fourth: Small vessels and pleasure boats.
proaching vessel shall stand clear of (6) Loss of turn. Boats that fail to
canal to permit out-going vessel to enter the lock with reasonable prompt-
pass. When the amber light is on, a ness, after being authorized to do so,
river-bound vessel of a size to permit shall lose their turn.
passing is in the lock or canal. Vessel (7) Multiple lockage. The lockmaster
may enter canal with caution. When shall decide whether one or more ves-
the green light is on, vessel may enter sels may be locked through at the same
canal and proceed under full control. time.
(iv) Radio. The lock is equipped with (8) Speed. Vessels shall not be raced
two-way radio operating on a fre- or crowded alongside another in the
quency of 156.60 mc. The frequency is barge canals. When entering the barge
monitored by the lock personnel. Ves- canals and lock, speed shall be reduced
sels equipped with two-way radio may to a minimum consistent with safe
communicate with the crew operating navigation. As a general rule, when a
the lock but communications or sig- number of vessels are entering the
nals so received will only augment and lock, the following vessel shall remain
not replace the sound and visual sig- at least 200 feet astern of the vessel
nals. ahead. No overtaking, except when di-
(4) Permissible dimensions of vessels and rected by lockmaster, will be per-
tows. The lock chamber has a max- mitted.
imum usable width of 86 feet and (9) Lockage of small boats—(i) General.
length of 600 feet. The sill at the harbor The lockage of pleasure boats, skiffs,
end and the bottom of the lock cham- fishing boats and other small craft will
ber are ¥13.0 feet elevation, CofE be coordinated with the lockage of
datum, and usually provides a depth of commercial craft. If no commercial
water ranging from 14.0 feet at LLW to craft are scheduled to be locked
19.4 feet at HHW, with greater depths through within a reasonable time, not
during large floods in the delta. The to exceed one hour after the arrival of
sill at the river end is at ¥10.0 feet ele- the small craft at the lock, separate
vation, CofE datum, and usually pro- lockage will be made for such small
vides a depth of water ranging from craft.
14.6 feet at LLW to 16.8 feet at HHW, (ii) Signals. Small boats desiring to
with greater depths when the river is use the lock will sound two long blasts
high. The depth of water at any time is followed by two short blasts of the
indicated by staff gages located on the horn. When the lock is ready for en-
south wall of the lock, riverward and trance, the lockmaster will notify the
harborward of each lock gate and at small boat by one long blast of the
89
§ 207.640 33 CFR Ch. II (7–1–20 Edition)
horn; or through the public address short as practicable for safe handling
system. Permission to leave the lock of tows.
will be given by the lockmaster by one (15) Crew to move craft. The pilots in
short blast of the horn. charge of tows and persons in charge of
(10) Mooring in lock. All boats, when other craft must provide a sufficient
in the lock, shall be moored to the fas- number of men to handle lines in moor-
tenings provided for that purpose, by ing craft and to move barges and other
bow and stern lines and other spring craft into and out of the lock easily
lines as may be necessary, and the and promptly.
lines shall not be let go until the signal
(16) Handling valves, gates, bridges and
is given by the lockmaster for the craft
machinery. No person, unless authorized
to leave the lock.
(11) Waiting for lockage. The mooring by the lockmaster shall open or close
or anchoring of boats or other craft in any bridge, gate, valve or operate any
the approaches to the lock, where such machinery in connection with the lock;
mooring will interfere with navigation but the lockmaster may, under emer-
of the lock is prohibited. All boats, gency conditions, call for assistance
barge tows and other craft to be passed from the master of any boat using the
through the lock shall lie in designated lock, should such aid be necessary, and
waiting areas in such manner as not to when rendering such assistance, the
interfere with the navigation of the man so employed shall be strictly
lock or its approaches, and, if a barge under the orders of the lockmaster.
tow is to be divided into sections for (17) Landing of freight. No one shall
locking, the sections shall be brought land freight or baggage on or over the
into the lock as directed by the walls of the lock so as in any way to
lockmaster. After passing through the delay or interfere with navigation or
lock, the sections shall be reassembled the operation of the lock.
at such a distance from the entrance as (18) Refuse in lock. No material of any
not to obstruct or interfere with navi- kind shall be thrown or discharged into
gation of the lock or its approaches. the lock, and no material of any kind
(12) Delay in lock. Boats or barges
shall be deposited into the lock area.
must not obstruct navigation by un-
necessary delays in entering or leaving (19) [Reserved]
the lock. (20) Persistent violation of regulations.
(13) Damage to lock or other structures. If the owner or pilot of any boat per-
The regulations contained in this para- sistently violates the regulations of
graph shall not relieve the owners and this paragraph after due notice of the
operators of vessels from liability for same, lockage may be refused by the
any damage by their operations to the lockmaster at the time of the violation
lock or other structures. They must or subsequent thereto, as required in
use great care not to strike any part of the interest of public safety or protec-
the lock, any gate or appurtenance tion of Government property.
thereto, or machinery for operating the (21) Other laws and regulations. In all
gates, or the walls protecting the other respects, the existing Federal
banks of the approach canals. All boats laws, rules and regulations affecting
with metal nosings or projecting irons, navigable waters of the United States
or rough surfaces that would be liable will govern in the use, administration
to damage the gates or lock walls, will and navigation of the ship channel,
not be permitted to enter the lock un- lock and its approaches.
less provided with suitable buffers and
fenders. [26 FR 11201, Nov. 28, 1961, as amended at 27
(14) Tows. Tows shall be made up out- FR 4737, May 18, 1962; 27 FR 10484, Oct. 27,
side the canal entrance. All vessels en- 1962; 28 FR 8461, Aug. 17, 1963; 31 FR 6590, May
gaged in towing other vessels not 3, 1966; 33 FR 14166, Sept. 19, 1968; 42 FR 17120,
equipped with a rudder shall use two Mar. 31, 1977; 42 FR 57962, Nov. 7, 1977; 48 FR
6708, Feb. 15, 1983; 50 FR 42696, Oct. 22, 1985;
tow lines or a bridge and one tow line.
51 FR 25198, July 11, 1986; 56 FR 13765, Apr. 4,
If the vessel in tow is equipped with a
1991]
rudder, one tow line may be used. All
tow lines or hawsers must be hauled as
90
§ 207.680 Willamette River, Oreg.; use, tacting the lockmaster on VHF-FM

administration, and navigation of radio on channel 14, at WUJ 363, Wil-
canal and locks at Willamette Falls, lamette Falls Locks or by telephone or
Oreg. otherwise notifying the lockmaster’s
(a) Administration—(1) Administrative office. Notice to vessels desiring lock-
jurisdiction. The canal and locks and all age will be given by red and green traf-
appurtenances shall be in the charge of fic lights. Vessels may enter locks on
the District Engineer, Portland Dis- green lights, but must await green sig-
trict, Corps of Engineers, Department nal when lights are red. Permission to
of the Army, 319 S.W. Pine Street, leave the lock will be given in the same
Portland, Oregon 97208. The representa- manner. In the event a failure occurs
tive of the District Engineer at the lo- and the referenced lights cannot be op-
cality shall be the lockmaster, who erated, the lockmaster will indicate by
shall receive his orders and instruc- voice or by hand or lantern signals
tions from the district engineer. In when vessels may enter or leave the
case of emergency, however, the locks.
lockmaster shall have authority to (3) Controlling dimensions. For lockage
take such steps as may be immediately purposes the maximum length of space
necessary without waiting for instruc- available is 175 feet and the maximum
tion from the district engineer. clear width available is 37 feet. All ves-
(2) Operational jurisdiction. The lock sels, boats, rafts, barges, or other float-
master shall be charged with the im- ing things of less size than the fore-
mediate control and management of going dimensions can pass through the
the canal and locks and the grounds locks. The controlling water depth over
and public property pertaining thereto. the intermediate miter sills through-
He shall see that all laws, rules and out the locks is 6.5 feet. However, the
regulations, for the use of the canal depth on the sill of the upstream gate
and grounds are duly complied with, to at low water is 7.5 feet and over the
which end he is authorized to give all downstream sill is 8.4 feet. The ele-
necessary orders and directions in ac- vation of the upstream sill is 43.7 feet
cordance therewith, both to employees and of the downstream sill is ¥6.4 feet,
of the Government and to any and corresponding to the elevations shown
every person within the limits of the on the gages provided at both the
canal and locks or grounds pertaining downstream and upstream approaches
thereto, whether navigating the canal to the locks. All vessels, boats, rafts,
or not. In case of the absence or dis- barges, and other floating things of
ability of the lock master, his duty which the dimensions or draft are
shall be performed by an assistant or greater than will permit clearing any
other employee to be designated by the of the above indicated elevations shall
District Engineer. be prohibited from entering the locks.
(b) Use and navigation—(1) Authority All vessels, boats, rafts, barges or other
of lock master. The lock master or his floating things entering the locks in
assistants shall direct the movement, violation of the above shall be respon-
operation, and moorage of all vessels, sible for all resulting damages.
boats, rafts, barges, or other floating (4) Precedence at locks. Ordinarily the
things using the locks, while they are vessel, boat, raft, barge, or other float-
in the locks, the canal basin, or in ei- ing thing arriving first at the lock will
ther the upstream or downstream lock be locked through first. In the event of
approaches. Crews of vessels, boats, a simultaneous approach from opposite
rafts, barges, or other floating things directions ascending craft will ordi-
seeking lockage shall render such as- narily be locked through first. When
sistance as the lock master or his as- several boats are to be passed through
sistants may require. the locks, the order of precedence shall
(2) Signals. All vessels desiring lock- be as follows:
age shall signal the same by one long (i) To boats owned by the United
and one short blast of the whistle, de- States or employed upon river and har-
livered at a distance of approximately bor improvement work.
1,000 feet from the locks. Requests for (ii) To passenger boats.
lockage may also be made by con- (iii) To freight and tow boats.
91
§ 207.680 33 CFR Ch. II (7–1–20 Edition)
(iv) To rafts. sistance shall be strictly under the or-

(v) To small vessels and pleasure ders of the lockmaster. The Govern-
craft. ment reserves the right to refuse lock-
The lock master shall have authority age to any vessel, craft or raft when
to digress from the above precedence in the persons in charge thereof refuse to
order to eliminate reversing the flow of give such assistance when it is re-
traffic through the locks when both quested. The persons in charge of ves-
upbound and downbound lockages are sels with tows or rafts, barges and
in waiting. other craft must provide sufficient per-
(5) Entrance to locks. The lock master sonnel, lines and towing equipment of
shall decide whether one or more ves- sufficient power to insure at all times
sels may be locked through at the same full control of such tows, rafts, barges
time. No one shall attempt to enter the and other craft while moving into and
locks with a vessel or attempt to cause through the locks, unless otherwise
a vessel to enter the locks until he is prearranged with the lockmaster. A
authorized by the lock master to do so. copy of these regulations shall be kept
No one shall take a vessel, or cause a on board each vessel regularly engaged
vessel to be taken, within the limits of in navigating the locks. Copies may be
500 feet above the upper gate and 300 obtained without charge from the
feet below the lower gate, except for lockmaster or from the District Engi-
the purpose of entering the locks; and neer, Corps of Engineers, Department
not for this purpose until it has been of the Army, 319 S.W. Pine Street, Post
indicated to him by a proper person by Office Box 2946, Portland, Oregon 97208.
signal that the lock is ready to receive (8) Petroleum vessels. All tankers,
the vessel. All vessels within the fore- barges, and other floating equipment,
going limits must be operated under used for transporting inflammable liq-
‘‘slow bell’’ and be kept constantly uids, either with or without cargo,
under control. shall be equipped with fixed timber
(6) Lockage of small boats. Pleasure fenders and, if not so equipped, shall
boats, skiffs, fishing boats, and other have aboard an adequate number of
small craft may be passed through the suitable fenders of timber, rubber, or
locks singularly, in groups, or as part rope which are to be placed between
of a lockage of other than pleasure the vessel and unfendered lock struc-
craft. A continual flow of traffic in one tures. All such barges or other vessels
direction will not be interrupted or re- navigating without power within the
versed to accommodate these small canal or locks must be assisted by one
pleasure boats. However, any such or more tugs of sufficient power to in-
small boat will be accommodated at sure full control at all times whether
such time as the lock master upon re- passing upstream or downstream
ceipt of a request for lockage deems through the locks with or without
such action will not interfere with cargo.
other traffic. The decision of the lock (9) Mooring in locks. All boats, barges,
master shall be final as to whether rafts, and other craft when in the locks
craft requesting lockage is defined as a shall be moored by head and spring
pleasure boat. lines and such other lines as may be
(7) Use of canal locks. No person, unnecessary to the fastenings provided
less authorized by the lockmaster or for that purpose; and the lines shall
his assistants, shall open or close any not be unloosed until the signal is
bridge, lock gate, wicket gate, or oper- given for the vessel to leave the lock.
ate any lock machinery, or in any way (10) Mooring while waiting for lockage.
interfere with any mechanism or appli- The mooring of boats, tows or other
ance connected with the operation of craft in the approaches to the locks
the locks, nor shall anyone interfere where such mooring will interfere with
with the employees in the discharge of navigation or other vessels to or from
their duties. The lockmaster or his as- the locks is prohibited.
sistants may call for aid from the per- (11) Delays. Boats, barges, rafts, or
sons in charge of any craft, vessel, or other craft must not obstruct naviga-
raft using the lock should such aid be tion by unnecessary delay in entering
necessary. Persons rendering such as- or leaving the locks. Vessels failing to
92
enter the locks with reasonable tion, whenever such a word as ‘‘vessel’’,
promptness, when signaled to do so, ‘‘boat’’, ‘‘barge’’, ‘‘raft’’, or the like is
and vessels arriving at the locks with used in this section, it shall include all
their tows in such shape so as to im- types of floating things which may be
pede lockage shall forfeit their turn. subject to lockage. Failure to refer spe-
(12) Landing of freight. No freight or cifically to a type of floating thing by
baggage shall be unloaded on or over its name shall not mean exclusion
the walls of the canal or locks. Freight thereof from applicability of this sec-
and baggage consigned to the Willam- tion.
ette Falls locks shall be unloaded only [19 FR 5816, Sept. 9, 1954, as amended at 35
at such places as may be provided for FR 14988, Sept. 26, 1970; 48 FR 10062, Mar. 10,
this purpose or as directed by the lock 1983; 56 FR 13765, Apr. 4, 1991]
master.
(13) Refuse in canal or locks. No refuse § 207.718 Navigation locks and ap-
or other material shall be thrown or proach channels, Columbia and
dumped from vessels into the canal and Snake Rivers, Oreg. and Wash.
locks, or deposited in the lock area, or (a) General. All locks, approach chan-
placed on the berm of the canal so that nels, and all lock appurtenances, shall
it is liable to be thrown or washed into be under the jurisdiction of the Dis-
the waterway. Violations of this para- trict Engineer, Corps of Engineers, U.S.
graph (b)(13) shall be subject to sec- Army, in charge of the locality. The
tions 13 and 16 of the River and Harbor district engineer may, after issuing a
Act of March 3, 1899 (33 U.S.C. 407, 411). public notice and providing a 30-day op-
(14) Damage to locks or other structures. portunity for public comment, set
The regulations contained in this sec- (issue) a schedule for the daily lockage
tion shall not affect the liability of the of recreational vessels. Recreational
owners and operators of vessels for any vessels are pleasure boats such a row,
damage caused by their operations to sail, or motor boats used for rec-
the locks or other structures. Persons reational purposes. Commercial vessels
in charge of vessels and log rafts pass- include licensed commercial passenger
ing through the locks must use great vessels operating on a published sched-
care to prevent the vessels or log rafts ule or regularly operating in the ‘‘for
from striking any gate or appurtenance hire’’ trade. Any recreational schedule
thereto. All boats or barges with metal shall provide for a minimum of one
nosings, or projecting irons, or rough scheduled recreation lockage upstream
surfaces, and log rafts with dragging and downstream (two lockages) each
cables that may damage any part of day. At the discretion of the district
the lock structures will not be per- engineer, additional lockages may be
mitted to enter the locks unless said scheduled. Each schedule and any
craft are provided with suitable protec- changes to the schedule will be issued
tive buffers and fenders and log rafts at least 30 days prior to implementa-
are free of loose, dragging cables. tion. Prior to issuing any schedule or
(c) [Reserved] any change to the schedule, the dis-
(d) Trespass. No one shall trespass on trict engineer will consider all public
the grounds or buildings, and everyone comments and will evaluate the ex-
shall be deemed guilty of trespass with- pected energy situation, water supply,
in the meaning of this paragraph who and recreation use of the lock to deter-
shall willfully or carelessly damage or mine the seasonal need for the schedule
disfigure the canal and locks or any or change in schedule. The district en-
part thereof, or any building or appli- gineer’s representative at the locks
ance on the grounds, or who shall carry shall be the project engineer, who shall
on business or trading of any sort, or issue orders and instructions to the
shall build any fishing stand or lead, or lockmaster in charge of the lock. Here-
set any fish net within the limits of the inafter, the term ‘‘lockmaster’’ shall be
reservation, or do any act to or on the used to designate the person in imme-
grounds or buildings which would be diate charge of the lock at any given
recognized by law as a trespass. time. In case of emergency and on all
(e) Definitions. Except as otherwise routine work in connection with the

provided in paragraph (b)(6) of this sec- operation of the lock, the lockmaster
93
§ 207.718 33 CFR Ch. II (7–1–20 Edition)
shall have authority to take action sel is in any way hazardous because of
without waiting for instructions from its condition or the cargo it carries or
the project engineer. has carried.
(b) Lockage control. The Lock Master (2) Pull-cord signal stations. Pull-cord
shall be charged with immediate con- signal stations marked by large in-
trol and management of the lock, and structional signs and located near the
of the area set aside as the lock area, end of the upstream and downstream
including the lock approach channels. lock entrance walls may be used in
Upstream and downstream approach place of radios to signal the Lock Mas-
channels extend to the end of the wing ter for a lockage.
or the guide wall, whichever is longer. (3) Entering and exit signals. Signal
At Bonneville lock the upstream ap- lights are located outside each lock
proach channel extends to the mooring gate. When the green (go) light is on,
tie offs at Fort Rains and the down- all vessels will enter in the sequence
stream approach channel extends to prescribed by the Lock Master. When
the downstream tip of Robins Island. the red (stop) light is on, the lock is
The Lock Master shall demand compli- not ready for entrance and vessels shall
ance with all laws, rules and regula- stand clear. In addition to the above
tions for the use of the lock and lock visual signals, the Lock Master will
area and is authorized to issue nec- signal that the lock is ready for en-
essary orders and directions, both to trance by sounding one long blast on
employees of the Government or to the lock air horn. The Lock Master
other persons within the limits of the will signal that the lock is ready for
lock or lock area, whether navigating exit by lighting the green exit light
the lock or not. Use of lock facilities is and sounding one short blast on the air
contingent upon compliance with regu- horn.
lations, Lock Master instructions and (4) Craft lockage-readiness signal. Upon
the safety of people and property. query from Lock Master, a vessel oper-
(c) Authority of Lock Master. No one ator will signal when he is properly
shall initiate any movement of any moored and ready for the lockage to
vessel in the lock or approaches except begin.
by or under the direction of the Lock (e) Permissible dimensions of vessels.
Master. (‘‘Vessel’’ as used herein in- Nominal overall dimensions of vessels
cludes all connected units, tugs, allowed in the lock chamber are 84 feet
barges, tows, boats or other floating wide and 650 feet long. Depth of water
objects.) in the lock depends upon river levels
(d) Signals—(1) Radio. All locks are which may vary from day to day. Staff
equipped with two-way FM radio oper- gauges showing the minimum water
ating on channel 14, frequency of level depth over gate sills are located
156.700 MHz, for both the calling chan- inside the lock chamber near each lock
nel and the working channel. Vessels gate and outside the lock chamber near
equipped with two-way radio desiring a the end of both upstream and down-
lockage shall call WUJ 33 Bonneville, stream guide walls, except at Bonne-
WUJ 34 The Dalles, WUJ 35 John Day, ville where the staff gauges show water
WUJ 41 McNary, WUJ 42 Ice Harbor, levels in feet above MSL and are lo-
WUJ 43 Lower Monumental, WUJ 44 cated on the southern guide walls at
Little Goose, or WUJ 45 Lower Granite, the upstream and downstream miter
at least one-half hour in advance of ar- gates. Bonneville’s upstream sill ele-
rival since the Lock Master is not in vation is 51 feet MSL and the down-
constant attendance of the locks. stream sill elevation is ¥12 feet MSL.
Channel 14 shall be monitored con- Depth over sill at Bonneville is deter-
stantly in the vessel pilot house from mined by subtracting the sill elevation
the time the vessel enters the approach from the gauge reading. Vessels shall
channel until its completion of exit. not enter the navigation lock unless
Prior to entering the lock chamber, the the vessel draft is at least one foot less
commercial freight or log-tow vessel than the water depth over the sill. In-
operator shall report the nature of any formation concerning allowable draft
cargo, the maximum length, width and for vessel passage through the locks
draft of the vessel and whether the ves- may be obtained from the Lock Master.
94
Minimum lock chamber water level Federal Regulations. Flammable mate-

depth is 15 feet except at Ice Harbor rials are defined in the National Fire
where it is 14 feet and at Bonneville Code of the National Fire Protection
where it is 19 feet. When the river flow Association.
at Lower Granite exceeds 330,000 cubic (2) Recreational craft. By mutual
feet per second the normal minimum agreement of (all parties,) the
15-foot depth may be decreased to as lockmaster and the captains of the ves-
little as eight feet. sels involved, recreational vessels may
(f) Precedence at lock. Subject to the be locked through with commercial
order of precedence, the vessel or tow vessels. Under the recreational vessel
arriving first; at the lock will be schedule, separate lockage will not be
locked through first, however, this made by recreational vessels except in
precedence may be modified at the dis- accordance with the recreational lock-
cretion of the lockmaster. If imme- age schedule or when circumstances
diate passage is required, lockage of warrant, such as in an emergency.
vessels owned or operated by the When recreational craft are locked si-
United States shall take precedence. multaneously with commercial vessels,
The precedence of all other vessels the recreational vessel will enter the
shall be as follows: lock chamber after the commercial
(1) When a recreational vessel lock- vessel is secured in the chamber and
age schedule is in effect, at the ap- when practicable will depart while the
pointed time for lockage of recreation commercial vessel remains secured.
craft, recreation craft shall take prece- (3) Special schedules. Recreational
dence; however, commercial vessels boating groups may request special
may be locked through with recreation schedules by contacting the district en-
craft if safety and space permit. At gineer. The schedule for the daily lock-
other than the appointed time, the age of recreational vessels will indicate
lockage of commercial and tow vessels the number of boats required for a spe-
shall take precedence and recreational cial schedule and how many days’ no-
craft may (only) lock through with tice is required in order to arrange a
commercial vessels only as provided in special schedule.
paragraph (h) of this section. (i) Mooring in approaches prohibited.
(2) If a recreational vessel lockage Mooring or anchoring in the ap-
schedule is not in effect, commercial proaches to the lock is prohibited
and tow vessels shall take precedence. where such mooring will interfere with
Recreational craft may be locked navigation.
through with commercial craft. If no (j) Waiting for lockage. Vessels wait-
commercial vessels are scheduled to be ing for lockage shall wait in the clear
locked through within a reasonable outside of the lock approach channel,
time, not to exceed one hour after the or contingent upon permission by the
arrival of the recreational vessels at Lock Master, may at their own risk, lie
the lock, the recreational vessel may inside the approach channel at a place
be locked through separately. If a com- specified by the Lock Master. At Bon-
bined lockage cannot be arranged, the neville, vessels may at their own risk,
recreational craft shall be locked lay-to at the downstream moorage fa-
through after waiting three commer- cility on the north shore downstream
cial lockages. from the north guide wall provided a
(g) Loss of turn. Vessels that fail to 100-foot-wide open channel is main-
enter the lock with reasonable prompt- tained.
ness, after being authorized to do so, (k) Mooring in lock. All vessels must
shall lose their turn. be moored within the lock chamber so
(h) Lockage—(1) Multiple lockage. The that no portion of any vessel extends
Lock Master shall decide whether one beyond the lines painted on the lock
or more vessels or tows may be locked walls. Moorage within the lock cham-
through at the same time. Vessels with ber will be to floating mooring bits
flammable or highly hazardous cargo only and will be accomplished in a
will be passed separately from all other proper no-slip manner. Small vessels
vessels. Hazardous materials are de- will not be locked with a large vessel
scribed in part 171, title 49, Code of unless the large vessel is so moored
95
§ 207.718 33 CFR Ch. II (7–1–20 Edition)
(two mooring bits) that no lateral ers. Vessels having chains, lines, or
movement is possible. The vessel oper- drags either hanging over the sides or
ator will constantly monitor the posi- ends or dragging on the bottom for
tion of his vessel and his mooring bit steering or other purposes will not be
ties to assure that there is no fore or permitted to pass.
aft movement of his vessel and lateral (q) Tows. Prior to a lockage, the per-
movement is minimized. Propulsion by son in charge of a vessel towing a sec-
vessels within the lock chamber will ond vessel by lines shall, at a safe dis-
not be permitted during closure oper- tance outside of the incoming approach
ation of a lock chamber gate or as oth- channel, secure the second vessel to
erwise directed by the Lock Master. the towing vessel and keep it secured
(l) Crew to move craft. During the enduring the entire course of a lockage
tire lockage, the vessel operator shall and until safely clear of the outgoing
constantly attend the wheelhouse, be approach channel.
aware of the vessel’s position, and (r) Violation of regulations. Any viola-
monitor radio channel 14 on frequency tion of these regulations may subject
156.700 MHz, or otherwise be constantly the owner or master of any vessel to
able to communicate with the Lock any or all of the following: (1) Pen-
Master. At a minimum, vessels shall be alties prescribed by law of the U.S.
as vigilantly manned as if underway. Government (33 U.S.C. part 1); (2) Re-
(m) Speed. Vessels shall be ade- port of violation to the titled owner of
quately powered to maintain a safe the vessel; (3) Report of violation to
speed and be under control at all times. the U.S. Coast Guard; (4) Refusal of
Vessels shall not be raced or crowded lockage at the time of violation.
alongside another in the approach (s) Refuse in locks. No material of any
channels. When entering the lock, kind shall be thrown or discharged into
speed shall be reduced to a minimum the lock, or be deposited in the lock
consistent with safe navigation. As a area. Vessels leaking or spilling cargo
general rule, when a number of vessels will be refused lockage and suitable re-
are entering the lock, the following ports will be made to the U.S. Coast
vessel shall remain at least 200 feet Guard. Deck cargo will be so positioned
astern of the vessel ahead. so as not to be subject to falling over-
(n) Delay in lock. Vessels shall not un- board.
necessarily delay any operation of the (t) Handling valves, gates, bridges, and
locks. machinery. No person, unless authorized
(o) Landing of freight. No freight, bag- by the Lock Master, shall open or close
gage, personnel, or passengers shall be any bridge, gate, valve, or operate any
landed on or over the walls of the lock, machinery in connection with the lock.
except by permission and direction of However, the Lock Master may call for
the Lock Master. assistance from the master of any ves-
(p) Damage to lock or other structures. sel using the lock, should such aid be
The regulations in this section shall necessary; and when rendering such as-
not relieve owners and/or operators of sistance, the person so employed shall
vessels from liability for any damage be directly under the orders of the
to the lock or other structures or for Lock Master. Masters of vessels refus-
the immediate removal of any obstruc- ing to provide such assistance when it
tion. No vessel in less than stable float- is requested of them may be denied the
ing condition or having unusual sink- use of the lock by the Lock Master.
ing potential shall enter the locks or (u)–(v) [Reserved]
its approaches. Vessels must use great (w) Restricted areas. No vessel shall
care not to strike any part of the lock, enter or remain in any restricted area
any gate or appurtenance thereto, or at any time without first obtaining
machinery for operating the gates, or permission from the District Engineer,
the walls protecting the banks of the Corps of Engineers, U.S. Army, or his
approach channels. All vessels with duly authorized representative.
projecting irons, or rough surfaces (1) At Bonneville Lock and Dam. The
which may damage the gates or lock water restricted to all vessels, except
walls, shall not enter the lock unless Government vessels, are described as
provided with suitable buffers and fend- all waters of the Columbia River and
96
Bradford Slough within 1,000 feet above lock guidewall. The downstream limits
the first powerhouse, spillway, and sec- commence at the downstream end of
ond powerhouse (excluding the new the navigation lock guidewall thence
navigation lock channel) and all waters to the south (Oregon) shore at right an-
below the first powerhouse, spillway, gles and parallel to the axis of the dam.
second powerhouse, and old navigation Signs designate the restricted areas.
lock. This is bounded by a line com- (5) At Ice Harbor Lock and Dam. The
mencing from the westernmost tip of waters restricted to all vessels, except
Robins Island on the Oregon side of the Government vessels, are described as
river and running in a South 65 degrees all waters within a distance of about
West direction a distance of approxi- 800 yards upstream of the dam lying
mately 2,100 feet to a point 50 feet up- south of the navigation lock and bound
stream of the Hamilton Island Boat by the line commencing at the up-
Ramp on the Washington shore. Signs stream end of the guidewall, and run-
designate the restricted areas. The ap- ning a direction of 91°10′ true for a dis-
proach channel to the new navigation tance of 575 yards; thence 162°45′ to the
lock is outside the restricted area. south shore, a distance of about 385
(2) At the Dalles Dam. The waters re- yards. The downstream limits com-
stricted to only Government vessels mencing at the downstream end of the
are described as all downstream waters guidewall; thence to the south shore,
other than those of the navigation lock at right angles and parallel to the axis
downstream approach channel which of the dam. Signs designate the re-
lie between the Wasco County Bridge stricted areas.
and the project axis including those (6) At Lower Monumental Lock and
waters between the powerhouse and the Dam. The waters restricted to all ves-
Oregon shore and all upstream waters sels, except Government vessels, are
other than those of the navigation lock described as all waters commencing at
upstream approach channel which lie the upstream of the navigation lock
between the project axis and a line pro- guidewall and running in a direction of
jected from the upstream end of the 46°25′ true for a distance of 344 yards;
navigation lock guide wall to the junc- thence 326°19′ true for a distance of 362
tion of the concrete structure with the yards; thence 243°19′ true for a distance
earth fill section of the dam near the of 218 yards; thence 275°59′ true to the
upstream end of the powerhouse. north shore a distance of about 290
(3) At the John Day Dam. The waters yards. The downstream limits com-
restricted to only Government vessels mence at the downstream end of the
are described as all of the waters with- navigation lock guidewall; thence to
in a distance of about 1,000 yards above the north shore, at right angles and
the dam lying south of the navigation parallel to the axis of the dam. Signs
channel leading to the lock and bound- designate the restricted areas.
ed by a line commencing at the up- (7) At Little Goose Lock and Dam. The
stream end of the guide wall, and run- waters restricted to all vessels, except
ning in a direction 54°01′37″ true for a Government vessels, are described as
distance of 771 yards, thence 144°01′37″ all waters commencing at the up-
true across the river to the south stream of the navigation lock
shoreline. The downstream limit is guidewall and running in a direction of
marked by orange and white striped 60°37′ true for a distance of 676 yards;
monuments on the north and south thence 345°26′ true for a distance of 494
shores. yards; thence 262°37′47″ true to the dam
(4) At McNary Lock and Dam. The wa- embankment shoreline. The down-
ters restricted to all vessels, except to stream limits commence 512 yards
Government vessels, are described as downstream and at right angles to the
all waters commencing at the up- axis of the dam on the south shore;
stream end of the Oregon fish ladder thence parallel to the axis of the dam
thence running in the direction of 39°28′ to the north shore. Signs designate the
true for a distance of 540 yards; thence restricted areas.
7°49′ true for a distance of 1,078 yards; (8) At Lower Granite Lock and Dam.
thence 277°10′ for a distance of 468 yards The waters restricted to all vessels, ex-
to the upstream end of the navigation cept Government vessels, are described
97
§ 207.750 33 CFR Ch. II (7–1–20 Edition)
as all waters commencing at the up- (2) Supervision. The canal and all its
stream of the navigation lock appurtenances shall be under the su-
guidewall thence running in the direc- pervision of the District Engineer,
tion of 131°31′ true for a distance of 608 Corps of Engineers, Seattle. The Dis-
yards; thence 210°46′ true to the south trict Engineer will detail as many as-
shore, a distance of about 259 yards. sistants as may be necessary for the ef-
The downstream limits commence at ficient operation of the canal and the
the downstream end of navigation lock enforcement of the regulations in this
guidewall; thence to the south shore, paragraph. The movement of all vessels
at right angles and parallel to the axis and other floating things in the canal
of the dam. Signs designate the re- and approaches thereto shall be under
stricted areas. the direction of the District Engineer
[43 FR 3115, Jan. 23, 1978, as amended at 52 and his authorized assistants. All or-
FR 22310, June 11, 1987; 56 FR 13765, Apr. 4, ders given under the regulations to any
1991; 65 FR 4125, Jan. 26, 2000; 71 FR 25503, master or person in charge of any ves-
May 1, 2006] sel, raft, or other watercraft by the
District Engineer or his authorized as-
§ 207.750 Puget Sound Area, Wash.
sistants, either in person or through
(a) Waterway connecting Port Town- any canal operative, shall be acknowl-
send and Oak Bay; use, administration edged and obeyed. Failure to see, un-
and navigation—(1) Works to which the derstand, or comply with signals or in-
regulations apply. The ‘‘canal grounds’’ structions shall constitute a violation
when used in this paragraph shall mean of the regulations. Any person refusing
that area between the south end of the to comply with the regulations or any
jetties in Oak Bay and the northern orders given in pursuance thereof may
end of the dredge channel approxi- be denied the privileges of the canal or
mately 400 yards northwest of Port canal grounds.
Townsend Canal Light. The ‘‘canal’’ is (3) Speed. To avoid damage to other
the water lying between these limits vessels and to property along the
and the banks containing the same. shores, all vessels shall proceed at re-
(2) [Reserved] duced speed in the canal as follows:
(3) Trading, landing, etc. No business,
(i) From the west entrance of the
loading, or landing of freight or bag-
Lake Washington Ship Canal to the
gage will be allowed on or over the
western end of the west guide pier of
canal piers or bulkheads.
the Hiram M. Chittenden Locks, and
(4) Refuse. No person shall throw ma-
terial of any kind into the canal. from the east end of the easternmost
(5) [Reserved] guide pier of said Locks to the white
(6) Obstructions. On the canal’s being flashing dolphin located south of Web-
obstructed by a vessel, raft, or other ster Point on Lake Washington, includ-
craft, by sinking, grounding, or other- ing all of Salmon Bay, Lake Union,
wise, the District Engineer, Seattle, Portage Bay, and Union Bay, it shall
shall be notified by telephone or tele- be unlawful for any person to operate
graph as soon as possible by the person any watercraft or vessel at a speed in
in charge of the obstructing vessel, excess of 7 nautical miles per hour
raft, or craft. within 200 feet of any shoreline, pier,
(b) Lake Washington Ship Canal; use, restricted area or shore installation.
administration and navigation—(1) Defi- (ii) From the western end of the
nitions. The term ‘‘canal’’ as used in aforesaid west guide pier to the eastern
the regulations in this paragraph shall end of the aforesaid east guide pier at
include the water area in the locks and said Locks, it shall be unlawful for any
the channel and adjacent waters from a person to operate any watercraft or
point 5,500 feet northwest of the Bur- vessel at a speed in excess of 4 nautical
lington Northern, Inc. railway bridge miles per hour.
to the east end of the channel opposite NOTE: Signs are located along the canal to
Webster Point, Lake Washington. The indicate permissible speeds.
term ‘‘canal grounds’’ shall include all (4) Traffic signal lights. In addition to
grounds set aside for the use of the the lock signal lights described in
canal or occupied in its construction. paragraph (g)(5)(ii) of this section, a
98
red light, and a green light are in- canal piers or as directed by a lockman
stalled on the west side of the Ballard until ordered to proceed into the lock.
Bridge, on the east side of the Fremont Unless otherwise directed by the Dis-
Bridge, 1,000 feet west of the Montlake trict Engineer or his authorized assist-
Bridge, and 1,000 feet east of the ants, vessels owned or operated by the
Montlake Bridge, for the guidance of United States or the City of Seattle
vessels approaching the sections of the and passenger vessels operating on a
canal between Salmon Bay and Lake regular schedule shall have precedence
Union and between Lake Union and over all others in passing through the
Lake Washington, respectively. Vessels locks. Registered merchant vessels
of 300 gross tons and over and all ves- shall have precedence over pleasure
sels with tows, except as hereinafter craft, which shall pass through in the
provided, shall not pass the red lights. order of their arrival at the locks, and
The green lights will indicate that ves- both shall have precedence over vessels
sels may proceed. Vessels of less than towing floated timber or logs. Tows of
300 gross tons without tows may dis- floated timber and logs may be denied
regard these signals, but they shall the use of the locks during certain
travel at very slow speed when passing hours when both locks are busy passing
other vessels. Vessels of 300 gross tons other traffic. However, advance notice
and over and vessels with tows, except will be given towboat companies as to
logs, whose destination is easterly be- the periods when log tows will be de-
tween the Ballard Bridge and a point nied lockage.
2,500 feet east of the Ballard Bridge, (iv) Entering locks. Masters of vessels
may pass the red signals on the Ballard shall exercise the greatest care when
Bridge, provided, such passage will not entering either lock. The forward
interfere with approaching traffic. movement of vessels while taking posi-
(5) Approaching and passing through tion in the locks shall be very slow,
locks—(i) Signals for locks. Vessels with and boats entering the small lock shall
tows desiring to use the locks shall so reduce their speed to not more than
indicate by two long and three short two and one-half miles per hour when
blasts of a whistle, horn, or mega- within 200 feet of the outer gate and
phone. All other vessels desiring to use come to practically a full stop before
the locks shall so indicate by two long entering the lock so that in case the
and two short blasts. engine mechanism fails to operate
NOTE: The term ‘‘long blasts’’ means blasts
properly the momentum of the boat
of four seconds duration, and the term
‘‘short blasts’’ means blasts of one second may be stopped easily by its lines. The
duration. Signals for the opening of draw- masters of vessels entering either lock
bridges are prescribed in § 117.795 of chapter from either direction shall be alert to
I. receive and shall immediately comply
(ii) Lock signal lights. Red and green with instructions by voice or signal
signal lights are installed on the guide from the lock attendants.
pier west of the Burlington Northern, (v) Mooring in locks. Vessels entering
Inc. railway bridge below the locks. the locks shall be equipped with ade-
The green light will indicate to vessels quate lines, at least 50 feet in length
bound for the large lock that the lock being required fore and aft. While in
has been made ready. If the red light is the large lock vessels and rafts will be
burning, vessels bound for the large moored at the top of the lock wall.
lock shall moor at the pier. Vessels While in the small lock vessels shall be
bound for the small lock shall be guid- moored to the floating mooring wall.
ed into the small lock by traffic signals Lines shall not be released until the
thereon. The masters of all vessels ap- signal has been given by the lock force
proaching the locks from Puget Sound to leave the lock, after which there
shall be alert to receive and shall im- shall be no delay in leaving. All vessels
mediately comply with instructions by not equipped to handle tie-up lines
voice or signal from the employee on with power winches shall be equipped
the west pier. with suitable mooring lines of manila,
(iii) Precedence at locks. All vessels or other suitable fiber, of sufficient
approaching the locks shall stop at the size and strength to hold the vessel
points indicated by signs placed on the against the currents to be met within
99
§ 207.750 33 CFR Ch. II (7–1–20 Edition)
the lock chamber. The use of wire rope tenances or projections which might
for tie-up by vessels not equipped to damage the locks or other structures
handle such lines with power winches shall be fitted with adequate fenders.
is prohibited. Vessels may be denied Lockage of leaking vessels or vessels
the use of the locks if their lines are with overhanging loads may be refused.
not in good condition, or if the moor- Such barge or craft shall be moored in
ing bits on barges are not accessible or a location outside of the channel ap-
are not equipped to prevent lines from proach to the lock so as to not inter-
slipping off when the water is lowered fere with passing navigation. Vessels of
in the lock. All vessels entering the unusual dimensions, or other charac-
locks should have, in addition to the teristics which, in the opinion of the
master, at least one person on deck to lockmaster, pose a threat to the integ-
handle lines. Mates and deckhands, rity or safety of the locks or canal will
when preparing to moor within the be refused passage until written per-
lock chambers, should not throw heavy mission to pass is provided by the Dis-
mooring lines at the lockmen on the trict Engineer. Sufficient written data
walls, but should wait for a heaving lie and drawings shall be provided the Dis-
to be passed to them unless otherwise trict Engineer that an engineering de-
directed. All towboat crews, while termination can be made as to the safe-
locking or moving a tow out of the ty of the vessel. The District Engineer
lock chamber, should station them- shall have the right to inspect any
selves so as to preclude the possibility such vessels prior to passage. The oper-
of being injured by the parting of cable ators of all vessels shall use care to
or lines under strain. Persons attempt- avoid striking the guide walls or other
ing to take vessels through the locks structures pertaining to the canal.
without assistance on deck may be re- (ii) In the interest of safety and fire
quired to wait until the lock is clear of prevention, all woven rope fenders used
other traffic before passing through. with barges carrying flammable cargo
All operators of vessels are especially should be water-soaked or otherwise
cautioned to use extreme care while fireproofed prior to entering the lock
crowded in the locks to avoid accident approaches.
or fire on their boats. Under no cir-
(iii) Burning fenders should be
cumstances will small craft, such as
dropped overboard immediately rather
rowboats, launches and houseboats, or
than being placed on the deck of a
any other type of pleasure boats, be
barge or towboat.
locked through with barges used for
carrying any type of petroleum product (iv) A minimum of one man with a
or other hazardous material. At the portable fender shall be stationed at
discretion of the lockmaster, small the head end of every tow of hazardous
craft as described above may be locked cargo and at the aft if the lockmaster
through with barge tows containing so directs so as to protect the lock and
other than dangerous material. Opera- guide walls from damage while enter-
tors of small vessels and larger vessels ing or departing the lock structures.
operating in the proximity of each (v) All cylinder or containers holding
other shall be alert to the danger aris- gases under pressure, or any other
ing from the limited maneuverability chemical or substance, shall be se-
of the larger vessels, and shall exercise curely fastened to the hull of the vessel
all precautions to prevent accident. to prevent their rolling overboard into
(6) Damage to locks or other structures. the lock chamber and becoming a haz-
(i) The regulations in this paragraph ard.
shall not affect the liability of the (vi) All containers holding paint, gas-
owners and operators of vessels for any oline or other volatile materials shall
damage caused by their operations to be securely fastened with tight-fitting
the locks or other structures. The sides covers. To preclude a concentration of
and corners of all vessels and rafts potentially explosive vapors, no paint
passing through the locks should be will be allowed to be applied to the ex-
free from spikes or projections of any terior of vessel hulls, houses, machin-
kind which might damage the locks or ery, or other equipment while the ves-
other structures. Vessels with appur- sels are in the lock chamber.
100
(vii) All hatches of tank barges must (10) Obstructing navigation. (i) All ves-
be closed prior to entering lock. Tank sels and tows passing through the
barges with open hatch or hatches will canal shall be kept as close as prac-
be denied lockage. ticable to the center or, when safer, to
(viii) No smoking will be permitted the right side of the waterway, except
aboard vessels with cargoes of fuel or when passing other craft or preparing
explosives. to moor at a pier or wharf. Slowly
(ix) All vessels carrying hazardous moving log rafts, tows, or vessels shall,
cargoes shall so be identified with the whenever practicable, pull out of the
lockmaster. They shall be in compli- way when meeting other vessels or
ance with Department of Transpor- when other traffic proceeding in the
tation (U.S. Coast Guard) regulations same direction desires to pass. Vessels
(CFR title 46, parts 30 thru 40, parts 146 are forbidden to obstruct the canal in
thru 154, and 49 CFR parts 171 thru 179 any way or to delay by slow passage
and shall accordingly carry required through the canal the progress of other
markings. All DOT safety regulations vessels. Small and readily maneuver-
for transit of hazardous cargoes shall able vessels operating in the vicinity of
be adhered to, whether or not specifi- larger, less maneuverable vessels shall,
cally cited or duplicated herein. in all cases, keep clear and operate
(7) [Reserved] with caution in order that the larger
(8) Rafts. (i) No log raft exceeding 700 vessels may maintain safe steerage
feet in length or 76 feet in width shall way and that hazards to all vessels
pass through the canal. Boom sticks may be reduced. All vessels shall oper-
shall be smooth, with rounded ends, ate with extreme caution and move-
and securely tied together with cables, ments shall be made only when ade-
chains, or log swifters to prevent the quate precautions for the safety of
raft from spreading while in the lock. other vessels and property are being ef-
Rafts containing logs that do not float fectively employed.
above water for their entire length, or (ii) The placing of logs, vessels, or
are in danger of being submerged when other floating objects within the limits
they enter fresh water, shall not be of the dredged channels or anywhere in
towed in the canal until such logs are the canal where they may interfere
securely fastened so as to prevent their with navigation to or from piers or in-
escape from the raft. dustrial plants is prohibited.
(ii) Whenever required, log rafts pass- (11) Turning. Vessels exceeding 100
ing in through the lock will be given a feet in length shall not turn around, or
number that shall be fastened on one of attempt to turn around, in the con-
the logs in the raft. This number will crete revetted portions of the canal at
identify the raft and shall not be re- the Fremont Cut or Portage Cut sec-
moved until the logs are used. tions of the canal.
(iii) Two floats are maintained in (12) Excessive working of propellers or
Shilshole Bay near the entrance of the engines. Excessive working of the pro-
canal channel to facilitate the han- pellers of a vessel for purposes of test-
dling of logs in the canal. Rafts bound ing or for other purposes when this cre-
for the canal may be moored at one of ates objectionable or dangerous cur-
these floats, only the portion of the rents in the canal is forbidden. In case
raft that is to be taken through at a of grounding, the rapid or strong work-
single lockage being brought into the ing of the vessel’s engines is forbidden.
canal. The remainder of the raft may (13) Landing or mooring. No business,
be left at the float until the first por- trading, or landing of passengers,
tion has been towed to its destination freight, or baggage will be allowed on
above the lock. or over the canal piers or lock walls, or
(9) Tows. All vessels engaged in tow- over the piers or grounds forming a
ing shall use tow lines of the least part of the canal or its appurtenances.
practicable length and shall have full All persons in charge of or employed on
control of their tows at all times. Tow- any boat are prohibited from landing
ing more than one craft abreast is for- or mooring such boat at any of the
bidden if the total width of the tow, in- canal piers, unless in transit through
cluding the towboat, exceeds 70 feet. the canal or specially permitted to do
101
§ 207.750 33 CFR Ch. II (7–1–20 Edition)
so by the District Engineer or his au- that exceed the depth available over
thorized assistants. the intrusion barrier will advise the
(14) Deposit of refuse. The deposit, ei- lockmaster by sounding one long and
ther from watercraft or from the shore, two short blasts of a horn or whistle. A
of any oil or refuse matter in the canal yellow light mounted on a standard on
or upon the canal grounds is prohib- the south lock wall and opposite the
ited, nor shall water discharged from intrusion barrier will be lighted only
the side of a vessel be allowed to spill when the barrier is in the raised posi-
on the lock wall. tion.
(15) Aids to navigation. Persons in (v) It shall be the responsibility of
charge of log rafts or other tows, and the vessel operator to satisfy himself of
the masters of vessels and boats using the position of this barrier prior to
the canal, shall keep a careful watch passing over it.
when passing buoys or other aids to (c) West Waterway, Seattle Harbor;
navigation and promptly report to the navigation. (1) The movement of vessels
District Engineering or his authorized of 250 gross tons or over and all vessels
assistants any displacement or damage with tows of any kind through the nar-
to such aids. row section of West Waterway between
NOTE: Aids to navigation and other related the bend at Fisher’s Flour Mill dock
data are shown on Nautical Chart No. 18447 and the bend at the junction of East
published by the National Ocean Survey.
Waterway with Duwamish Waterway,
(16) Operation of salt water barrier in
and through the draws of the City of
the large lock of the Hiram M. Chittenden
Seattle and Northern Pacific Railway
Locks. (i) A salt water barrier is in-
Company bridges crossing this narrow
stalled across the east end of the large
section, shall be governed by red and
lock. This barrier, while in the de-
green traffic signal lights mounted on
pressed position, reduces the depth of
the north and south sides of the west
the water available at the east end of
tower of the City Light power crossing
this chamber from 36 feet to 33.75 feet
at West Spokane Street.
at low lake elevation (20 feet above
MLLW). In the raised position, the (2) Two green lights, one vertically
depth of water will be reduced to 16 above the other, displayed ahead of a
feet. In comparison, the depth of water vessel, shall indicate that the water-
available for navigation at the west way is clear. Two red lights, one
end of the large lock chamber is 29 feet vertically above the other, displayed
at mean lower low water. The purpose ahead of a vessel, shall indicate that
of this barrier is to reduce salt water the waterway is not clear.
intrusion into Lake Washington (3) A vessel approaching the narrow
through normal operations of the section and drawbridges from either
locks. end of the waterway shall give one long
(ii) The least depth of water available blast of a whistle and shall not enter
over the barrier when raised will be the narrow section until green lights
shown on signs placed near the ends of are displayed.
the guide piers to the large lock. A yel- (4) One vessel may follow another
low light mounted on these signs will vessel in either direction, but the chan-
be lighted only while the barrier is in a nel shall not be kept open in the same
raised position. direction for an unreasonable time if a
(iii) Vessels transiting the lock from vessel is waiting at the other end.
east to west having draft requirements (5) Tugs, launches, and small craft
that exceed the water depth available shall keep close to one side of the chan-
over the barrier will advise the nel when vessels or boats with tows are
lockmaster by sounding one long and passing.
two short blasts of a horn or whistle. (6) All craft shall proceed with cau-
When the yellow light is extinguished tion. The display of a green light is not
on the signboard, the operator of the a guarantee that the channel is clear of
vessel may assume the barrier has been traffic, and neither the United States
lowered. nor the City of Seattle will be respon-
(iv) Vessels transiting the lock from sible for any damage to vessels or other
west to east having draft requirements property which may be chargeable to
102
mistakes in the operation of the signal business of the owner, lessee, or oper-
lights or to their failure to operate. ator of the vessel.
(7) Reporting situation means a vessel
[26 FR 11203, Nov. 28, 1961]
movement by an operator that is re-
EDITORIAL NOTE: For FEDERAL REGISTER ci- quired to be reported. Typical exam-
tations affecting § 207.750, see the List of CFR ples are listed in the instructions on
Sections Affected, which appears in the the various ENG Forms. Five typical
Finding Aids section of the printed volume movements that are required to be re-
and at www.govinfo.gov.
ported by vessel operating companies
§ 207.800 Collection of navigation sta- include the following examples:
tistics. Company A is the barge owner, and the
(a) Definitions. For the purpose of this barge transports corn from Min-
regulation the following terms are de- neapolis, MN to New Orleans, LA, with
fined: fleeting at Cairo, IL.
(i) Lease/Charter: If Company A leases
(1) Navigable waters of the United
or charters the barge to Company B,
States means those waters of the United
then Company B is responsible for re-
States that are subject to the ebb and
porting the movements of the barge
flow of the tide shoreward to the mean
until the lease/charter expires.
high water mark, and/or are presently
(ii) Interline movement: A barge is
used, or have been used in the past, or
towed from Minneapolis to Cairo by
may be susceptible to use to transport
Company A, and from Cairo to New Or-
interstate or foreign commerce. (See 33
leans by Company B. Since Company A
CFR part 329 for a more complete defi-
is the barge owner, and the barge is not
nition of this term.)
leased. Company A reports the entire
(2) Offenses and Violations mean: movement of the barge with an origin
(i) Failure to submit a required re- of Minneapolis and a destination of
port. New Orleans.
(ii) Failure to provide a timely, accu- (iii) Vessel swap/trade: Company A
rate, and complete report. swaps barge with Company B to allow
(iii) Failure to submit monthly list- Company B to meet a delivery commit-
ings of idle vessels or vessels in transit. ment to New Orleans. Since Company
(iv) Failure to submit a report re- A has not leased/chartered the barge,
quired by the lockmaster or canal oper- Company A is responsible for filing the
ator. report. Company B is responsible for
(3) Leased or chartered vessel means a filing the report on the barge which is
vessel that is leased or chartered when traded to Company A. The swap or
the owner relinquishes control of the trade will not affect the primary re-
vessel through a contractual agree- sponsibility for reporting the indi-
ment with a second party for a speci- vidual vessel movements.
fied period of time and/or for a speci- (iv) Re-Consignment: Barge is recon-
fied remuneration from the lessee. signed to Mobile, AL. Company A re-
Commercial movements on an af- ports the movements as originating in
freightment basis are not considered a Minneapolis and terminating in Mo-
lease or charter of a particular vessel. bile. The point from which barge is re-
(4) Person or entity means an indi- consigned is not reported, only points
vidual, corporation, partnership, or of loading and unloading.
company. (v) Fleeting: Barge is deposited at a
(5) Timely means vessel and com- New Orleans fleeting area by Company
modity movement data must be re- A and towed by Company B from fleet-
ceived by the Waterborne Commerce ing area to New Orleans area dock for
Statistics Center within 30 days after unloading. Company A, as barge owner,
the close of the month in which the reports entire movements from Min-
vessel movement or nonmovement neapolis to the unloading dock in New
takes place. Orleans. Company B does not report
(6) Commercial vessel means a vessel any barge movement.
used in transporting by water, either (b) Implementation of the waterborne
merchandise or passengers for com- commerce statistics provisions of the

pensation or hire, or in the course of River and Harbor Act of 1922, as
103
§ 207.800 33 CFR Ch. II (7–1–20 Edition)
amended by the Water Resources De- (3) Movements of vessels exclusively

velopment Act of 1986 (Pub. L. 99–662), engaged in construction (e.g., pile-
mandates the following. drivers and crane barges). NOTE: how-
(1) Filing requirements. Except as pro- ever, that movements of supplies, ma-
vided in paragraph (b)(2) of this sec- terials, and crews to or from the con-
tion, the person or entity receiving re- struction site must be timely reported.
muneration for the movement of ves- (4) Movements of dredges to or from
sels or for the transportation of goods the dredging site. However, vessel
or passengers on the navigable waters movements of dredged material from
is responsible for assuring that the ac- the dredging site to the disposal site
tivity report of commercial vessels is must be reported.
timely filed. (5) Specific movements granted ex-
(i) For vessels under lease/charter emption in writing by the Waterborne
agreements, the lessee or charterer of Commerce Statistics Center.
any commercial vessel engaged in com- (D) ENG Forms 3925 and 3925b shall
mercial transportation will be respon- be completed and filed by vessel oper-
sible for the filing of said reports until ating companies each month for all
the lease/charter expires. voyages or vessel movements com-
(ii) The vessel owner, or his des- pleted during the month. Vessels that
ignated agent, is always the respon- did not complete a move during the
sible party for ensuring that all com- month shall be reported as idle or in
mercial activity of the vessel is timely transit.
reported. (E) The vessel operating company
may request a waiver from the Army
(2) The following Vessel Information
Corps of Engineers, and upon written
Reports are to be filed with the Army
approval by the Waterborne Commerce
Corps of Engineers, at the address spec-
Center, the company may be allowed to
ified on the ENG Form, and are to in-
provide the requisite information of
clude:
the above paragraph (D), on computer
(i) Monthly reports. These reports printouts, magnetic tape, diskettes, or
shall be made on ENG Forms furnished alternate medium approved by the Cen-
upon written request of the vessel oper- ter.
ating companies to the Army Corps of (F) Harbor Maintenance Tax informa-
Engineers. The forms are available at tion is required on ENG Form 3925 for
the following address: U.S. Army Corps cargo movements into or out of ports
of Engineers, Waterborne Commerce that are subject to the provisions of
Statistics Center, Post Office Box section 1402 of the Water Resources De-
61280, New Orleans, Louisiana 70161– velopment Act of 1986 (Pub. L. 99–662).
1280. (1) The name of the shipper of the
(A) All movements of domestic wa- commodity, and the shipper’s Internal
terborne commercial vessels shall be Revenue Service number or Social Se-
reported, including but not limited to: curity number, must be reported on the
Dry cargo ship and tanker moves, load- form.
ed and empty barge moves, towboat (2) If a specific exemption applies to
moves, with or without barges in tow, the shipper, the shipper should list the
fishing vessels, movements of crew appropriate exemption code. The spe-
boats and supply boats to offshore loca- cific exemption codes are listed in the
tions, tugboat moves and movements directions for ENG Form 3925.
of newly constructed vessels from the (3) Refer to 19 CFR part 24 for de-
shipyard to the point of delivery. tailed information on exemptions and
(B) Vessels idle during the month ports subject to the Harbor Mainte-
must also be reported. nance Tax.
(C) Notwithstanding the above re- (ii) Annual reports. Annually an in-
quirements, the following waterborne ventory of vessels available for com-
vessel movements need not be reported: mercial carriage of domestic commerce
(1) Movements of recreational ves- and vessel characteristics must be filed
sels. on ENG Forms 3931 and 3932.
(2) Movements of fire, police, and pa- (iii) Transaction reports. The sale,
trol vessels. charter, or lease of vessels to other
104
companies must also be reported to as- (iii) Data collected at Locks, Canals,
sure that proper decisions are made re- and other facilities operated by the
garding each company’s duty for re- Corps.
porting vessel movements during the (iv) Data provided by terminals on
year. In the absence of notification of ENG Form 3926.
the transaction, the former company of (v) Data provided by the other Fed-
record remains responsible until proper eral agencies including the Internal
notice is received by the Corps. Revenue Service, Customs Service,
(iv) Reports to lockmasters and canal Maritime Administration, Department
operators. Masters of self-propelled non- of Transportation, and Department of
recreational vessels which pass Commerce.
through locks and canals operated by (vi) Data provided by ports, local fa-
the Army Corps of Engineers will pro- cilities, and State or local govern-
vide the data specified on ENG Forms ments.
3102b, 3102c, and/or 3102d to the (vii) Data from trade journals and
lockmaster, canal operator, or his des- publications.
ignated representative in the manner (viii) Site visits and inspections.
and detail dictated. (2) Notice of violation. Once a report-
(c) Penalties for noncompliance. The ing violation is determined to have oc-
following penalties for noncompliance curred, the Chief of the Waterborne
can be assessed for offenses and viola- Commerce Statistics Center will notify
tions. the responsible party and allow 30 days
(1) Criminal penalties. Every person or for the reports to be filed after the
persons violating the provisions of this fact. If the reports are not filed within
regulation shall, for each and every of- this 30-day notice period, then appro-
fenses, be liable to a fine of not more priate civil or criminal actions will be
than $5,000, or imprisonment not ex- undertaken by the Army Corps of Engi-
ceeding two months, to be enforced in neers, including the proposal of civil or
any district court in the United States criminal penalties for noncompliance.
within whose territorial jurisdiction Typical cases for criminal or civil ac-
such offense may have been com- tion include, but are not limited to,
mitted. those violations which are willful, re-
(2) In addition, any person or entity peated, or have a substantial impact in
that fails to provide timely, accurate, the opinion of the Chief of the Water-
and complete statements or reports re- borne Commerce Statistics Center.
quired to be submitted by the regula- (3) Administrative assessment of civil
tion in this section may also be as- penalties. Civil penalties may be as-
sessed a civil penalty of up to $5,834 per sessed in the following manner.
violation under 33 U.S.C. 555, as amend- (i) Authorization. If the Chief of the
ed. Waterborne Commerce Statistics Cen-
(3) Denial of passage. In addition to ter finds that a person or entity has
these fines, penalties, and failed to comply with any of the provi-
imprisonments, the lockmaster or sions specified herein, he is authorized
canal operator can refuse to allow ves- to assess a civil penalty in accordance
sel passage. with the Class I penalty provisions of
(d) Enforcement policy. Every means 33 CFR part 326. Provided, however,
at the disposal of the Army Corps of that the procedures in 33 CFR part 326
Engineers will be utilized to monitor specifically implementing the Clean
and enforce these regulations. Water Act (33 U.S.C. 1319(g)(4)), public
(1) To identify vessel operating com- notice, comment period, and state co-
panies that should be reporting water- ordination, shall not apply.
borne commerce data, The Corps will (ii) Initiation. The Chief of the Water-
make use of, but is not limited to, the borne Commerce Statistics Center will
following sources. prepare and process a proposed civil
(i) Data on purchase and sale of ves- penalty order which shall state the
sels. amount of the penalty to be assessed,
(ii) U.S. Coast Guard vessel docu- describe by reasonable specificity the
mentation and reports. nature of the violation, and indicate
105
the applicable provisions of 33 CFR 208.82 Hetch Hetchy, Cherry Valley, and
part 326. Don Pedro Dams and Reservoirs.
(iii) Hearing requests. Recipients of a AUTHORITY: Sec. 7, 58 Stat. 890; 33 U.S.C.
proposed civil penalty order may file a 709.
written request for a hearing or other
proceeding. This request shall be as § 208.10 Local flood protection works;
specified in 33 CFR part 326 and shall maintenance and operation of
structures and facilities.
be addressed to the Director of the
Water Resources Support Center, Casey (a) General. (1) The structures and fa-
Building, Fort Belvoir, Virginia 22060– cilities constructed by the United
5586, who will provide the requesting States for local flood protection shall
person or entity with a reasonable op- be continuously maintained in such a
portunity to present evidence regard- manner and operated at such times and
ing the issuance, modification, or rev- for such periods as may be necessary to
ocation of the proposed order. There- obtain the maximum benefits.
after, the Director of the Water Re- (2) The State, political subdivision
sources Center shall issue a final order. thereof, or other responsible local
(4) Additional remedies. Appropriate agency, which furnished assurance that
cases may also be referred to the local it will maintain and operate flood con-
U.S. Attorney for prosecution, penalty trol works in accordance with regula-
collection, injunctive, and other relief tions prescribed by the Secretary of
by the Chief of the Waterborne Com- the Army, as required by law, shall ap-
merce Statistics Center. point a permanent committee con-
sisting of or headed by an official here-
[56 FR 13765, Apr. 4, 1991, as amended at 84 inafter called the ‘‘Superintendent,’’
FR 31497, July 2, 2019; 85 FR 35005, June 8,
2020]
who shall be responsible for the devel-
opment and maintenance of, and di-
rectly in charge of, an organization re-
PART 208—FLOOD CONTROL sponsible for the efficient operation
REGULATIONS and maintenance of all of the struc-
tures and facilities during flood periods
Sec. and for continuous inspection and
208.10 Local flood protection works; mainte- maintenance of the project works dur-
nance and operation of structures and fa- ing periods of low water, all without
cilities.
cost to the United States.
208.11 Regulations for use of storage allo-
cated for flood control or navigation and/ (3) A reserve supply of materials
or project operation at reservoirs subject needed during a flood emergency shall
to prescription of rules and regulations be kept on hand at all times.
by the Secretary of the Army in the in- (4) No encroachment or trespass
terest of flood control and navigation. which will adversely affect the effi-
208.19 Marshall Ford Dam and Reservoir cient operation or maintenance of the
(Mansfield Dam and Lake Travis), Colo- project works shall be permitted upon
rado River, Texas. the rights-of-way for the protective fa-
208.22 Twin Buttes Dam and Reservoir, Mid-
dle and South Concho Rivers, Tex.
cilities.
208.25 Pensacola Dam and Reservoir, Grand (5) No improvement shall be passed
(Neosho) River, Okla. over, under, or through the walls, lev-
208.26 Altus Dam and Reservoir, North Fork ees, improved channels or floodways,
Red River, Okla. nor shall any excavation or construc-
208.27 Fort Cobb Dam and Reservoir, Pond tion be permitted within the limits of
(Cobb) Creek, Oklahoma. the project right-of-way, nor shall any
208.28 Foss Dam and Reservoir, Washita change be made in any feature of the
River, Oklahoma. works without prior determination by
208.29 Arbuckle Dam and Lake of the Ar- the District Engineer of the Depart-
buckles, Rock Creek, Okla.
ment of the Army or his authorized
208.32 Sanford Dam and Lake Meredith, Ca-
nadian River, Tex. representative that such improvement,
208.33 Cheney Dam and Reservoir, North excavation, construction, or alteration
will not adversely affect the func-
Fork of Ninnescah River, Kans.

208.34 Norman Dam and Lake Thunderbird, tioning of the protective facilities.
Little River, Okla. Such improvements or alterations as
106
may be found to be desirable and per- on areas riverward of the levees. Peri-
missible under the above determina- odic inspections shall be made by the
tion shall be constructed in accordance Superintendent to insure that the
with standard engineering practice. above maintenance measures are being
Advice regarding the effect of proposed effectively carried out and, further, to
improvements or alterations on the be certain that:
functioning of the project and informa- (i) No unusual settlement, sloughing,
tion concerning methods of construc- or material loss of grade or levee cross
tion acceptable under standard engi- section has taken place;
neering practice shall be obtained from (ii) No caving has occurred on either
the District Engineer or, if otherwise the land side or the river side of the
obtained, shall be submitted for his ap- levee which might affect the stability
proval. Drawings or prints showing of the levee section;
such improvements or alterations as fi-
(iii) No seepage, saturated areas, or
nally constructed shall be furnished
sand boils are occurring;
the District Engineer after completion
of the work. (iv) Toe drainage systems and pres-
(6) It shall be the duty of the super- sure relief wells are in good working
intendent to submit a semiannual re- condition, and that such facilities are
port to the District Engineer covering not becoming clogged;
inspection, maintenance, and operation (v) Drains through the levees and
of the protective works. gates on said drains are in good work-
(7) The District Engineer or his au- ing condition;
thorized representatives shall have ac- (vi) No revetment work or riprap has
cess at all times to all portions of the been displaced, washed out, or re-
protective works. moved;
(8) Maintenance measures or repairs (vii) No action is being taken, such as
which the District Engineer deems nec- burning grass and weeds during inap-
essary shall be promptly taken or propriate seasons, which will retard or
made. destroy the growth of sod;
(9) Appropriate measures shall be (viii) Access roads to and on the levee
taken by local authorities to insure are being properly maintained;
that the activities of all local organiza- (ix) Cattle guards and gates are in
tions operating public or private facili- good condition;
ties connected with the protective (x) Crown of levee is shaped so as to
works are coordinated with those of drain readily, and roadway thereon, if
the Superintendent’s organization dur- any, is well shaped and maintained;
ing flood periods. (xi) There is no unauthorized grazing
(10) The Department of the Army will or vehicular traffic on the levees;
furnish local interests with an Oper-
(xii) Encroachments are not being
ation and Maintenance Manual for
made on the levee right-of-way which
each completed project, or separate
might endanger the structure or hinder
useful part thereof, to assist them in
its proper and efficient functioning
carrying out their obligations under
during times of emergency.
this part.
(b) Levees—(1) Maintenance. The Su- Such inspections shall be made imme-
perintendent shall provide at all times diately prior to the beginning of the
such maintenance as may be required flood season; immediately following
to insure serviceability of the struc- each major high water period, and oth-
tures in time of flood. Measures shall erwise at intervals not exceeding 90
be taken to promote the growth of sod, days, and such intermediate times as
exterminate burrowing animals, and to may be necessary to insure the best
provide for routine mowing of the grass possible care of the levee. Immediate
and weeds, removal of wild growth and steps will be taken to correct dan-
drift deposits, and repair of damage gerous conditions disclosed by such in-
caused by erosion or other forces. spections. Regular maintenance repair
Where practicable, measures shall be measures shall be accomplished during
taken to retard bank erosion by plant- the appropriate season as scheduled by

ing of willows or other suitable growth the Superintendent.
107
§ 208.10 33 CFR Ch. II (7–1–20 Edition)
(2) Operation. During flood periods shall be accomplished by methods ac-

the levee shall be patrolled continu- ceptable in standard engineering prac-
ously to locate possible sand boils or tice.
unusual wetness of the landward slope (2) Operation. Continuous patrol of
and to be certain that: the wall shall be maintained during
(i) There are no indications of slides flood periods to locate possible leakage
or sloughs developing; at monolith joints or seepage under-
(ii) Wave wash or scouring action is neath the wall. Floating plant or boats
not occurring; will not be allowed to lie against or tie
(iii) No low reaches of leave exist up to the wall. Should it become nec-
which may be overtopped; essary during a flood emergency to
(iv) No other conditions exist which pass anchor cables over the wall, ade-
might endanger the structure. quate measures shall be taken to pro-
Appropriate advance measures will be tect the concrete and construction
taken to insure the availability of ade- joints. Immediate steps shall be taken
quate labor and materials to meet all to correct any condition which endan-
contingencies. Immediate steps will be gers the stability of the wall.
taken to control any condition which (d) Drainage structures—(1) Mainte-
endangers the levee and to repair the nance. Adequate measures shall be
damaged section. taken to insure that inlet and outlet
(c) Flood walls—(1) Maintenance. Peri- channels are kept open and that trash,
odic inspections shall be made by the drift, or debris is not allowed to accu-
Superintendent to be certain that: mulate near drainage structures. Flap
(i) No seepage, saturated areas, or gates and manually operated gates and
sand boils are occurring; valves on drainage structures shall be
(ii) No undue settlement has occurred examined, oiled, and trial operated at
which affects the stability of the wall least once every 90 days. Where drain-
or its water tightness; age structures are provided with stop
(iii) No trees exist, the roots of which log or other emergency closures, the
might extend under the wall and offer condition of the equipment and its
accelerated seepage paths; housing shall be inspected regularly
(iv) The concrete has not undergone and a trial installation of the emer-
cracking, chipping, or breaking to an gency closure shall be made at least
extent which might affect the stability once each year. Periodic inspections
of the wall or its water tightness; shall be made by the Superintendent to
(v) There are no encroachments upon be certain that:
the right-of-way which might endanger (i) Pipes, gates, operating mecha-
the structure or hinder its functioning nism, riprap, and headwalls are in good
in time of flood; condition;
(vi) Care is being exercised to prevent (ii) Inlet and outlet channels are
accumulation of trash and debris adja- open;
cent to walls, and to insure that no (iii) Care is being exercised to pre-
fires are being built near them; vent the accumulation of trash and de-
(vii) No bank caving conditions exist bris near the structures and that no
riverward of the wall which might en- fires are being built near bituminous
danger its stability; coated pipes;
(viii) Toe drainage systems and pres- (iv) Erosion is not occurring adjacent
sure relief wells are in good working to the structure which might endanger
condition, and that such facilities are its water tightness or stability.
not becoming clogged. Immediate steps will be taken to repair
Such inspections shall be made imme- damage, replace missing or broken
diately prior to the beginning of the parts, or remedy adverse conditions
flood season, immediately following disclosed by such inspections.
each major high water period, and oth- (2) Operation. Whenever high water
erwise at intervals not exceeding 90 conditions impend, all gates will be in-
days. Measures to eliminate encroach- spected a short time before water
ments and effect repairs found nec- reaches the invert of the pipe and any
essary by such inspections shall be un- object which might prevent closure of
dertaken immediately. All repairs the gate shall be removed. Automatic
108
gates shall be closely observed until it nished local interests upon completion
has been ascertained that they are se- of the project. Closure structures will
curely closed. Manually operated gates be inspected frequently during flood
and valves shall be closed as necessary periods to ascertain that no undue
to prevent inflow of flood water. All leakage is occurring and that drains
drainage structures in levees shall be provided to care for ordinary leakage
inspected frequently during floods to are functioning properly. Boats or
ascertain whether seepage is taking floating plant shall not be allowed to
place along the lines of their contact tie up to closure structures or to dis-
with the embankment. Immediate charge passengers or cargo over them.
steps shall be taken to correct any ad- (f) Pumping plants—(1) Maintenance.
verse condition. Pumping plants shall be inspected by
(e) Closure structures—(1) Mainte- the Superintendent at intervals not to
nance. Closure structures for traffic exceed 30 days during flood seasons and
openings shall be inspected by the Su- 90 days during off-flood seasons to in-
perintendent every 90 days to be cer- sure that all equipment is in order for
tain that: instant use. At regular intervals, prop-
(i) No parts are missing; er measures shall be taken to provide
(ii) Metal parts are adequately cov- for cleaning plant, buildings, and
ered with paint; equipment, repainting as necessary,
(iii) All movable parts are in satisfac- and lubricating all machinery. Ade-
tory working order; quate supplies of lubricants for all
(iv) Proper closure can be made types of machines, fuel for gasoline or
promptly when necessary; diesel powered equipment, and flash
(v) Sufficient materials are on hand lights or lanterns for emergency light-
for the erection of sand bag closures ing shall be kept on hand at all times.
and that the location of such materials Telephone service shall be maintained
will be readily accessible in times of at pumping plants. All equipment, in-
emergency. cluding switch gear, transformers, mo-
Tools and parts shall not be removed tors, pumps, valves, and gates shall be
for other use. Trial erections of one or trial operated and checked at least
more closure structures shall be made once every 90 days. Megger tests of all
once each year, alternating the struc- insulation shall be made whenever wir-
tures chosen so that each gate will be ing has been subjected to undue damp-
erected at least once in each 3-year pe- ness and otherwise at intervals not to
riod. Trial erection of all closure struc- exceed one year. A record shall be kept
tures shall be made whenever a change showing the results of such tests. Wir-
is made in key operating personnel. ing disclosed to be in an unsatisfactory
Where railroad operation makes trial condition by such tests shall be
erection of a closure structure infeasi- brought to a satisfactory condition or
ble, rigorous inspection and drill of op- shall be promptly replaced. Diesel and
erating personnel may be substituted gasoline engines shall be started at
therefor. Trial erection of sand bag clo- such intervals and allowed to run for
sures is not required. Closure materials such length of time as may be nec-
will be carefully checked prior to and essary to insure their serviceability in
following flood periods, and damaged times of emergency. Only skilled elec-
or missing parts shall be repaired or re- tricians and mechanics shall be em-
placed immediately. ployed on tests and repairs. Operating
(2) Operation. Erection of each mov- personnel for the plant shall be present
able closure shall be started in suffi- during tests. Any equipment removed
cient time to permit completion before from the station for repair or replace-
flood waters reach the top of the struc- ment shall be returned or replaced as
ture sill. Information regarding the soon as practicable and shall be trial
proper method of erecting each indi- operated after reinstallation. Repairs
vidual closure structure, together with requiring removal of equipment from
an estimate of the time required by an the plant shall be made during off-flood
experienced crew to complete its erec- seasons insofar as practicable.
tion will be given in the Operation and (2) Operation. Competent operators
Maintenance Manual which will be fur- shall be on duty at pumping plants
109
§ 208.10 33 CFR Ch. II (7–1–20 Edition)
whenever it appears that necessity for odic repair and cleaning of debris ba-
pump operation is imminent. The oper- sins, check dams, and related struc-
ator shall thoroughly inspect, trial op- tures as may be necessary.
erate, and place in readiness all plant (2) Operation. Both banks of the chan-
equipment. The operator shall be fa- nel shall be patrolled during periods of
miliar with the equipment manufactur- high water, and measures shall be
ers’ instructions and drawings and with taken to protect those reaches being
the ‘‘Operating Instructions’’ for each attacked by the current or by wave
station. The equipment shall be oper- wash. Appropriate measures shall be
ated in accordance with the above-
taken to prevent the formation of jams
mentioned ‘‘Operating Instructions’’
of ice or debris. Large objects which be-
and care shall be exercised that proper
lubrication is being supplied all equip- come lodged against the bank shall be
ment, and that no overheating, undue removed. The improved channel or
vibration or noise is occurring. Imme- floodway shall be thoroughly inspected
diately upon final recession of flood immediately following each major high
waters, the pumping station shall be water period. As soon as practicable
thoroughly cleaned, pump house sumps thereafter, all snags and other debris
flushed, and equipment thoroughly in- shall be removed and all damage to
spected, oiled and greased. A record or banks, riprap, deflection dikes and
log of pumping plant operation shall be walls, drainage outlets, or other flood
kept for each station, a copy of which control structures repaired.
shall be furnished the District Engi- (h) Miscellaneous facilities—(1) Mainte-
neer following each flood. nance. Miscellaneous structures and fa-
(g) Channels and floodways—(1) Main- cilities constructed as a part of the
tenance. Periodic inspections of im- protective works and other structures
proved channels and floodways shall be and facilities which function as a part
made by the Superintendent to be cer- of, or affect the efficient functioning of
tain that: the protective works, shall be periodi-
(i) The channel or floodway is clear cally inspected by the Superintendent
of debris, weeds, and wild growth;
and appropriate maintenance measures
(ii) The channel or floodway is not
taken. Damaged or unserviceable parts
being restricted by the depositing of
waste materials, building of unauthor- shall be repaired or replaced without
ized structures or other encroach- delay. Areas used for ponding in con-
ments; nection with pumping plants or for
(iii) The capacity of the channel or temporary storage of interior run-off
floodway is not being reduced by the during flood periods shall not be al-
formation of shoals; lowed to become filled with silt, debris,
(iv) Banks are not being damaged by or dumped material. The Super-
rain or wave wash, and that no slough- intendent shall take proper steps to
ing of banks has occurred; prevent restriction of bridge openings
(v) Riprap sections and deflection and, where practicable, shall provide
dikes and walls are in good condition; for temporary raising during floods of
(vi) Approach and egress channels ad- bridges which restrict channel capac-
jacent to the improved channel or ities during high flows.
floodway are sufficiently clear of ob- (2) Operation. Miscellaneous facilities
structions and debris to permit proper shall be operated to prevent or reduce
functioning of the project works. flooding during periods of high water.
Such inspections shall be made prior to Those facilities constructed as a part
the beginning of the flood season and of the protective works shall not be
otherwise at intervals not to exceed 90 used for purposes other than flood pro-
days. Immediate steps will be taken to tection without approval of the Dis-
remedy any adverse conditions district Engineer unless designed therefor.
closed by such inspections. Measures
will be taken by the Superintendent to (Sec. 3, 49 Stat. 1571, as amended; 33 U.S.C.
promote the growth of grass on bank 701c)
slopes and earth deflection dikes. The [9 FR 9999, Aug. 17, 1944; 9 FR 10203, Aug. 22,
Superintendent shall provide for peri- 1944]
110
§ 208.11 Regulations for use of storage the interest of flood control and navi-
allocated for flood control or navigation as follows:
gation and/or project operation at
reservoirs subject to prescription of The operation and maintenance of the
rules and regulations by the Sec- dams shall be subject to reasonable rules and
regulations of the Secretary of the Army in
retary of the Army in the interest of
the interest of flood control and navigation.
flood control and navigation.
NOTE: This Regulation will also be applica-
(a) Purpose. This regulation pre- ble to dam and reservoir projects operated
scribes the responsibilities and general under provisions of future legislative acts
procedures for regulating reservoir wherein the Secretary of the Army is di-
rected to prescribe rules and regulations in
projects capable of regulation for flood
the interest of flood control and navigation.
control or navigation and the use of The Chief of Engineers, U.S. Army Corps of
storage allocated for such purposes and Engineers, is designated the duly authorized
provided on the basis of flood control representative of the Secretary of the Army
and navigation, except projects owned to exercise the authority set out in the Con-
and operated by the Corps of Engi- gressional Acts. This Regulation will nor-
neers; the International Boundary and mally be implemented by letters of under-
Water Commission, United States and standing between the Corps of Engineers and
project owner and will incorporate the provi-
Mexico; and those under the jurisdic- sions of such letters of understanding prior
tion of the International Joint Com- to the time construction renders the project
mission, United States, and Canada, capable of significant impoundment of
and the Columbia River Treaty. The in- water. A water control agreement signed by
tent of this regulation is to establish both parties will follow when deliberate im-
an understanding between project own- poundment first begins or at such time as
ers, operating agencies, and the Corps the responsibilities of any Corps-owned
projects may be transferred to another enti-
of Engineers. ty. Promulgation of this Regulation for a
(b) Responsibilities. The basic respon- given project will occur at such time as the
sibilities of the Corps of Engineers re- name of the project appears in the FEDERAL
garding project operation are set out in REGISTER in accordance with the require-
the cited authority and described in ments of paragraph 6k. When agreement on a
the following paragraphs: water control plan cannot be reached be-
tween the Corps and the project owner after
(1) Section 7 of the Flood Control Act coordination with all interested parties, the
of 1944 (58 Stat. 890, 33 U.S.C. 709) di- project name will be entered in the FEDERAL
rects the Secretary of the Army to pre- REGISTER and the Corps of Engineers plan
scribe regulations for flood control and will be the official water control plan until
navigation in the following manner: such time as differences can be resolved.
Hereafter, it shall be the duty of the Sec- (3) Federal Energy Regulatory Com-
retary of War to prescribe regulations for the mission (FERC), formerly Federal
use of storage allocated for flood control or Power Commission (FPC), Licenses.
navigation at all reservoirs constructed (i) Responsibilities of the Secretary
wholly or in part with Federal funds proof the Army and/or the Chief of Engi-
vided on the basis of such purposes, and the
neers in FERC licensing actions are set
operation of any such project shall be in ac-
cordance with such regulations: Provided, forth in reference 3c above and perti-
That this section shall not apply to the Ten- nent sections are cited herein. The
nessee Valley Authority, except that in case Commission may further stipulate as a
of danger from floods on the lower Ohio and licensing condition, that a licensee
Mississippi Rivers the Tennessee Valley Au- enter into an agreement with the De-
thority is directed to regulate the release of partment of the Army providing for op-
water from the Tennessee River into the eration of the project during flood
Ohio River in accordance with such instruc- times, in accordance with rules and
tions as may be issued by the War Depart-
regulations prescribed by the Secretary
ment.
of the Army.
(2) Section 9 of Public Law 436–83d (A) Section 4(e) of the Federal Power
Congress (68 Stat. 303) provides for the Act requires approval by the Chief of
development of the Coosa River, Ala- Engineers and the Secretary of the
bama and Georgia, and directs the Sec- Army of plans of dams or other struc-
retary of the Army to prescribe rules tures affecting the navigable capacity
and regulations for project operation in of any navigable waters of the United
111
§ 208.11 33 CFR Ch. II (7–1–20 Edition)
States, prior to issuance of a license by (ii) Federal Power Commission Order

the Commission as follows: No. 540 issued October 31, 1975, and pub-
lished November 7, 1975 (40 FR 51998),
The Commission is hereby authorized and
empowered to issue licenses to citizens * * *
amending § 2.9 of the Commission’s
for the purpose of constructing, operating General Policy and Interpretations pre-
and maintaining dams, water conduits, res- scribed Standardized Conditions
ervoirs, powerhouses, transmission lines, or (Forms) for Inclusion in Preliminary
other project works necessary or convenient Permits and Licenses Issued Under
for the development and improvement of part I of the Federal Power Act. As an
navigation and for the development, trans- example, Article 12 of Standard Form
mission, and utilization of power across, L–3, titled: ‘‘Terms and Conditions of
along, from or in any of the streams or other
License for Constructed Major Projects
bodies of water over which Congress has ju-
risdiction * * * Provided further, That no li-
Affecting Navigable Waters of the
cense affecting the navigable capacity of any United States,’’ sets forth the Commis-
navigable waters of the United States shall sion’s interpretation of appropriate
be issued until the plans of the dam or other sections of the Act, which deal with
structures affecting navigation have been ap- navigation aspects, and attendant re-
proved by the Chief of Engineers and the sponsibilities of the Secretary of the
Secretary of the Army. Army in licensing actions as follows:
(B) Sections 10(a) and 10(c) of the The United States specifically retains and
Federal Power Act specify conditions safeguards the right to use water in such
of project licenses including the fol- amount, to be determined by the Secretary
lowing: of the Army, as may be necessary for the
(1) Section 10(a). ‘‘That the project purposes of navigation on the navigable wa-
terway affected; and the operations of the
adopted * * * shall be such as in the Licensee, so far as they affect the use, stor-
judgment of the Commission will be age and discharge from storage of waters af-
best adapted to a comprehensive plan fected by the license, shall at all times be
for improving or developing a water- controlled by such reasonable rules and regu-
way or waterways for the use or benefit lations as the Secretary of the Army may
of interstate or foreign commerce, for prescribe in the interest of navigation, and
the improvement and utilization of wa- as the Commission may prescribe for the
terpower development, and for other protection of life, health, and property, * * *
and the Licensee shall release water from
beneficial public uses * * *.’’ the project reservoir at such rate * * * as the
(2) Section 10(c). ‘‘That the licensee Secretary of the Army may prescribe in the
shall * * * so maintain and operate interest of navigation, or as the Commission
said works as not to impair navigation, may prescribe for the other purposes herein-
and shall conform to such rules and before mentioned.
regulations as the Commission may (c) Scope and terminology. This regula-
from time to time prescribe for the tion applies to Federal authorized flood
protection of life, health, and property control and/or navigation storage
* * *.’’ projects, and to non-Federal projects
(C) Section 18 of the Federal Power which require the Secretary of the
Act directs the operation of any navi- Army to prescribe regulations as a con-
gation facilities built under the provi- dition of the license, permit or legisla-
sion of that Act, be controlled by rules tion, during the planning, design and
and regulations prescribed by the Sec- construction phases, and throughout
retary of the Army as follows: the life of the project. In compliance
The operation of any navigation facilities with the authority cited above, this
which may be constructed as part of or in regulation defines certain activities
connection with any dam or diversion struc- and responsibilities concerning water
ture built under the provisions of this Act, control management throughout the
whether at the expense of a licensee here- Nation in the interest of flood control
under or of the United States, shall at all and navigation. In carrying out the
times be controlled by such reasonable rules
conditions of this regulation, the
and regulations in the interest of navigation;
including the control of the pool caused by owner and/or operating agency will
comply with applicable provisions of
such dam or diversion structure as may be

made from time to time by the Secretary of Pub. L. 85–624, the Fish and Wildlife
the Army, * * *. Coordination Act of 1958, and Pub. L.
112
92–500, the Federal Water Pollution they indicate controlling or limiting

Control Act Amendments of 1972. This rates of discharge and storage space re-
regulation does not apply to local flood quired for flood control and/or naviga-
protection works governed by § 208.10, tion, based on the runoff potential dur-
or to navigation facilities and associ- ing various seasons of the year.
ated structures which are otherwise (5) For the purpose of this regulation,
covered by part 207 (Navigation Regu- the term water control plan is limited to
lations) of title 33 of the code. Small the plan of regulation for a water re-
reservoirs, containing less than 12,500 sources project in the interest of flood
acre-feet of flood control or navigation control and/or navigation. The water
storage, may be excluded from this reg- control plan must conform with pro-
ulation and covered under § 208.10, un- posed allocations of storage capacity
less specifically required by law or con- and downstream conditions or other re-
ditions of the license or permit. quirements to meet all functional ob-
(1) The terms reservoir and project as jectives of the particular project, act-
used herein include all water resource ing separately or in combination with
impoundment projects constructed or other projects in a system.
modified, including natural lakes, that
(6) The term real-time denotes the
are subject to this regulation.
processing of current information or
(2) The term project owner refers to
data in a sufficiently timely manner to
the entity responsible for maintenance,
influence a physicial response in the
physical operation, and safety of the
system being monitored and con-
project, and for carrying out the water
trolled. As used herein the term con-
control plan in the interest of flood
notes * * * the analyses for and execu-
control and/or navigation as prescribed
tion of water control decisions for both
by the Corps of Engineers. Special ar-
rangements may be made by the minor and major flood events and for
project owner for ‘‘operating agencies’’ navigation, based on prevailing
to perform these tasks. hydrometeorological and other condi-
(3) The term letter of understanding as tions and constraints, to achieve effi-
used herein includes statements which cient management of water resource
consummate this regulation for any systems.
given project and define the general (d) Procedures—(1) Conditions during
provisions or conditions of the local project formulation. During the planning
sponsor, or owner, cooperation agreed and design phases, the project owner
to in the authorizing legislative docu- should consult with the Corps of Engi-
ment, and the requirements for compli- neers regarding the quantity and value
ance with section 7 of the 1944 Flood of space to reserve in the reservoir for
Control Act, the Federal Power Act or flood control and/or navigation pur-
other special congressional act. This poses, and for utilization of the space,
information will be specified in the and other requirements of the license,
water control plan and manual. The permit or conditions of the law. Rel-
letter of understanding will be signed evant matters that bear upon flood
by a duly authorized representative of control and navigation accomplish-
the Chief of Engineers and the project ment include: Runoff potential, res-
owner. A ‘‘field working agreement’’ ervoir discharge capability, down-
may be substituted for a letter of un- stream channel characteristics,
derstanding, provided that the speci- hydrometeorological data collection,
fied minimum requirements of the lat- flood hazard, flood damage characteris-
ter, as stated above, are met. tics, real estate acquisition for flowage
(4) The term water control agreement requirements (fee and easement), and
refers to a compliation of water control resources required to carry out the
criteria, guidelines, diagrams, release water control plan. Advice may also be
schedules, rule curves and specifica- sought on determination of and regula-
tions that basically govern the use of tion for the probable maximum or
reservoir storage space allocated for other design flood under consideration
flood control or navigation and/or re- by the project owner to establish the
lease functions of a water control quantity of surcharge storage space,

project for these purposes. In general, and freeboard elevation of top of dam
113
§ 208.11 33 CFR Ch. II (7–1–20 Edition)
or embankment for safety of the water control plan, will be developed

project. and documented in a water control
(2) Corps of Engineers involvement. If manual prepared by the Corps of Engi-
the project owner is responsible for neers. Development of the manual will
real-time implemenetation of the be coordinated with the project owner
water control plan, consultation and to obtain the necessary pertinent infor-
assistance will be provided by the mation, and to insure compatibility
Corps of Engineers when appropriate with other project purposes and with
and to the extent possible. During any surcharge regulation. Major topics in
emergency that affects flood control the manual will include: Authorization
and/or navigation, the Corps of Engi- and description of the project,
neers may temporarily prescribe regu- hydrometeorology, data collection and
lation of flood control or navigation communication networks, hydrologic
storage space on a day-to-day (real- forecasting, the water control plan,
time) basis without request of the and water resource management func-
project owner. Appropriate consider- tions, including responsibilities and co-
ation will be given for other authorized ordination for water control decision-
project functions. Upon refusal of the making. Special instructions to the
project owner to comply with regula- dam tender or reservoir manager on
tions prescribed by the Corps of Engi- data collection, reporting to higher
neers, a letter will be sent to the Federal authority, and on procedures
project owner by the Chief of Engineers to be followed in the event of a commu-
or his duly authorized representative nication outage under emergency con-
describing the reason for the regula- ditions, will be prepared as an exhibit
tions prescribed, events that have tran- in the manual. Other exhibits will in-
spired, and notification that the clude copies of this regulation, letters
project owner is in violation of the of understanding consummating this
Code of Federal Regulations. Should an regulation, and the water control
impasse arise, in that the project agreements. After approval by the
owner or the designated operating enti- Chief of Engineers or his duly author-
ty persists in noncompliance with reg- ized representative, the manual will be
ulations prescribed by the Corps of En- furnished the project owner.
gineers, measures may be taken to as- (5) Water control agreement. (i) A
sure compliance. water control diagram (graphical) will
(3) Corps of Engineers implementation be prepared by the Corps of Engineers
of real-time water control decisions. The for each project having variable space
Corps of Engineers may prescribe the reservation for flood control and/or
continuing regulation of flood control navigation during the year; e.g., vari-
storage space for any project subject to able seasonal storage, joint-use space,
this regulation on a day-to-day (real- or other rule curve designation. Res-
time) basis. When this is the case, con- ervoir inflow parameters will be in-
sultation and assistance from the cluded on the diagrams when appro-
project owner to the extent possible priate. Concise notes will be included
will be expected. Special requests by on the diagrams prescribing the use of
the project owner, or appropriate oper- storage space in terms of release sched-
ating entity, are preferred before the ules, runoff, nondamaging or other con-
Corps of Engineers offers advice on trolling flow rates downstream of the
real-time regulation during surcharge damsite, and other major factors as ap-
storage utilization. propriate. A water control release
(4) Water control plan and manual. schedule will be prepared in tabular
Prior to project completion, water conform for projects that do not have vari-
trol managers from the Corps of Engi- able space reservation for flood control
neers will visit the project and the area and/or navigation. The water control
served by the project to become famil- diagram or release schedule will be
iar with the water control facilities, signed by a duly authorized representa-
and to insure sound formulation of the tive of the Chief of Engineers, the
water control plan. The formal plan of project owner, and the designated oper-
regulation for flood control and/or ating agency, and will be used as the
navigation, referred to herein as the basis for carrying out this regulation.
114
Each diagram or schedule will contain quired within and adjacent to the wa-
a reference to this regulation. tershed and downstream of the
(ii) When deemed necessary by the damsite, sufficient to regulate the
Corps of Engineers, information given project for flood control and/or naviga-
on the water control diagram or re- tion in an efficient manner. When data
lease schedule will be supplemented by collection stations outside the imme-
appropriate text to assure mutual un- diate vicinity of the damsite are re-
derstanding on certain details or other quired, and funds for installation, ob-
important aspects of the water control servation, and maintenance are not
plan not covered in this regulation, on available from other sources, the Corps
the water control diagram or in the re- of Engineers may agree to share the
lease schedule. This material will in- costs for such stations with the project
clude clarification of any aspects that owner. Availability of funds and ur-
might otherwise result in unsatisfac- gency of data needs are factors which
tory project performance in the inter- will be considered in reaching decisions
est of flood contol and/or navigation. on cost sharing.
Supplementation of the agreement will (7) Project safety. The project owner is
be necessary for each project where the responsible for the safety of the dam
Corps of Engineers exercises the discre- and appurtenant facilities and for regu-
tionary authority to prescribe the lation of the project during surcharge
flood control regulation on a day-to- storage utilization. Emphasis upon the
day (real-time) basis. The agreement safety of the dam is especially impor-
will include delegation of the responsi- tant in the event surcharge storage is
bility. The document should also cite, utilized, which results when the total
as appropriate, section 7 of the 1944 storage space reserved for flood control
Flood Control Act, the Federal Power is exceeded. Any assistance provided by
Act and/or other congressional legisla- the Corps of Engineers concerning sur-
tion authorizing construction an/or di- charge regulation is to be utilized at
recting operation of the project. the discretion of the project owner, and
(iii) All flood control regulations does not relieve the owner of the re-
published in the FEDERAL REGISTER sponsibility for safety of the project.
under this section (part 208) of the code (8) Notification of the general public.
prior to the date of this publication The Corps of Engineers and other inter-
which are listed in § 208.11(e) are hereby ested Federal and State agencies, and
superseded. the project owner will jointly sponsor
(iv) Nothing in this regulation pro- public involvement activities, as ap-
hibits the promulgation of specific reg- propriate, to fully apprise the general
ulations for a project in compliance public of the water control plan. Public
with the authorizing acts, when agree- meetings or other effective means of
ment on acceptable regulations cannot notification and involvement will be
be reached between the Corps of Engi- held, with the initial meeting being
neers and the owner. conducted as early as practicable but
(6) Hydrometeorological instrumenta- not later than the time the project
tion. The project owner will provide in- first becomes operational. Notice of
strumentation in the vicinity of the the initial public meeting shall be pub-
damsite and will provide communica- lished once a week for 3 consecutive
tion equipment necessary to record and weeks in one or more newspapers of
transmit hydrometeorological and res- general circulation published in each
ervoir data to all appropriate Federal county covered by the water control
authorities on a real-time basis unless plan. Such notice shall also be used
there are extenuating circumstances or when appropriate to inform the public
are otherwise provided for as a condi- of modifications in the water control
tion of the license or permit. For those plan. If no newspaper is published in a
projects where the owner retains re- county, the notice shall be published in
sponsibility for real-time implementa- one or more newspapers of general cir-
tion of the water control plan, the culation within that county. For the
owner will also provide or arrange for purposes of this section a newspaper is
the measurement and reporting of one qualified to publish public notices

hydrometeorological parameters re- under applicable State law. Notice
115
§ 208.11 33 CFR Ch. II (7–1–20 Edition)
shall be given in the event significant other means requested by the Corps of
problems are anticipated or experi- Engineers.
enced that will prevent carrying out (v) In all cases where the project
the approved water control plan or in owner retains responsibility for real-
the event that an extreme water condi- time implementation of the water con-
tion is expected that could produce se- trol plan, he shall make current deter-
vere damage to property or loss of life. minations of: Reservoir inflow, flood
The means for conveying this informa- control storage utilized, and scheduled
tion shall be commensurate with the releases. He shall also determine stor-
urgency of the situation. The water age space and releases required to com-
control manual will be made available ply with the water control plan pre-
for examination by the general public scribed by the Corps of Engineers. The
upon request at the appropriate office owner shall report this information on
of the Corps of Engineers, project a timely basis as requested by the
owner or designated operating agency. Corps of Engineers.
(9) Other generalized requirements for (vi) The water control plan is subject
flood control and navigation. (i) Storage to temporary modification by the
space in the reservoirs allocated for Corps of Engineers if found necessary
flood control and navigation purposes in time of emergency. Requests for and
shall be kept available for those pur- action on such modifications may be
poses in accordance with the water made by the fastest means of commu-
control agreement, and the plan of reg- nication available. The action taken
ulation in the water control manual. shall be confirmed in writing the same
(ii) Any water impounded in the flood day to the project owner and shall in-
control space defined by the water conclude justification for the action.
trol agreement shall be evacuated as (vii) The project owner may tempo-
rapidly as can be safely accomplished rarily deviate from the water control
without causing downstream flows to plan in the event an immediate short-
exceed the controlling rates; i.e., re- term departure is deemed necessary for
leases from reservoirs shall be re- emergency reasons to protect the safe-
stricted insofar as practicable to quan- ty of the dam, or to avoid other serious
tities which, in conjunction with un- hazards. Such actions shall be imme-
controlled runoff downstream of the diately reported by the fastest means
dam, will not cause water levels to ex- of communication available. Actions
ceed the controlling stages currently in shall be confirmed in writing the same
force. Although conflicts may arise day to the Corps of Engineers and shall
with other purposes, such as hydro- include justification for the action.
power, the plan or regulation may re- Continuation of the deviation will re-
quire releases to be completely cur- quire the express approval of the Chief
tailed in the interest of flood control or of Engineers, or his duly authorized
safety of the project. representative.
(iii) Nothing in the plan of regulation (viii) Advance approval of the Chief
for flood control shall be construed to of Engineers, or his duly authorized
require or allow dangerously rapid representative, is required prior to any
changes in magnitudes of releases. Re- deviation from the plan of regulation
leases will be made in a manner con- prescribed or approved by the Corps of
sistent with requirements for pro- Engineers in the interest of flood con-
tecting the dam and reservoir from trol and/or navigation, except in emer-
major damage during passage of the gency situations provided for in para-
maximum design flood for the project. graph (d)(9)(vii) of this section. When
(iv) The project owner shall monitor conditions appear to warrant a pro-
current reservoir and hydro- meteoro- longed deviation from the approved
logical conditions in and adjacent to plan, the project owner and the Corps
the watershed and downstream of the of Engineers will jointly investigate
damsite, as necessary. This and any and evaluate the proposed deviation to
other pertinent information shall be insure that the overall integrity of the
reported to the Corps of Engineers on a plan would not be unduly com-
timely basis, in accordance with stand- promised. Approval of prolonged devi-

ing instructions to the damtender or ations will not be granted unless such
116
investigations and evaluations have section 7 of the 1944 Flood Control Act
been conducted to the extent deemed and other applicable congressional acts
necessary by the Chief of Engineers, or shall be published in the FEDERAL REG-
his designated representatives, to fully ISTER prior to the time the projects be-
substantiate the deviation. comes operational and prior to any sig-
(10) Revisions. The water control plan nificant impoundment before project
and all associated documents will be completion or * * * at such time as the
revised by the Corps of Engineers as responsibility for physical operation
necessary, to reflect changed condi- and maintenance of the Corps of Engi-
tions that come to bear upon flood con- neers owned projects is transferred to
trol and navigation, e.g., reallocation another entity:
of reservoir storage space due to sedi- (i) Reservoir, dam, and lake names,
mentation or transfer of storage space (ii) Stream, county, and State cor-
to a neighboring project. Revision of responding to the damsite location,
the water control plan, water control (iii) The maximum current storage
agreement, water control diagram, or space in acre-feet to be reserved exclu-
release schedule requires approval of sively for flood control and/or naviga-
the Chief of Engineers or his duly au- tion purposes, or any multiple-use
thorized representative. Each such re- space (intermingled) when flood con-
vision shall be effective upon the date trol or navigation is one of the pur-
specified in the approval. The original poses, with corresponding elevations in
(signed document) water control agree- feet above mean sea level, and area in
ment shall be kept on file in the re- acres, at the upper and lower limits of
spective Office the Division Engineer, said space,
Corps of Engineers, Department of the (iv) The name of the project owner,
Army, located at division offices and
throughout the continental USA. Cop- (v) Congressional legislation author-
ies of these agreements may be ob- izing the project for Federal participa-
tained from the office of the project tion.
owner, or from the office of the appro- (e) List of projects. The following ta-
priate Division Engineer, Corps of En- bles, ‘‘Pertinent Project Data—Section
gineers. 208.11 Regulation,’’ show the pertinent
(11) Federal Register. The following in- data for projects which are subject to
formation for each project subject to this regulation.
117
VerDate Sep<11>2014
LIST OF PROJECTS
[Non-Corps projects with Corps Regulation Requirements]
12:40 Aug 20, 2020

Elev limits feet Area in acres § 208.11
Storage M.S.L.
Project name 1 State County Stream 1 Project purpose 2 Authorizing legis. 3 Proj. owner 4
1000 AF
(1) (2) (3) (4) (5) Upper Lower (11) (12)
(6) Upper Lower (9) (10)
(7) (8)
Jkt 250139
Agency Valley Dam & Res OR Malheur .............. N Fork Malheur FICR .................. 60.0 3340.0 3263.0 1900 0 PL 68–292 ............... USBR.
R.
Alpine Dam ......................... IL Winnebago ......... Keith Cr .............. F ......................... 0.6 796.0 760.0 52 0 PWA Proj ................. Rkfd, IL.
Altus Dam & Res ................ OK Jackson .............. N Fork Red R .... F ......................... 19.6 1562.0 1559.0 6800 6260 PL 761 ..................... USBR.
IMR .................... 132.6 1559.0 1517.5P 6260 735
PO 00000
Anderson Ranch Dam & ID Elmore ............... S Fk Boise R ..... FEI ..................... 423.2 4196.0 4039.6 4740 1150 Act of 1939 53 Stat USBR.
Res. 1187.
Arbuckle Dam & Res .......... OK Murray ................ Rock Cr .............. F ......................... 36.4 885.3 872.0 3130 2350 PL 594 ..................... USBR.
MRC ................... 62.5 872.0 827.0 2350 606
Arrowrock Dam & Res ........ ID Elmore ............... Boise R .............. FI ........................ 286.6 3216.0 2974.0 3100 200 Act of 1902 32 Stat USBR.
Frm 00128
388.
Bear Cr Dam ...................... MO Marion Ralls ....... Bear Cr .............. F ......................... 8.7 546.5 520.0 540 0 PL 83–780 ............... Hnbl, MO.
Bear Swamp Fife Brook MA Franklin .............. Deerfield R ......... E ........................ 6.9 870.0 830.0 152 115 FERC 2669 ............. NEPC.
(Lo).
Bear Swamp PS (Upper) .... MA Franklin .............. Deerfield R Trib E ........................ 8.9 1600.0 1550.0 118 102 Fed Pwr Act ............ NEPC.
Fmt 8010
Bellows Falls Dam & Lk ..... VT Cheshire ............ Connecticut R .... E ........................ 7.5 291.6 273.6 2804 836 FERC 1885 ............. NEPC.
118
Big Dry Creek and Div ....... CA Fresno ................ Big Dry Cr & Dog F ......................... 16.2 425.0 393.0 1530 0 PL 77–228 ............... Rclm, B CA.
Cr.
Blue Mesa Dam & Res ....... CO Gunnison ........... Gunnison R ........ FER .................... 748.5 7519.4 7393.0 9180 2790 PL 84–485 ............... USBR
Boca Dam & Res ................ CA Nevada .............. Little Truckee R I .......................... 32.8 5596.5 5521.0 873 52 PL 61–289 ............... USBR.
Sfmt 8010
FI ........................ 8.0 5605.0 5596.0 980 873 PL 68–292 ...............
Bonny Dam & Res .............. CO Yuma ................. S Fork Republic F ......................... 128.2 3710.0 3672.0 5036 2042 PL 78–534 ............... USBR.
R. ICR ..................... 39.2 3672.0 3638.0 2042 331 PL 79–732 ...............
Boysen Dam & Res ............ WY Fremont ............. Wild R ................ F ......................... 150.4 4732.2 4725.0 22170 19560 PL 78–534 ............... USBR.
FEIQ .................. 146.1 4725.0 4717.0 19560 16960
EIQ ..................... 403.8 4717.0 4685.0 16960 9280
Brantley Dam & Res ........... NM Eddy ................... Pecos R ............. FIRQ .................. 348.5 3283.0 3210.7 21294 38 PL 92–515 ............... USBR.
Q:\33\33V3.TXT
Brownlee Dam & Res ......... OR Baker ................. Snake R ............. FE ...................... 975.3 2077.0 1976.0 13840 6650 FERC No 1971–C ... ID Pwr.
ID Washington ........
Bully Cr Dam & Res ........... OR Malheur .............. Bully Cr .............. FI ........................ 31.6 2516.0 2456.8 1082 140 PL 86–248 ............... USBR.
Camanche Dam & Res ...... CA San Joaquin ....... Mokelumne R .... FRIE ................... 200.0 235.5 205.1 7600 5507 PL 86–645 ............... EB-MUD.
PC31
RIE ..................... 230.9 205.1 92.0 5507 0
Canyon Ferry Dam & Lk .... MT Lewis Clark ........ Missouri R .......... F ......................... 99.5 3800.0 3797.0 33535 32800 PL 78–534 ............... USBR.
FEI ..................... 795.1 3797.0 3770.0 32800 24125
EI ....................... 711.5 3770.0 3728.0 24125 11480
Cedar Bluff Dam & Res ...... KS Trego ................. Smoky Hill R ...... F ......................... 191.9 2166.0 2144.0 10790 6869 PL 78–534 ............... USBR.
IMCR .................. 149.8 2144.0 2107.8 6869 2086
Cheney Dam & Res ........... KS Sedgwick ........... N Fork F ......................... 80.9 1429.9 1421.6 12420 9540 PL 86–787 ............... USBR.
Ninnescah R. MC ..................... 151.8 1421.6 1392.9 9540 1970
0.0 0.0 0.0 0 0

VerDate Sep<11>2014
Clark Canyon Dam & Res .. MT Beaverhead ....... Beaverhead R .... F ......................... 79.1 5560.4 5546.1 5900 5160 PL 78–534 ............... USBR.
FI ........................ 50.4 5546.1 5535.7 5160 4495
I .......................... 126.1 5535.7 5470.6 4495 220
12:40 Aug 20, 2020

Del Valle Dam & Res ......... CA Alameda ............. Alameda Cr ........ F ......................... 37.0 745.0 703.1 1060 710 PL 87–874 ............... DWR.
FIM ..................... 1.0 703.1 702.2 710 700 CA.
IMR .................... 29.0 702.2 635.0 700 275
Don Pedro Dam & Lk ......... CA Tuolumne ........... Tuolumne R ....... FIER ................... 340.0 830.0 802.0 12900 11260 PL 78–534 ............... M&T.
EIR ..................... 1381.0 802.0 600.0 11260 3520 Irr.
Jkt 250139
308.0 600.0 342.0 3520 29
East Canyon Dam & Res ... UT Morgan ............... East Canyon Cr FEIM .................. 48.0 5705.5 5578.0 684 130 PL 81–273 ............... USBR.
Echo Dam & Res ................ UT Summit ............... Weber R ............ FEIM .................. 74.0 5560.0 5450.0 1455 0 PL 81–83 ................. USBR.
Emigrant Dam & Res ......... OR Jackson .............. Emigrant Cr ....... FIR ..................... 39.0 2241.0 2131.5 801 80 PL 83–606 ............... USBR.
Enders Dam & Res ............ NE Chase ................ Frenchman Cr .... F ......................... 30.0 3127.0 3112.3 2405 1707 PL 78–534 ............... USBR.
ICR ..................... 34.5 3112.3 3082.4 1707 658 PL 84–505 ...............
PO 00000
Folsom Dam & Lk ............... CA Sacramento ....... American R ........ FEIM .................. 400.0 466.0 427.0 11450 9040 .................................. USBR.
EIM .................... 610.0 427.0 210.0 9040 0
Fort Cobb Dam & Res ........ OK Caddo ................ Pond (Cobb) Cr F ......................... 63.7 1354.8 1342.0 5980 4100 PL 419 ..................... USBR.
IMCR .................. 78.3 1342.0 1300.0 4100 337
Foss Dam & Res ................ OK Custer ................ Washita R .......... F ......................... 180.6 1668.6 1652.0 13140 8800 PL 419 ..................... USBR.
Frm 00129
IMRC .................. 243.8 1652.0 1597.2 8800 1360
Friant Dam & Millerton Lk .. CA Fresno ................ San Joaquin R ... FEIM .................. 390.5 578.0 466.3 4850 2101 PL 75–392 ............... USBR.
PL 76–868 ...............
Galesville Dam ................... OR Douglas .............. Cow Cr ............... FEMCR .............. 42.2 1881.5 1780.0 760 150 FERC No. 71 ........... Dgls, CO.
61001 ......................
Fmt 8010
Gaston Dam & Res ............ NC Halifax ................ Roanoke R ......... FE ...................... 63.0 203.0 200.0 22500 20300 Fed Pwr Act ............ VA Pwr.
119
Northampton ......
Corps of Engineers, Dept. of the Army, DoD
Glen Elder Dam & KS Mitchel ............... Solomon R ......... F ......................... 722.3 1488.3 1455.6 33682 12602 PL 78–534 ............... USBR.
Waconda Lk. IM ....................... 204.8 1455.6 1428.0 12602 3341 PL 79–526 ...............
Glendo Dam & Res ............ WY Platte .................. N Platte R .......... F ......................... 271.9 4653.0 4635.0 17990 12370 PL 78–534 ............... USBR.
Sfmt 8010
EIM .................... 454.3 4635.0 4570.0 12370 3130
Grand Coulee Dam & FDR WA Okanogan Grant Columbia R ........ FEI ..................... 5185.5 1290.0 1208.0 82280 45592 PL 89–561 ............... USBR.
Lk.
H Neely Henry Dam & Res AL Calhoun St. Clair Coosa R ............. FE ...................... 49.7 508.0 502.5 11235 7632 PL 83–436 ............... AL Pwr.
Harris Dam & Res .............. AL Randolph ........... Tallapoosa R ..... FE ...................... 215.0 793.0 785.0 10661 9012 PL 89–789 ............... AL Pwr.
Heart Butte Dm & Lk ND Grant .................. Heart R .............. F ......................... 147.9 2094.5 2064.5 6580 3400 PL 78–534 ............... USBR.
Tschida. IQ ....................... 69.0 2064.5 2030.0 3400 810
Q:\33\33V3.TXT
Hells Canyon Dam & Res .. OR Wallowa ............. Snake R ............. EN ...................... 11.7 1688.0 1683.0 2380 2280 FERC No 1971–A ... ID Pwr.
ID Adams ................
Hoover Dam & Lk Mead ..... NV Clark Mohave .... Colorado R ........ F ......................... 1500.0 1229.0 1219.6 162700 156500 PL 70–642 ............... USBR.
AZ FEIMCAR ........... 15.8 1219.6 1083.0 156500 83500
PC31
Hungry Horse Dam & Res MT Flathead ............. S Fork Flathead FEI ..................... 2982.0 3560.0 3336.0 23800 5400 PL 78–329 ............... USBR.
R.
Indian Valley Dam & Res ... CA Lake ................... N Fork Cache Cr FIMR .................. 40.0 1485.0 1474.0 3975 3734 PL 84–984 ............... Yolo FC&W.
IMR .................... 260.0 1474.0 1334.0 3734 308
Jamestown Dam & Res ...... ND Stutsman ............ James R ............ F ......................... 185.4 1454.0 1429.8 13210 2090 PL 78–534 ............... USBR.
IQ ....................... 28.1 1429.8 1400.0 2090 160
Jocassee Dam & Res ......... SC Pickens .............. Keowee R .......... PRFC ................. 1160.0 1110.0 1080.0 7565 6815 FERC 2503 ............. USBR Pwr.
Keowee Dam & Lk ............. SC Pickens .............. Keowee R .......... FPMCAR ............ 392.0 800.0 775.0 18372 13072 FERC 2503 ............. Duke Pwr.
§ 208.11
Kerr Dam Flathead Lk ........ MT Lake ................... Flathead R ......... FER .................... 1219.0 2893.0 2883.0 125560 120000 FERC No 5 .............. MT Pwr.
VerDate Sep<11>2014
LIST OF PROJECTS—Continued
12:40 Aug 20, 2020

Elev limits feet Area in acres § 208.11
Storage M.S.L.
1000 AF
(1) (2) (3) (4) (5) Upper Lower (11) (12)
(7) (8)
Jkt 250139
Kerr Dam & Lk Hudson OK Mayes ................ Grand Neosho R F ......................... 244.2 636.0 619.0 18800 10900 PL 76–476 ............... GRD Auth.
(Markham Ferry Project). E ........................ 48.6 619.0 599.0 10900 4500
Keyhole Dam & Res ........... WY Crook ................. Belle Fourche R F ......................... 140.5 4111.5 4099.3 13730 9410 PL 78–534 ............... USBR.
IQ ....................... 185.8 4099.3 4051.0 9410 820
Kirwin Dam & Res .............. KS Phillips ............... N Fork Solomon F ......................... 215.1 1757.3 1729.3 10640 5080 PL 78–534 ............... USBR.
PO 00000
R. ICR ..................... 89.6 1729.2 1697.0 5080 1010 PL 79–732; PL 79–
526.
Lake Kemp Dam & Res ..... TX Wichita ............... Wichita R ........... F ......................... 234.9 1156.0 1144.0 23830 15590 SD 144 .................... WF&C.
MI ....................... 268.0 1144.0 1114.0 15590 3350 ............................. WID2.
Leesville Dam & Res .......... VA Campbell Roanoke R ......... EQ ...................... 37.8 613.0 600.0 3235 2400 Fed Pwr Act ............ Appl Pwr.
Frm 00130
Pttsylvnia.
Lemon Dam & Res ............. CO La Plata ............. Florida R ............ FIM ..................... 39.0 8148.0 8023.0 622 62 PL 84–485 ............... USBR.
Lewis M Smith Dam & Res AL Walker Culman .. Sipsey Fork; F ......................... 280.6 522.0 510.0 25700 21200 Fed Pwr Act ............ AL Pwr.
Black Warrior E ........................ 394.3 510.0 488.0 21200 15097
R.
Fmt 8010
Little Wood .......................... ID Blain ................... Little Wood R ..... FI ........................ 30.0 5237.3 5127.4 572 0 PL 84–993 ............... USBR.
120
Logan Martin Dam & Res ... AL Talladega ........... Cossa R ............. F ......................... 245.3 477.0 465.0 26310 15260 PL 83–436 ............... AL Pwr.
E ........................ 67.0 465.0 460.0 15263 11887
Los Banos Dam & Deten- CA Merced ............... Los Banos Cr ..... R ........................ 20.6 327.8 231.2 467 0 .................................. USBR.
tion.
Sfmt 8010
Los Banos Dam & Deten- CA Merced ............... Los Banos Cr ..... F ......................... 14.0 353.5 327.8 619 467 PL 86–488 ............... USBR.
tion Res.
Lost Creek Dam & Res ...... UT Morgan ............... Lost Cr ............... FEIM .................. 20.0 6005.0 5912.0 365 93 PL 81–273 ............... USBR.
Lovewell Dam & Res .......... KS Jewell ................. White Rock Cr ... F ......................... 50.5 1595.3 1582.6 5025 2986 PL 78–534 ............... USBR.
ICR ..................... 24.9 1582.6 1571.7 2986 1704 PL 79–732 ...............
Marshall Ford Dam & Res .. TX Travis ................. Colorado R ........ F ......................... 779.8 714.0 681.0 29060 18955 PL 73–392 ............... LCRA
NEIM .................. 810.5 681.0 618.0 18955 8050 PL 78–534 ...............
Mayfield Dam & Res .......... WA Lewis .................. Cowlitz R ........... FER .................... 21.4 425.0 415.0 2250 2030 FPC No 2016–A ...... Tac WN.
Q:\33\33V3.TXT
McGee Creek Dam & Res OK Atoka .................. McGee Cr .......... F ......................... 85.3 595.5 577.1 5540 3810 PL 94–423 ............... USBR.
MCR ................... 108.0 577.7 515.1 3810 370
Medicine Cr Dam Harry NE Frontier .............. Medicine Cr ....... F ......................... 52.7 2386.2 2366.1 3483 1840 PL 78–534 ............... USBR.
PC31
Strunk Lk. ICR ..................... 26.8 2366.1 2343.0 1840 701 PL 84–505 ...............
Mossyrock Dam Davisson WA Lewis .................. Cowlitz R ........... FER .................... 1397.0 778.5 600.0 11830 4250 FERC No 2016–B ... Tac, WN
Lk.
Mt Park Dam Tom Steed OK Kiowa ................. W Otter Cr ......... F ......................... 20.3 1414.0 1411.0 7130 6400 PL 90–503 ............... USBR.
Res. MRC ................... 89.0 1411.0 1386.3 6400 1270
Navajo Dam & Res ............. NM San Juan ........... San Juan R ........ FEIRQ ................ 1036.1 6085.0 5990.0 15610 7400 PL 84–485 ............... USBR.
Rio Arriba ...........
New Bullards Bar Dam & CA Yuba .................. Yuba R ............... FEIMR ................ 170.0 1956.0 1918.3 4809 4225 PL 89–298 ............... YCWA.
Res. EIMR .................. 790.9 1918.3 1447.5 4225 129

VerDate Sep<11>2014
New Exchequer Dam & Lk CA Tuolumne ........... Merced R ........... FEIR ................... 400.0 867.0 799.7 7110 4849 PL 86–645 ............... Mrcd, Irr.
EIR ..................... 451.6 799.7 660.0 4849 1900
IR ....................... 171.0 660.0 467.0 1900 150
12:40 Aug 20, 2020

New Melones Dam & Lk .... CA Tuolumne ........... Stanislaus R ...... FEIMR ................ 450.0 1088.0 1049.5 12500 10900 PL 87–874 ............... USBR.
Calaveras ........... EIMR .................. 1670.0 1049.5 808.0 10900 3500
IMR .................... 300.0 808.0 540.0 3500 0
Northfield Mt (Up) PS ......... MA Franklin .............. Connecticut ........ E ........................ 14.0 965.0 938.0 196 134 FERC 1889 ............. WMEC.
Norton Dam & Kieth KS Norton ................ Prairie Dog Cr .... F ......................... 98.8 2331.4 2304.3 5316 2181 PL 78–534 ............... USBR.
Sebelius Lk. IMRC .................. 30.7 2304.3 2280.4 2181 587 PL 79–526 ...............
Jkt 250139
PL 79–732 ...............
Ochoco Dam & Res ........... OR Crook ................. Ochoco Cr ......... FICR .................. 52.5 3136.2 0.0 1130 130 PL 84–992 ............... USBR.
Oroville Dam & Lk .............. CA Butte .................. Feather R ........... FEIMAR ............. 750.0 900.0 848.5 15800 13346 PL 85–500 ............... CA.
EIMAR ............... 2788.0 848.5 210.0 13346 0
Pactola Dam & Res ............ SD Pennington ......... Rapid Cr ............ F ......................... 43.1 4621.5 4580.2 1230 860 PL 78–534 ............... USBR.
PO 00000
IM ....................... 55.0 4580.2 4456.1 860 100
Palisades Dam & Res ........ ID Bonneville .......... Snake R ............. FIE ..................... 1202.0 5620.0 5452.0 16100 2170 PL 81–864 ............... USBR.
Paonia Dam & Res ............. CO Gunnision ........... Muddy Cr ........... FIR ..................... 17.0 6447.5 6373.0 334 120 PL 80–177 ............... USBR.
PL 84–485 ...............
Pensacola Dam Grand OK Mayes ................ Grand (Neosho) F ......................... 525.0 755.0 745.0 59200 46500 PL 77–228 ............... Grd, Auth.
Frm 00131
Lake O’ the Cherokees. R. E ........................ 1192.0 745.0 705.0 46500 17000
Pineview Dam & Res ......... UT Weber ................ Odgen R ............ FEIM .................. 110.0 4900.0 4818.0 2874 0 PL 81–273 ............... USBR.
Platoro Dam & Res ............ CO Conejos .............. Conejos R .......... F ......................... 6.0 10034.0 10027.5 947 920 PL 76–640 ............... USBR.
IR ....................... 54.0 10027.5 9911.0 920 0
Priest Rapids Dam & Res .. WA Grant .................. Columbia R ........ FER .................... 44.0 488.0 481.5 7600 6500 FERC No 2114–A ... Grnt, PUD.
Fmt 8010
Prineville Dam & Res ......... OR Crook ................. Crooked R ......... FIRC .................. 233.0 3257.9 3114.0 3997 140 PL–84–992 .............. USBR.
Prosser Cr Dam & Res ...... CA Nevada .............. Prosser Cr ......... C ........................ 8.6 5703.7 5661.0 334 86 PL 84–858 ............... USBR.
121
FC ...................... 20.0 5761.0 5703.7 745 334 PL 85–706 ...............
Pueblo Dam & Res ............. CO Pueblo ................ Arkansas R ........ F ......................... 93.0 4898.7 4880.5 5671 4640 PL 87–590 ............... USBR.
IR ....................... 261.4 4880.5 4764.0 4640 421
Red Willow Dam Hugh But- NE Frontier .............. Red Willow Cr .... F ......................... 48.9 2604.9 2581.8 2682 1629 PL 78–534 ............... USBR.
Sfmt 8010
ler Lk. IRC ..................... 27.3 2581.8 2558.0 1629 787 PL 85–783 ...............
PL 84–505 ...............
Ririe Dam & Res ................ ID Bonneville .......... Willow Cr ........... FIRC .................. 99.0 5119.0 5023.0 150 360 PL 87–874 ............... USBR.
Roanoke Rapids Dam & NC Halifax ................ Roanoke R ......... EC ...................... 16.8 132.0 128.0 4600 4100 FPC 2009 ................ VA, Pwr.
Res.
Rocky Reach Dam Lk WA Chelan ............... Columbia R ........ FER .................... 36.0 707.0 703.0 9920 9490 FERC No 2145 ........ Chln PUD.
Entiat.
Q:\33\33V3.TXT
Rocky River PS Lk Candle- CT Litchfield ............. Housatonic R ..... E ........................ 142.5 430.0 418.0 5608 4692 FERC 2576 ............. CLPC.
wood.
Ross Dam & Res ................ WA Whatcom ............ Skagit R ............. E ........................ 1052.0 1602.5 1475.0 11700 4450 FERC 553 ............... Sttl.
Sanford Dam & Lk Meredith TX Hutchison ........... Canadian R ........ F ......................... 462.1 2965.0 2941.3 21640 17320 PL 81–898 ............... USBR.
PC31
IMCRQ ............... 761.3 2941.3 2860.0 17320 4500
Savage River Dam & Res .. MD Garrett ................ Savage R ........... FMA ................... 20.0 1468.5 1317.0 366 0 PL 78–534 ............... Ptmc Comm.
Scoggins Dam Henry Hagg ........ ............................ Scoggins Cr ....... FIR ..................... 56.3 305.8 235.3 116 4 PL 89–596 ............... USBR.
Lk.
Shadehill Dam & Res ......... SD Perkins ............... Grand R ............. F ......................... 218.3 2302.0 2271.9 9900 4800 PL 78–534 ............... USBR.
IQ ....................... 80.9 2271.9 2250.8 4800 2800
Shasta Dam Lk ................... CA Shasta ................ Sacramento R .... FEIA ................... 1300.0 1067.0 1018.6 29570 23894 PL 75–392 ............... USBR.
EIA ..................... 3241.0 1018.6 735.8 23894 2200
§ 208.11
Shepaug Dam & Lk ............ CT Litchfield ............. Housatonic R ..... E ........................ 5.0 200.0 172.0 1882 1125 FERC 2576 ............. CLPC.
VerDate Sep<11>2014
LIST OF PROJECTS—Continued
12:40 Aug 20, 2020

Elev limits feet Area in acres
Storage M.S.L. § 208.11
1000 AF
(1) (2) (3) (4) (5) Upper Lower (11) (12)
(7) (8)
Jkt 250139
Smith Mtn Dam & Res ....... VA Bedford .............. Roanoke R ......... E ........................ 40.8 795.0 793.0 20600 20200 Fed Pwr Act ............ Appl Pwr.
Franklin ..............
Roanoke ............
Pttsylvnia ...........
Stampede Dam & Res ....... CA Sierra ................. Little Truckee R FEM ................... 22.0 5949.0 5942.1 3430 3230 PL 84–858 ............... USBR.
PO 00000
EM ..................... 199.4 5942.0 5798.0 3230 210
Starvation Dam and Res .... UT Duchesne ........... Strawberry R ...... FIM ..................... 165.3 5712.0 5595.0 3310 689 PL 84–485 ............... USBR.
Stevens Creek Dam & Res GA Columbia ............ Savannah River P ........................ 10.5 187.5 183.0 4300 0 FERC 2535 ............. SC E&G.
Stevenson Dam Lk Zoar .... CT Litchfield ............. Housatonic R ..... E ........................ 5.0 108.0 80.0 1148 516 FERC 2576 ............. CLPC.
Summer Dam & Lk ............. NM De Baca ............. Pecos R ............. FI ........................ 51.4 4261.0 4200.0 2835 0 PL 83–780 ............... USBR.
Frm 00132
Tat Momolikot Dam & Lake AZ Pinal ................... Santa Rosa FIC ..................... 198.5 1539.0 1480.0 11790 0 PL 89–298 ............... BIA.
Wash.
Tiber Dam & Res ................ MT Libert Toole ........ Marias R ............ F ......................... 400.9 3012.5 2993.0 23150 17890 PL 78–534 ............... USBR.
FIQ ..................... 268.0 2993.0 2976.0 17890 13790
IQ ....................... 121.7 2976.0 2966.4 13790 11710
Fmt 8010
Trenton Dam & Res ........... NB Hitchcock ........... Republican R ..... F ......................... 134.1 2773.0 2752.0 7940 4922 PL 78–534 ............... USBR.
IRC ..................... 99.8 2752.0 2720.0 4922 1572 PL 84–505 ...............
122
Turners Falls (Low) Dam & MA Franklin .............. Connecticut R .... E ........................ 8.7 185.0 176.0 2110 1880 FERC 1889 ............. WMEC
Lk.
Twin Buttes Dam & Lake ... TX Tom Green ........ Concho R ........... F ......................... 454.4 1969.1 1940.2 23510 23510 PL 85–152 ............... USBR
IM ....................... 150.0 1940.2 1885.0 9080 670 PL 78–534 ...............
Sfmt 8010
Twitchell Dam & Res .......... CA Santa Barbara ... Cuyama R .......... F ......................... 89.8 651.5 623.0 3671 2556 PL 83–774 ............... USBR
IM ....................... 135.6 623.0 504.0 2556 0
Upper Baker Dam Baker Lk WA Whatcom ............ Baker R .............. FE ...................... 184.6 724.0 674.0 4985 2375 PL 89–298 ............... Pgt
FERC 2150B ........... P&L
Vallecito Dam & Res .......... CO La Plata ............. Los Pinos R ....... FEI ..................... 125.4 7665.0 7582.5 2720 350 PL 61–288 ............... USBR
PL 68–292 ...............
Vernon Dam & Lk ............... VT Windham ............ Connecticut R .... E ........................ 18.3 220.1 212.1 2550 1980 FERC 1904 ............. NEPC
Q:\33\33V3.TXT
Wanapum Dam & Res ....... WA Grant .................. Columbia R ........ FER .................... 151.6 571.5 560.0 14300 13350 FERC No 2114–B ... Grnt
PUD
Wanship Dam & Rockport .. UT Summit ............... Weber R ............ FEIM .................. 61.0 6037.0 5930.0 1077 121 PL 81–273 ............... USBR
Warm Springs Dam & Res OR Malheur .............. Middle Fork FICR .................. 191.0 3406.0 3327.0 460 90 PL 78–534 ............... Vale
PC31
Malheur R. USBR
Waterbury Dam & Res ....... VT Washington ........ Little R ............... FP ...................... 27.7 617.5 592.0 1330 890 PL 78–534 ............... VT
Webster Dam & Res .......... KS Rocks ................. S Fork Solomon F ......................... 183.4 1923.7 1892.5 8480 3772 PL 78–534 ............... USBR
R. IRC ..................... 72.1 1892.5 1860.0 3772 906 PL 79–526 ...............
PL 79–732 ...............
Weiss Dam & Res .............. AL Cherokee ........... Coosa R ............. F ......................... 397.0 574.0 564.0 50000 30200 PL 83–436 ............... AL Pwr
E ........................ 148.4 564.0 558.0 30200 19545
Wells Dam L Pateros ......... WA Douglas .............. Columbia R ........ FER .................... 74.0 781.0 771.0 10000 8000 FERC No 2149 ..... Dgls
PUD
VerDate Sep<11>2014
Wilder Dam & Lk ................ VT Windsor .............. Connecticut R .... E ........................ 13.3 385.0 380.0 3100 2240 FERC 1893 ............. NEPC
Yellowtail Dam & Bighorn MT Big Horn ............. Bighorn R ........... F ......................... 258.3 3657.0 3640.0 17280 12600 PL 78–534 ............... USBR
Lk. FEIQ .................. 240.3 3640.0 3614.0 12600 6915 PUD
12:40 Aug 20, 2020

EIQ ..................... 336.1 3614.0 3547.0 6915 4150
1 Cr—Creek; CS—Control Structure; Div—Diversion; DS—Drainage Structure; FG—Floodgate; Fk—Fork; GIWW—Gulf Intercoastal Waterway; Lk—Lake; L&D—Lock & Dam; PS—Pump
Station; R—River; Res—Reservoir
2 F—Flood Control; N—Navigation; P—Corps Hydropower; E—Non Corps Hydropower; I—Irrigation; M—Municipal and/or Industrial Water Supply; C—Fish and Wildlife Conservation; A—
Low Flow Augmentation or Pollution Abatement; R—Recreation; Q—Water Quality or Silt Control
Jkt 250139
3 FCA—Flood Control Act; FERC—Federal Energy Regulatory Comm; HD—House Document; PL—Public Law; PW—Public Works; RHA—River & Harbor Act; SD—Senate Document;
WSA—Water Supply Act
4 Appl Pwr—Appalachian Power; Chln PUD—Chelan Cnty PUD 1; CLPC—CT Light & Power Co; Dgls PUD—Douglas Cnty PUD 1; DWR—Department of Water Resources; EB–MUD—
East Bay Municipal Utility Dist; GRD—Grand River Dam Auth; Grnt PUD—Grant Cnty PUD 2; Hnbl—city of Hannibal; LCRA—Lower Colorado River Authority; M&T Irr—Modesto & Turlock
Irr; Mrcd Irr—Merced Irr; NEPC—New England Power Co; Pgnt P&L—Pugent Sound Power & Light; Ptmc Comm—Upper Potomac R Comm; Rclm B—Reclamation Board; Rkfd—city of
Rockford; Sttl—city of Seattle; Tac—City of Tacoma; Vale USBR—50% Vale Irr 50% USBR; WF&CWID—City of Wichita Falls and Wichita Cnty Water Improvement District No. 2; WMEC—
PO 00000
Western MA Electric Co; YCWA—Yuba City Water Auth; Yolo FC&W—Yolo Flood Control & Water Conserv Dist.
(Sec. 7, Pub. L. 78–534, 58 Stat. 890 (33 U.S.C. 709); the Federal Power Act, 41 Stat. 1063 (16 U.S.C. 791(A)); and sec. 9, Pub. L. 83–436, 68
Stat. 303)
[43 FR 47184, Oct. 13, 1978, as amended at 46 FR 58075, Nov. 30, 1981; 55 FR 21508, May 24, 1990; 79 FR 13564, Mar. 11, 2014]
Frm 00133
Fmt 8010
123
Sfmt 8017
Q:\33\33V3.TXT
PC31
§ 208.11
§ 208.19 33 CFR Ch. II (7–1–20 Edition)
§ 208.19 Marshall Ford Dam and Res- recedes to elevation 1,969.1 when re-
ervoir (Mansfield Dam and Lake leases shall be made to equal inflow or
Travis), Colorado River, Texas. the maximum release permissible
In the interest of flood control, the under paragraph (a) of this section,
Lower Colorado River Authority whichever is greater.
(LCRA) shall operate the Marshall (c) The representative of the Bureau
Ford Dam and Reservoir in accordance of Reclamation in immediate charge of
with the water control plan of regula- operation of the Twin Buttes Dam
tion most recently approved by the shall furnish daily to the District Engi-
U.S. Army Corps of Engineers neer, Corps of Engineers, Department
(USACE), effective on the date speci- of the Army, in charge of the locality,
fied in the approval. Information re- a report, on forms provided by the Dis-
garding the most recently approved trict Engineer for this purpose, show-
water control plan of regulation may ing (1) for Twin Buttes Reservoir, the
be obtained by contacting the LCRA elevation of the reservoir level; number
offices in Austin, Texas, or the offices of river outlet works gates in operation
of the U.S. Army Corps of Engineers, with their respective openings and re-
Fort Worth Engineer District, in Fort leases; uncontrolled spillway releases;
Worth, Texas. storage; reservoir inflow; available
[79 FR 13564, Mar. 11, 2014]
evaporation data; and precipitation in
inches; and (2) for Nasworthy Res-
§ 208.22 Twin Buttes Dam and Res- ervoir, the elevation of the reservoir
ervoir, Middle and South Concho level; irrigation outlet works and con-
Rivers, Tex. trolled spillway releases; storage;
The Bureau of Reclamation, or its tailwater elevation; and reservoir in-
designated agent, shall operate the flow. Normally, one reading at 8 a.m.
Twin Buttes Dam and Reservoir in the shall be shown for each day. Readings
interest of flood control as follows: of all items except evaporation shall be
(a) Whenever the Twin Buttes Res- shown for at least three observations a
ervoir level is between elevations day when the Twin Buttes Reservoir
1,940.2 (top of conservation pool) and level is above elevation 1,940.2. When-
elevation 1,969.1 (top of flood control ever the Twin Buttes Reservoir level
pool) the flood control discharge facili- rises to elevation 1,940.2 and releases
ties shall be operated under the direc- for flood regulation are necessary or
tion of the District Engineer, Corps of appear imminent, the Bureau rep-
Engineers, Department of the Army, in resentative shall report at once to the
charge of the locality, so as to reduce District Engineer by telephone or tele-
as much as practicable the flood dam- graph and, unless otherwise instructed,
age below the reservoir. All flood con- shall report once daily thereafter in
trol releases shall be made in amounts that manner until the reservoir level
which, when combined with releases recedes to elevation 1,940.2. These lat-
from San Angelo Reservoir on the ter reports shall reach the District En-
North Concho River and local inflow gineer by 9 a.m. each day.
below the dam, will not produce flows (d) The regulations of this section in-
in excess of bankful capacities on the sofar as they govern use of the flood
South Concho and Concho Rivers down- control storage capacity in Twin
stream of the reservoir. In order to ac- Buttes Reservoir above elevation
complish this purpose, flows shall not 1,940.2 are subject to temporary modi-
exceed a 22.5-foot stage (25,000 c.f.s.) on fication in time of flood by the District
the USGS gage on the Concho River Engineer, if found desirable on the
near San Angelo, Tex. (river mile 60.9); basis of conditions at the time. Such
or a 22.8-foot stage (25,000 c.f.s.) on the desired modifications shall be commu-
USGS gage near Paint Rock, Tex. nicated to the representative of the Bu-
(river mile 19.6). reau of Reclamation in immediate
(b) When the Twin Buttes Reservoir charge of operations of the Twin
level exceeds elevation 1,969.1 (top of Buttes Dam by any available means of
flood control pool), releases shall be communication and shall be confirmed
made at the maximum rate possible in writing under date of the same day
and continued until the pool elevation to the Regional Director in charge of
124
the locality, with a copy to the rep- below elevation 745 at the dam in order
resentative in charge of the Twin to obtain maximum flood control bene-
Buttes Dam. fits, with the provision that the sug-
(e) Flood control operation shall not gested reduction in power storage shall
restrict releases necessary for munic- at no time exceed the replacement vol-
ipal, industrial, and irrigation uses. ume of flow then in sight in the
(f) Releases made in accordance with streams above the reservoir.
the regulations of this section are sub-
(c) The Representative shall furnish
ject to the condition that releases shall
the District Engineer, daily, a report
not be made at rates or in a manner
that would be inconsistent with emer- showing the elevation of the reservoir
gency requirements for protecting the pool and the tailwater, number of gates
Twin Buttes Dam and Reservoir from in operation, spillway and turbine re-
major damage or inconsistent with safe leases, evaporation, storage, reservoir
routing of the inflow design flood inflow, and precipitation in inches as
(spillway design flood). shown by Agency gages. One reading
(g) The discharge characteristics of shall be shown for each day with addi-
the river outlet works (capable of dis- tional readings of releases for all
charging approximately 32,470 c.f.s. changes in spillway gate operation, and
with the reservoir level at elevation with readings of all items except evap-
1,969.1) shall be maintained in accord- oration three times daily when the Dis-
ance with the construction plans (Bu- trict Engineer advises the Representa-
reau of Reclamation Specifications No. tive that flood conditions are immi-
DC–5274 as modified by revised draw- nent. By agreement between the Rep-
ings and criteria in Designers’ Oper- resentative and the District Engineer,
ating Criteria, Twin Buttes Dam, dated any of the foregoing information may
February 1963).
be furnished by telephone and may, if
(h) All elevations stated in this sec-
agreed upon, be omitted from the re-
tion are at Twin Buttes Dam and are
referred to the datum in use at that lo- port. Whenever the pool is above ele-
cation. vation 745 at the dam the Representa-
tive shall submit additional reports by
[31 FR 12521, Sept. 22, 1966] telegraph or telephone as directed by
§ 208.25 Pensacola Dam and Reservoir, the District Engineer, with a report to
Grand (Neosho) River, Okla. be furnished immediately whenever the
pool rises above elevation 745 at the
The representative of the agency
dam.
charged with the operation of the Pen-
sacola Dam, referred to in this section (d) The District Engineer will furnish
as the Representative shall operate the the Representative with all available
dam and reservoir in the interest of information and detailed instructions
flood control as follows: for operation of the reservoir in the in-
(a) Whenever the pool stage exceeds terest of flood control during an emer-
elevation 745 at the dam, the discharge gency condition when communications
facilities shall be operated under the between the dam and the District Of-
direction of the District Engineer, En- fice are broken. In the event that the
gineer Department at Large, in charge District Engineer or his authorized rep-
of the locality, so as to reduce as much resentative cannot be reached by tele-
as practicable the flood damage below phone, telegraph or by other means
the reservoir and to limit the pool during a flood emergency, these in-
stage to elevation 755 at the dam. structions will govern. The provisions
(b) The District Engineer will advise of paragraphs (a), (b), and (c) of this
the Representative when inflow rates section will govern at all times except
are anticipated which will raise the during such an emergency.
pool above elevation 745 at the dam. (e) Elevations stated in this section
The District Engineer will also advise
are referred to Pensacola datum which
the Representative of essential in-
is 1.07 feet below mean sea level.
crease in the flood control storage ca-
pacity of the reservoir which should be [10 FR 15044, Dec. 14, 1945]
provided by drawing the pool down
125
§ 208.26 33 CFR Ch. II (7–1–20 Edition)
§ 208.26 Altus Dam and Reservoir, ervoir level recedes to elevation 1559,
North Fork Red River, Okla. at which time releases will be made
The Bureau of Reclamation, or its equal to inflow.
designated agent, shall operate the (e) Whenever the reservoir level is
Altus Dam and Reservoir in the inter- above elevation 1559 and communica-
est of flood control as follows: tion with the Bureau of Reclamation
(a) Flood control storage in the res- Regional Office and the Corps of Engi-
ervoir between elevation 1559 (top of neers District Office is unobtainable,
conservation pool) and elevation 1562 releases shall be made equal to inflow
(top of flood control pool) amounts to until all gates are fully open. The max-
21,448 acre-feet (based on 1953 sedi- imum release thus obtained shall be
mentation survey). Whenever the res- maintained until the pool recedes to
ervoir level is within this elevation elevation 1559 at which time releases
range, the flood control discharge fa- shall be made to equal inflow.
cilities shall be operated under the di- (f) The representative of the Bureau
rection of the District Engineer, Corps of Reclamation, or its designated
of Engineers, Department of the Army, agent, in immediate charge of the oper-
in charge of the locality, so as to re- ation of Altus Dam will furnish daily
duce as much as practicable the flood to the District Engineer, Corps of Engi-
damage below the dam, and to limit neers, Department of the Army, in
the reservoir level to elevation 1562 charge of the locality, a report on
when possible. forms provided by the District for this
(b) When the reservoir level is below purpose, showing the reservoir pool ele-
elevation 1559 and the predicted volume vation; the number of spillway gates in
of runoff from the area above the dam operation with their respective opening
exceeds the volume of water necessary and releases; the uncontrolled spillway
to raise the reservoir level above ele- release; conduit, canal outlet
vation 1559, the reservoir will be oper- wasteway, and irrigation releases; stor-
ated to obtain maximum overall bene- age; reservoir inflow; available evapo-
fits which may consist of preflood re- ration data; and precipitation in
leases: Provided, That all preflood re- inches. A reading at 8 a.m., noon, 4
leases will have prior concurrence of p.m., and midnight, shall be shown for
the Bureau of Reclamation or its des- each day. Whenever the reservoir level
ignated agent. The preflood releases rises to elevation 1559 and releases for
shall not result in a reservoir level flood control regulation are necessary
below elevation 1559 at the end of the or appear imminent, the representative
flood. of the Bureau of Reclamation or its
(c) When the reservoir level exceeds designated agent, shall report at once
elevation 1559, releases will be made to the District Engineer by telephone
equal to inflow or 2,000 c.f.s., whichever or telegraph and, unless otherwise in-
is smaller, except that when the res- structed, shall report at 8 a.m., noon,
ervoir elevation forecast indicates that and 3 p.m. thereafter, in that manner,
this operation will result in a reservoir until the reservoir level recedes to ele-
level exceeding elevation 1562, releases vation 1559. These latter reports shall
will be increased in order to provide reach the District Engineer by 9 a.m., 1
maximum overall benefits and prevent p.m., and 4 p.m. each day.
the reservoir level from exceeding ele- (g) The regulations of this section,
vation 1562, insofar as possible. The insofar as they govern use of the flood
flood control pool will be emptied by control storage capacity above ele-
continuing the peak discharge rate vation 1559 are subject to temporary
until the reservoir level recedes to ele- modification by the District Engineer
vation 1559, at which time releases will in time of flood, if found desirable on
be made equal to inflow. the basis of conditions at the time.
(d) If the reservoir level exceeds ele- Such desired modifications shall be co-
vation 1562 (top of flood control pool) ordinated with and approved by the Bu-
releases shall be made at the maximum reau of Reclamation.
rate possible through the spillway (h) Flood control operation shall not
gates, conduit, and the uncontrolled restrict releases necessary for irriga-
spillway and continued until the res- tion, municipal, and industrial uses.
126
(i) Releases made in accordance with stage (6,000 cfs) on the USGS gage on
the regulations of this section are sub- the Washita River near Anadarko,
ject to the conditions that releases Oklahoma, river mile 305.0; or a 19.0-
shall not be made at rates or in a man- foot stage on the USGS gage near
ner that would be inconsistent with Bradley, Oklahoma, river mile 210.6.
emergency requirements for protecting (b) When the reservoir level exceeds
the dam and reservoir from major dam- elevation 1354.8, top of flood control
age. pool, releases shall be made at the
(j) Any time that the Bureau of Rec- maximum rate possible and continued
lamation determines that operation in until the pool elevation recedes to ele-
accordance with the regulations of this vation 1354.8 when releases shall be
section will jeopardize the safety of made to equal inflow or the maximum
Altus Dam, they will so advise the Dis- release permissible under paragraph (a)
trict Engineer and will assume oper- of this section, whichever is greater.
ational responsibility and take action (c) The representative of the Bureau
necessary to assure the safety of the of Reclamation in immediate charge of
dam. operation of the Fort Cobb Dam shall
(k) The discharge characteristics of furnish daily to the District Engineer,
the controlled and the uncontrolled Corps of Engineers, Department of the
spillways (capable of discharging ap- Army, in charge of the locality, a re-
proximately 42,800 c.f.s. and 2,000 c.f.s., port, on forms provided by the District
respectively, with the reservoir level at Engineer showing the elevation of the
elevation 1562) shall be maintained in reservoir level; number of river outlet
accordance with the construction plans works gates in operation with their re-
(Bureau of Reclamation Drawing No. spective openings and releases; uncon-
258–D–69). trolled spillway and municipal outlet
(l) All elevations stated in this sec- works release; storage; tailwater ele-
tion are at Altus Dam and are referred vation; reservoir inflow; available
to the datum in use at that location. evaporation data; and precipitation in
[33 FR 12733, Sept. 7, 1968] inches. Normally, one reading at 8:00
a.m., shall be shown for each day.
§ 208.27 Fort Cobb Dam and Reservoir, Readings of all items except evapo-
Pond (Cobb) Creek, Oklahoma. ration shall be shown for at least three
The Bureau of Reclamation shall op- observations a day when the reservoir
erate the Fort Cobb Dam and Reservoir level is above elevation 1342.0. When-
in the interest of flood control as fol- ever the reservoir level rises to ele-
lows: vation 1342.0 and releases for flood reg-
(a) Whenever the reservoir level is ulation are necessary or appear immi-
between elevation 1342.0, top of the nent, the Bureau representative shall
conservation pool, and elevation 1354.8, report at once to the District Engineer
top of flood control pool, the flood con- by telephone or telegraph and, unless
trol discharge facilities shall be oper- otherwise instructed, shall report once
ated under the direction of the District daily thereafter in that manner until
Engineer, Corps of Engineers, Depart- the reservoir level recedes to elevation
ment of the Army, in charge of the lo- 1342.0. These latter reports shall reach
cality, so as to reduce as much as prac- the District Engineer by 9:00 a.m., each
ticable the flood damage below the res- day.
ervoir. All flood control releases shall (d) The regulations of this section in-
be made in amounts which, when com- sofar as they govern use of the flood
bined with local inflow below the dam, control storage capacity above ele-
will not produce flows in excess of vation 1342.0 are subject to temporary
bankfull on Pond (Cobb) Creek down- modification in time of flood by the
stream of the reservoir and on the District Engineer if found desirable on
Washita River downstream of their the basis of conditions at the time.
confluence. In order to accomplish this Such desired modifications shall be
purpose, flows shall not exceed a 13.0- communicated to the representative of
foot stage (1,300 cfs) on the USGS gage the Bureau of Reclamation in imme-
on Pond (Cobb) Creek near Fort Cobb, diate charge of operations of the Fort
Oklahoma, river mile 5.0; a 19.0-foot Cobb Dam by any available means of
127
§ 208.28 33 CFR Ch. II (7–1–20 Edition)
communication and shall be confirmed when releases shall be made to equal

in writing under date of the same day inflow or the maximum release permis-
to the Regional Director in charge of sible under paragraph (a) of this sec-
the locality, with a copy to the rep- tion, whichever is greater.
resentative in charge of the Fort Cobb (c) The representative of the Bureau
Dam. of Reclamation in immediate charge of
(e) Flood control operation shall not operation of the Foss Dam shall fur-
restrict releases necessary for munic- nish daily to the District Engineer,
ipal-industrial and irrigation uses: Corps of Engineers, Department of the
(f) Releases made in accordance with Army, in charge of the locality, on
the regulations of this section are sub- forms provided by the District Engi-
ject to the condition that releases shall
neer for this purpose, a report, showing
the elevation of the reservoir level;
that would be inconsistent with emer-
number of river outlet works gates in
gency requirements for protecting the
operation with their respective open-
dam and reservoir from major damage
or inconsistent with safe routing of the ings and releases; canal outlet works,
inflow design flood. municipal outlet works and uncon-
(g) All elevations stated in this sec- trolled spillway releases; storage;
tion are at Fort Cobb Dam and are re- tailwater elevation; reservoir inflow;
ferred to the datum in use at that loca- available evaporation data; and pre-
tion. cipitation in inches. Normally, one
reading at 8:00 a.m. shall be shown for
[26 FR 3190, Apr. 14, 1961] each day. Readings of all items except
evaporation shall be shown for at least
§ 208.28 Foss Dam and Reservoir,
Washita River, Oklahoma. three observations a day when the res-
ervoir level is above elevation 1652.0.
The Bureau of Reclamation shall op- Whenever the reservoir level rises to
erate the Foss Dam and Reservoir in elevation 1652.0 and releases for flood
the interest of flood control as follows: regulation are necessary or appear im-
(a) Whenever the reservoir level is
minent, the Bureau representative
between elevation 1652.0, top of con-
shall report at once to the District En-
servation pool, and elevation 1668.6, top
gineer by telephone or telegraph and,
of flood control pool, the flood control
unless otherwise instructed, shall re-
discharge facilities shall be operated
port once daily thereafter in that man-
under the direction of the District En-
gineer, Corps of Engineers, Department ner until the reservoir level recedes to
of the Army, in charge of the locality, elevation 1652.0. These latter reports
so as to reduce as much as practicable shall reach the District Engineer by
the flood damage below the reservoir. 9:00 a.m., each day.
All flood control releases shall be made (d) The regulations of this section in-
in amounts which, when combined with sofar as they govern use of the flood
local inflow below the dam, will not control storage capacity above ele-
produce flows in excess of bankfull on vation 1652.0 are subject to temporary
the Washita River downstream of the modification in time of flood by the
reservoir. In order to accomplish this District Engineer if found desirable on
purpose, flows shall not exceed an 18.0 the basis of conditions at the time.
foot stage (3,000 c.f.s.) on the USGS Such desired modifications shall be
gage on the Washita River near Clin- communicated to the representative of
ton, Oklahoma, river mile 447.4, or an the Bureau of Reclamation in imme-
18.0 foot stage (6,000 c.f.s.) on the USGS diate charge of operations of the Foss
gage on the Washita River near Car- Dam by any available means of com-
negie, Oklahoma, river mile 353.9. munication and shall be confirmed in
(b) When the reservoir level exceeds writing under date of the same day to
elevation 1668.6, top of flood control the Regional Director in charge of the
pool, releases shall be made at the locality, with a copy to the representa-
maximum rate possible through the tive in charge of the Foss Dam.
river outlet works and uncontrolled (e) Flood control operations shall not
spillway and continued until the pool restrict releases necessary for munic-
elevation recedes to elevation 1668.6 ipal-industrial and irrigation uses.
128
(f) Releases made in accordance with release permissible under paragraph (a)
the regulations of this section are sub- of this section, whichever is greater.
ject to the condition that releases shall (c) The representative of the Bureau
not be made at rates or in a manner of Reclamation or its designated agent
that would be inconsistent with emer- in immediate charge of operation of
gency requirements for protecting the the Arbuckle Dam shall furnish daily
dam and reservoir from major damage to the District Engineer, Corps of Engi-
or inconsistent with safe routing of the neers, Department of the Army, in
inflow design flood. charge of the locality, a report, on
(g) All elevations stated in this sec- forms provided by the District Engi-
tion are at Foss Dam and are referred neer for this purpose, showing the lake
to the datum in use at that location. elevation; the number of river outlet
[26 FR 6982, Aug. 3, 1961] works gates in operation with their re-
spective openings and releases; uncon-
§ 208.29 Arbuckle Dam and Lake of the trolled spillway release; municipal
Arbuckles, Rock Creek, Okla. pumping rate; tailwater elevation;
The Bureau of Reclamation, or its available evaporation data; and pre-
designated agent, shall operate the Ar- cipitation in inches. Normally, a read-
buckle Dam and Lake of the Arbuckles ing at 8 a.m., noon, 4 p.m., and mid-
in the interest of flood control as fol- night shall be shown for each day.
lows: Whenever the lake level rises to ele-
(a) Flood control storage in Lake of vation 872 and releases for flood regula-
the Arbuckles between elevation 872 tion are necessary or appear imminent,
(top of conservation pool) and ele- the representative of the Bureau of
vation 885.3 (top of flood control pool) Reclamation or its designated agent,
initially amounts to 36,400 acre-feet. shall report at once to the District En-
Whenever the lake level is within this gineer by telephone or telegraph and
elevation range the flood control dis- unless otherwise instructed shall re-
charge facilities shall be operated port once daily thereafter in that man-
under the direction of the District En- ner until the lake level recedes to ele-
gineer, Corps of Engineers, Department vation 872. These latter reports shall
of the Army, in charge of the locality, reach the District Engineer by 9 a.m.
so as to reduce as much as practicable each day.
of the flood damage below the lake. In (d) The regulations of this section,
order to accomplish this purpose, flood insofar as they govern use of flood con-
control releases shall be limited to trol storage capacity above elevation
amounts, which when combined with 872, are subject to temporary modifica-
local inflows below the dam will not tion in time of flood by the District
produce flows in excess of bankfull on Engineer if found desirable on the basis
Rock Creek downstream of the lake of conditions at the time. Such desired
and on the Washita River, from the modifications shall be communicated
confluence of Rock Creek to Durwood, to the representative of the Bureau of
Okla. Operating stages and cor- Reclamation and its designated agent
responding flows are as follows: An 11- in immediate charge of operation of
foot stage (15,000 c.f.s.) on the U.S.G.S. the Arbuckle Dam by any available
gage on Rock Creek near Dougherty, means of communication, and shall be
Okla., river mile 1; and a 20-foot stage confirmed in writing under date of the
(15,000 c.f.s.) on the U.S.G.S. gage on same day to the Regional Director in
the Washita River near Durwood, charge of the locality, and his des-
Okla., river mile 63.4. ignated agent, with a copy to the rep-
(b) When the level in Lake of the Ar- resentative in charge of the Arbuckle
buckles exceeds elevation 885.3 (top of Dam.
flood control pool), releases shall be (e) Flood control operation shall not
made at the maximum rate possible restrict pumping necessary for munic-
through the river outlet works and the ipal and industrial uses and releases
uncontrolled spillway and continued necessary for downstream users.
until the lake level recedes to ele- (f) Releases made in accordance with
vation 885.3 when releases shall be the regulations of this section are sub-
made to equal inflow or the maximum ject to the condition that releases shall
129
§ 208.32 33 CFR Ch. II (7–1–20 Edition)
not be made at rates or in a manner level recedes to elevation 2965.0 when

that would be inconsistent with emer- releases will be made to equal inflow or
gency requirements for protecting the the maximum release permissible
dam and lake from major damage or under paragraph (a) of this section,
inconsistent with the safe routing of whichever is greater.
the inflow design flood (spillway design (c) The representative of the Bureau
flood). of Reclamation, or its designated agent
(g) The discharge characteristics of in immediate charge of operation of
the river outlet works (capable of dis- the Sanford Dam will furnish daily to
charging approximately 1,880 c.f.s. the District Engineer, Corps of Engi-
when the lake level is at 872) shall be neers, Department of the Army, in
maintained in accordance with the con- charge of the locality, a report, on
struction plans (Bureau of Reclamation
forms provided by the District Engi-
Specifications No. 6099 as modified by
neer for this purpose showing the pool
the ‘‘as built’’ drawings).
(h) All elevations stated in this sec- elevation; the number of flood control
tion are at Arbuckle Dam and are re- outlet works gates in operation with
ferred to the datum in use at that loca- their respective openings and releases;
tion. the uncontrolled spillway release; and
the municipal outlet works release;
[33 FR 263, Jan. 9, 1968] storage; tailwater elevation; reservoir
inflow; available evaporation data; and
§ 208.32 Sanford Dam and Lake Mere-
dith, Canadian River, Tex. precipitation in inches. Normally a
reading at 8 a.m., noon, 4 p.m., and
The Bureau of Reclamation, or its midnight, shall be shown for each day.
designated agent, shall operate the Readings of all items except evapo-
Sanford Dam and Lake Meredith in the ration shall be shown for at least four
interest of flood control as follows:
observations a day when the reservoir
(a) Flood control storage in the res-
level is at or above elevation 2941.3.
ervoir, Lake Meredith, between ele-
Whenever the reservoir level rises to
vation 2941.3 (top of conservation pool)
elevation 2941.3 and releases for flood
and elevation 2965.0 (top of flood con-
trol pool) initially amounts to 462,100 regulation are necessary or appear im-
acre-feet. Whenever the reservoir level minent, the representative of the Bu-
is within this elevation range, the flood reau of Reclamation, or its designated
control discharge facilities shall be op- agent, shall report at once to the Dis-
erated under the direction of the Dis- trict Engineer by telephone or tele-
trict Engineer, Corps of Engineers, De- graph and, unless otherwise instructed,
partment of the Army, in charge of the will report once daily thereafter in
locality, so as to reduce as much as that manner until the reservoir level
practicable the flood damage below the recedes to elevation 2941.3. These latter
reservoir. All flood control releases reports shall reach the District Engi-
shall be made in amounts which, when neer by 9 a.m. each day.
combined with local inflow below the (d) The regulations of this section,
dam, will not produce flows in excess of insofar as they govern use of the flood
bankfull on the Canadian River down- control storage capacity above ele-
stream of the reservoir. In order to ac- vation 2941.3, are subject to temporary
complish this purpose, flows shall not modification in time of flood by the
exceed 25,000 c.f.s. at the Sanford Dam District Engineer if found desirable on
site or an 8.0-foot stage (75,000 c.f.s.) on the basis of conditions at the time.
the U.S.G.S. gage on the Canadian Such desired modifications shall be
River near Canadian, Tex., river mile communicated to the representative of
433.9. the Bureau of Reclamation and its des-
(b) When the reservoir level exceeds ignated agent in immediate charge of
elevation 2965.0 (top of flood control operation of the Sanford Dam by the
pool) releases shall be made at the best available means of communica-
maximum rate possible through the tion, and shall be confirmed in writing
flood control outlet works, the river under date of the same day to the Re-
outlet works and the uncontrolled gional Director in charge of the local-
spillway and continue until the pool ity, and his designated agent, with a
130
copy to the representative in charge of Ninnescah River downstream of the

the Sanford Dam. reservoir and on the Arkansas River to
(e) Flood control operation shall not Arkansas City, Kans. In order to ac-
restrict pumping necessary for munic- complish this, flows shall not exceed a
ipal and industrial uses and releases 90-foot stage (2,500 c.f.s.) on the
necessary for downstream users. U.S.G.S. gage on North Fork of
(f) Release made in accordance with Ninnescah River near Cheney, Kans.,
the regulations of this section are sub- river mile 8.8; a 12-foot stage (7,000
ject to the condition that releases shall c.f.s.) on the U.S.G.S. gage on
Ninnescah River near Peck, Kans.,
that would be inconsistent with emer-
river mile 31.6; and a 16-foot stage
gency requirements for protecting the
(18,000 c.f.s.) on the U.S.W.B. gage on
dam and reservoir from major damage
or inconsistent with the safe routing of Arkansas River at Arkansas City,
the inflow design flood (spillway design Kans., river mile 701.4.
flood). (b) When the reservoir level exceeds
(g) The discharge characteristics of elevation 1429.0 (top of flood control
the flood control outlet works (capable pool), releases shall be made at the
of discharging approximately 22,000 maximum rate possible through the
c.f.s. with the reservoir level at ele- river outlet works and the uncon-
vation 2941.3) shall be maintained in trolled spillway and continued until
accordance with the construction plans the pool recedes to elevation 1429.0
(Bureau of Reclamation Specifications when releases shall be made to equal
No. DC–5725 as modified by revised inflow or the maximum release permis-
drawings and criteria in Designers’ Op- sible under paragraph (a) of this sec-
erating Criteria, Sanford Dam, dated tion, whichever is greater.
October 1965). (c) The representative of the Bureau
(h) All elevations stated in this sec- of Reclamation or its designated agent
tion are at Sanford Dam and are rein immediate charge of operation of
ferred to the datum in use at that loca- the Cheney Dam shall furnish daily to
tion. the District Engineer, Corps of Engi-
[31 FR 7751, June 1, 1966] neers, Department of the Army, in
charge of the locality, a report, on
§ 208.33 Cheney Dam and Reservoir, forms provided by the District Engi-
North Fork of Ninnescah River, neer for this purpose, showing the pool
Kans.
elevation; the number of river outlet
The Bureau of Reclamation, or its works gates in operation with their re-
designated agent, shall operate the spective openings and releases; uncon-
Cheney Dam and Reservoir in the in- trolled spillway release; municipal
terest of flood control as follows: pumping rate; storage; tailwater ele-
(a) Flood control storage in the res- vation; reservoir inflow; available
ervoir is the capacity between ele-
evaporation data; and precipitation in
vation 1421.6 (top of the conservation
inches. Normally, a reading at 8 a.m.,
pool) and elevation 1429.0 (top of the
noon, 4 p.m., and midnight, shall be
flood control pool), and initially
amounts to 80,860 acre-feet. Whenever shown for each day. Whenever the res-
the reservoir level is within this range ervoir pool rises to elevation 1421.6 and
the flood control discharge facilities releases for flood regulation are nec-
shall be operated under the direction of essary or appear imminent, the rep-
the District Engineer, Corps of Engi- resentative of the Bureau of Reclama-
neers, Department of the Army, in tion or its designated agent, shall re-
charge of the locality, so as to reduce port at once to the District Engineer
as much as practicable the flood dam- by telephone or telegraph, and, unless
age below the reservoir. All flood con- otherwise instructed, shall report once
trol releases shall be made in amounts daily thereafter in that manner until
which, when combined with local in- the reservoir pool recedes to elevation
flow below the dam, will not produce 1421.6. These latter reports shall reach
flows in excess of bankfull on the the District Engineer by 9 a.m. each

North Fork of Ninnescah and day.
131
§ 208.34 33 CFR Ch. II (7–1–20 Edition)
(d) The regulations of this section, initially amounts to 76,600 acre-feet.

insofar as they govern use of flood con- Whenever the reservoir level is within
trol storage capacity above elevation this elevation range the flood control
1421.6, are subject to temporary modi- discharge facilities at Norman Dam
fication in time of flood by the District shall be operated under the direction of
Engineer if found desirable on the basis the District Engineer, Corps of Engi-
of conditions at the time. Such desired neers, Department of the Army, in
modifications shall be communicated charge of the locality, so as to reduce
to the representative of the Bureau of as much as practicable the flood dam-
Reclamation and its designated agent age below the reservoir. In order to ac-
in immediate charge of operations of complish this purpose, flood control re-
the Cheney Dam by any available leases shall be limited to amounts
means of communication, and shall be which, when combined with local
confirmed in writing under date of the inflows below the dam, will not
same day to the Regional Director in produce flows in excess of bankfull on
charge of the locality, and his des- the Little River downstream of the res-
ignated agent, with a copy to the rep- ervoir. Controlling bankfull stages and
resentative in charge of the Cheney corresponding flows, as presently esti-
Dam. mated, are as follows: A 7.5-foot stage
(e) Flood control operation shall not (1,800 c.f.s.) on the U.S.G.S. gage on
restrict pumping necessary for munic- Little River near Tecumseh, Okla.,
ipal and industrial uses and releases river mile 77.2 and a 17-foot stage (6,500
necessary for downstream users. c.f.s.) on the U.S.G.S. gage on Little
(f) Releases made in accordance with River near Sasakwa, Okla., river mile
the regulations of this section are sub- 24.1.
ject to the condition that releases shall (b) When the reservoir level in Lake
not be made at rates or in a manner Thunderbird exceeds elevation 1049.4
that would be inconsistent with emer- (top of flood control pool), releases
gency requirements for protecting the shall be made at the maximum rate
dam and reservoir from major damage possible through the river outlet works
or inconsistent with the safe routing of and the uncontrolled spillway and con-
the inflow design flood (spillway design tinued until the pool recedes to ele-
flood). vation 1049.4 when releases shall be
(g) The discharge characteristics of made to equal inflow or the maximum
the river outlet works (capable of dis- release permissible under paragraph (a)
charging approximately 3,590 c.f.s. with of this section, whichever is greater.
the reservoir level at elevation 1421.6) (c) The representative of the Bureau
shall be maintained in accordance with of Reclamation or its designated agent
the construction plans (Bureau of Rec- in immediate charge of operation of
lamation Specifications No. DC–5744 as the Norman Dam shall furnish daily to
modified by revised drawings and cri- the District Engineer, Corps of Engi-
teria in Designers’ Operating Criteria, neers, Department of the Army, in
Cheney Dam, dated November 1964). charge of the locality, a report, on
(h) All elevations stated in this sec- forms provided by the District Engi-
tion are at Cheney Dam and are re- neer showing the pool elevation; the
ferred to the datum in use at that loca- number of river outlet works gates in
tion. operation with their respective open-
[31 FR 7751, June 1, 1966] ings and releases; uncontrolled spill-
way release; municipal pumping rate;
§ 208.34 Norman Dam and Lake Thun- storage; tail water elevation; reservoir
derbird, Little River, Okla. inflow; available evaporation data; and
The Bureau of Reclamation, or its precipitation in inches. Normally, a
designated agent, shall operate Nor- reading at 8 a.m., noon, 4 p.m. and mid-
man Dam and Lake Thunderbird in the night, shall be shown for each day.
interest of flood control as follows: Whenever the reservoir level rises to
(a) Flood control storage in Lake elevation 1039 and releases for flood
Thunderbird between elevation 1039 regulation are necessary or appear im-
(top of the conservation pool) and ele- minent, the representative of the Bu-
vation 1049.4 (top of flood control pool) reau of Reclamation or its designated
132
agent, shall report at once to the Dis- § 208.82 Hetch Hetchy, Cherry Valley,
trict Engineer by telephone or tele- and Don Pedro Dams and Res-
graph and, unless otherwise instructed, ervoirs.
shall report once daily thereafter in The Turlock Irrigation District and
that manner until the reservoir level Modesto Irrigation District, acting
recedes to elevation 1039. These latter jointly, hereinafter called the Dis-
reports shall reach the District Engi- tricts, shall operate Don Pedro Dam
neer by 9 a.m. each day. and Reservoir in the interest of flood
(d) The regulations of this section, control, and the City and County of
insofar as they govern use of flood con- San Francisco, hereinafter called the
trol storage capacity above elevation City, shall operate Hetch Hetchy Dam
and Reservoir and Cherry Valley Dam
1039.0, are subject to temporary modi-
and Reservoir in the interest of flood
fication in time of flood by the District
control all as follows:
Engineer if found desirable on the basis (a) Storage space in Don Pedro Res-
of conditions at the time. Such desired ervoir shall be kept available for flood-
modifications shall be communicated control purposes in accordance with
to the representative of the Bureau of the Flood-Control Storage Reservation
Reclamation and its designated agent Diagram currently in force for that
in immediate charge of operations of reservoir, except when storage of flood-
the Norman Dam by any available water is necessary as prescribed in
means of communication, and shall be paragraph (d) of this section. The
confirmed in writing under date of the Flood-Control Storage Reservation
same day to the Regional Director in Diagram in force as of the promulga-
charge of the locality, and his des- tion of this section is that dated 4
ignated agent, with a copy to the rep- April 1956, File No. TU–1–26–7, and is on
resentative in charge of the Norman file in the Office of the Chief of Engi-
Dam. neers, Department of the Army, Wash-
(e) Flood control operation shall not ington, D.C., in the office of the
restrict pumping necessary for munic- Turlock Irrigation District, Turlock,
ipal and industrial uses and releases California, and in the office of the Mo-
necessary for downstream users. desto Irrigation District, Modesto,
California. Revisions of the Flood-Con-
(f) Releases made in accordance with
trol Storage Reservation Diagram may
the regulations of this section are sub-
be developed from time to time as nec-
ject to the condition that releases shall essary by the Corps of Engineers and
not be made at rates or in a manner the Districts. Each such revision shall
that would be inconsistent with emer- be effective upon the date specified in
gency requirements for protecting the the approval thereof by the Chief of
dam and reservoir from major damage Engineers and by the presidents of the
or inconsistent with the safe routing of Districts and from that date until re-
the inflow design flood (spillway design placed shall be the Flood-Control Stor-
flood). age Reservation Diagram currently in
(g) The discharge characteristics of force for the purpose of this section.
the river outlet works (capable of dis- Copies of the Flood-Control Storage
charging approximately 5,400 c.f.s. with Reservation Diagram currently in force
the reservoir level at elevation 1039.0) shall be kept on file in and may be ob-
shall be maintained in accordance with tained from the office of the District
the construction plans (Bureau of Rec- Engineer, Corps of Engineers, in charge
lamation Specifications No. DC–5793 as of the locality, the office of the
revised by the ‘‘as built drawings’’). Turlock Irrigation District, Turlock,
(h) All elevations stated in this sec- California, and the office of the Mo-
tion are at Norman Dam and are re- desto Irrigation District, Modesto,
California.
ferred to the datum in use at that loca-
(b) Storage space in Hetch Hetchy
tion.
Reservoir shall be kept available for
[34 FR 4967, Mar. 7, 1969] flood-control purposes in accordance
with the Flood-Control Storage Res-

ervation Diagram for that reservoir
133
§ 208.82 33 CFR Ch. II (7–1–20 Edition)
currently in force, except when storage mission of the City and County of San
of floodwater is necessary as prescribed Francisco, California, and from that
in paragraph (e) of this section. The date until replaced shall be the Flood-
Flood-Control Storage Reservation Control Storage Reservation Diagram
Diagram in force as of the promulga- currently in force for the purpose of
tion of this section is that dated April this section. Copies of the Flood-Con-
4, 1956, File No. TU–3–26–1, and is on file trol Storage Reservation Diagram cur-
in the Office. Chief of Engineers, De- rently in force shall be kept on file in
partment of the Army, Washington, and may be obtained from the office of
D.C., and in the office of the Public the District Engineer, Corps of Engi-
Utilities Commission of the City and neers, in charge of the locality, and the
County of San Francisco, California. office of the Public Utilities Commis-
Revisions of the Flood-Control Storage sion of the City and County of San
Reservation Diagram may be developed Francisco, California.
from time to time as necessary by the (d) Any water temporarily stored in
Corps of Engineers and the City. Each the flood-control space indicated by
such revision shall be effective upon the Flood-Control Storage Reservation
the date specified in the approval Diagram currently in force for Don
thereof by the Chief of Engineers and Pedro Reservoir shall be released as
by the Public Utilities Commission of rapidly as can be accomplished without
the City and County of San Francisco, causing flows in Tuolumne River below
California, and from that date until re- LaGrange Dam to exceed 7,000 c.f.s.
placed shall be the Flood-Control Stor-
during rain floods or to exceed 9,000
age Reservation Diagram currently in
c.f.s. at all other times.
force for the purpose of this section.
(e) Any water temporarily stored in
Copies of the Flood-Control Storage
Reservation Diagram currently in force the flood-control space indicated by
shall be kept on file in and may be ob- the Flood-Control Storage Reservation
tained from the office of the District Diagrams currently in force for Hetch
Engineer, Corps of Engineers, in charge Hetchy and Cherry Valley Reservoirs
of the locality, and the office of the shall be released as rapidly as can be
Public Utilities Commission of the accomplished without exceeding the re-
City and County of San Francisco, spective safe channel capacities, and
California. without materially contributing to
(c) Storage space in Cherry Valley major encroachment into the flood-
Reservoir shall be kept available for control space at Don Pedro Reservoir.
flood-control purposes in accordance Such releases shall be proportioned be-
with the Flood-Control Reservation tween Hetch Hetchy and Cherry Valley
Diagram currently in force for that Reservoirs in such manner as to assure
reservoir except when storage of flood- that the percentage of encroachment
water is necessary as prescribed in into the flood-control space at the two
paragraph (e) of this section. The reservoirs will tend toward equality in-
Flood-Control Storage Reservoir Dia- sofar as possible. Whenever the storage
gram in force as of the promulgation of space in Don Pedro Reservoir is less
this section is that dated April 4, 1956, than 90 percent of that indicated by the
File No. TU–2–26–6, and is on file in the Flood-Control Storage Reservation
Office, Chief of Engineers, Corps of En- Diagram currently in force for that
gineers, Department of the Army, reservoir, releases from Hetch Hetchy
Washington, D.C., and in the office of and Cherry Valley Reservoirs shall be
the Public Utilities Commission of the restricted to those required in connec-
City and County of San Francisco, tion with the generation of hydro-
California. Revisions of the Flood-Con- electric power in the power system of
trol Storage Reservation Diagram may the City and in connection with diver-
be developed from time to time as nec- sion into the water supply system of
essary by the Corps of Engineers and the City.
the City. Each such revision shall be (f) In the event that the water level
effective upon the date specified in the in Don Pedro Reservoir rises above ele-
approval thereof by the Chief of Engi- vation 605.55 at the dam (top of spill-
neers and by the Public Utilities Com- way gates), subsequent operation of the
134
Corps of Engineers, Dept. of the Army, DoD Pt. 209
dam shall be such as to cause down- reservoir storages, basic operating cri-
stream flows to exceed as little as pos- teria which affect the schedule of oper-
sible the criteria prescribed in para- ations, and such other operating data
graph (d) of this section, and in no as the District Engineer, Corps of Engi-
event to cause the maximum subse- neers, may request for Hetch Hetchy,
quent release from the reservoir to ex- Eleanor, and Cherry Valley Reservoirs.
ceed the estimated maximum subse- (m) The Districts shall keep the Dis-
quent inflow to the reservoir. trict Engineer, Corps of Engineers, in
(g) In the event that the water level charge of the locality, and the City
in Hetch Hetchy Reservoir rises above currently advised of reservoir releases,
elevation 3806 at the dam (top of spill- reservoir storages, basic operating cri-
way gates), subsequent operation of the teria which affect the schedule of oper-
dam shall be such as to cause down- ations, and such other operating data
stream flows to exceed as little as pos- as the District Engineer, Corps of Engi-
sible the criteria prescribed in para- neers, may request for Don Pedro Res-
graph (e) of this section, and in no ervoir.
event to cause the maximum subse- (n) The flood-control regulations of
quent release from the reservoir to ex- this section are subject to temporary
ceed the estimated maximum subse- modification by the District Engineer,
quent inflow to the reservoir. Corps of Engineers, if found necessary
(h) In the event that the water level in time of flood emergency. Request for
in Cherry Valley Reservoir rises above and action on such modifications may
elevation 4700 at the dam (spillway be made by any available means of
crest), subsequent operation of the dam communication, and such action shall
shall be such as to cause downstream be confirmed in writing under date of
flows to exceed as little as possible the same day to the operating agency for
criteria prescribed in paragraph (e) of the reservoir affected.
this section, and in no event to cause
the maximum subsequent release from [21 FR 2682, Apr. 26, 1956]
the reservoir to exceed the estimated
maximum subsequent inflow to the res- PART 209—ADMINISTRATIVE
ervoir. PROCEDURE
(i) Nothing in the regulations of this
section shall be construed to require Sec.
dangerously rapid changes in mag- 209.50 Mississippi River Commission: Public
nitudes of releases from any of the res- observation of Commission meetings.
ervoirs. 209.138a Authorization for exploratory drill-
(j) The Districts shall procure such ing in the Gulf of Santa Catalina, Calif.
current basic hydrologic data, make 209.140 Operations of the Corps of Engineers
such current determinations of re- under the Federal Power Act.
209.141 Coordination of hydroelectric power
quired flood-control storage reserva-
operations with power marketing agen-
tion in Don Pedro Reservoir, and cur- cies.
rent calculations of permissible re- 209.155 Expenditure of Federal funds for
leases from Don Pedro Reservoir as are work shoreward of harbor lines.
required to accomplish the flood-con- 209.160 The California Debris Commission.
trol objectives of the regulations of 209.170 Violations of laws protecting navi-
this section. gable waters.
(k) The City shall procure such cur- 209.180 Temporary closure of waterway to
rent basic hydrologic data, and make navigation.
such current calculations of permis- 209.190 [Reserved]
sible releases from Hetch Hetchy and 209.200 Regulations governing navigable wa-
ters.
Cherry Valley Reservoirs as are re-
209.220 Flood control regulations.
quired to accomplish the flood-control
209.230 Use of reservoir areas for recreation.
objectives of the regulations of this 209.300 Flood control regulations.
section. 209.310 Representation of submarine cables
(l) The City shall keep the District and pipelines on nautical charts.
Engineer, Corps of Engineers, in charge
209.315 Public access to navigation works.

of the locality, and the Districts cur- 209.320 Policy on release of commercial sta-
rently advised of reservoir releases, tistics.
135
§ 209.50 33 CFR Ch. II (7–1–20 Edition)
209.325 Navigation lights, aids to naviga- (6) Meeting means the deliberations of
tion, navigation charts, and related data at least a majority of the Commis-
policy, practices and procedure.
sioners where such deliberations deter-
209.335 Publication.
209.340 Laboratory investigations and mate- mine or result in the joint conduct or
rials testing. disposition of official Commission busi-
209.345 Water resource policies and authori- ness, but does not include:
ties. (i) Deliberations of the Commission
APPENDIX A TO PART 209—PUBLIC LAW 90–483, in determining whether or not to close
90TH CONGRESS, S. 3710, AUGUST 13, 1968 a portion or portions of a meeting in
AUTHORITY: 5 U.S.C. 301; 33 U.S.C. 1; 10 accordance with paragraphs (e)(4) and
U.S.C. 3012. (e)(5) of this section.
SOURCE: 33 FR 18670, Dec. 18, 1968, unless (ii) Deliberations of the Commission
otherwise noted. in determining whether or not to with-
hold from disclosure information per-
§ 209.50 Mississippi River Commission:
Public observation of Commission taining to a portion or portions of a
meetings. meeting as provided in paragraphs
(e)(4) and (e)(5) of this section.
(a) Purpose. (1) The purpose of this
regulation is to afford to the public, to (iii) Deliberations of the Commission
the fullest possible extent, information pertaining to changes in the subject
regarding the decisionmaking proc- matter of a meeting or changes in the
esses of the Mississippi River Commis- determination to open or close a por-
sion and to open all meetings of the tion or portions of a meeting to the
Mississippi River Commission to public public following the public announce-
observation except in instances where ment of such meeting in accordance
a portion or portions of a meeting may with paragraph (d)(4) of this section.
be closed to the public in accordance (iv) Deliberations of the Commission
with this regulation in order to protect in determining whether to waive the
the rights of individuals and/or in order one-week public notice requirement in
to permit the Mississippi River Com- accordance with paragraph (d)(2) of
mission to carry out its statutory and this section.
assigned functions and responsibilities. (c) Time, place, and agenda of meetings.
This regulation is issued in accordance (1) The meetings of the Commission,
with section (g) of the Government in except those held on Government boats
the Sunshine Act and implements sec- during inspection trips of the Commis-
tions (b) through (f) of said Act (5 sion, shall be held at Vicksburg, Mis-
U.S.C. 552b (b) through (f)). sissippi. The time of such meetings
(2) Public observation of Mississippi shall be fixed by the President of the
River Commission meetings includes Commission, who shall cause due no-
public participation in the delibera- tice of such meetings to be given mem-
tions of the Commission only to the ex- bers of the Commission and the public.
tent specifically provide in public no-
tices of such meetings. (33 U.S.C. 646)
(b) Definitions. The following defini- (2) The President shall, after con-
tions apply to the regulation in this
sultation with the Commissioners, pre-
section.
pare a detailed agenda for planned
(1) Commission means The Mississippi
Commission meetings at the earliest
River Commission.
(2) President means the duly ap- practicable time. Suggestions from the
pointed President and Executive Offi- public of proposed agenda items are in-
cer of the Commission. vited.
(3) Commissioner means a duly ap- (d) Public notices and Federal Register
pointed member of the Commission. publication. (1) At least one week before
(4) Secretary means the Secretary of each Commission meeting the Sec-
the Commission. retary shall issue a public announce-
(5) Chief Legal Officer means the Divi- ment which (i) States the time and
sion Counsel or the acting Division place of the meeting,
Counsel of the Lower Mississippi Val- (ii) Lists the agenda items or sub-
ley Division, Corps of Engineers. jects to be discussed at the meeting,
136
(iii) States whether the meeting or change in one of the preceding, and the
portions of the meeting are to be closed name and business telephone number of
or open to public observation, the official of the Commission who will
(iv) States whether or not public par- respond to requests for information
ticipation in the meeting will be per- about the meeting, shall be submitted
mitted, and for publication in the FEDERAL REG-
(v) States the name and business ISTER.
phone number of the official who will (e) Closing a portion or portions of a
respond to requests for information meeting. (1) All Commission meetings
about the meeting. Public announce- shall be open to the public except when
ments of Commission meetings shall the Commission determines that public
include releases to the news media in disclosure of information to be dis-
the Lower Mississippi River Valley and cussed in a portion or portions of a
mailing notices of such meetings to all meeting is likely to:
persons and agencies known to have an (i) Disclose matters that are (A) spe-
interest in the Commission’s work and cifically authorized under criteria es-
to others who request such announce- tablished by Executive order to be kept
ments. secret in the interests of national de-
(2) The one-week period for public no- fense or foreign policy and (B) in fact
tice required by paragraph (d)(1) of this properly classified pursuant to such
section shall not be applicable when a Executive order;
majority of the entire membership of (ii) Relate solely to the internal per-
the Commission determines by a re- sonnel rules and practices of the Com-
corded vote that Commission business mission;
requires that a meeting be called at an (iii) Disclose matters specifically ex-
earlier date. The Secretary shall, how- empted from disclosure by statute
ever, issue the public notice required [other than the Freedom of Informa-
by paragraph (d)(1) of this section at tion Act (5 U.S.C. 552), provided that
the earliest practicable time. such statute: (A) Requires that the
(3) When due to unforeseen cir- matters be withheld from the public in
cumstances it is necessary to change such a manner as to leave no discretion
the time or place of a meeting fol- on the issue, or (B) establishes par-
lowing the public announcement re- ticular criteria for withholding or re-
quired by paragraph (d)(1) of this sec- fers to particular types of matters to
tion, the Secretary will publicly an- be withheld;
nounce such change at the earliest (iv) Disclose trade secrets and com-
practicable time. mercial or financial information ob-
(4) The subject matter of a meeting, tained from a person and privileged or
or the determination of the Commis- confidential;
sion to open or close a portion or por- (v) Involve accusing any person of a
tions of a meeting to the public, may crime, or formally censuring any per-
be changed following the public an- son;
nouncement required by paragraph (vi) Disclose information of a per-
(d)(1) of this section only if: (i) A ma- sonal nature when disclosure would
jority of the entire membership of the constitute a clearly unwarranted inva-
Commission determines by a recorded sion of personal privacy;
vote that Commission business so re- (vii) Disclose investigatory records
quires and that no earlier announce- compiled for law-enforcement pur-
ment of the change was possible, and poses, or information which, if written,
(ii) the Secretary publicly announces would be contained in such records.
such change and the vote of each mem- But only to the extent that the produc-
ber on such change at the earliest prac- tion of such records or information
ticable time. would: (A) Interfere with enforcement
(5) Immediately following each public proceedings, (B) deprive a person of a
announcement required by this section, right to a fair trial or to an impartial
notice of the time, place, and subject adjudication, (C) constitute an unwar-
matter of a meeting, whether a portion ranted invasion of personal privacy, or
or portions of the meetings are open or (D) disclose the identity of a confiden-
closed to public observation, any tial source, and, in the case of a record
137
§ 209.50 33 CFR Ch. II (7–1–20 Edition)
compiled by a criminal law-enforce- tions of which the Commission pro-

ment authority in the course of a poses to close to the public, and a sepa-
criminal investigation or by an agency rate vote of the members of the Com-
conducting a lawful national-security mission shall be taken to determine
intelligence investigation, confidential whether to withhold information from
information furnished only by the con- the public. The vote of each Commis-
fidential source: sioner participating in such vote shall
(viii) Disclose information the pre- be recorded and no proxies shall be al-
mature disclosure of which would be lowed.
likely to significantly frustrate imple- (6) Within one day of any vote taken
mentation of a proposed Commission pursuant to paragraphs (e)(4) and (e)(5)
action except: (A) When the Commis- of this section, the Commission shall
sion has already disclosed to the public make publicly available a written copy
the content or nature of its proposed of such vote reflecting the vote of each
action or (B) when the Commission is member on the question. If a portion or
required by law to make such disclo- portions of a meeting are to be closed
sure on its own initiative prior to tak- to the public, the Commission shall
ing final Commission action on such within one day of the vote taken pursu-
proposal; ant to paragraphs (e)(4) and (e)(5) of
(ix) Specifically concerns the Com- this section make publicly available a
mission’s participation in a civil action written explanation of its action in
or proceeding. closing a portion or portions of the
(2) In each instance where the Com- meeting together with a list of all per-
mission determines that a portion or sons expected to attend the meeting
portions of a meeting may be closed to and their affiliations.
the public, or determines that informa- (7) For every portion or portions of a
tion may be withheld from the public meeting closed pursuant to paragraphs
for one or more of the exemptions list- (e)(1) (i) through (ix) of this section,
ed in paragraph (e)(1) of this section, the Chief Legal Officer of the Commis-
the Commission shall consider and de- sion shall publicly certify that, in his
termine whether or not the public in- or her opinion, the meeting may be
terest requires that the portion or por- closed to the public and shall state
tions of the meeting be open to the each relevant exemptive provision. A
public and whether or not the public copy of such certification, together
interest requires that the information with a statement from the presiding of-
be released to the public. ficer of the meeting setting forth the
(3) Whenever any person whose inter- time and place of the meeting, and the
est may be directly affected by a por- persons present, shall be retained in
tion of a meeting requests that the the Commission files.
Commission close such portion to the (f) Records. (1) The Secretary shall
public for any of the reasons referred maintain in the official files:
to in paragraph (e)(1) (v), (vi) or (vii) of (i) A complete transcript or elec-
this section, the Commission, upon the tronic recording (disclosing the iden-
request of any one of its members, tity of each speaker) adequate to
shall vote by recorded vote whether to record fully the proceedings of the
close such meeting. Commission at a portion or portions of
(4) Action to close a portion or por- a meeting closed to the public for the
tions of a meeting for one or more of reasons specified in paragraphs (e)(1) (i)
the reasons listed in paragraphs (e)(1) through (ix) of this section.
(i) through (ix) of this section, or to (ii) The statement of the presiding of-
withhold information from the public ficer of each Commission meeting, a
for one or more of the reasons listed in portion or portions of which were
paragraphs (e)(1) (i) through (ix) of this closed to the public, as required by
section shall be taken only when a ma- paragraph (e)(7) of this section.
jority of the entire membership of the (iii) The certification of the Chief
Commission votes to take such action. Legal Officer, as required by paragraph
(5) A separate recorded vote of the (e)(7) of this section, for each Commis-
Commission shall be taken with re- sion meeting, a portion or portions of

spect to each meeting a portion or por- which were closed to the public.
138
(2) The records required by paragraph District, in consultation with the Bu-
(f)(1) of this section shall be retained reau of Land Management and the U.S.
for at least two years following any Geological Survey for drilling in the
meeting or not less than one year fol- Gulf of Santa Catalina:
lowing conclusion of Commission ac- (1) All drilling with a single tract
tion with respect to any matter dis- will be covered by a single application.
cussed at such meeting, whichever oc- (2) Where practicable, applications
curs later. shall be submitted at least 120 days in
(g) Public access to records. (1) All advance of drilling for tracts where
records required to be maintained in drilling is expected to be accomplished
accordance with the provisions of (f)(1) within the traffic separation scheme,
of this section shall promptly be made the precautionary zone or within 2 nau-
available to the public by the Sec- tical miles of a traffic lane.
retary except for information which (3) Applications shall include the lo-
the Commission has determined may cation of any known proposed drilling
be withheld from the public for the rea- site and the estimated start and com-
sons stated in paragraphs (e)(1) (i) pletion dates for each. Updated infor-
through (ix) of this section. mation on the plan shall be furnished
(2) Public inspection of such records as soon as available. One individual
shall take place at the headquarters of (and alternate) shall be designated by
the Mississippi River Commission, 1400 the applicant as responsible for main-
Walnut Street, Vicksburg, Mississippi taining close liaison with all involved
39180. agencies.
(3) The Secretary shall provide (sub- (4) Where it is not feasible to perform
ject to withholding of information for exploratory work from outside the
the reasons stated in paragraphs (e)(1) traffic lanes or 1⁄4 mile buffer zones, or
(i) through (ix) of this section) upon re- precautionary zone, authorizations will
quest of any person, copies of the include the following conditions:
records required by the provisions of (i) Exploratory vessels within a traf-
(f)(1) of this section, including tran- fic lane will, to the degree practicable,
scriptions of electronic recordings at be sited near traffic lane boundaries.
the actual cost of transcription or du- (ii) Exploratory vessels within one
plication. traffic lane, or in the precautionary
zone, shall be separated by at least 8
(5 U.S.C. 552b)
nautical miles in the direction of the
[42 FR 13286, Mar. 10, 1977] lane axis.
(iii) Exploratory vessels located
§ 209.138a Authorization for explor- within the traffic lanes, or the pre-
atory drilling in the Gulf of Santa
Catalina, Calif. cautionary zone, shall not have their
pendant buoys within 3,000 yards from
(a) Department of the Army author- the pendant buoys of any other vessel.
ization is required pursuant to section (iv) Exploratory rigs and vessels en-
4(f) of the Outer Continental Shelf gaged in offshore development may
Lands Act of 1953 (67 Stat. 462; 43 U.S.C. have no cables, anchors, buoys, or
1333(f)) in coastal waters and the water other associated equipment within the
covering the Outer Continental Shelf. traffic lanes, 1⁄4 mile buffer zones, or
The determination whether or not to the precautionary zone, at a depth of
issue a Department of the Army au- less than 100 feet, unless such equip-
thorization for structures on the Outer ment is marked with class I private
Continental Shelf related to explo- aids to navigation in accordance with
ration of minerals is based upon the current Federal regulations.
proposed activities’ effect on naviga-
tion and national security. All other (67 Stat. 462 (43 U.S.C. 1333(f))
matters concerning offshore drilling, [43 FR 28475, June 30, 1978]
including environmental consider-
ations, are the responsibility of the De- § 209.140 Operations of the Corps of
partment of the Interior. Engineers under the Federal Power
(b) The following rules have been de- Act.
veloped jointly by the Los Angeles dis- (a) General. This section outlines
trict engineer and the 11th Coast Guard policies and procedures applicable to
139
§ 209.140 33 CFR Ch. II (7–1–20 Edition)
those operations in which the Corps of Power Commission, the Chief of Engi-
Engineers may be called upon to par- neers will assign the investigation of
ticipate under the Federal Power Act. an application for permit or license
Such operations include: Investigations under the Federal Power Act to a Divi-
and reports on applications for permits sion Engineer, who will submit a report
and licenses for development of power on the investigation as provided here-
affecting navigable waters; supervision in. The date that the report is to be
of investigations, construction, and op- submitted will be specified. The Divi-
eration of projects under such permits sion Engineer, upon assignment of an
and licenses; preparation of special re- investigation involving extensive stud-
ports as required by the Federal Power ies, will when requested by the Chief of
Commission; and review of plans of Engineers submit an estimate of the
dams or other structures affecting cost of the investigation, listing the
navigation. The foregoing functions are probable expenditures for salaries sepa-
performed by the Corps of Engineers rate from the estimated costs of non-
only upon request of the Federal Power personal services.
Commission. (2) If in the investigation of an appli-
(b) Authority of Division and District cation or a declaration of intention
Engineers. Section 2 of the revised Fed- filed under the Federal Power Act the
eral Power Act provides that the Fed- Division Engineer considers a public
eral Power Commission may request hearing desirable in the interests of
the President to detail an officer or of- navigation or flood control, the Chief
ficers from the Corps of Engineers, or of Engineers will be notified whereupon
other branches of the United States the matter will be brought to the at-
Army, to serve the Commission as En- tention of the Commission. No public
gineer officer or officers, or in any hearing will be held unless specifically
other capacity, in field work outside authorized by the Commission or by
the seat of government, their duties to the Chief of Engineers. If a hearing is
be prescribed by the Commission. By authorized it will be limited strictly to
authority of the Secretary of the consideration of the purpose for which
Army, and in accordance with the in- approval is granted.
structions issued by the President in a (3) The report will describe and dis-
letter to the Secretary of the Army cuss material facts having a definite
dated May 18, 1931, Division Engineers bearing on the interests of navigation
will be detailed to serve the Commis- and flood control and the general effect
sion as engineer officers in field work the project would have on a com-
outside the seat of government, their prehensive plan of developing the water
duties to be prescribed by the Commis- resources of the basin. Specific ref-
sion, and to be performed under the su- erence will be made to pertinent pub-
pervision of the Chief of Engineers. lished documents containing the re-
District Engineers will be designated sults of studies and/or resolutions di-
to carry out the field inspections and recting studies to be made. In the case
investigations under supervision of the of an application for permit or license
Division Engineer. When a Division En- for an unconstructed project the report
gineer is detailed by the Chief of Engi- will include a recommendation as to
neers to assist the Commission in ei- whether development should be under-
ther the investigation or supervision of taken by the United States rather than
a project he will be the accredited rep- by a licensee. A recommendation for
resentative of the Commission. The ac- Federal development will be supported
tual field work will be done by the des- by a showing as to how this would
ignated District Engineer who will serve the Corps of Engineers programs
make a report to the Division Engi- and policies. In the case of an applica-
neer. All reports and such correspond- tion for permit or license for a con-
ence as would normally be forwarded to structed project the report should con-
the Commission will be addressed to tain appropriate comments concerning
the Chief of Engineers. possible redevelopment to improve the
(c) Procedure for investigations and re- usefulness of the project in relation to
port on applications for permits and li- the objectives of the Corps program in
censes. (1) Upon request by the Federal the basin.
140
(4) The report on an application for projects, will be as specified by the

license will contain recommendations Commission.
of the Division Engineer concerning (2) Projects will be classified as
the inclusion in the license of any major, minor, minor part or trans-
terms and conditions that are consid- mission line projects as indicated in
ered to be necessary or desirable in the the Federal Power Act and as specified
public interest from the standpoint of in the instructions from the Commis-
Corps of Engineers responsibilities. sion.
(5) The report on an application for (3) Inspection during the construc-
permit will contain such recommendation of a major project will be made
tions as required to insure coordina- monthly, or as often as may be nec-
tion of the applicant’s studies with the essary for the Division Engineer to as-
Division or District Engineer in cases sure himself that the terms of the li-
where interests of the Corps of Engi- cense are being complied with and the
neers are involved. In all cases, the re- work is of acceptable quality and in ac-
port will contain, in lieu of specific cordance with the approved plans. The
recommendations, a discussion of in- frequency of inspections of minor,
terests which should be protected by minor part, and transmission line
articles in a license issued subsequent projects is left to the discretion of the
to the permit period. Division Engineer.
(6) If the project is on a Federal res-
(4) After a project has been com-
ervation or contemplates the use of a
pleted and placed in operation and is
dam, either of which is under the juris-
under the supervision of the Division
diction of the Department of the Army,
Engineer, annual inspection will be
the report should state, giving reasons:
made of major and minor projects but
(i) Whether the project will interfere
inspection of transmission line projects
or be inconsistent with the purpose for
will not be made unless specifically re-
which such reservation was created or
quested by the Commission.
acquired and what conditions, if any,
should be imposed for the adequate (5) Reports on supervision and inspec-
protection and utilization of the res- tions of operations under Federal
ervation. Power Commission permits and li-
(ii) Whether the dam may be advan- censes will be submitted in accordance
tageously used by the United States for with instructions in paragraph (e) of
public purposes in addition to author- this section.
ized purposes and whether it should be (e) Reports on supervision and inspec-
reserved for such use. tion of operations under Federal Power
(iii) Whether the development should Commission permits licenses. Periodic re-
be undertaken by the United States. ports, as appropriate to assigned re-
(7) The reports will not be released or sponsibilities and as described in para-
made public except by specific author- graphs (e) (1) through (3), inclusive, of
ity of the Chief of Engineers, nor will this section will be submitted for each
copies of a report, its findings, or rec- Federal Power Commission permit or
ommendations be furnished to the ap- license for which a Division Engineer
plicant, to interested parties, or to the has been assigned responsibility for su-
Commission until released by the Chief pervision of operations under provi-
of Engineers. sions of the Federal Power Act. All of
(d) Procedure for supervision of oper- the described reports will be submitted
ations under permits and licenses. (1) in triplicate to the Chief of Engineers
When supervision of the operations of for transmittal to the Federal Power
an applicant under a permit or a li- Commission. Unless otherwise stated
cense is requested by the Federal transmittal letters will not be required
Power Commission, the Chief of Engi- and the reports will be mailed so as to
neers will assign responsibility for su- reach the Chief of Engineers not later
pervision to the Division Engineer. The than the 15th of the month following
operations to be supervised, such as in- the end of the report period.
vestigations being conducted by a per- (1) Reports on supervision of construc-
mittee, construction of a project under tion under a FPC License. When a Divi-
a license or operation of completed sion Engineer is assigned responsibility
141
§ 209.141 33 CFR Ch. II (7–1–20 Edition)
for supervision and inspection of con- authority vested in the Secretary of

struction of a licensed project, the re- the Army by section 4(e) of the Federal
quirements for submission of reports Power Act is hereby delegated to the
will be specified. Chief of the Engineers for promulga-
(2) Annual Report on operation of tion with regard to approval of plans of
project under supervision of the Division structures filed with the Federal Power
Engineer. Reports on the operation and Commission in connection with licens-
maintenance of each major and minor ing of non-Federal hydroelectric
licensed project for which supervision projects.
of operations has been assigned to a Di- (Sec. 4(e), 49 Stat. 840; 16 U.S.C. 797(e); Sec-
vision Engineer will be submitted an- retary of the Army memorandum for the
nually after the initial installation Chief of Engineers, dated March 11, 1975)
covered by the license has been com- [33 FR 18670, Dec. 18, 1968, as amended at 40
pleted. Such reports will be made on FR 17023, Apr. 16, 1975]
Federal Power Commission Form 10,
CROSS REFERENCE: For regulations of the
‘‘Operation Report’’ and, pursuant to
Federal Energy Regulatory Commission, see
paragraph 39u of AR 335–15, do not re- 18 CFR chapter I.
quire a reports control symbol. A spe-
cial report will be made in case of se- § 209.141 Coordination of hydro-
vere flood or interruption in operation electric power operations with
due to failure of material or accident. power marketing agencies.
Reports on operation and maintenance (a) Purpose. This regulation estab-
of transmission line projects are not lishes policies and procedures for co-
required unless requested by the Com- ordinating the operation of the Corps
mission. of Engineers’ hydroelectric generating
(3) Annual Report on operation of facilities with the power marketing
projects with licenses containing condi- agencies.
tions prescribed in the interest of naviga- (b) Applicability. This regulation ap-
tion. When the Federal Power Commis- plies to all civil works field operating
sion notifies the Chief of Engineers agencies (FOA) having generating fa-
that it will assume the supervision of cilities producing marketable electric
operation of a licensed project, the Di- power.
vision Engineer will not be required to (c) References. (1) Section 5, Pub. L.
make detailed inspections and reports. 534, 78th Congress, Flood Control Act of
However, the Division Engineer will 1944, December 22, 1944 (58 Stat. 889).
continue to be responsible for the (2) Section 302, Pub. L. 95–91, 95th
project insofar as it affects the interest Congress, Department of Energy Orga-
of navigation. The inspection of nization Act, August 4, 1977 (91 Stat.
projects in this class is left to the dis- 565).
cretion of the Division Engineer but (d) Background. Section 5 of the Act
annual reports will be submitted in of December 22, 1944 (Pub. L. 534, 78th
triplicate, through the Chief of Engi- Congress), provides that electric power
neers, on Federal Power Commission and energy generated at reservoir
Form 10, ‘‘Operation Report’’, omitting projects under the control of the De-
the items under ‘‘Supervision expense partment of the Army and in the opin-
for period’’, but including the following ion of the Secretary of Army not re-
information only under ‘‘Memorandum quired in the operation of such projects
Report’’. shall be delivered to the Secretary of
(i) Whether the operation of the Interior for transmittal and disposal in
project has been satisfactory insofar as a manner to encourage the most wide-
the interests of navigation are con- spread use thereof at the lowest pos-
cerned. sible rates to consumers consistent
(ii) Whether any infraction by the li- with sound business principles. Section
censee of the conditions in the interest 302 of the Department of Energy Orga-
of navigation has come to the atten- nization Act (Pub. L. 95–91) transfers
tion of the Division Engineer. all functions of the Secretary of Inte-
(f) Delegation of authority for approval rior under section 5 of the 1944 Act to
of structural plans for non-Federal hydro- the Secretary of Energy together with
electric projects affecting navigation. The all other functions of the Secretary of
142
Interior, and officers and components ment of rivers and harbors for dredging
of the Department of the Interior, with inside of harbor lines duly established.
respect to the Southeastern Power Ad- (b) It is not the policy of the Depart-
ministration; the Southwestern Power ment to expend Federal funds for the
Administration; the Alaska Power Ad- removal of wrecks or other obstruc-
ministration; the Bonneville Power Ad- tions shoreward of established harbor
ministration; and the power marketing lines.
functions of the Bureau of Reclama-
tion. § 209.160 The California Debris Com-
(e) Policies. (1) The Corps is respon- mission.
sible for operating the hydroelectric Section 1 of the Act of Congress of
power projects and providing informa- March 1, 1893 (27 Stat. 507; 33 U.S.C.
tion affecting cost and availability of 661), created the California Debris
power to the power marketing agen- Commission, consisting of three offi-
cies. Marketing the generated power cers of the Corps of Engineers, to regu-
declared excess to the needs of the late under the supervision of the Chief
projects and recovering Federal invest- of Engineers and direction of the Sec-
ment are the responsibilities of the retary of the Army, hydraulic mining
power marketing agencies. in the territory drained by the Sac-
(2) All FOA Commanders will de- ramento and San Joaquin River sys-
velop, in coordination with their re- tems, California. Under section 9 of the
spective power marketing agency, a act (27 Stat. 508; 33 U.S.C. 669), the indi-
system for exchanging operating infor- vidual proprietor or proprietors, or in
mation. The system will include gen- case of a corporation, its manager or
eral operating information and infor- agent appointed for that purpose, own-
mation on conditions that could sub- ing mining ground in this territory
stantially affect costs or power avail- which it is desired to work by the hy-
ability. draulic process, must file with the
(f) Delegation. Responsibility for co- Commission a verified petition, setting
ordinating the exchange of information forth such facts as will comply with
may be delegated to the District Engi- law and the rules prescribed by the
neer at the discretion of the Division Commission. The law contains detailed
Engineer. instructions with regard to facts re-
(g) Procedures—(1) Specific require- quired to be shown by the petitioner
ments—(i) Continuing. Prompt written and the procedure to be followed by the
notification will be provided to the ap- Commission in issuing an order direct-
propriate power marketing agency ing the methods and specifying the
each time a change in power operations manner in which operations shall pro-
or conditions which could substantially ceed. Full information on law and pro-
affect costs or power availability is an- cedure can be obtained from the Sec-
ticipated. retary, California Debris Commission,
(ii) Annual. Annually, when no 650 Capitol Mall, Sacramento, Cali-
changes in power operations or costs fornia 95814.
are expected for the succeeding 12-
month period, the marketing agency § 209.170 Violations of laws protecting
will be notified of that fact in writing. navigable waters.
(2) FOA responsibility. The FOA di- (a) [Reserved]
rectly responsible for communicating (b) Injuries to Government works. Sec-
with the marketing agency will de- tion 14 of the River and Harbor Act of
velop appropriate reporting procedures March 3, 1899 (30 Stat. 1152; 33 U.S.C.
in coordination with that agency. 408), makes it unlawful for any person
[43 FR 8258, Mar. 1, 1978] or persons to take possession of or
make use of for any purpose, or build
§ 209.155 Expenditure of Federal funds upon, alter, deface, destroy, move, in-
for work shoreward of harbor lines. jure, obstruct by fastening vessels
(a) Section 5 of the River and Harbor thereto or otherwise, or in any manner
Act of July 13, 1892 (27 Stat. 111; 33 whatever impair the usefulness of any
U.S.C. 628), prohibits the expenditure of sea wall, bulkhead, jetty, dike, levee,
money appropriated for the improve- wharf, pier, or other work built by the
143
§ 209.170 33 CFR Ch. II (7–1–20 Edition)
United States, or any piece of plant, dredgings, sludge, acid, or any other
floating or otherwise, used in the con- matter of any kind, other than that
struction of such work under the con- flowing from streets, sewers, and pass-
trol of the United States, in whole or ing therefrom in a liquid state, in the
in part, for the preservation and im- tidal waters of the harbors of New
provement of any of its navigable wa- York, Hampton Roads, and Baltimore
ters or to prevent floods, or as bound- or its adjacent or tributary waters,
ary marks, tide gauges, surveying sta- within the limits which shall be pre-
tions, buoys, or other established scribed by the Supervisor of the Har-
marks, nor remove for ballast or other bor. The provisions of this act are en-
purposes any stone or other material forced by the Supervisor under the di-
composing such works. (The Secretary rection of the Secretary of the Army.
of the Army may, on the recommenda- (d) Penalties for violations. (1) Section
tion of the Chief of Engineers, grant 12 of the River and Harbor Act of
permission for the temporary occupa- March 3, 1899 (30 Stat. 1151; 33 U.S.C.
tion or use of any of the aforemen- 406), as amended, provides that every
tioned public works when in his judg- person and every corporation that shall
ment such occupation or use will not violate any of the provisions of sec-
be injurious to the public interest). tions 9 and 10 shall be deemed guilty of
(c) Injurious deposits. (1) Section 13 of a misdemeanor, and on conviction
the River and Harbor Act of March 3, thereof shall be punished by fine, im-
1899 (30 Stat. 1152; 33 U.S.C. 407), makes prisonment, or both, in the discretion
it unlawful to throw, discharge, or de- of the court. The removal of any struc-
posit, or cause, suffer, or procure to be tures or parts of structures erected in
thrown, discharged, or deposited either violation of the provisions of the said
from or out of any ship, barge, or other sections may be enforced by the injunc-
floating craft, or from the shore, wharf, tion of any district court exercising ju-
manufacturing establishment, or mill, risdiction in any district in which such
any refuse matter of any kind or de- structures may exist, and proper pro-
scription whatever other than that ceedings to this end may be instituted
flowing from streets and sewers and under the direction of the Attorney
passing therefrom in a liquid state, General.
into any navigable water of the United (2) Section 16 of the River and Harbor
States, or into any tributary of any Act of March 3, 1899 (30 Stat. 1153; 33
navigable water from which the same U.S.C. 412), provides that every person
shall float or be washed into such navi- and every corporation that shall vio-
gable water, or to deposit or cause, suf- late, or that shall knowingly aid, abet,
fer, or procure to be deposited material authorize or instigate a violation of
of any kind in any place on the bank of the provisions of sections 13, 14 and 15,
any navigable water or on the bank of shall be guilty of a misdemeanor. On
any tributary of any navigable water, conviction thereof violators shall be
where the same shall be liable to be punished by a fine, imprisonment, or
washed into such navigable water, ei- both, in the discretion of the court.
ther by ordinary or high tides, or by Any master, pilot, and engineer, or per-
storms or floods, or otherwise, whereby son or persons acting in such capacity,
navigation shall or may be impeded or respectively, on board of any boat or
obstructed. Section 13 does not apply vessel who shall knowingly engage in
to the operations in connection with towing any scow, boat, or vessel loaded
the improvement of navigable waters with any material specified in section
or construction of public works consid- 13 to any point or place of deposit or
ered necessary and proper by the discharge in any harbor or navigable
United States officers supervising such water, elsewhere than within the limits
improvement or public work. defined and permitted by the Secretary
(2) An Act of Congress approved June of the Army, or who shall willfully in-
29, 1888 (25 Stat. 209; 33 U.S.C. 441–451), jure or destroy any work of the United
as amended on August 28, 1958 (72 Stat. States contemplated in section 14, or
970–971; 33 U.S.C. 441–451b) forbids the who shall willfully obstruct the chan-
placing, discharging, or depositing of nel of any waterway in the manner

refuse, dirt, ashes, cinders, mud, sand, contemplated in section 15, shall be
144
deemed guilty of a violation of the Act. (3) It is the duty of each District En-
Upon conviction he shall be punished gineer to take notice of any violations
as provided in this section, and shall of the laws for the protection of the
also have his license revoked or sus- navigable waters and the works of im-
pended for a term to be fixed by the provement therein that may occur in
judge before whom tried and convicted. his district and to take the necessary
Any boat, vessel, scow, raft, or other steps to secure enforcement of the law.
craft used or employed in violating any Whenever any violation of any of these
of the provisions of sections 13, 14, and provisions of law comes to his atten-
15 shall be liable for the pecuniary pen- tion he will investigate carefully the
alties specified in this section, and in circumstances of the case and will de-
addition for the amount of the damages termine the amount of the damage for
done by said boat, vessel, scow, raft, or which the parties committing the vio-
other craft. The latter sum shall be lation are responsible under section 16
placed to the credit of the appropria- of the River and Harbor Act of March 3,
tion for the improvement of the harbor 1899. He will advise the responsible par-
or waterway in which the damage oc- ties to remove the illegal structure or
curred, and said boat, vessel, scow, deposit or to repair the damage at
raft, or other craft may be proceeded their own expense within a time speci-
against summarily by way of libel in fied by him. When there is reasonable
any district court of the United States doubt as to legal liability or the facts
having jurisdiction thereof. do not appear to warrant legal action,
(e) Enforcement. (1) Section 17 of the the District Engineer will report the
River and Harbor Act of March 3, 1899 case to the Chief of Engineers for deci-
(30 Stat. 1153; 33 U.S.C. 413) provides sion before communicating with the re-
that the Department of Justice shall sponsible parties. When the damage
conduct the legal proceedings nec- must be repaired within a reasonable
essary to enforce the provisions of sec- time, if the responsible parties so re-
tions 9 to 16, inclusive, of the Act. It quest in writing and if, when consid-
shall be the duty of district attorneys ered advisable by the District Engineer
of the United States to prosecute vig- to protect the interests of the United
orously all offenders against the same States, they furnish a satisfactory
whenever requested to do so by the bond or other guaranty, he may cause
Secretary of the Army or by any of his the repairs to be made by employees of
designated representatives. the United States and then call upon
(2) Under the provisions of section 17, the responsible parties to pay over to
District Engineers and the United him the cost of the damages when fi-
States collectors of customs and other nally ascertained. Where the damage is
revenue officers, have power and au- not to be repaired within a reasonable
thority to swear out process and to ar- time, the District Engineer will make
rest and take into custody, with or final settlement with the responsible
without process, any person or persons parties as promptly as possible by col-
who may commit any of the acts or of- lecting the estimated amount of the
fenses prohibited by sections 9 to 16, in- damages. All sums so received will be
clusive, or who may violate any of the deposited promptly to the credit of the
provisions of the same. No person shall Treasurer of the United States for re-
be arrested without process for any of- credit to the appropriation affected and
fense not committed in the presence of will be accounted for in the District
some one of the aforesaid officials. Engineer’s money accounts by proper
Whenever any arrest is made under the vouchers. With reference to the method
provisions of the Act, the person so ar- of ascertaining the amount of the dam-
rested shall be brought forthwith be- ages under section 16 of the Act, a dis-
fore a commissioner, judge, or court of tinction should be made between cases
the United States for examination of involving property that should be re-
the offenses alleged against him. Such paired and those involving property
commissioner, judge, or court shall that should be abandoned. In the
proceed as authorized by law in case of former cases the amount of the dam-
crimes against the United States. ages should be the total cost of repairs,
145
§ 209.180 33 CFR Ch. II (7–1–20 Edition)
less any salvage value and any en- (5) The procedure in cases involving
hanced value. In the latter cases, the injurious deposits is similar to that de-
amount of the damages should be the scribed for other violations of law ex-
fair value of the property, less any sal- cept that as the damage caused thereby
vage value. Whether or not there has cannot be repaired readily there will be
been any enhanced value (i.e., whether no reason for serving any notice on the
the fair value of the structure imme- parties responsible for the violations
diately after the repairs is greater than further than to bring to their attention
its fair value immediately before the the consequences thereof.
damage occurred) is a matter to be de- (6) Section 6 of the river and Harbor
termined from an actual survey of the Act approved March 3, 1905 (33 Stat.
structure and knowledge of its age and 1148; 33 U.S.C. 417) provides that ex-
condition. Where maintenance has penses incurred by the Corps of Engi-
equalled depreciation there probably neers in all investigations, inspections,
hearings, reports, service of notice, or
would be no enhanced value.
other action incidental to examina-
(4) If the parties deny their responsi-
tions into alleged violations of laws for
bility, or if they refuse or neglect to re- protection and preservation of navi-
move any unlawful structure or deposit gable waters shall be payble from any
or to repair the damages within the funds which may be available for the
time specified by the District Engi- improvement, maintenance, operation,
neer, the matter will be reported to the or care of the waterways or harbors af-
Chief of Engineers with such evidence fected. If such funds are not available
as the District Engineer may be able to in sums judged by the Chief of Engi-
obtain and his recommended action neers to be adequate, they shall be pay-
under section 17 of the Act of March 3, able from any funds available for ex-
1899. In a situation requiring imme- aminations, surveys, and contingencies
diate action, the District Engineer may of rivers and harbors.
report the case directly to the U.S. at-
[33 FR 18670, Dec. 18, 1968, as amended at 36
torney for the district. The Chief of En-
FR 17855, Sept. 4, 1971; 51 FR 45765, Dec. 22,
gineers will be advised of such action 1986; 53 FR 27512, July 21, 1988]
by a written report. Although the
Corps of Engineers has certain police § 209.180 Temporary closure of water-
powers under this Act it has been the way to navigation.
long standing policy to secure compli- (a) When an application is received
ance with its provisions short of legal for the temporary closure of a water-
proceedings. Accordingly every effort way for the construction of a structure
will be made to accomplish corrective or the performance of other work in
measures prior to initiation of action the waterway, the District Engineer
leading to such proceedings. As a gen- will assure himself of the necessity for
eral rule, while minor and uninten- the closure and arrange after informal
tional or accidental violations of the communication with any important
provisions of the Act need not be re- navigation interests concerned the
ported to the Chief of Engineers, all time and duration of the closure which
willful or intentional violations and all will enable the operations to be com-
cases in which the parties responsible pleted with the least interference with
refuse or neglect to remove the unlaw- navigation. If there is no question as to
ful structure or deposit or to make the necessity and propriety of the clo-
good the damages suffered should be re- sure, the District Engineer is author-
ported promptly to the Chief of Engi- ized to inform the applicant as follows:
neers in accordance with the above. It ‘‘The Department of the Army will
is the policy not to recommend pros- interpose no objection to the closure
ecution when the violation of law is for a stated period beginning at a speci-
trivial, apparently unpremeditated, fied date: Provided, That prior thereto
and results in no material public in- the applicant will notify navigation in-
jury. Each report recommending pros- terests by an advertisement in the
ecution should be accompanied by a press or otherwise as the District Engi-
full statement of the case and copies of neer may approve and on the under-
correspondence relating thereto. standing that the waiver of objection
146
does not affect the liability of the ap- for the protection of life and property,
plicant for any damages that may arise or for operations of the United States
by reason of the closure.’’ The letter to in channel improvement, covering all
the applicant will be signed ‘‘By Au- matters not specifically delegated by
thority of the Secretary of the Army’’ law to some other executive depart-
and distribution made as prescribed for ment. The statute provides for the
permits. posting of regulations and punishment
(b) District Engineers will give care- for violations.
ful consideration to the effect of any (2) Section 6 of the River and Harbor
closure on through navigation. Should Act approved June 13, 1902 (32 Stat. 374;
coordination with other districts be 33 U.S.C. 499) provides that regulations
necessary the case will be forwarded to prescribed by the Secretary of the
the Division Engineer for such coordi- Army may be enforced as provided in
nation.
section 17 of the River and Harbor Act
(c) Cases not falling within the au-
approved March 3, 1899 (30 Stat. 1153; 33
thority above conferred will be for-
U.S.C. 413).
warded to the Chief of Engineers with
the recommendations of the Division (3) District Engineers will take ac-
and District Engineers. tion with respect to regulations pre-
scribed for waterways under their ju-
§ 209.190 [Reserved] risdiction:
(i) To insure that the regulations are
§ 209.200 Regulations governing navi- brought to the attention of the public.
gable waters. (ii) To insure that the regulations are
(a) Publication of regulations. (1) Regu- properly and fairly administered.
lations prescribed by or under the di- (iii) To recommend any revisions
rection of the Secretary of the Army to necessary to permit full use of the wa-
govern navigation and navigable waterway by the public.
ters, are contained in the Code of Fed- (c) Danger zones. (1) The Secretary of
eral Regulations, title 33, Navigation the Army has authority to prescribe
and Navigable Waters, Chapter II. regulations for the use and navigation
(2) District engineers (or division en- of any area of the navigable waters of
gineers if considered preferable by the the United States or waters under the
latter to avoid duplication in cases jurisdiction of the United States likely
where the regulations involved apply
to be endangered by Department of De-
to more than one district) will dis-
fense operations. This authority is pur-
tribute copies of departmental regula-
suant to the provisions of Chapter XIX
tions to all known interested parties as
of the Army Act of July 9, 1918, or of
soon as their publication has been
section 7 of the River and Harbor Act
noted in the FEDERAL REGISTER. In the
case of regulations applicable to more of August 8, 1917.
than one division, distribution will be (2) On receipt of a request from any
handled as agreed upon by the division element of the Department of Defense
engineers concerned. Under the Admin- or other agency for approval by the
istrative Procedure Act (5 U.S.C. 551– Secretary of the Army of regulations
553), publication in the FEDERAL REG- establishing danger zones under au-
ISTER shall be not less than 30 days thority of either Act, the District En-
prior to the effective date except as gineer will, prior to issuing any public
otherwise provided upon good cause notice, make certain that the appli-
found and published with the regula- cant: (i) Has coordinated its proposed
tions. operations with any operations being
(b) Navigation regulations. (1) Section conducted or contemplated by other
7 of the River and Harbor Act approved agencies in the same area with a view
August 8, 1917 (40 Stat. 266; 33 U.S.C. 1) to avoiding interagency conflicts, (ii)
authorizes the Secretary of the Army has obtained clearance from the proper
to prescribe such regulations for the Regional Subcommittee on Airspace,
use, administration, and navigation of Rules of the Air and Air Traffic Con-
the navigable waters of the United trol (Air Coordinating Committee),

States as public necessity may require where the use of airspace is involved,
147
§ 209.200 33 CFR Ch. II (7–1–20 Edition)
and (iii) has conducted preliminary dis- the Army to permit the deposit of
cussions with local interests when con- refuse matter in navigable waters,
sidered advisable. In the case of pro- whenever in the judgment of the Chief
posed danger zones off the Atlantic and of Engineers anchorage and navigation
Pacific Coasts, the coordination re- will not be injured thereby, within lim-
ferred to in (c)(2)(i) of this section will its to be defined and under conditions
include the Commander, Service Force, to be prescribed by him. Although the
U.S. Atlantic Fleet, or the Commander, Department has exercised this author-
Western Sea Frontier. ity from time to time, it is considered
(3) The authority to prescribe danger preferable to act under Section 4 of the
zone regulations must be exercised so River and Harbor Act of March 3, 1905
as not to interfere with or restrict un- (33 Stat. 1147; 33 U.S.C. 419). As a means
reasonably the food fishing industry. of assisting the Chief of Engineers in
Whenever the establishment of a pro- determining the effect on anchorage of
posed danger zone or restricted area vessels, the views of the U.S. Coast
may affect fishing operations the Dis- Guard will be solicited by coordination
trict Engineer will consult with the re- with the Commander of the local Coast
gional director, U.S. Fish and Wildlife Guard District.
Service, Department of the Interior. (3) Under the authority contained in
Two copies of all notices of applica- an Act of Congress to prevent obstruc-
tions for the establishment of danger tive and injurious deposits within the
zones and restricted areas will be for- harbor and adjacent waters of New
warded to the Chief of Staff, U.S. Air York City of June 29, 1888 (25 Stat. 209;
Force. In addition, notices of all appli- 33 U.S.C. 441), the Supervisor of New
cations relating to the establishment York Harbor has established dumping
of aerial gunnery and bombing areas areas in those waters and has pre-
will be sent to local Army, Navy, and scribed regulations for their use. The
Federal Aviation Agency representa- provisions of the act are enforced by
tives. the Supervisor under the direction of
(4) If the use of water areas is desired the Secretary of the Army.
only for such temporary, occasional, or (4) In considering requests for the es-
intermittent periods that operations tablishment of dumping grounds, Dis-
can be conducted safely without impos- trict and Division Engineers will give
ing restrictions on navigation, appli- careful consideration to the require-
cants may be informed that formal reg- ments of navigation and will take ac-
ulations by the Secretary of the Army tion to prevent unreasonable injury to
are not required. However, proper no- fish and wildlife.
tices for mariners requesting that ves- (e) Public notice and consultation with
sels avoid the areas will be issued by interested parties. (1) When applications
the District Engineer to all interested are received for the promulgation of
persons. Copies will be sent to the regulations as outlined in paragraphs
Commandant, U.S. Coast Guard, Wash- (b) through (f), inclusive, of this sec-
ington, D.C. 20226 and the Commander, tion, District Engineers will issue pub-
U.S. Naval Oceanographic Office, lic notices to all parties deemed likely
Washington, D.C. 20390. to be interested and specifically to the
(d) Dumping grounds. (1) Section 4 of agencies referred to in these para-
the River and Harbor Act of March 3, graphs. The notice should fix a limiting
1905 (33 Stat. 1147; 33 U.S.C. 419), au- date within which comments will be re-
thorizes the Secretary of the Army to ceived, normally a period not less than
prescribe regulations to govern the 30 days after the actual mailing of the
transportation and dumping into any notice. If time is an essential element
navigable water, or waters adjacent when adequately explained by the ap-
thereto, of dredgings and other refuse plicant, the District Engineer is au-
materials whenever in his judgment thorized to give interested parties a
such regulations are required in the in- minimum of 10 days after receipt of the
terest of navigation. notice in which to present protests. A
(2) Section 13 of the river and Harbor copy of every notice issued will be sent
Act of March 3, 1899 (30 Stat. 1152; 33 to the Chief of Engineers, Attention:
U.S.C. 407) authorizes the Secretary of ENGCW-ON.
148
(2) Copies of the notices sent to inter- final plans and specifications. Regula-
ested parties, together with a list of tions prescribed by the Secretary of
parties to whom sent, will accompany the Army for the maintenance and op-
reports on all applications for promul- eration of local flood protection works
gation of regulations submitted to the are contained in § 208.10 of this chapter.
Chief of Engineers for necessary action. When assurances satisfactory to the
(3) In all instances when response to District Engineer are received, they
a public notice has been received from are forwarded through the Division En-
a Member of Congress, the District En- gineer to the Chief of Engineers for
gineer will inform the Member of Con- consideration of the Secretary of the
gress of the final action taken on the Army. The District Engineers advise
application. local interests of the action taken by
(f) Public hearings. (1) It is the policy the Department. Completed projects or
of the Chief of Engineers to conduct his
completed useful units thereof are nor-
civil works activities in an atmosphere
mally turned over to local interests for
of public understanding, trust, and mu-
maintenance and operation as soon as
tual cooperation and in a manner re-
sponsive to public needs and desires. To the construction and testing of equip-
this end, public hearings are helpful ment is completed and the project is in
and will be held whenever there ap- proper condition for the assumption of
pears to be sufficient public interest to maintenance and operation by local in-
justify such action. In case of doubt, a terests. The transfer is accomplished
public hearing should be held. by formal notice from the District En-
(2) Among the instances warranting gineer to the local interests that the
public hearings are general public op- completed facilities are being turned
position to the promulgation of regula- over to them for maintenance and op-
tions governing the use and navigation eration as of a specific date. During
of navigable waters. District Engineers construction, District Engineers keep
will notify the Division Engineer of the the local interests concerned advised as
need for a hearing, state the proposed to the probable date of transfer.
arrangements therefor and obtain his (b) Use of storage allocated for flood
concurrence therein. Public hearings control or navigation at reservoirs con-
will be held in any case when Congres- structed wholly or in part with Federal
sional interests or responsible local au- funds. Regulations prescribed by the
thorities make an official and valid re- Secretary of the Army in accordance
quest therefor and such action will ful- with section 7 of the Flood Control Act
fill the above-stated policy and objec- of December 22, 1944 (58 Stat. 890; 33
tives. U.S.C. 709) are for the purpose of co-
[33 FR 18670, Dec. 18, 1968, as amended at 51 ordinating the operation of the flood
FR 45765, Dec. 22, 1986; 52 FR 24157, June 29, control features of reservoirs con-
1987] structed wholly or in part with Federal
funds and other flood control improve-
§ 209.220 Flood control regulations. ments to obtain the maximum protec-
(a) Local protection works. On projects tion from floods which can reasonably
authorized subject to specified condi- be obtained with the proper operation
tions of local cooperation, no construc- of all flood control improvements. Pro-
tion is undertaken by the Department posed regulations are determined by
of the Army until satisfactory assur- the District Engineer in cooperation
ances of the required local cooperation with the persons responsible for the
have been accepted by the Secretary of maintenance and operation of the res-
the Army and until any lands, ease- ervoir involved after a detailed study
ments, and rights-of-way required to be of the flood problems and the charac-
furnished by local interests have been teristics of the reservoir project. The
made available for at least a complete proposed regulations are forwarded by
unit of the project. The District Engi- the District Engineer through the Divi-
neers notify local interests concerned sion Engineer to the Chief of Engineers
of the requirements of local coopera- for consideration of the Secretary of
tion and request assurances by reg- the Army. When approved by the Sec-
istered mail prior to the preparation of retary of the Army, these regulations
149
§ 209.230 33 CFR Ch. II (7–1–20 Edition)
are published in part 208 of this chap- mented, are codified as § 208.10 of this
ter. chapter. These regulations cover condi-
tions normally and regularly required.
§ 209.230 Use of reservoir areas for Whenever the regulations are not suffi-
recreation.
ciently broad to cover the specific
The Department of the Army in ac- maintenance and operation require-
cordance with Section 4 of the Flood ments of a particular project, District
Control Act of December 22, 1944, as Engineers will submit through the Di-
amended by section 4 of the Flood Con- vision Engineers recommended addi-
trol Act of July 24, 1946 (60 Stat. 641) tional regulations needed for that par-
prepares and administers plans to ob- ticular project. Such supplemental reg-
tain the maximum sustained public ulations will require approval of the
benefit from the use of reservoir areas Secretary of the Army and will be
under its control for recreation and made applicable only to the individual
other related purposes, when such use project concerned. Local interests will
is consistent with the operation and be advised of the approved regulations
maintenance of the reservoir project for operation and maintenance of local
for the specific purposes of the res- flood protection works at the time as-
ervoir project as authorized by law and
surances of local cooperation are re-
when such use is determined not to be
quested. District Engineers will keep
contrary to the public interest. The
informed as to the extent of compli-
plans are prepared and administered by
ance with approved regulations for op-
the District Engineers, subject to re-
eration and maintenance through reg-
view and approval of the Division Engi-
neers and the Chief of Engineers, in ular, periodic inspection of the projects
close cooperation with other Federal concerned and through careful analysis
agencies and local interests. The views of the semiannual reports which the
and desires of these agencies and local operating and maintaining agencies are
interests are obtained normally by con- required to submit in accordance with
ferences with the District Engineers. In the regulations. The District Engi-
many cases, public hearings are held by neer’s views as to any measures re-
the District Engineers at appropriate quired to conform to the approved reg-
times in the vicinity of the reservoir ulations will be furnished to the agen-
area at which time anyone can express cies responsible. In any case where the
his views relative to these plans for District Engineer has been unable to
consideration of the Department of the arrange satisfactory compliance or
Army. Rules and regulations are pre- where there is question or disagree-
scribed by the Secretary of the Army ment as to the measures required for
to govern the public use of the res- compliance, a report of the cir-
ervoir areas in accordance with the law cumstances, together with the rec-
as a part of the master plan for recommendations of the District and Divi-
reational and related uses of the res- sion Engineers, will be submitted to
ervoir area. These rules and regula- the Chief of Engineers for consider-
tions are published in 36 CFR parts 311 ation.
to 326. Licenses and leases are granted (b) Regulations for the use of storage
under the law containing conditions allocated for flood control or naviga-
and provisions to govern the use of spe- tion at reservoirs constructed wholly
cific portions of the reservoir area. or in part with Federal funds provided
Full information concerning such mat- on the basis of such purposes, are con-
ters may be obtained from the District tained in § 208.16 et seq. of this chapter.
Engineer in charge of the reservoir.
§ 209.310 Representation of submarine
§ 209.300 Flood control regulations. cables and pipelines on nautical
charts.
(a) Regulations for the operation and
maintenance of local flood protection (a) The policy of the Corps of Engi-
works approved by the Secretary of the neers with respect to showing the loca-
Army under the authority contained in tions of submarine cables and pipelines
Section 3 of the Flood Control Act of on nautical charts published by the

June 22, 1936, as amended and supple- Corps of Engineers is as follows:
150
(1) Within protected waters such as interfere with any phases of navigation
harbors, rivers, bays, estuaries or other operations.
inland waterways the location of sub- (c) The public will be given access to
marine cables and pipelines is to be in- all areas other than those specified
dicated by shaded areas marked ‘‘Pipe- under paragraphs (a) and (b) of this sec-
line area’’ or ‘‘Cable area’’. The extent tion, subject only to the normal legal
of the limits of the area will be gov- requirements with respect to property
erned by local conditions but shall in- and personal rights.
clude the immediate area which over-
lies the cable or pipeline. § 209.320 Policy on release of commer-
(2) Ordinarily, the shaded area on a cial statistics.
chart which depicts a cable area or The collection of commercial statis-
pipeline area should not exceed 500 feet tics pertaining to rivers, harbors, and
on each side of the location of the cable waterways, and annual reports thereof
or pipeline except on small scale charts to Congress, are required by the River
where an area of that width would not and Harbor Act of June 23, 1866 (14
be of sufficient prominence. Stat. 70), the act of February 21, 1891
(3) The shaded area will be designated (26 Stat. 766), the River and Harbor Act
‘‘cable area’’ or ‘‘pipeline area’’ as ap- of June 13, 1902 (32 Stat. 376), the River
propriate, but no other information as and Harbor Act of July 25, 1912 (37 Stat.
to the character or ownership of the in- 201), the River and Harbor Act of Sep-
stallation will appear on the chart. tember 22, 1922 (42 Stat. 1043), and Pub.
(b) District engineers will furnish L. No. 16, February 10, 1932 (47 Stat. 42).
copies of all permits issued for sub- It is the policy of the Department to
marine cable and pipelines to the Na- hold in strict confidence any data or
tional Oceanic and Atmospheric Ad- information which has been furnished
ministration (NOAA), National Ocean by shippers and others upon the under-
Service, ATTN: N/CG222, Rockville, MD standing that it will not be disclosed
20852, with his/her recommendation of and will only be used in the compila-
whether or not the installation should tion of port or waterway statistics. In
be shown on NOAA nautical charts. Na- case Federal or State agencies or local
tional Ocean Service must be notified interests request other than general in-
of the commencement and completion formation made permissible hereunder,
dates for all permitted activities under their attention will be called to the
this section. (Note: Decisions to pub- policy indicated in this section.
lish these cables and pipelines on
NOAA nautical charts lie solely within § 209.325 Navigation lights, aids to
NOAA’s discretion.) navigation, navigation charts, and
related data policy, practices and
[51 FR 45765, Dec. 22, 1986]
procedure.
§ 209.315 Public access to navigation (a) Purpose. This regulation pre-
works. scribes the policy, practice and proce-
While the regulations prescribed by dure to be used by all Corps of Engi-
the Secretary of the army for various neers installations and activities in
navigation improvements usually connection with aids to navigation,
strictly prohibit trespass on Govern- chart data, and publication of informa-
ment property, those regulations will tion on Civil Works activities.
not be construed as prohibiting access (b) This regulation will be applied by
to navigation works of general public all elements of the Corps of Engineers
interest subject to the following cri- with Civil Works responsibilities.
teria: (c) Reference. Public Law 85–480, Pub-
(a) The public will not be permitted lication Authority (72 Stat. 279).
in areas where their presence would (d) Cooperation with Coast Guard. (1)
subject themselves or Government op- District Engineers will consult with
erating personnel to serious accident the Coast Guard District Commander
hazards. during design of channel and harbor
(b) The public will not be permitted improvement projects to discuss the
in areas where their presence would aids to navigation requirements and all
151
§ 209.325 33 CFR Ch. II (7–1–20 Edition)
other facets of the projects that in- or other channel improvements are
volve Coast Guard responsibility. being performed, necessary temporary
Project material furnished direct to markers, such as ranges and light
Coast Guard Commanders will include: poles, should be installed and main-
(i) Information as to the authoriza- tained by the District Engineer pend-
tion by Congress of a project involving ing the installation of permanent aids
changes affecting aids, such as channel by the Coast Guard. The Coast Guard
limits, breakwaters, including a copy desires that information regarding aids
of the project document; to navigation installed or maintained
(ii) The proposed operations on such by District Engineers in connection
projects during the next fiscal year, to with harbor or channel improvement
be furnished annually on the release of be furnished promptly. Such informa-
the budget estimates; tion is needed for inclusion in Notice to
(iii) Plans showing the final location Mariners as published by the Coast
of the channel limits or structures to Guard, and where desirable on the
be furnished at the time work is under- charts of the waters concerned.
taken. (2) District Engineers will notify the
(2) Changes in channel limits affect- Coast Guard District Commander in
ing navigation aids, made under gen- every case where aids to navigation for
eral or specific provisions of the law, marking works of harbor or channel
should be made the subject of a con- improvements are established or dis-
ference with the Coast Guard District continued. Notice should be given of
Commander. He will be promptly in- such aids as may be of use or interest
formed as to the approval of such to general navigation. Notice need not
changes and the probable date of com- be given as to such buoys, lights, or fog
pletion of the work. signals as are of temporary or unim-
(3) District Engineers will furnish di- portant character, or of importance
rect to the various Coast Guard Dis- only to the Corps of Engineers. Omit
trict Commanders, for their immediate also lights or fog signals on ferry slips
information, any facts which may
and on piers used only by certain ves-
come to their attention in connection
sels, and stakes, bushes, and barrel
with their duties which will be of ben-
buoys marking shallow and little-used
efit to the Coast Guard in maintaining
channels.
its system of aids to navigation. This
should include statements as to the (3) In placing aids to navigation in
displacement of or defects in any such connection with harbor or channel im-
aids to navigation. provement works, District Engineers
(4) If work involving harbor or chan- should see that they do not conflict in
nel improvements directly affects any character or otherwise with other aids
existing aids to navigation or any to navigation in the vicinity. District
structures of the Coast Guard, Dis- Engineers should confer with the Coast
tricts Engineers will, when practicable, Guard District Commander on this sub-
give notice to the Coast Guard District ject.
Commander sufficiently in advance to (4) The necessary blank forms for re-
permit taking such steps as may be porting information regarding Corps of
deemed necessary by the Coast Guard. Engineers aids will be furnished upon
If the Coast Guard District Commander request by the Coast Guard District
specifically requests that the affected Commander.
structure be replaced, the District En- (5) It is essential that the Coast
gineer will inform him of the estimated Guard by furnished with information
cost and will proceed with the work if for publication concerning markers in-
so authorized by the Chief of Engi- stalled by the Corps of Engineers as
neers. On completion of the work, the temporary aids to navigation, for new
District Engineer will promptly furnish improvements, in advance of perma-
the Coast Guard District Commander, nent aids, and also concerning other
for settlement, an account of the ex- markers that may be established in
pense incurred. connection with Corps of Engineers op-
(e) Navigation Aids of the Corps of En- erations that may also serve as impor-
gineers. (1) Whenever channel dredging tant aids to navigation. Care will be
152
exercised to see that all markers estab- Director, Defense Mapping Agency, ATTN:
lished are not misleading to general Hydrographic Center, Washington, D.C.
navigation and do not interfere with 20390.
aids to navigation estabished by the National Oceanic and Atmospheric Adminis-
Coast Guard. tration, ATTN: National Ocean Survey C–
32, Rockville, Md. 20852.
(f) Colors of dredging buoys established
Commandant and District Commanders, U.S.
by Corps of Engineers. (1) In order to dis-
Coast Guard.
tinguish buoys placed and maintained
by the Corps of Engineers for dredging (2) Channel survey drawings fur-
purposes from aids to navigation nished to the Coast Guard are to in-
placed by the Coast Guard, Corps buoys clude:
will be painted white with the top 2 (i) Either NAD 27 or State Plane
feet painted light green. grids.
(2) If buoys with special markings are (ii) Plots of the positions of aids to
needed to indicate the different sides of navigation.
the navigable channel, prior arrange-
(iii) Written notations of the coordi-
ments will be made with the Coast
nates in NAD 27 or State Plane Coordi-
Guard District Commander having ju-
risdiction. nates of the fixed aids to navigation
(g) Information to be furnished by the found during the survey.
Corps of Engineers. (1) District Engi- (3) The standard tabular forms with
neers responsible for harbors and wa- illustrated data follow:
terways shown on charts of the Na- (i) For channels 400 feet wide and
tional Ocean Survey (NOAA), will re- greater (ENG Form 4020–R).
port the channel conditions promptly, (ii) For channels 100 to 400 feet wide
using standard tabular forms, to: (ENG Form 4021–R).
[ llllllll Harbor, llllllll (State)]
Project Minimum depths in channel

entering from seaward
Mid-
Date
Name of channel Left out- channel Right
survey Feet Miles Feet side for half outside
width length depth quarter project quarter
feet width feet
feet
Kings Island Channel .............................................. 3–78 300 1.14 26 24 23 26

Whitehall Channel ................................................... 3–78 200 1.81 26 27 26 25
ENG FORM 4021–R (Jul 59) aids or features, or assigned identifying

(iii) For channels less than 100 feet in names, numbers or letters. For local-
width, report controlling depths only ized irregular project areas where the
based on at least 80 percent of project application of the tabular form would
width, 40 percent on either side of cen- not be practical, the controlling depth
terline. (The submission of tabular based on a safe navigable width will be
forms is not required for channels hav- described as well as unusual or critical
ing a project depth less than 10 feet ex- conditions of shoaling.
cept coastal inlets and harbors of ref- (5) The prompt dissemination of the
uge.) latest detailed information concerning
(4) The tabulations of depths should channel conditions is of utmost impor-
be amplified by footnotes or otherwise tance, and necessary measures will be
to show clearly and definitely the loca- taken to insure that such information
tion of controlling shoals, tendency of is reported without delay simulta-
shoals to recur, and all other critical neously to the U.S. Naval Oceano-
information of special value and impor- graphic Office, the Coast Guard, the
tance for safe navigation of the chan- National Ocean Survey and Defense
nel. Reaches of channel not presently Mapping Agency. When a dangerous
named should be identified in the tab- shoaling is found during the progress of
ular form by reference to chartered a survey, information thereon will be
153
§ 209.325 33 CFR Ch. II (7–1–20 Edition)
furnished immediately to the above- such as dredging operations, and pre-

mentioned agencies, so that such infor- cautions rendered necessary due to the
mation may be made available to mari- presence of dredging or other plant
ners promptly, and buoys shifted to will, when considered necessary, be
mark the shoal. Descriptions of any brought to the attention of vessel own-
dredging or other operations in impor- ers or operators regularly using the
tant channels in tidal waters—either in waterway. This will be done through
progress and not already reported, or issuing bulletins or notices by District
soon to be undertaken—together with a Engineers.
statement of the work and expected du- (h) Special Reports. Changes affecting
ration, will also be reported in order navigation will be made promptly
that Naval and other vessels may be whenever information of immediate
warned to look out for dredges and concern to navigation becomes known.
other plant, temporary markers and Items of information especially desired
lights. are channel conditions as revealed by
(6) District Engineers having charge surveys, changes in channel conditions,
of improvements of harbors and water- either by natural causes or by dredging
ways shown on charts of the Defense or other work, changes in approved
Mapping Agency or of the National projects for improvement with state-
Ocean Survey will send to both offices ments of results expected from pro-
promptly, as ascertained for the cor- posed operations, descriptions of pro-
rection of such charts, the following in- posed dredging or other Federal work
formation: Descriptions of changes in of improvement such as breakwater,
channel location and depth, or of ob- pier, and revetment construction or al-
structions that may be discovered, terations, descriptions of proposed or
with such prints and other information completed municipal or private im-
as may be necessary to permit the ex- provements in or affecting navigable
isting charts to be corrected to date. waters. Additional items of informa-
All maps should contain sufficient data tion desired are descriptions of wrecks,
to permit the fixed plane or reference, uncharted shoals, and other obstruc-
bench marks, base lines, etc., to be de- tions to navigation and particulars as
termined and located. The survey sta- to proposed or completed removal of
tions should be shown and, when no un- same, changes in buoys or lights, erec-
reasonable expenditure of time or labor tion of new, or changes in existing
is involved, the map will show one or bridges, new or revised Federal or local
more triangulation station(s) of the rules and regulations for harbors and
National Ocean Survey in such a way channels, and establishment or exist-
as to facilitate connection of old or ence of danger areas in navigable wa-
new work. The source of authority for ters. Reproductions of drawings or
the shoreline and topography should be sketches which will be helpful in inter-
stated on the map. The data supplied preting the data shall accompany the
should indicate what charts are af- reports. The reports will not be limited
fected. to a reference to an accompanying
(7) When any survey of areas covered drawing or sketch, but will contain a
by charts of the Defense Mapping complete description in form suitable
Agency or the National Ocean Survey for publication in notices to mariners
is completed, a print of each tracing and the monthly supplements to the
will be sent direct to both the Defense U.S. Coast Pilot. In this respect, the
Mapping Agency and the National reports will provide enough informa-
Ocean Survey. It is not necessary that tion that a single notification to navi-
tracings be fully complete as to form gational interests will suffice. In the
and title when such prints are made. case of dredging or construction work,
An informal manuscript title marked the bare statement that work will com-
‘‘Advance Sheets’’, and containing a mence or has commenced on a certain
description sufficient to identify the date is insufficient. All additional in-
locality and to identify the source of formation possible, such as probable
the map, will be sufficient. duration of operations and object of
(8) Information relative to the im- work, will be given—the latter in the
provement of harbors and waterways case of dredging being such data as the
154
area to be covered and the depth ex- either personally served or otherwise
pected to be provided. The reports re- have actual notice thereof in accord-
quired by this paragraph will be identi- ance with law), except to the extent
fied by reference to the appropriate En- that there is involved: (1) Any mili-
gineer Manual or regulation and will be tary, naval, or foreign affairs function
numbered consecutively by each Dis- of the United States or (2) any matter
trict during the calendar year, starting relating to agency management or per-
with number 1 at the beginning of each sonnel or to public property, loans,
year. grants, benefits, or contracts. Except
(i) Information pamphlets, maps, bro- where notice of hearing is required by
chures and other material. (1) Pub. L. 85– statute, this requirement does not
480, approved 2 July 1958, authorizes apply to interpretative rules, general
the Chief of Engineers to publish infor- statements of policy, rules of agency
mation pamphlets, maps, brochures, organization, procedure, or practice, or
and other material on river and harbor, in any situation in which the agency
flood control, and other Civil Works ac- for good cause finds (and incorporates
tivities, including related public park the finding and a brief statement of the
and recreation facilities under his ju- reasons therefor in the rules issued)
risdiction, as he may deem to be of that notice and public procedure there-
value to the general public. on are impracticable, unnecessary, or
(2) This Public Law authorizes the contrary to the public interest.
Chief of Engineers to provide for the (b) General notice of proposed rule
sale of any of the material prepared making published in accordance with
under authority of the act—and of pub- the above will include: (1) A statement
lications, charts, or other material pre- of the time, place, and nature of public
pared under his direction pursuant to rule making proceedings; (2) reference
other legislative authorization or ap- to the authority under which the rule
propriation, and to charge therefor a is proposed; and (3) either the terms or
sum of not less than the cost of repro- substance of the proposed rule or a de-
duction. scription of the subjects and issues in-
(3) District Engineers are authorized volved.
to publish the material covered in
paragraph 8a above, and to sell such § 209.340 Laboratory investigations
material. Except for material specifi- and materials testing.
cally prepared for free distribution to (a) Purpose. The purpose of this sec-
the general public, the charges for such tion is to define and establish policies
other published information will be not and procedures applicable to the per-
less than the cost of its reproduction. formance of investigations and tests at
(4) Condition survey maps or charts,
Corps of Engineers laboratory installa-
sold or otherwise distributed to the
tions for other governmental agencies
public, showing depths will specifically
and private organizations.
state the date or dates that the surveys
(b) Applicability. This regulation ap-
were made. They shall also have the
plies to Corps of Engineers Divisions
following notation printed or stamped
and Districts operating soils, concrete,
thereon:
water quality and hydraulic labora-
‘‘The information depicted on this
tories, and to the Inter-Agency Sedi-
map represents the results of surveys
mentation Project.
made on the dates indicated and can
(c) References. (1) AR 37–20.
only be considered as indicating the
(2) AR 37–27.
general conditions existing at that
(3) ER 1–1–6.
time.’’
(4) ER 10–1–3, Appendix XIII.
[43 FR 19661, May 8, 1978] (5) ER 1110–1–8100.
(6) ER 1140–2–303.
§ 209.335 Publication. (d) Policy. Subject to the authority
(a) Section 4 of the Administrative limitations contained in paragraph (f)
Procedure Act requires publication of of this section, laboratory investiga-
general notice of proposed rule making tions and materials testing may be per-
in the FEDERAL REGISTER (unless all formed for other agencies of the Fed-
persons subject thereto are named and eral Government, State and local units
155
§ 209.340 33 CFR Ch. II (7–1–20 Edition)
of government, foreign governments (3) Private concerns and foreign govern-

and private firms under the following ments. Funds will be deposited in ad-
conditions: vance of the work as required in para-
(1) The work will be performed on a graph (e)(2) of this section. Charges
cost reimbursable basis. shall include a surcharge of 15 percent
(2) Work may be performed for State of all applicable costs, except under the
and local units of government, foreign following conditions.
governments or private firms only (i) When the final product will di-
when it is firmly established that pri- rectly contribute to a specific plan-
vate commerical laboratory facilities ning, design, or construction activity
capable of performing such work are which derives its principal support
not available, or because of location or from Federal funds in the form of a
for other reasons it is clearly imprac- grant or otherwise.
tical to utilize such private (ii) Where an exception is granted
commerical laboratory services. The based on a direct benefit to the Govern-
requesting entity must further certify ment. Adequate justification, outlining
that such services cannot be procured the direct benefits which are expected
reasonably and expeditiously through to accrue to the Government, will be
ordinary business channels. forwarded to HQDA (DAEN-CWE-DC)
(3) Performance of the work will not Washington, DC 20314, for review and
interfere with provisions of services es- approval prior to deletion of the sur-
sential to the mission of the Corps. charge.
(4) Performance of the work will not (f) Authority. The following delega-
require an increase in the permanent tions of authority to perform labora-
staff of the facility. tory investigations and materials test-
(5) Performance of the work will not ing apply.
require expansion of normal facilities. (1) Division materials laboratories. Divi-
(6) The work is within the scope of sion Engineers are delegated the au-
authorized activities of the laboratory thority to approve laboratory work for
at which the work is to be performed. Federal, State and local units of gov-
(7) Performance of the work will not ernment when the total estimated cost
be adverse to the public interest. of each investigation or test project is
(8) Prior to undertaking laboratory $15,000 or less. Division Engineers are
investigations or materials testing for also delegated the authority to approve
private firms, written certification will laboratory work for private firms and
be obtained from such firms stating foreign Governments when the total es-
that the results of the work will not be timated cost of each investigation or
used in litigation or for promotional test project is $5,000 or less. Approval is
purposes. required when the estimated or actual
(e) Terms of providing reimbursement costs exceed those delegations of au-
for work performed—(1) Federal agencies. thority. Requests for approval shall be
Reimbursement for work for the De- addressed to DAEN-CWE-DC.
partment of Defense, the Department (2) Hydraulic laboratories. Division En-
of the Army, and other Federal Agen- gineers and District Engineers oper-
cies will be in accordance with the pro- ating hydraulic laboratories or hydrau-
cedures prescribed in AR 37–27. lic model laboratories are delegated
(2) State and local units of Government. the authority to approve laboratory
Funds to cover the total estimated cost work for others within the same limi-
of the work or an initial increment of tations and in accordance with the
the esitmated cost based on an ap- same procedures as apply to Division
proved schedule of payment will be de- Materials Laboratories.
posited with the installation per- (3) Inter-Agency Sedimentation Project,
forming the work before any obliga- St. Anthony Falls Laboratory, University
tions or expenses in connection with of Minnesota, Minneapolis, Minnesota.
the work are incurred; and when funds The District Engineer, St. Paul is au-
are being deposited on an approved thorized to perform work required in
schedule no obligations or expenses procurement, testing and calibration of
will be incurred in connection with the specialized sediment sampling equip-

work in excess of funds on deposit. ment developed at the Inter-Agency
156
Sedimentation Project. Equipment of (2) Senate Document No. 10, 90th

this nature will be made available to Congress, 1st Session, ‘‘Study of Fed-
Federal, State and local governmental eral Reimbursement Policy for Work
agencies at cost. The District Engi- by States and other Non-Federal Enti-
neer, St. Paul, is also authorized to ap- ties on Authorized Water Resources
prove the performance of testing and Projects.’’
calibration work for U.S. private firms (3) Section 221, FCA of 1970 (Pub. L.
that fabricate this specialized equip- 91–611, 42 U.S.C. 1962d–5b).
ment for commercial sale when the es- (4) ER 405–2–680.
timated cost for services of Corps per- (5) ER 1140–2–301.
sonnel is $5,000 or less for a single
(6) ER 1180–1–1, (para. A–310, App. A).
order. Approval is required when the
estimated single order cost for a pri- (d) General policy. (1) The specific
vate firm exceeds $5,000 and when the limitations put upon the allotment of
total cost of work during a fiscal year funds authorized by section 215 indi-
for any one private firm exceeds cate that only limited use should be
$15,000. Requests for approval shall be made of the authority. It will, there-
addressed to HQDA (DAEN-CWE-HY) fore, be Corps of Engineers policy to re-
Washington, DC 20314. strict the use of this authority to cases
(g) Reports of testing results. Final re- that meet all of the following condi-
ports of results will be submitted in actions:
cordance with instructions provided by (i) The work, even if the Federal Gov-
the sponsoring organization, with two ernment does not complete the author-
copies to HDQA (DAEN-CWE-DC) ized project, will be separately useful
Washington, DC 20314. or will be an integral part of a larger
Copies of reports of scientific or tech- non-Federal undertaking that is sepa-
nical activities will be transmitted to rately useful;
the Defense Documentation Center as (ii) The work done by the non-Fed-
required by AR 70–31. (RCS OSD–1366) eral entity will not create a potential
hazard;
(Sec. 3012, 70A Stat 157; 10 U.S.C. 3012)
(iii) Approval of the proposal will be
[44 FR 50338, Aug. 28, 1979] in the general public interest;
(iv) Only work commenced after
§ 209.345 Water resource policies and
authorities. project authorization and execution of
an agreement pursuant to this Regula-
REIMBURSEMENT FOR ADVANCE NON- tion will be eligible for reimbursement
FEDERAL PARTICIPATION IN CIVIL or credit;
WORKS PROJECTS (v) Proposed reimbursement will not
exceed the amount that the District
(a) Purpose. This regulation gives
Engineer considers a reasonable esti-
general instructions on use of section
mate of the reduction in Federal ex-
215 of the Flood Control Act of 1968
(Pub. L. 90–483) to reimburse a non- penditures resulting from construction
Federal public body for construction of of the project component by the non-
part of an authorized Federal project, Federal entity.
part of an authorized Federal project. (2) Before finally approving any
It establishes general policies, outlines agreement under section 215, the Chief
procedures to be followed in reaching of Engineers will inform the Secretary
an agreement with an eligible non-Fed- of the Army and the Chairman (Senate
eral entity, and provides guidance on and House), Subcommittee on Public
the provisions of such an agreement. Works, Committee on Appropriations
All authorized projects are subject to of the proposed arrangements. The
this Act and regulation. Chief of Engineers will not sign an
(b) Applicability. This regulation ap- agreement until Secretarial and Com-
plies to all field operating agencies mittee concurrences are obtained.
having Civil Works responsibilities. (3) Section 215 authority will not be
(c) References. (1) Section 215, FCA of used where it might appear to cir-
1968 (Pub. L. 90–483, 42 U.S.C. 1962d–5a.). cumvent the intent of Congress. It will
(APP A, this regulation). not, for example, be used to initiate
157
§ 209.345 33 CFR Ch. II (7–1–20 Edition)
work on projects to which Congres- sulting, as needed, with OCE and for
sional committees have indicated gen- deciding whether the proposal meets
eral opposition or refused to provide re- the policy criteria of paragraph (d) of
quested funds, or to accelerate portions this section, and whether to continue
of work on which construction has al- under the procedures below and what
ready been commenced by the Federal sequence to follow.
Government. (2) If Federal preconstruction plan-
(4) Section 215(f) authorizes a specific ning funds are not available to the
allotment of funds to reimburse non- project and it is considered impractical
Federal entities for work accomplished for the non-Federal entity to prepare a
under the Section. No allotment has
partial design memorandum and/or
been established, nor is one proposed at
plans and specifications, the draft
this time. Until one is, and firm proce-
dures are established, any agreement agreement may propose that this work
with a non-Federal entity shall call for be accomplished by the Corps of Engi-
reimbursement, or for credit against neers through an advance of non-Fed-
required contributions, only when con- eral funds for this purpose. Certain ad-
struction funds for the Federal project vances of funds will be necessary, in
which incorporates the part con- any event, to cover other costs which
structed by the non-Federal entity are are required on the part of the Corps of
appropriated and allocated. Engineers. Paragraph 11 of ER 1140–2–
(5) The non-Federal entity will nor- 301 requires that requests to the Appro-
mally be required to develop the design priations Committees for approval of
memorandum, engineering plans, and advances of funds should normally be
specifications for the work it proposes submitted to the Committees by non-
to undertake. Subject to policies estab- Federal interests outside of Corps of
lished in ER 1140–2–301, as modified in Engineers channels. An exception to
paragraph (e)(2) of this section, the this procedure will be made in the case
District Engineer may provide engi- of Section 215 proposals in that the re-
neering services with funds advanced quest for approval of advances will be
by the non-Federal entity if he deter- made a part of the request to the com-
mines it to be impracticable for the en- mittees for approval of the overall ar-
tity to obtain the services elsewhere. rangement referred to in paragraph
Non-Federal engineering and overhead
(d)(2) of this section. Thus, proposed
costs for the part of the Federal project
advances of funds for the following pur-
that the non-Federal entity proposes to
poses will be clearly set forth in the
construct will be part of the reimburse-
ment agreement. draft agreement: (i) Preparation of a
(6) The agreement shall include local partial design memorandum and/or
cooperation items required by the plans and specifications (ii) corps re-
project authorization and by Section view of design scheduled for accom-
221, FCA of 1970. plishment by local interests, and (iii)
(7) Reimbursement of non-Federal periodic and final inspections.
work under Section 215 is not applica- (3) The District Engineer will submit
ble to small projects authorized under for review an unsigned draft agreement
the general authority of Section 107, to OCE. All agreements will be pre-
Pub. L. 86–645, as amended. (33 U.S.C. pared for the signature of the Chief of
577); Section 205, Pub. L. 858, 80th Con- Engineers.
gress, as amended, (33 U.S.C. 701s); and (4) The District Engineer will be noti-
Section 103, Pub. L. 87–874, as amended, fied of any changes in the draft agree-
(33 U.S.C. 426g); and Section 14, Pub. L. ment that the Chief of Engineers may
79–526 (33 U.S.C. 701r). require, and will negotiate a final
(e) Procedures. (1) Non-Federal enti- agreement with the non-Federal enti-
ties desiring reimbursement under Sec- ty. After signature of the agreement by
tion 215 for constructing part of an au- the non-Federal entity, the District
thorized Federal project should confer
Engineer will forward three copies to
with the District Engineer and submit
HQDA (DAEN-CWO-C) WASH DC 20314,

a written proposal to him. This pro-
posal will form the basis for con- for signature by the Chief of Engineers.
158
Corps of Engineers, Dept. of the Army, DoD Pt. 209, App. A
(5) Upon receipt from OCE of the full a part of the Federal project, the
executed agreement, the District Engi- means of determining the part eligible
neer will transmit the signed agree- for reimbursement shall be fully de-
ment to the non-Federal entity. fined.
(6) The Division Engineer will review (8) State that such reimbursement
the (partial) design memorandum, and, shall depend upon appropriation of
if it meets the relevant criteria in funds applicable to the project and
paragraph (d)(1) of this section, will shall not take precedence over other
submit it to OCE with the rec- pending projects of higher priority.
ommendations on whether or not the (9) Specify that reimbursement or
work may proceed subject to reim- credit for non-Federal work shall apply
bursement under the agreement. only to that work undertaken after
(7) The Division Engineer will ap- execution of the agreement. The term
prove plans and specifications. ‘‘work’’ shall include advance engineer-
(8) The non-Federal entity will award ing and design as well as actual con-
contract. struction.
(9) The District Engineer will con- (10) State that the agreement is not
duct periodic and final inspections. to be construed as committing the
(10) Upon completion of the local United States to reimbursement if the
work, the District Engineer will certify Federal project is not undertaken, or if
the cost data, and that performance the Federal project should be modified
has been in accordance with the agree- in such a way that the work performed
ment. by the non-Federal entity does not con-
(f) Agreements. Agreements under stitute a part thereof.
Section 215 should follow the general
(11) Contain applicable equal employ-
format presented in paragraph (c)(6) of
ment clauses from Armed Services Pro-
this section, adapted as warranted by
curement Regulations.
the specific case. Each agreement
shall: (g) Nature and amount of reimburse-
(1) Expire 3 years after the date of ment. (1) The non-Federal entity may
execution if the non-Federal entity has be reimbursed by a payment of cash,
not commenced the work contemplated or, preferably, by reductions in any
by the agreement. non-Federal contribution to the Fed-
(2) State the time allowed for com- eral project that may have been re-
pletion of the work. A reasonable time quired by the legislation authorizing
shall be allowed, but normally not over it, or by a combination of cash and
2 construction seasons. such reductions.
(3) Fully describe the work to be ac- (2) The amount of reimbursement
complished by the non-Federal entity shall equal the approved expenditures
and specify the manner in which it will made by the non-Federal entity for
be carried out. work that would have been accom-
(4) The agreement will specify that plished at Federal expense if the entire
reimbursement by the Federal Govern- project were carried out by the Corps
ment will not exceed $1,000,000. of Engineers, and as covered in the
(5) Provide for necessary review of agreement under paragraphs (f) (7) and
designs, plans, and specifications, by (10) of this section. The amount of re-
the District Engineer. imbursement will not exceed, however,
(6) Provide for examination and re- the amount that the District Engineer
view of proposed contracts and for in- finds to be a reasonable estimate of the
spection of the work by the District reduction in Federal expenditure re-
Engineer for conformance with the sulting from construction by the non-
terms of the agreement. Federal entity.
(7) State fully the basis on which re-
imbursement or credit shall be deter- APPENDIX A TO PART 209—PUBLIC LAW
mined, and provide for the final adjust- 90–483, 90TH CONGRESS, S. 3710, AU-
GUST 13, 1968
ment when the balance of the Federal
project is constructed. If the improve-
An act authorizing the construction, re-

ment proposed by the non-Federal enti- pair, and preservation of certain public
ty includes work that will not become works on rivers and harbors for navigation,
159
flood control, and for other purpose. (82 Stat. accordance with the provisions of section 2
731). of the Act of August 13, 1946, as amended (33
U.S.C. 426f). Reimbursement for such work
may, as an alternative, be made in accord-
* * * * *
ance with the provisions of this section, pro-
Sec. 215. (a) The Secretary of the Army, vided that agreement required herein shall
acting through the Chief of Engineers, may, have been executed prior to commencement
when he determines it to be in the public in- of the work. Expenditures for projects for
terest, enter into agreement providing for re- beach erosion control commenced by non-
imbursement to States or political subdivi- Federal public bodies subsequent to one year
sions thereof for work to be performed by after enactment of this section may be reim-
such non-Federal public bodies at water re- bursed by the Secretary of the Army, acting
sources development projects authorized for through the Chief of Engineers, only in ac-
construction under the Secretary of the cordance with the provisions of this section.
Army and the supervision of the Chief of En- (e) This section shall not be construed (1)
gineers. Such agreements may provide for re- as authorizing the United States to assume
imbursement of installation costs incurred any responsibilities placed upon a non-Fed-
by such entities or an equivalent reduction eral body by the conditions of project au-
in the contributions they would otherwise be thorization, or (2) as committing the United
required to make, or in appropriate cases, for State to reimburse non-Federal interests if
a combination thereof. The amount of Fed- the Federal project is not undertaken or is
eral reimbursement, including reductions in modified so as to make the work performed
contributions, for a single project shall not by the non-Federal Public body no longer ap-
exceed $1,000,000. plicable.
(b) Agreements entered into pursuant to
(f) The Secretary of the Army is authorized
this section shall (1) fully describe the work
to allot from any appropriations hereafter
to be accomplished by the non-Federal pub-
made for civil works not to exceed $10,000,000
lic body, and be accompanied by an engineer-
for any one fiscal year to carry out the pro-
ing plan if necessary therefor; (2) specify the
visions of this section. This limitation does
manner in which such work shall be carried
not include specific project authorizations
out; (3) provide for necessary review of de-
providing for reimbursement.
sign and plans, and inspection of the work by
the Chief of Engineers or his designee; (4)
state the basis on which the amount of reim- * * * * *
bursement shall be determined; (5) state that
such reimbursement shall be dependent upon [42 FR 24050, May 12, 1977]
the appropriation of funds applicable thereto
or funds available therefor, and shall not
take precedence over other pending projects PART 210—PROCUREMENT ACTIVI-
of higher priority for improvements; and (6) TIES OF THE CORPS OF ENGI-
specify that reimbursement or credit for NEERS
non-Federal installation expenditures shall
apply only to work undertaken or Federal
projects after project authorization and exe- Sec.
cution of the agreement, and does not apply 210.1 Advance notice to prospective bidders.
retroactively to past non-Federal work. Each 210.2 Notice of award.
such agreement shall expire three years after 210.3 Notice to proceed.
the date on which it is executed if the work 210.4 Rules of the Corps of Engineers Board
to be undertaken by the non-Federal public of Contract Appeals for cases not subject
body has not commenced before the expira- to the Contract Disputes Act of 1978.
tion of that period. The time allowed for 210.5 Rules of the Corps of Engineers Board
completion of the work will be determined of Contract Appeals for cases subject to
by the Secretary of the Army, acting the Contract Disputes Act of 1978.
through the Chief of Engineers, and stated in
the agreement. AUTHORITY: Secs. 2301–2314, 3012, 70A Stat.
(c) No reimbursement shall be made, and 127–133, 157; 10 U.S.C. 2301–2314, 3012.
no expenditure shall be credited, pursuant to
this section, unless and until the Chief of En- § 210.1 Advance notice to prospective
gineers or his designee, has certified that the bidders.
work for which reimbursement or credit is In connection with all construction
requested has been performed in accordance contracts estimated to cost $100,000 or
with the agreement.
more for which an invitation is sched-
(d) Reimbursement for work commenced
by non-Federal public bodies no later than uled to be issued, an advance notice to
prospective bidders will be prepared
one year after enactment of this section, to

carry out or assist in carrying out projects sufficiently in advance of the actual
for beach erosion control, may be made in issuance of the invitation to stimulate
160
interest on the part of the greatest pos- § 210.2 Notice of award.

sible number of contractors. Advance
The successful bidder will be notified
notices may also be prepared on
in writing of the acceptance of his bid.
projects estimated to cost less than Under construction contracts, this no-
$100,000 and for supplies where consid- tice may accompany the contract pa-
ered desirable. ENG Form 3132–R or pers which are forwarded for execution.
ENG Form 3133–R [set out in para- To avoid error, or confusing the notice
graphs 205 and 206, Appendix A, Engi- of award with a notice to proceed, the
neer Contract Instructions (ER 1180–1– notice of award will be substantially in
1)] will be used to send advance notices the following format:
to prospective bidders. Lengthy notices
may be reproduced and mailed using You are hereby notified that your bid
dated llll in the sum of $lll covering
ENG Form 3133–R as a foldover wrapper llll is accepted. A formal contract will
fastened with a wire staple. Advance be prepared for execution. Acceptable per-
notices will contain the information formance and payment bonds (if required)
required by ENG Form 3132–R, but ad- must be furnished upon execution of the for-
ditional information may be added as mal contract. If approval of the contract is
appropriate. The advance notices will: required by its express terms, the contract is
not fully executed until such approval is ob-
(a) Describe the proposed work in suf- tained.
ficient detail to permit prospective
general contractors, subcontractors Under supply contracts a written
and suppliers to determine reasonably award mailed (or otherwise furnished)
whether the work is of a nature and to the successful bidder either on
volume to warrant their buying plans; Standard Form 26 or Standard Form 33,
(b) Specify the date by which bidders results in a binding contract without
should return the request card in order further action by either party.
to receive a complete bid set; [26 FR 11732, Dec. 7, 1961]
(c) State the various locations (of-
fices) where plans will be on public dis- § 210.3 Notice to proceed.
play, available for inspection without (a) General. When the contract speci-
charge; and fies the time when the contractor is to
(d) Include for construction contracts proceed with the work under the con-
a statement as to the approximate tract, a notice to proceed will not be
value of the proposed construction. required. However, in any case where
That statement of value shall be in in- the contract requires the issuance of a
crements as follows: (1) Less than notice to proceed the notice will fix the
$25,000; (2) the nearest multiple of time for the commencement of the
$25,000 up to $100,000; (3) the nearest work and also, if appropriate, will fix
multiple of $100,000 from $100,000 to $1 the time for the completion of the
million; (4) the nearest multiple of work. The notice to proceed should be
$500,000 for from $1 million to $10 mil- issued on a form letter, reproduced on
lion; (5) over $10 million for all projects local letterhead paper from a master
of greater estimated value. copy, which will preclude repetitive
Information on several projects for typing of stereotype data. The notice
which invitations are scheduled to be to proceed will be executed in a suffi-
issued may be grouped in one advance cient number of copies to meet the con-
notice provided that information on tract distribution requirements in
any project or projects is not unduly paragraph 30–206, Engineer Contract In-
structions (ER 1180–1–1), and will bear
delayed in order to be grouped with
the contract number in the upper
others. When an advance notice is used
right-hand corner of the notice.
to circularize bidders, copies of the in-
(b) Contractor’s acknowledgment. When
vitation, when issued, will be furnished
a notice to proceed is issued, the con-
only to those prospective bidders who
tractor will acknowledge receipt there-
have returned a request card indicating
of by signing and dating all copies of
a desire to submit a bid. the acknowledgment and returning all

[26 FR 11732, Dec. 7, 1961] but one copy to the contracting officer.
161
§ 210.4 33 CFR Ch. II (7–1–20 Edition)
(c) Proceeding before approval of bonds. the terms of the contract, the Board
It is not necessary to delay commence- may make findings of fact with respect
ment under the contract pending ap- to such a claim without expressing an
proval of bonds by The Judge Advocate opinion on the question of liability.
General. Such action will be at the dis- (3) Emphasis is placed upon the sound
cretion of the contracting officer. In administration of these rules in spe-
the event exceptions are taken to the cific cases, because it is impracticable
bonds the contractor will immediately to articulate a rule to fit every possible
take steps to remove such exceptions circumstance which may be encoun-
or submit new bonds. tered. These rules will be interpreted
(d) Commencing performance. Contrac- so as to secure a just and inexpensive
tors in no case will be required to com- determination of appeals without un-
mence performance prior to the com- necessary delay.
mencement date fixed in the contract (4) Preliminary procedures are avail-
or in the notice to proceed. If they vol- able to encourage full disclosure of rel-
untarily do so and the contract is not evant and material facts, and to dis-
ultimately signed, or approved when courage unwarranted surprise. The par-
required, such action is at their own ties are expected to cooperate and to
risk and without liability on the part voluntarily comply with the intent of
of the Government. Contractors will such procedures without resort to the
not be required to commence perform- Board except on controversial ques-
ance until: tions. The Board may order exchange
(1) Performance and payment bonds of complicated exhibits prior to hear-
have been furnished, when required; ing in order to expedite the hearing.
(2) The award has been approved (5) All time limitations specified for
when approval is required; and various procedural actions are com-
(3) Notice to proceed has been for- puted as maximums, and are not to be
warded to the contractor where re- fully exhausted if the action described
quired. can be accomplished in a lesser period.
[26 FR 11732, Dec. 7, 1961] These time limitations are similarly
eligible for extension in appropriate
§ 210.4 Rules of the Corps of Engineers circumstances, on good cause shown.
Board of Contract Appeals for cases (6) Whenever reference is made to
not subject to the Contract Disputes contractor, appellant, contracting offi-
Act of 1978. cer, respondent and parties, this shall
(a) Preface to rules. (1) The Corps of include respective counsel for the par-
Engineers Board of Contract Appeals is ties, as soon as appropriate notices of
the authorized representative of the appearance have been filed with the
Chief of Engineers for the purpose of Board.
hearing, considering and determining, (b) Rule 1, Appeals, how taken. Notice
as fully and finally as he might, ap- of an appeal must be in writing and the
peals by contractors from decisions of original, together with two copies, may
contracting officers or their authorized be filed with the contracting officer
representative or other authorities on from whose decision the appeal is
disputed questions, taken pursuant to taken. The notice of appeal shall be
the provision of contracts requiring the mailed or otherwise filed within the
determination of such appeals by the time specified therefor in the contract
Chief of Engineers or his duly author- or allowed by applicable provision of
ized representative or Board. directive or law.
(2) When an appeal is taken pursuant (c) Rule 2, Notice of appeal, contents of.
to a disputes clause in a contract A notice of appeal should indicate that
which limits appeals to disputes con- an appeal is thereby intended, and
cerning questions of fact, the Board should identify the contract (by num-
may in its discretion hear, consider ber) and the decision from which the
and decide all questions of law nec- appeal is taken. The notice of appeal
essary for the complete adjudication of should be signed personally by the ap-
the issue. In the consideration of an appellant (the contractor making the ap-
peal, should it appear that a claim is peal), or by an officer of the appellant

involved which is not cognizable under corporation or member of the appellant
162
firm, or by the contractor’s duly au- set forth in paragraph (e)(4) of this sec-
thorized representative or attorney. tion.
The complaint referred to in Rule 6 (2) Supplementation of appeal file.
may be filed with the notice of appeal, Within 30 days after receipt of its copy
or the appellant may designate the no- of the appeal file the appellant may
tice of appeal as a complaint, if it oth- supplement the same by furnishing to
erwise fulfills the requirements of a the Board any document not contained
complaint. therein which he considers pertinent to
(d) Rule 3, Forwarding of appeals. the appeal and furnishing two copies of
When a notice of appeal in any form each document to the government trial
has been received by the contracting attorney.
officer, he shall endorse thereon the (3) Organization of appeal file. Docu-
date of mailing (or date of receipt, if ments in the appeal file may be origi-
otherwise conveyed) and within 10 days nals or legible facsimiles or authenti-
shall forward said notice of appeal, to- cated copies thereof and shall be ar-
gether with a copy of the decision ap- ranged in chronological order, where
pealed from, to the Board. Following practicable, numbered sequentially,
receipt by the Board of the papers de- tabbed and indexed to identify the con-
scribed in the next rule (Rule 4), the tents of the file.
contractor will be promptly advised of
(4) Lengthy documents. The Board, on
its receipt and that the appeal is then
motion of a party, may waive the re-
considered docketed, and the con-
quirement of furnishing to the other
tractor will be furnished a copy of
party copies of bulky, lengthy or out-
these rules.
(e) Rule 4, Preparation, contents, orga- of-size documents in the appeal file
nization, forwarding and status of appeal when a party has shown that doing so
file—(1) Duties of contracting officer. Fol- would impose an undue burden. At the
lowing receipt of a notice of appeal or time a party files with the Board a doc-
advice that an appeal has been filed, ument as to which such a waiver has
the contracting officer shall compile been granted, he shall notify the other
and transmit to the Board and the gov- party that the same or a copy is avail-
ernment trial attorney an appeal file able for inspection at the office of the
consisting of all documents pertinent Board or of the party filing the same.
to the appeal including in particular: (5) Status of documents in appeal file.
(i) The decision and findings of fact Documents in the appeal file are con-
from which the appeal was taken; sidered as evidence in the case. A party
(ii) The contract including pertinent to the appeal may at any time prior to
amendments, specifications, plans and the conclusion of a hearing or in the
drawings; case of an appeal submitted on the
(iii) All correspondence between the record prior to the date of the notice
parties pertinent to the appeal, includ- that the case is ready for decision ob-
ing the letter or letters of claim in reject to the inclusion of any document
sponse to which a decision was issued; in the appeal file. The Administrative
(iv) Transcripts of any testimony Judge hearing the case will rule on the
taken during the course of proceedings objection as on any other objection to
and affidavits or statements of any the admission of evidence.
witnesses on the matter in dispute (f) Rule 5, Dismissal for lack of jurisdic-
made prior to the filing of the notice of tion. Any motion addressed to the ju-
appeal with the Board; risdiction of the Board shall be prompt-
(v) Such additional information as ly filed. Hearing on the motion shall be
may be considered material. afforded on application of either party,
The contracting officer shall at the unless the Board determines that its
same time furnish to the appellant a decision on the motion will be deferred
copy of each document in the appeal pending hearing on both the merits and
file except those set forth in paragraph the motion. The Board shall have the
(e)(1)(ii) of this section, as to which a right at any time and on its own mo-
list furnished appellant indicating the tion to raise the issue of its jurisdic-
specific contractual documents in- tion to proceed with a particular case,

cluded in the file will suffice, and those and shall do so by an appropriate order,
163
§ 210.4 33 CFR Ch. II (7–1–20 Edition)
affording the parties an opportunity to scribed in Rule 4, are tried by express

be heard thereon. or implied consent of the parties, or by
(g) Rule 6, Pleadings. (1) Within 30 permission of the Board, they shall be
days after receipt of notice of dock- treated in all respects as if they had
eting of the appeal, as provided in the been raised therein. In such instances
last sentence of Rule 3, the appellant motions to amend the pleadings to con-
shall file with the Board an original form to the proof may be entered, but
and two copies of a complaint setting are not required. If evidence is objected
forth simple, concise and direct state- to at a hearing on the ground that it is
ments of each of his claims, alleging not within the issues raised by the
the basis with appropriate reference to pleadings or the rule 4 documentation
contract provisions for each claim, and (which shall be deemed part of the
the dollar amount claimed. This plead- pleadings for this purpose), it may be
ing shall fulfill the generally recog- admitted within the proper scope of the
nized requirements of a complaint, al- appeal, provided, however, that the ob-
though no particular form or formality jecting party may be granted a con-
is required. Upon receipt thereof, the tinuance if necessary to enable him to
Recorder of the Board shall serve a meet such evidence.
copy upon the respondent. Should the (i) Rule 8, Hearing—election. (1) Upon
complaint not be received within 30 receipt of respondent’s answer or the
days, appellant’s claim and appeal notice referred to in the last sentence
may, if in the opinion of the Board the of Rule 6(b), appellant shall advise the
issues before the Board are sufficiently Board whether he desires a hearing, as
defined, be deemed to set forth his prescribed in Rules 17 through 25, or
complaint and the respondent shall be whether in the alternative he elects to
so notified. submit his case on the record without
(2) Within 30 days from receipt of said a hearing, as prescribed in Rule 11.
complaint, or the aforesaid notice from (2) In appropriate cases, the appellant
the Recorder of the Board, respondent shall also elect whether he desires the
shall prepare and file with the Board optional accelerated procedure pre-
an original and two copies of an answer scribed in Rule 12.
thereto, setting forth simple, concise (j) Rule 9, Pre-hearing briefs. Based on
and direct statements of respondent’s an examination of the documentation
defenses to each claim asserted by ap- described in Rule 4, the pleadings and a
pellant. This pleading shall fulfill the determination of whether the argu-
generally recognized requirements of ments and authorities addressed to the
an answer, and shall set forth any af- issues are adequately set forth therein,
firmative defenses or counter-claims, the Board may in its discretion require
as appropriate. Upon receipt thereof, the parties to submit pre-hearing briefs
the Recorder shall serve a copy upon in any case in which a hearing has been
appellant. Should the answer not be re- elected pursuant to Rule 8. In the ab-
ceived within 30 days, the Board may, sence of a Board requirement therefor,
in its discretion, enter a general denial either party may in its discretion, and
on behalf of the Government, and the upon appropriate and sufficient notice
appellant shall be so notified. to the other party, furnish a pre-hear-
(h) Rule 7, Ammendments of pleadings ing brief to the Board. In any case
or record. (1) The Board upon its own where a pre-hearing brief is submitted,
initiative or upon application by a it shall be furnished so as to be re-
party may, in its discretion, order a ceived by the Board at least 15 days
party to make a more definite state- prior to the date set for hearing, and a
ment of the complaint or answer, or to copy shall simultaneously be furnished
reply to an answer. to the other party as previously ar-
(2) The Board may, in its discretion, ranged.
and within the proper scope of the ap- (k) Rule 10, Pre-hearing or pre-submis-
peal, permit either party to amend his sion conference. (1) When the case is to
pleading upon conditions just to both be submitted pursuant to Rule 11, or
parties. When issues within the proper heard pursuant to Rules 17 through 25,
scope of the appeal, but not raised by the Board may, upon its own initiative
the pleadings or the documentation de- or upon the application of either party,
164
call upon the parties to appear before (2) In cases involving $5,000 or less
an Administrative Judge of the Board where there is a hearing the presiding
for a conference to consider: Administrative Judge may in his dis-
(i) The simplification or clarification cretion at the conclusion of the hear-
of the issues; ing and after such oral argument as he
(ii) The possibility of obtaining stip- deems appropriate render oral sum-
ulations, admissions, agreements on mary findings of fact, conclusions and
documents, understandings on matters a decision on the appeal. The Board
already of record or similar agree- will subsequently furnish the parties a
ments which will avoid unnecessary typed copy of the decision for record
proof; and payment purposes and to establish
(iii) The limitation of the number of the date on which the period for filing
expert witnesses, or avoidance of simi- a motion for reconsideration under
lar cumulative evidence, if the case is Rule 29 commences.
to be heard; (3) Except as herein modified, these
rules otherwise apply in all respects.
(iv) The possibility of agreement dis-
(n) Rule 13, Settling the record. (1) The
posing of all or any of the issues in dis-
record upon which a Board decision is
pute;
rendered shall consist of the pleadings,
(v) Such other matters as may aid in the appeal file described in Rule 4, pre-
the disposition of the appeal. hearing orders, memoranda of pre-hear-
(2) The results of the conference shall ing conferences and all evidence admit-
be reduced to writing by the Adminis- ted by the Board both documentary
trative Judge in the presence of the and oral as appearing in the transcript.
parties, and this writing shall there- The record shall at all reasonable
after constitute part of the record. times be available for inspection by the
(l) Rule 11, Submission without a hear- parties at the office of the Board.
ing. Although both parties are entitled (2) A case submitted on the record
to a hearing under these rules, either pursuant to Rule 11 shall be ready for
party may elect to waive a hearing and decision when the parties are so noti-
to submit his case upon the Board fied by the Board. A case which is
record as settled pursuant to Rule 13. heard shall be ready for decision upon
Such an election by one party shall not receipt of the transcript or upon re-
preclude the other party from request- ceipt of the briefs when briefs are to be
ing and obtaining a hearing. Affidavits, submitted.
depositions, answers to interrogatories (3) The Board may in any case re-
and stipulations may be employed to quire either party, with appropriate
supplement other documentary evi- notice to the other party, to submit ad-
dence in the Board record. The Board ditional evidence on any matter rel-
may permit such submission to be sup- evant to the appeal. Except as the
plemented by oral arguments, tran- Board may otherwise order in its dis-
scribed if requested, and by briefs ar- cretion, no proof shall be received in
ranged in accordance with Rule 23. evidence after completion of an oral
(m) Rule 12, Optional accelerated proce- hearing or after notification by the
dure. (1) In appeals involving $25,000 or Board that the case is ready for deci-
less the appellant may elect to have sion in cases submitted on the record.
the appeal processed under this rule. (o) Rule 14, Discovery—depositions—(1)
The election may be made in the notice General policy. Parties may obtain dis-
of appeal, the complaint or by separate covery regarding any matter, not privi-
correspondence. In the event of such leged, which is relevant to the subject
election the case will be assigned to a matter involved in the appeal. The par-
single Administrative Judge who will ties are encouraged to engage in vol-
make every effort to render his deci- untary discovery procedures.
sion within 30 days of the settlement of (2) When permitted. The Board may,
the record and without regard to the upon timely motion filed by a party
place of the appeal on the docket. To after the answer has been filed, order
assist in expediting decisions the par- the taking of the testimony of any per-
ties should consider waiving pleadings son by deposition upon oral examina-
and submitting the case on the record. tion or by written questions for the
165
§ 210.4 33 CFR Ch. II (7–1–20 Edition)
purpose of discovery or for use as evi- thereof or on a separate paper, signed

dence or for both. by the parties and filed with the Board.
(3) Before who taken—time and place. (r) Rule 17, Hearings—Where and when
Depositions shall be taken before a per- held. Hearings will ordinarily be held in
son authorized to administer oaths at Washington, D.C., except that, upon re-
the place of examination. The time, quest reasonably made and upon good
place and manner of taking depositions cause shown, the Board may in its dis-
shall be as mutually agreed by the par- cretion set the hearing at another loca-
ties or as set forth in the order of the tion. Hearings will be scheduled at the
Board. discretion of the Board with due con-
(4) Protective orders. The Board may sideration to the regular order of ap-
in connection with the taking of any peals and other pertinent factors. On
deposition make any order which jus- request or motion by either party and
tice requires to protect a party from upon good cause shown, the Board may
annoyance, embarrassment, oppression in its discretion advance a hearing.
or undue burden or expense. (s) Rule 18, Notice of hearings. The par-
(5) Use as evidence. No testimony ties shall be given at least 15 days no-
taken by deposition shall be considered tice of the time and place set for hear-
as part of the evidence in the hearing ings. In scheduling hearings, the Board
of an appeal until it is offered and re- will give due regard to the desires of
ceived as evidence at the hearing. It the parties, and to the requirement for
will not ordinarily be received in evi- just and inexpensive determination of
dence if the deponent is present and appeals without unnecessary delay. No-
can testify personally at the hearing. tices of hearings shall be promptly ac-
In such cases, however, the deposition knowledged by the parties.
may be used to contradict or impeach (t) Rule 19, Unexcused absence of a
testimony of the witness given at the party. The unexcused absence of a
hearing. In cases submitted on the party at the time and place set for
record the Board may in its discretion hearing will not be occasion for delay.
receive depositions as evidence. In the event of such absence, the hear-
(6) Expenses. Each party shall bear its ing will proceed and the case will be re-
own expenses associated with taking of garded as submitted by the absent
any deposition. party as provided in Rule 11.
(p) Rule 15, Interrogatories; inspection (u) Rule 20, Nature of hearings. Hear-
of documents; admission of facts. (1) The ings shall be as informal as may be rea-
Board may upon a timely motion filed sonable and appropriate under the cir-
by either party after the filing of the cumstances. Appellant and respondent
answer permit a party to serve written may offer at a hearing on the merits
interrogatories upon the opposing such relevant evidence as they deem
party, order a party to produce and appropriate and as would be admissible
permit inspection and copying or under the generally accepted rules of
photographing of designated docu- evidence applied in the courts of the
ments or permit the service on a party United States in nonjury trials, sub-
of a request for the admission of facts. ject, however, to the sound discretion
The Board in its order shall establish of the presiding Administrative Judge
the date for responding to the motion. in supervising the extent and manner
(2) The Board may issue protective of presentation of such evidence. In
orders as in the case of depositions. general, admissibility will hinge on rel-
(q) Rule 16, Service of papers. Service evancy and materiality. Letters or cop-
of papers in all proceedings pending be- ies thereof, affidavits and other evi-
fore the Board may be made person- dence not ordinarily admissible under
ally, or by mailing the same in a sealed the generally accepted rules of evi-
envelope, registered, or certified, post- dence may be admitted in the discre-
age prepaid, addressed to the party tion of the presiding Administrative
upon whom service shall be made and Judge. The weight to be attached to
the date of delivery as shown by return evidence presented in any particular
receipt shall be the date of service. form will be within the discretion of
Waiver of the service of any papers the Board, taking into consideration
may be noted thereon or on a copy all the circumstances of the particular
166
case. Stipulations of fact agreed upon parties at such rates as may be fixed by
by the parties may be regarded and contract between the Board and the re-
used as evidence at the hearing. The porter. If the proceedings are reported
parties may stipulate the testimony by an employee of the Government, the
that would be given by a witness if the appellant may receive transcripts upon
witness were present. The Board may payment to the Government at the
in any case require evidence in addi- same rates as those set by contract be-
tion to that offered by the parties. tween the Board and the independent
(v) Rule 21, Examination of witnesses. reporter.
Witnesses before the Board will be ex- (z) Rule 25, Withdrawal of exhibits.
amined orally under oath or affirma- After a decision has become final the
tion, unless the facts are stipulated or Board may, upon request and after no-
the presiding administrative Judge tice to the other party, in its discre-
shall otherwise order. If the testimony tion permit the withdrawal of original
of a witness is not given under oath the exhibits, or any part thereof, by the
Board may, if it seems expedient, warn party entitled thereto. The substi-
the witness that his statements may be tution of true copies of exhibits or any
subject to the provisions of title 18, part thereof may be required by the
United States Code, sections 287 and Board in its discretion as a condition of
1001 and any other provisions of law granting permission for such with-
imposing penalties for knowingly mak- drawal.
ing false representations in connection (aa) Rule 26, Representation—The ap-
with claims against the United States pellant. An individual appellant may
or in any matter within the jurisdic- appear before the Board in person, a
tion of any department or agency corporation by an officer thereof, a
thereof. partnership or joint venture by a mem-
(w) Rule 22, Copies of papers. When ber thereof, or any of these by an at-
books, records, papers or documents torney at law duly licensed in any
have been received in evidence, a true state, Commonwealth, Territory or in
copy thereof or of such part thereof as the District of Columbia.
may be material or relevant may be (bb) Rule 27, Representation—The re-
substituted therefor, during the hear- spondent. Government counsel shall be
ing or at the conclusion thereof. designated to represent the interests of
(x) Rule 23, Post hearing briefs—(1) the Government before the Board.
General. Briefs must be compact, con- They shall file notice of appearance
cise, logically arranged and free from with the Board, and notice thereof will
burdensome, irrelevant, immaterial be given appellant or his attorney in
and scandalous matter. Briefs not com- the form specified by the Board from
plying with this rule may be dis- time to time. Whenever at any time it
regarded by the Board. appears that appellant and Govern-
(2) Time of submittal. Briefs, including ment counsel are in agreement as to
reply briefs, shall be submitted at such disposition of the controversy, the
times and upon such terms as may be Board may suspend further processing
agreed to by the parties and the pre- of the appeal in order to permit recon-
siding Administrative Judge at the sideration by the contracting officer:
conclusion of the hearing. Provided, however, That if the Board is
(3) Length of briefs. Except by permis- advised thereafter by either party that
sion of the Board on motion, principal the controversy has not been disposed
briefs shall not exceed 100 81⁄2″ by 11″ of by agreement, the case shall be re-
pages typewritten double space exclu- stored to the Board’s calendar without
sive of any table of contents and table loss of position.
of statutes, regulations and cases cited. (cc) Rule 28, Decisions. Decisions of
Reply briefs shall not exceed 20 such the Board will be made in writing and
pages. authenticated copies thereof will be
(y) Rule 24, Transcript of proceedings. forwarded simultaneously to both par-
Testimony and argument at hearings ties. The rules of the Board and all
shall be reported verbatim, unless the final orders and decisions (except those
Board otherwise orders. Transcripts of required for good cause to be held con-
the proceedings shall be supplied to the fidential and not cited as precedents)
167
§ 210.5 33 CFR Ch. II (7–1–20 Edition)
shall be open for public inspection at take effect and also all further pro-
the offices of the Board in Washington, ceedings in appeals then pending, ex-
D.C. cept to the extent that in the opinion
(dd) Rule 29, Motions for reconsider- of the Board, their application in a par-
ation. A motion for reconsideration, if ticular appeal pending when the Rules
filed by either party, shall set forth take effect would not be feasible or
specifically the ground or grounds re- would work an injustice, in which
lied upon to sustain the motion, and event the former procedure applies.
shall be filed within 30 days from the [40 FR 2582, Jan. 14, 1975, as amended at 45
date of the receipt of a copy of the de- FR 19202, Mar. 24, 1980]
cision of the Board by the party filing
the motion. § 210.5 Rules of the Corps of Engineers
(ee) Rule 30, Dismissal without preju- Board of Contract Appeals for cases
dice. In certain cases, appeals docketed subject to the Contract Disputes
before the Board are required to be Act of 1978.
placed in a suspense status and the (a) Preface to rules—(1) Jurisdiction for
Board is unable to proceed with dis- considering appeals. The Corps of Engi-
position thereof for reasons not within neers Board of Contract Appeals (re-
the control of the Board. In any such ferred to herein as the ‘‘Board’’) shall
case where the suspension has contin- consider and determine appeals from
ued, or it appears that it will continue, decisions of contracting officers pursu-
for an inordinate length of time, the ant to the Contract Disputes Act of
Board may in its discretion dismiss 1978 (Pub. L. 95–563, 41 U.S.C. 601–613)
such appeals from its docket without relating to: (i) Civil Works Contracts of
prejudice to their restoration when the the Corps of Engineers, (ii) contracts
cause of suspension has been removed. made by any other executive agency
(ff) Rule 31, Dismissal for failure to when such agency or the Administrator
prosecute. Whenever a record discloses for Federal Procurement Policy has
the failure of the appellant to file doc- designated the Board to decide the ap-
uments required by these rules, re- peal, or (iii) with the approval of the
spond to notice or correspondence from Chief of Engineers, contracts made by
the Board, comply with orders of the any other agency when such agency
Board or otherwise to indicate an in- has designated the Board to decide the
tention to continue the prosecution of appeal.
an appeal filed, the Board may issue an (2) Location and organization of the
order requiring appellant to show cause Board. (i) The Board’s address is Room
within thirty days why the appeal 4108, Pulaski Building, 20 Massachu-
should not be dismissed for lack of setts Avenue, NW., Washington, DC
prosecution. If the appellant shall fail 20314, telephone (202) 272–0369.
to show such cause, the appeal may be (ii) The Board consists of a chairman,
dismissed with prejudice. vice chairman, and other members, all
(gg) Rule 32, Ex Parte communications. of whom are attorneys at law duly li-
No Administrative Judge or member of censed by a state, commonwealth, ter-
the Board’s staff shall entertain, nor ritory, or the District of Columbia. In
shall any person directly or indirectly general, the appeals are assigned to a
involved in an appeal submit to the panel of at least three members who
Board or the Board’s staff, off the decide the case by a majority vote.
record, any evidence, explanation, Board members are designated Admin-
analysis or advice, whether written or istrative Judges.
oral, regarding any matter at issue in (3) Applicability of the Contract Dis-
an appeal. This provision does not putes Act of 1978. (i) If a contract with
apply to consultation among Board an executive agency was awarded be-
members nor to ex parte communica- fore 1 March 1979, and if the con-
tions concerning the Board’s adminis- tracting officer’s final decision was
trative functions or procedures. issued 1 March 1979 or thereafter, the
(hh) Rule 33, Effective date and appli- contractor may elect to proceed under
cability. These revised rules shall take the Contract Disputes Act of 1978.
effect on January 14, 1975. They govern (ii) If a contract with an executive
all proceedings in appeals after they agency was awarded on 1 March 1979 or
168
thereafter, the Contract Disputes Act contracting officer and has requested a
is automatically applicable. written decision within 60 days from
(iii) All other appeals are not subject receipt of the request, and the con-
to the Contract Disputes Act of 1978 tracting officer has not done so, the
and are controlled by the Board’s rules contractor may file a notice of appeal
published 14 January 1975 (33 CFR as provided in paragraph (b)(1) of this
210.4). section, citing the failure of the con-
(iv) If the Contract Disputes Act is tracting officer to issue a decision.
applicable to the appeal, the contractor (3) Where the contractor has sub-
can elect an accelerated procedure if mitted a claim to the contracting offi-
the disputed amount is $50,000 or less. cer and the contracting officer has
If the disputed amount is $10,000 or less failed to issue a decision within a rea-
the contractor has a further right to sonable time, the contractor may file a
elect a small claims (expedited) proce- notice of appeal as provided in para-
dure. Both of these procedures are de- graph (b)(1) of this section, citing the
scribed in Rule 12. Particular note failure to issue a decision.
should be made of the 180 day limit on (4) Upon docketing of appeals filed
processing accelerated procedure cases pursuant to paragraph (b)(2) or (3) of
and the 120 day limit on processing this section, the Board may, at its op-
small claims (expedited) procedure tion, stay further proceedings pending
cases. issuance of a final decision by the con-
(4) General guidelines. (i) Emphasis is tracting officer within such period of
placed upon the sound administration time as is determined by the Board.
of these rules in specific cases, because (5) In lieu of filing a notice of appeal
it is impracticable to articulate a rule under paragraph (b)(2) or (3) of this sec-
to fit every possible circumstance tion, the contractor may request the
which may be encountered. These rules Board to direct the contracting officer
will be interpreted so as to secure a to issue a decision in a specified period
just and inexpensive determination of of time, as determined by the Board, in
appeals without unnecessary delay. the event of undue delay on the part of
(ii) Preliminary procedures are avail- the contracting officer.
able to encourage full disclosure of rel- (c) Rule 2, Notice of appeal, contents of.
evant and material facts, and to dis- A notice of appeal should indicate that
courage unwarranted surprise. The par- an appeal is being taken and should
ties are expected to cooperate and to identify the contract (by number), the
voluntarily comply with the intent of agency involved in the dispute, the de-
such procedures without resort to the cision from which the appeal is taken,
Board except on controversial ques- and the amount in dispute, if known.
tions. The Board expects the parties to The notice of appeal should be signed
exchange complicated exhibits prior to personally by the appellant (the con-
hearing in order to expedite the hear- tractor taking the appeal), or by the
ing. appellant’s duly authorized representa-
(iii) Whenever reference is made to tive or attorney. The complaint re-
contractor, appellant, contracting offi- ferred to in Rule 6 may be filed with
cer, respondent, and parties, this shall the notice of appeal, or the appellant
include respective counsel for the par- may designate the notice of appeal as a
ties as soon as appropriate notices of complaint, if it otherwise fulfills the
appearance have been filed with the requirements of a complaint.
Board. (d) Rule 3, Docketing of appeals. When
(b) Rule 1, Appeals, how taken. (1) No- a notice of appeal in any form has been
tice of an appeal shall be in writing and received by the Board, it shall be dock-
mailed or otherwise furnished to the eted promptly. Notice in writing shall
Board within 90 days from the date of be given to the appellant with a copy of
receipt of a contracting officer’s deci- these rules, and to the contracting offi-
sion. A copy thereof shall be furnished cer.
to the contracting officer from whose (e) Rule 4, Preparation, content, organi-
decision the appeal is taken. zation, forwarding, and status of appeal
(2) Where the contractor has sub- file—(1) Duties of Contracting Officer.
mitted a claim of $50,000 or less to the Within 30 days of receipt of an appeal,
169
§ 210.5 33 CFR Ch. II (7–1–20 Edition)
or notice that an appeal has been filed, offices of the Board or of the party fil-
the contracting officer shall assemble ing same.
and transmit to the Board an appeal (5) Status of documents in appeal file.
file consisting of all documents perti- Documents contained in the appeal file
nent to the appeal, including: are considered, without further action
(i) The decision from which the ap- by the parties, as part of the record
peal is taken; upon which the Board will render its
(ii) The contract including specifica- decision. However, a party may object,
tions and pertinent amendments, plans for reasons stated, to consideration of
and drawings; a particular document or documents
(iii) All correspondence between the reasonably in advance of hearing or, if
parties relevant to the appeal, includ- there is no hearing, of settling the
ing the letter or letters of claim in re- record. If such objection is made the
sponse to which the decision was Board shall remove the document or
issued; documents from the appeal file and
(iv) Transcripts of any testimony permit the party offering the document
taken during the course of proceedings, to move its admission as evidence in
and affidavits or statements of any accordance with Rules 13 and 20.
witnesses on the matter in dispute (6) Notwithstanding the foregoing,
made prior to the filing of the notice of the filing of the Rule 4 (1) and (2) docu-
appeal with the Board; and ments may be dispensed with by the
(v) Any additional information con- Board either upon request of the appel-
sidered relevant to the appeal. lant in his notice of appeal or there-
Within the same time above specified after upon stipulation of the parties.
the contracting officer shall furnish (f) Rule 5, Motions. (1) Any motion ad-
the appellant a copy of each document dressed to the jurisdiction of the Board
he transmits to the Board, except those shall be promptly filed. Hearing on the
in paragraph (e)(1)(ii) of this section. motion shall be afforded on application
As to the latter, a list furnished appel- of either party. However, the Board
lant indicating specific contractual may defer its decision on the motion
documents transmitted will suffice. pending hearing on both the merits and
(2) Duties of the appellant. Within 30 the motion. The Board shall have the
days after receipt of a copy of the ap- right at any time and on its own initia-
peal file assembled by the contracting tive to raise the issue of its jurisdic-
officer, the appellant shall transmit to tion to proceed with a particular case,
the Board any documents not con- and shall do so by an appropriate order,
tained therein which he considers rel- affording the parties an opportunity to
evant to the appeal, and furnish two be heard thereon.
copies of such documents to the gov- (2) The Board may entertain and rule
ernment trial attorney. upon other appropriate motions.
(3) Organization of appeal file. Docu- (g) Rule 6, Pleadings—(1) Appellant.
ments in the appeal file may be origi- Within 30 days after receipt of notice of
nals or legible facsimiles or authenti- docketing of the appeal, the appellant
cated copies, and shall be arranged in shall file with the Board an original
chronological order where practicable, and two copies of a complaint setting
numbered sequentially, tabbed, and in- forth simple, concise and direct state-
dexed to identify the contents of the ments of each of its claims. Appellant
file. shall also set forth the basis, with ap-
(4) Lengthy documents. Upon request propriate reference to contract provi-
by either party, the Board may waive sions, of each claim and the dollar
the requirement to furnish to the other amount claimed, to the extent known.
party copies of bulky, lengthy, or out- This pleading shall fulfill the generally
of-size documents in the appeal file recognized requirements of a com-
when inclusion would be burdensome. plaint, although no particular form is
At the time a party files with the required. Upon receipt of the com-
Board a document as to which such a plaint, the Board shall serve a copy of
waiver has been granted he shall notify it upon the Government. Should the
the other party that the document or a complaint not be received within 30
copy is available for inspection at the days, appellant’s claim and appeal
170
may, if in the opinion of the Board the (j) Rule 9, Prehearing briefs. Based on
issues before the Board are sufficiently an examination of the pleadings, and
defined, be deemed to set forth its com- its determination of whether the argu-
plaint and the Government shall be so ments and authorities addressed to the
notified. issues are adequately set forth therein,
(2) Government. Within 30 days from the Board may, in its discretion, re-
receipt of the complaint, or the afore- quire the parties to submit prehearing
said notice from the Board, the Gov- briefs in any case in which a hearing
ernment shall prepare and file with the has been elected pursuant to Rule 8. If
Board an original and two copies of an the Board does not require prehearing
answer thereto. The answer shall set briefs either party may, in its discre-
forth simple, concise and direct state- tion and upon appropriate and suffi-
ments of Government’s defenses to cient notice to the other party, furnish
each claim asserted by appellant, in- a prehearing brief to the Board. In any
cluding any affirmative defenses avail- case where a prehearing brief is sub-
able. Upon receipt of the answer, the mitted, it shall be furnished so as to be
Board shall serve a copy upon appel- received by the Board at least 15 days
lant. Should the answer not be received prior to the date set for hearing, and a
within 30 days, the Board may, in its copy shall simultaneously be furnished
discretion, enter a general denial on to the other party as previously ar-
behalf of the Government, and the ap- ranged.
pellant shall be so notified. (k) Rule 10, Prehearing or pre-
(h) Rule 7, Amendments of pleadings or submission conference. (1) Whether the
record. The Board upon its own initia- case is to be submitted pursuant to
tive or upon application by a party Rule 11, or heard pursuant to Rules 17
may order a party to make a more defi- through 25, the Board may upon its
nite statement of the complaint or an- own initiative, or upon the application
swer, or to reply to an answer. The of either party, arrange a telephone
Board may, in its discretion, and with- conference or call upon the parties to
in the proper scope of the appeal, per- appear before an administrative judge
mit either party to amend its pleading or examiner of the Board for a con-
upon conditions fair to both parties. ference to consider:
When issues within the proper scope of
(i) Simplification, clarification, or
the appeal, but not raised by the plead-
severing of the issues;
ings, are tried by express or implied
(ii) The possibility of obtaining stip-
consent of the parties, or by permission
ulations, admissions, agreements and
of the Board, they shall be treated in
rulings on admissibility of documents,
all respects as if they had been raised
understandings on matters already of
therein. In such instances, motions to
record, or similar agreements that will
amend the pleadings to conform to the
avoid unnecessary proof;
proof may be entered, but are not re-
quired. If evidence is objected to at a (iii) Agreements and rulings to facili-
hearing on the ground that it is not tate discovery;
within the issues raised by the plead- (iv) Limitation of the number of ex-
ings, it may be admitted within the pert witnesses, or avoidance of similar
proper scope of the appeal, provided, cumulative evidence;
however, that the objecting party may (v) The possibility of agreement dis-
be granted a continuance if necessary posing of any or all of the issues in dis-
to enable it to meet such evidence. pute; and
(i) Rule 8, Hearing election. After fil- (vi) Such other matters as may aid in
ing of the Government’s answer or no- the disposition of the appeal.
tice from the Board that it has entered (2) The administrative judge or ex-
a general denial on behalf of the Gov- aminer of the Board shall make such
ernment, each party shall advise rulings and orders as may be appro-
whether it desires a hearing as pre- priate to aid in the disposition of the
scribed in Rules 17 through 25, or appeal. The results of pre-trial con-
whether it elects to submit its case on ferences, including any rulings and or-
the record without a hearing, as pre- ders, shall be reduced to writing by the
scribed in Rule 11. administrative judge or examiner and
171
§ 210.5 33 CFR Ch. II (7–1–20 Edition)
this writing shall thereafter constitute The election may not be withdrawn ex-
a part of the record. cept with permission of the Board and
(l) Rule 11, Submission without a hear- for good cause.
ing. Either party may elect to waive a (2) Sub-Rule 12.2, The SMALL CLAIMS
hearing and to submit its case upon the (EXPEDITED) procedure. (i) In cases
record before the Board, as settled pur- proceeding under the SMALL CLAIMS
suant to Rule 13. Submission of a case (EXPEDITED) procedure, the following
without hearing does not relieve the time periods shall apply:
parties from the necessity of proving (A) Within 10 days from the Govern-
the facts supporting their allegations ment’s first receipt from either the ap-
or defenses. Affidavits, depositions, ad- pellant or the Board of a copy of the
missions, answers to interrogatories, appellant’s notice of election of the
and stipulations may be employed to SMALL CLAIMS (EXPEDITED) proce-
supplement other documentary evi- dure, the Government shall send the
dence in the Board record. The Board Board a copy of the contract, the con-
may permit such submissions to be tracting officer’s final decision, and
supplemented by oral argument (tran- the appellant’s claim letter or letters,
scribed if requested), and by briefs ar- if any; remaining documents required
ranged in accordance with Rule 23. under Rule 4 shall be submitted in ac-
(m) Rule 12, Optional SMALL CLAIMS cordance with times specified in that
(EXPEDITED) and ACCELERATED pro- rule unless the Board otherwise di-
cedures. These procedures are available rects;
solely at the election of the appellant. (B) Within 15 days after the Board
(1) Sub-Rule 12.1 Elections to utilize has acknowledged receipt of appel-
SMALL CLAIMS (EXPEDITED) and AC- lant’s notice of election, the assigned
CELERATED procedures. (i) In appeals administrative judge shall take the fol-
where the amount in dispute is $10,000 lowing actions, if feasible, in an infor-
or less, the appellant may elect to have mal meeting or a telephone conference
the appeal processed under a SMALL with both parties: (1) Identify and sim-
CLAIMS (EXPEDITED) procedure re- plify the issues; (2) establish a sim-
quiring decision of the appeal, when- plified procedure appropriate to the
ever possible, within 120 days after the particular appeal involved; (3) deter-
Board receives written notice of the ap- mine whether either party wants a
pellant’s election to utilize this proce- hearing, and if so, fix a time and place
dure. The details of this procedure ap- therefor; (4) require the Government to
pear in sub-Rule 12.2 of this Rule. An furnish all the additional documents
appellant may elect the ACCELER- relevant to the appeal; and (5) establish
ATED procedure rather than the an expedited schedule for resolution of
SMALL CLAIMS (EXPEDITED) proce- the appeal.
dure for any appeal eligible for the (ii) Pleadings, discovery, and other
SMALL CLAIMS (EXPEDITED) proce- prehearing activity will be allowed
dure. only as consistent with the require-
(ii) In appeals where the amount in ment to conduct the hearing on the
dispute is $50,000 or less, the appellant date scheduled, or if no hearing is
may elect to have the appeal processed scheduled, to close the record on a date
under an ACCELERATED procedure re- that will allow decisions within the
quiring decision of the appeal, when- 120-day limit. The Board, in its discre-
ever possible, within 180 days after the tion, may impose shortened time peri-
Board receives written notice of the ap- ods for any actions prescribed or al-
pellant’s election to utilize this proce- lowed under these rules, as necessary
dure. The details of this procedure ap- to enable the Board to decide the ap-
pear in sub-Rule 12.3 of this Rule. peal within the 120-day limit, allowing
(iii) The appellant’s election of either whatever time, up to 30 days, that the
the SMALL CLAIMS (EXPEDITED) Board considers necessary for the prep-
procedure or the ACCELERATED pro- aration of the decision after closing the
cedure may be made by written notice record and the filing of briefs, if any.
within 60 days after receipt of notice of (iii) Written decision by the Board in
docketing, unless such period is ex- cases processed under the SMALL
tended by the Board for good cause. CLAIMS (EXPEDITED) procedure will
172
be short and contain only summary concurrence of both parties, at the con-
findings of fact and conclusions. Deci- clusion of the hearing and after enter-
sions will be rendered for the Board by taining such oral arguments as he
a single administrative judge. If there deems appropriate, render on the
has been a hearing, the administrative record oral summary findings of fact,
judge presiding at the hearing may, in conclusions, and a decision of the ap-
the judge’s discretion, at the conclu- peal. Whenever such an oral decision is
sion of the hearing and after enter- rendered, the Board will subsequently
taining such oral arguments as deemed furnish the parties a typed copy of such
appropriate, render on the record oral oral decision for record and payment
summary findings of fact, conclusions, purposes and to establish the date of
and a decision of the appeal. Whenever commencement of the period for filing
such an oral decision is rendered, the a motion for reconsideration under
Board will subsequently furnish the Rule 29.
parties a typed copy of such oral deci- (4) Sub-Rule 12.4, Motions for reconsid-
sion for record and payment purposes eration in Rule 12 Cases. Motions for Re-
and to establish the starting date for consideration of cases decided under ei-
the period for filing a motion for recon- ther the SMALL CLAIMS (EXPE-
sideration under Rule 29. DITED) procedure or the ACCELER-
(iv) A decision against the Govern- ATED procedure need not be decided
ment or the contractor shall have no within the original 120-day or 180-day
value as precedent, and in the absence limit, but all such motions shall be
of fraud shall be final and conclusive processed and decided rapidly so as to
and may not be appealed or set aside. fulfill the intent of this Rule.
(3) Sub-Rule 12.3, The ACCELERATED (n) Rule 13, Settling the record. (1) The
procedure. (i) In cases proceeding under record upon which the Board’s decision
the ACCELERATED procedure, the will be rendered consists of the docu-
parties are encouraged, to the extent ments furnished under Rules 4 and 12,
possible consistent with adequate pres- to the extent admitted in evidence, and
entation of their factual and legal posi- the following items, if any: pleadings,
tions, to waive pleadings, discovery, prehearing conference memoranda or
and briefs. The Board, in its discretion, orders, prehearing briefs, depositions
may shorten time periods prescribed or or interrogatories received in evidence,
allowed elsewhere in these Rules, in- admissions, stipulations, transcripts of
cluding Rule 4, as necessary to enable conferences and hearings, hearing ex-
the Board to decide the appeal within hibits, post-hearing briefs, and docu-
180 days after the Board has received ments which the Board has specifically
the appellant’s notice of election of the designated be made a part of the
ACCELERATED procedure, and may record. The record will, at all reason-
reserve 30 days for preparation of the able times, be available for inspection
decision. by the parties at the office of the
(ii) Written decisions by the Board in Board.
cases processed under the Accelerated (2) Except as the Board may other-
procedure will normally be short and wise order in its discretion, no proof
contain only summary findings of fact shall be received in evidence after com-
and conclusions. Decisions will be ren- pletion of an oral hearing or, in cases
dered for the Board by a single Admin- submitted on the record, after notifica-
istrative Judge with the concurrence of tion by the Board that the case is
the Chairman or the Vice Chairman or ready for decision.
other designated Administrative (3) The weight to be attached to any
Judge, or by a majority among these evidence of record will rest within the
two and an additional designated mem- sound discretion of the Board. The
ber in case of desagreement. Alter- Board may in any case require either
natively, in cases where the amount in party, with appropriate notice to the
dispute is $10,000 or less as to which the other party, to submit additional evi-
Accelerated procedure has been elected dence on any matter relevant to the
and in which there has been a hearing, appeal.
the single Administrative Judge pre- (o) Rule 14, Discovery—depositions—(1)

siding at the hearing may, with the General policy and protective orders. The
173
§ 210.5 33 CFR Ch. II (7–1–20 Edition)
parties are encouraged to engage in atories to be answered separately in

voluntary discovery procedures. In con- writing, signed under oath and an-
nection with any deposition or other swered or objected to within 30 days
discovery procedure, the Board may after service; (2) a request for the ad-
make any order required to protect a mission of specified facts and/or the au-
party or person from annoyance, em- thenticity of any documents, to be an-
barrassment, or undue burden or ex- swered or objected to within 30 days
pense. Those orders may include limi- after service; the factual statements
tations on the scope, method, time and and the authenticity of the documents
place for discovery, and provisions for to be deemed admitted upon failure of
protecting the secrecy of confidential a party to respond to the request; and
information or documents. (3) a request for the production, inspec-
(2) When depositions permitted. After tion and copying of any documents or
an appeal has been docketed and com- objects not privileged, which reason-
plaint filed, the parties may mutually ably may lead to the discovery of ad-
agree to, or the Board may, upon appli- missible evidence, to be answered or
cation of either party, order the taking objected to within 30 days after service.
of testimony of any person by deposi- Any discovery engaged in under this
tion upon oral examination or written Rule shall be subject to the provisions
interrogatories before any officer au- of Rule 14(1) with respect to general
thorized to administer oaths at the policy and protective orders, and of
place of examination, for use as evi- Rule 35 with respect to sanctions.
dence or for purpose of discovery. The (q) Rule 16, Service of papers other than
application for order shall specify subpoenas. Papers shall be served per-
whether the purpose of the deposition sonally or by mail, addressed to the
is discovery or for use as evidence. party upon whom service is to be made.
(3) Orders on depositions. The time, Copies of complaints, answers and
place, and manner of taking deposi- briefs shall be filed directly with the
tions shall be as mutually agreed by Board. The party filing any other paper
the parties, or failing such agreement, with the Board shall send a copy there-
governed by order of the Board. of to the opposing party, noting on the
(4) Use as evidence. No testimony paper filed with the Board that a copy
taken by depositions shall be consid- has been so furnished. Subpoenas shall
ered as part of the evidence in the be served as provided in Rule 21.
hearing of an appeal until such testi- (r) Rule 17, Hearings: Where and when
mony is offered and received in evi- held. Hearings will be held at such
dence at such hearing. It will not ordi- places determined by the Board to best
narily be received in evidence if the de- serve the interests of the parties and
ponent is present and can testify at the the Board. Hearings will be scheduled
hearing. In such instances, however, at the discretion of the Board with due
the deposition may be used to con- consideration to the regular order of
tradict or impeach the testimony of appeals, Rule 12 requirements, and
the deponent given at the hearing. In other pertinent factors. On request or
cases submitted on the record, the motion by either party and for good
Board may, in its discretion, receive cause, the Board may, in its discretion,
depositions to supplement the record. adjust the date of a hearing.
(5) Expenses. Each party shall bear its (s) Rule 18, Notice of hearings. The par-
own expenses associated with the tak- ties shall be given at least 15 days no-
ing of any deposition. tice of the time and place set for hear-
(6) Subpoenas. Where appropriate, a ings. In scheduling hearings, the Board
party may request the issuance of a will consider the desires of the parties
subpoena under the provisions of Rule and the requirements for just and inex-
21. pensive determination of appeals with-
(p) Rule 15, Interrogatories to parties, out unnecessary delay. Notices of hear-
admission of facts, and production and ings shall be promptly acknowledged
inspection of documents. After an appeal by the parties.
has been docketed and complaint filed (t) Rule 19, Unexcused absence of a
with the Board, a party may serve on party. The unexcused absence of a
the other party: (1) Written interrog- party at the time and place set for
174
hearing will not be occasion for delay. this section, the production by the wit-
In the event of such absence, the hear- ness at the deposition or hearing of
ing will proceed and the case will be re- books and papers designated in the sub-
garded as submitted by the absent poena
party as provided in Rule 11. (2) Voluntary cooperation. Each party
(u) Rule 20, Hearings: Nature, examina- is expected: (i) To cooperate and make
tion of witnesses—(1) Nature of hearings. available witnesses and evidence under
Hearings shall be as informal as may its control as requested by the other
be reasonable and appropriate under party, without issuance of a subpoena,
the circumstances. Appellant and the and (ii) to secure voluntary attendance
Government may offer such evidence as of desired third-party witnesses and
they deem appropriate and as would be production of desired third-party
admissible under the Federal Rules of books, papers, documents, or tangible
Evidence or in the sound discretion of things whenever possible.
the presiding administrative judge or (3) Requests for subpoenas. (i) A re-
examiner. Stipulations of fact agreed quest for subpoena shall normally be
upon by the parties may be regarded filed at least:
and used as evidence at the hearing. (A) 15 days before a scheduled deposi-
The parties may stipulate the testi- tion where the attendance of a witness
mony that would be given by a witness at a deposition is sought;
if the witness were present. The Board (B) 30 days before a scheduled hearing
may require evidence in addition to where the attendance of a witness at a
that offered by the parties. hearing is sought.
(2) Examination of witnesses. Witnesses In its discretion the Board may honor
before the Board will be examined oral- requests for subpoenas not made within
ly under oath or affirmation, unless these time limitations.
the presiding administrative judge or (ii) A request for a subpoena shall
examiner shall otherwise order. If the state the reasonable scope and general
testimony of a witness is not given relevance to the case of the testimony
under oath, the Board may advise the and of any books and papers sought.
witness that his statements may be (4) Requests to quash or modify. Upon
subject to the provisions of title 18, written request by the person subpoe-
United States Code, sections 287 and naed or by a party, made within 10 days
1001, and any other provision of law im- after service but in any event not later
posing penalties for knowingly making than the time specified in the subpoena
false representations in connection for compliance, the Board may: (i)
with claims against the United States Quash or modify the subpoena if it is
or in any matter within the jurisdic- unreasonable and oppressive or for
tion of any department or agency other good cause shown, or (ii) require
thereof. the person in whose behalf the sub-
(v) Rule 21, Subpoenas—(1) General. poena was issued to advance the rea-
Upon written request of either party sonable cost of producing subpoenaed
filed with the recorder, or on his own books and papers. Where
initiative, the administrative judge to ciurcumstances require, the Board may
whom a case is assigned or who is oth- act upon such a request at any time
erwise designated by the chairman may after a copy has been served upon the
issue a subpoena requiring: opposing party.
(i) Testimony at a deposition. The de- (5) Form; issuance. (i) Every subpoena
posing of a witness in the city or coun- shall state the name of the Board and
ty where he resides or is employed or the title of the appeal, and shall com-
transacts his business in person, or at mand each person to whom it is di-
another location convenient for him rected to attend and give testimony,
that is specifically determined by the and if appropriate, to produce specified
Board; books and papers at a time and place
(ii) Testimony at a hearing. The at- therein specified. In issuing a subpoena
tendance of a witness for the purpose of to a requesting party, the administra-
taking testimony at a hearing; and tive judge shall sign the subpoena and
(iii) Production of books and papers. In may, in his discretion, enter the name
addition to paragraph (v)(1) (i) or (ii) of of the witness and otherwise leave it
175
§ 210.5 33 CFR Ch. II (7–1–20 Edition)
blank. The party to whom the sub- substituted therefor, during the hear-
poena is issued shall complete the sub- ing or at the conclusion thereof.
poena before service. (x) Rule 23, Post-hearing briefs. Post-
(ii) Where the witness is located in a hearing briefs may be submitted upon
foreign country, a letter rogatory or such terms as may be directed by the
subpoena may be issued and served presiding administrative judge or ex-
under the circumstances and in the aminer at the conclusion of the hear-
manner provided in 28 U.S.C. 1781–1784. ing.
(6) Service. (i) The party requesting (y) Rule 24, Transcript of proceedings.
issuance of a subpoena shall arrange Testimony and argument at hearings
for service. shall be reported verbatim, unless the
(ii) A subpoena requiring the attend- Board otherwise orders. Waiver of tran-
ance of a witness at a deposition or script may be especially suitable for
hearing may be served at any place. A hearings under sub-rule 12.2. Tran-
subpoena may be served by a United scripts or copies of the proceedings
States marshal or deputy marshal, or shall be supplied to the parties at the
by any other person who is not a party actual cost of duplication.
and not less than 18 years of age. Serv- (z) Rule 25, Withdrawal of exhibits.
ice of a subpoena upon a person named After a decision has become final the
therein shall be made by personally de- Board may, upon request and after no-
tice to the other party, in its discre-
livering a copy to that person and ten-
tion permit the withdrawal of original
dering the fees for one day’s attend-
exhibits, or any part thereof, by the
ance and the mileage provided by 28
party entitled thereto. The substi-
U.S.C 1821 or other applicable law; how-
tution of true copies of exhibits or any
ever, where the subpoena is issued on
part thereof may be required by the
behalf of the Government, money pay-
Board in its descretion as a condition
ments need not be tendered in advance
of granting permission for such with-
of attendance.
drawal.
(iii) The party at whose instance a (aa) Rule 26, Representation: The Ap-
subpoena is issued shall be responsible pellant. An individual appellant may
for the payment of fees and mileage of appear before the Board in person, a
the witness and of the officer who corporation by one of its officers; and a
serves the subpoena. The failure to partnership or joint venture by one of
make payment of such charges on de- its members; or any of these by an at-
mand may be deemed by the Board as torney at law duly licensed in any
a sufficient ground for striking the tes- state, commonwealth, territory, the
timony of the witness and the books or District of Columbia, or in a foreign
papers the witness has produced. country. An attorney representing an
(7) Contumacy or refusal to obey a sub- appellant shall file a written notice of
poena. In case of contumacy or refusal appearance with the Board.
to obey a subpoena by a person who re- (bb) Rule 27, Representation: The Gov-
sides, is found, or transacts business ernment. Government counsel may, in
within the jurisdiction of a United accordance with their authority, rep-
States District Court, the Board will resent the interest of the Government
apply to the Court through the Attor- before the Board. They shall file no-
ney General of the United States for an tices of appearance with the Board, and
order requiring the person to appear notice thereof will be given appellant
before the Board or a member thereof or appellant’s attorney in the form
to give testimony or produce evidence specified by the Board from time of
or both. Any failure of any such person time.
to obey the order of the Court may be (cc) Rule 28, Decisions. Decisions of
punished by the Court as a contempt the Board will be made in writing and
thereof. authenticated copies of the decision
(w) Rule 22, Copies of papers. When will be forwarded simultaneously to
books, records, papers, or documents both parties. The rules of the Board
have been received in evidence, a true and all final orders and decisions (ex-
copy thereof or of such part thereof as cept those required for good cause to
may be material or relevant may be held confidential and not cited as
176
precedents) shall be open for public in- followed so as to comply with the
spection at the offices of the Board. De- court’s order. The Board shall consider
cisions of the Board will be made solely the reports and enter special orders
upon the record, as described in Rule governing the handling of the re-
13. manded case. To the extent the court’s
(dd) Rule 29, Motion for reconsider- directive and time limitations permit,
ation. A motion for reconsideration such orders shall conform to these
may be file by either party. It shall set rules.
forth specifically the grounds relied (hh) Rule 33, Time, computation and ex-
upon to sustain the motion. The mo- tensions. (1) Where possible, procedural
tion shall be filed within 30 days from
actions should be taken in less time
the date of the receipt of a copy of the
than the maximum time allowed.
decision of the Board by the party fil-
ing the motion. Where appropriate and justified, how-
(ee) Rule 30, Suspensions; dismissal ever, extensions of time will be grant-
without prejudice. The Board may sus- ed. All requests for extensions of time
pend the proceedings by agreement of shall be in writing.
counsel for settlement discussions, or (2) In computing any period of time,
for good cause shown. In certain cases, the day of the event from which the
appeals docketed before the Board are designated period of time begins to run
required to be placed in a suspense sta- shall not be included, but the last day
tus and the Board is unable to proceed of the period shall be included unless it
with disposition thereof for reasons not is a Saturday, Sunday, or a legal holi-
within the control of the Board. Where day, in which event the period shall
the suspension has continued, or may run to the end of the next business day.
continue for an inordinate length of (ii) Rule 34, Ex parte communications.
time, the Board may, in its discretion, No member of the Board or of the
dismiss such appeals from its docket Board’s staff shall entertain, nor shall
without prejudice to their restoration any person directly or indirectly in-
when the cause of suspension has been volved in an appeal, submit to the
removed. Unless either party or the Board or the Board’s staff, off the
Board acts within three years to rein-
record, any evidence, explanation,
state any appeal dismissed without
analysis, or advice, whether written or
prejudice, the dismissal shall be
oral, regarding any matter at issue in
deemed with prejudice.
(ff) Rule 31, Dismissal or default for an appeal. This provision does not
failure to prosecute or defend. Whenever apply to consultation among Board
a record discloses the failure of either members or to ex parte communica-
party to file documents required by tions concerning the Board’s adminis-
these rules, respond to notices or cor- trative functions or procedures.
respondence from the Board, comply (jj) Rule 35, Sanctions. If any party
with orders of the Board, or otherwise fails or refuses to obey an order issued
indicates an intention not to continue by the Board, the Board may then
the prosecution or defense of an appeal, make such order as it considers nec-
the Board may, in the case of a default essary to the just and expeditious con-
by the appellant, issue an order to duct of the appeal.
show cause why the appeal should not (kk) Rule 36, Effective date. These
be dismissed or, in the case of a default rules shall apply: (1) Mandatorily, to
by the Government, issue an order to all appeals relating to contracts en-
show cause why the Board should not tered into on or after 1 March 1979, and
act thereon pursuant to Rule 35. If good (2) at the contractor’s election, to ap-
cause is not shown, the Board may peals relating to earlier contracts, with
take appropriate action. respect to claims pending before the
(gg) Rule 32, Remand from court.
contracting officer on 1 March 1979 or
Whenever any court remands a case to
initiated thereafter.
the Board for further proceedings, each
of the parties shall, within 20 days of [45 FR 19202, Mar. 24, 1980]
such remand, submit a report to the

Board recommending procedures to be
177
PART 214—EMERGENCY SUPPLIES cause a substantial threat to the public

OF DRINKING WATER health and welfare of the inhabitants
of the locality.’’ This authority ex-
Sec. pands the measures the Chief of Engi-
214.1 Purpose. neers may employ in providing emer-
214.2 Applicability. gency relief pursuant to Pub. L. 84–99.
214.3 Reference.
214.4 Additional authority. § 214.5 Policy.
214.5 Policy.
214.6 Discussion.
Emergency work under this author-
214.7 Delegation of authority. ity will be applied to situations in
214.8 Exclusions. which the source of water has become
214.9 Requirements. contaminated. The contamination may
214.10 Types of assistance. be accidental, deliberate, or caused by
214.11 Costs. natural events. The maximum
AUTHORITY: Pub. L. 84–99, as amended, contaminent levels in drinking water
Emergency Flood Control Work 33 U.S.C. are set forth by the Environmental
701n; (69 Statute 186), dated June 28, 1955. Protection Agency pursuant to Pub. L.
SOURCE: 41 FR 7506, Feb. 19, 1976, unless 93–523. However, loss of the water
otherwise noted. source or supply due to any cause is
not included in the language of Section
§ 214.1 Purpose. 82(2), Pub. L. 93–251, and furnishing
This provides information, guidance, emergency supplies by the Corps of En-
and policy for execution of the Chief of gineers under those situations was not
Engineers’ authority to furnish sup- intended by this legislation. Approval
plies of clean drinking water pursuant of measures to furnish clean drinking
to Pub. L. 84–99, as amended by section water will be pursuant to this regula-
82(2), Pub. L. 93–251 (88 Stat. 34). tion, and in accordance with proce-
dures outlined in ER 500–1–1 by HQDA
§ 214.2 Applicability. (DAEN-CWO-E) WASH DC 20314. DAEN-
This regulation is applicable to Corps CWO-E will be notified by telephone
of Engineers field operating agencies when the emergency water situation
assigned Civil Works activities, includ- becomes known.
ing the USAED Alaska, and the Pacific
Ocean Division. Its provisions are ap- § 214.6 Discussion.
plicable within the 50 states, and the (a) The amendment provides for fur-
District of Columbia, Puerto Rico, Vir- nishing emergency supplies of drinking
gin Islands, American Samoa, and water. The method of furnishing those
Guam. supplies is not provided for in the
amendment, and is left to the discre-
§ 214.3 Reference. tion of the Chief of Engineers. Any fea-
(a) Pub. L. 84–99, as amended (33 sible method, including restoration of
U.S.C. 701n). service from an alternate source when
(b) Pub. L. 93–251, Section 82(2). the main source has been contami-
(c) Pub. L. 93–523. nated, is authorized where most fea-
(d) ER 500–1–1. sible (however, see paragraphs (d) and
(e) of this section).
§ 214.4 Additional authority. (b) The scope of work is limited sole-
Section 82(2), Pub. L. 93–251, dated 7 ly to providing emergency supplies of
March 1974, revised Pub. L. 84–99, as clean drinking water. Sewage treat-
amended, by adding the following new ment and disposal, and other sanitary
sentence. ‘‘The Chief of Engineers, in requirements, are not included. In ad-
the exercise of his discretion, is further dition, the Corps of Engineers role in
authorized to provide emergency sup- providing emergency supplies is a tem-
plies of clean drinking water, on such porary measure until the locality is
terms as he determines to be advisable, able to assume their responsibility.
to any locality which he finds is con- The locality is ultimately responsible
fronted with a source of contaminated for providing supplies of drinking

drinking water causing or likely to water.
178
(c) The cause of the contamination CWO-E prior to authorizing the pro-
may be due to any situation, not nec- posed added work.
essarily flood related. It encompasses
all situations involving a contaminated § 214.8 Exclusions.
source of drinking water, whether The authority does not require cor-
caused by flooding or otherwise. recting the contamination, or repair of
(d) To be eligible, a locality must be water systems so that clean drinking
confronted with a source of water that water supplies become available again.
is contaminated. The loss of clean Reestablishing community water sup-
drinking water must not be solely the plies remains the responsibility of
result of a failure in the distribution local government and other Federal
system. For example, the emergency programs. These methods may be em-
could be due to a failure of a reservoir ployed under the authority, if they are
purification system, and the locality the most feasible ways to provide
might thus be faced with a contami- emergency supplies of clean drinking
nated source. Furnishing of emergency water, but there is no mandate to do
supplies of clean drinking water may so. To the extent state or local govern-
not be undertaken in these cases since ments can provide water with their
the distribution system is not consid- own resources, the locality will be ex-
ered to be a source. A loss of supply is cluded from the provision of emergency
not in itself a justification for fur- supplies under Pub. L. 84–99. In general,
nishing supplies of water by the Corps the following situations are not consid-
of Engineers under this authority. ered to be appropriate for Corps action
(e) Employment of the authority under this authority:
under the amendment requires a find-
(a) Contamination which causes a
ing by the Chief of Engineers, or his
loss of palatability, but poses no mate-
delegate, that there is, in fact, a con-
rial threat to public health and wel-
taminated source of drinking water.
fare.
(f) The contamination must cause or
be likely to cause a substantial threat (b) Contamination, such as by bac-
to the public health and welfare. An teria, which can be reduced to a safe
identifiable and defined threat of im- level by the users boiling the water.
pairment to the public health and wel- (c) Confrontation with normal levels
fare is considered necessary. There is of impurities or contaminants in a
no requirement, however, that actual drinking water source that does not
sickness exist from contaminated pose substantial threat to the public
water to invoke the authority. But a health.
clear threat must be established. Lack (d) Contamination by natural intru-
of palatability, in itself, may not con- sions over a period of time, which are
stitute a serious health threat (see known to be occurring and which may
§ 214.9(d)). accumulate in sufficient concentra-
(g) Inhabitants of the locality, rather tions to pose a future health threat,
than commercial enterprises, are iden- but which have not yet reached the
tified as the group threatened. A busi- level of a present hazard.
ness firm faced with contamination of (e) Loss or diminishing of a water
water used in its process is not eligible. source, due to such things as an earth-
The drinking water used by the people quake or drought.
in the area must be affected. (f) Contamination of a drinking
water source as a regular occurrence
§ 214.7 Delegation of authority. due to recurring events such as
The authority to approve measures drought or flooding, when no corrective
for furnishing emergency supplies of community action has yet been initi-
clean drinking water pursuant to the ated.
section 82(2), Pub. L. 93–251 amendment (g) Contamination which, while pos-
of Pub. L. 84–99, is delegated to division ing a substantial threat to health and
engineers, up to a $50,000 expenditure welfare, can be corrected by local au-
for the incident. Additional thorities, other Federal authorities, or
obligational authority of Code 400 other appropriate means before emer-

funds will be obtained from DAEN- gency supplies are deemed necessary.
179
§ 214.9 33 CFR Ch. II (7–1–20 Edition)
§ 214.9 Requirements. State Health Department, Environ-

Providing emergency supplies of mental Protection Agency, or recog-
clean drinking water pursuant to the nized commercial laboratory.
emergency functions of the Corps of (e) The identification of the affected
Engineers is supplemental to the ef- area as a legally recognized govern-
forts of the community. Such actions mental body or public entity that exer-
must be in accordance with both Fed- cises a measure of control in the com-
eral and municipal authorities. Corps mon interest of the inhabitants.
response must be restricted to requests
for assistance received from an appro- § 214.10 Types of assistance.
priate state official. Each request must The temporary emergency supplies of
be considered on its own merits. The clean drinking water may be provided
factors in each case may vary, but the through such actions as:
following should be included in the (a) The use of water tank trucks to
evaluation. haul clean drinking water from a near-
(a) Whether the criteria required by by known safe source to water points
the law and outlined in § 214.6 have established for local distribution.
been met. (b) Procurement and distribution of
(b) The extent of state and local ef- bottled water.
forts to provide clean drinking water
(c) Laying of temporary above
and their capability to do so. Corps ef-
ground water lines from a nearby safe
forts to provide temporary supplies of
source of water to the affected commu-
drinking water must be limited to
nity where water points for local dis-
measures clearly beyond the resources
tribution can be established.
reasonably available to the state and
locality. (d) Installation of temporary filtra-
(c) The adequacy of the state or local tion.
community agreement to mutually
§ 214.11 Costs.
participate with the Federal govern-
ment, on terms determined advisable Costs incurred by the Corps of Engi-
by the Chief of Engineers, or his dele- neers in furnishing emergency supplies
gate, which must include the following: of clean drinking water are chargeable
(1) To provide, without cost to the to Pub. L. 84–99 funds, 96X3125, Code
United States, all lands, easements, 910–400 and repayment by the commu-
and rights-of-way necessary for the au- nity generally will not be required.
thorized work. Costs of necessary measures for the de-
(2) To hold and save the United contamination of the water supply
States free from damages in connec- source are the responsibility of local
tion with the authorized work other governments and are not authorized
than negligence attributable to the under Pub. L. 84–99.
United States or its contractor.
(3) To maintain and operate in a PART 220—DESIGN CRITERIA FOR
manner satisfactory to the Chief of En- DAM AND LAKE PROJECTS
gineers all installed work during the
emergency.
§ 220.1 Low level discharge facilities
(4) To remove when determined fea- for drawdown of impoundments.
sible by the district engineer, at no
cost to the Federal government, the in- (a) Purpose. This regulation states
stalled equipment at the end of the the policy, objectives, and procedures
emergency and return it to the Corps in regard to facilities for drawdown of
of Engineers. lakes to be impounded by Civil Works
(5) As soon as possible to actively ini- projects.
tiate measures required to resolve the (b) Applicability. This regulation is
emergency situation. applicable to all Divisions and Dis-
(d) The provision of water quality tricts having responsibility for design
statements with the request, and the of Civil Works projects.
identification of the threat to public (c) Policy. It is the policy of the Chief
health and welfare as determined by of Engineers that all future lakes im-
recognized authorities such as the pounded by Civil Works projects be
180
provided with low level discharge fa- tails of the recommended plan should
cilities to meet the criteria for draw- be included in the Phase II General De-
down set forth in this ER. Low level sign Memorandum or a feature design
discharge facilities, capable of essen- memorandum. The reporting should in-
tially emptying the lake, provide flexi- clude the effects of the required dis-
bility in future project operation for charge capacity on project costs, on ex-
unanticipated needs, such as, major re- isting downstream projects, and on the
pair of the structure, environmental potential for downstream damage.
controls or changes in reservoir regula- When, due to specific project condi-
tion. The criteria set forth in this ER tions, a drawdown capacity is rec-
will govern in the majority of im- ommended which does not meet the
poundment projects. However, it may criteria set forth in paragraph (d) of
be impracticable to provide the draw- this section, the following information
down capability to meet the criteria should be presented:
for certain projects because of their (1) The drawdown period using the
size (unusually small or large) or be- maximum drawdown capability of the
cause of their unique function. Such proposed project facilities, under the
projects may be exempt from the cri- situation described in paragraph (d) of
teria upon presentation of information this section. Information should be in-
in accordance with paragraph (e) of cluded on the pool elevation and cor-
this section. responding storage volume at end of
(d) Design criteria. As a minimum, low the period.
level discharge facilities will be sized (2) Information on facilities that
to reduce the pool, within a period of would be required to meet the design
four months, to the higher of the fol- criteria for drawdown, including the es-
lowing pool levels: (1) A pool level that timated first cost and annual cost of
is within 20 feet of the pre-project ‘‘full these facilities. If the estimated cost
channel’’ elevation, or (2) a pool level for such facilities is significantly
which will result in an amount of stor- greater than for the proposed project
age in the reservoir that is 10 percent facilities, similar information on inter-
of that at the beginning pool level. The mediate facilities should be provided.
beginning pool level for drawdown will Reporting subsequent to the Phase I
be assigned at spillway crest for uncon- General Design Memorandum should
trolled spillways and at top of spillway include related discharge rating curves;
gates for controlled spillways. Inflow hydrographs with inflow, outflow and
into the lake during the drawdown pe- pool stage plots; lake regulation plans
riod will be developed by obtaining the needed for project purposes and needed
average flow for each month of the to satisfy the drawdown criteria; and
year. The drawdown period inflow will other data essential in evaluating the
then be assumed equivalent to the av- study.
erage flow of the highest consecutive
(49 Stat. 1571, 33 U.S.C. 701c)
four-month period.
(e) Design Study and Report Require- [40 FR 20081, May 8, 1975, as amended at 40
ments. Feasibility (survey) reports and FR 36774, Aug. 22, 1975]
subsequent pertinent design memo-
randa should include the results of PART 221—WORK FOR OTHERS
studies made to determine facilities re-
quired for drawdown of impoundments. Sec.
The discharge capacity required to sat- 221.1 Investigation and supervision of hy-
isfy project purposes and diversion re- dropower projects under the Federal
quirements during construction may be Power Act (ER 1140–2–4).
sufficient to meet the drawdown cri- APPENDIX A TO PART 221—PART 16–PROCE-
teria set forth in paragraph (d) of this DURES RELATING TO TAKEOVER AND RELI-
CENSING OF LICENSED PROJECTS
section. Where additional capacity is
APPENDIX B TO PART 221—FEDERAL ENERGY
required, studies will be made to deter-
REGULATORY COMMISSION FORM L–3 (RE-
mine the most practical and economi- VISED OCTOBER 1975)
cal means of increasing the capacity to
LIST OF FPC STANDARD ARTICLES FORMS

meet the drawdown criteria. A synopsis USED IN PERMITS AND LICENSES FOR HY-
of the alternatives considered and de- DROELECTRIC PROJECTS
181
§ 221.1 33 CFR Ch. II (7–1–20 Edition)
AUTHORITY: Secs. 2 and 4(e) of the Federal (3) ER 1145–2–303 (33 CFR 209.120), 2
Power Act of 1920 (41 Stat. 1603, 16 U.S.C. 791– Permits for Activities in Navigable
823), as amended; sec. 10 of the River and Waters or Ocean Waters.
Harbour Act of 1899 (30 Stat. 1151, 33 U.S.C.
(4) ER 1140–2–1, Submission of Data
403); and sec. 404 of Federal Water Pollution
Control Act Amendments of 1972 (86 Stat. for Headwater Benefits Determination.
816, 33 U.S.C. 1344) (d) Definitions—(1) Licensed project. A
non-Federal hydroelectric project for
SOURCE: 43 FR 4979, Feb. 7, 1978, unless oth-
which the FERC has issued a license
erwise noted.
granting authority for either construc-
§ 221.1 Investigation and supervision tion, in the case of a proposed project,
of hydropower projects under the or for continued operation and mainte-
Federal Power Act (ER 1140–2–4). nance of an existing project.
(a) Purpose. This regulation 1 estab- (2) Major projects. Hydroelectric
lishes procedures for executing Corps of projects with more than 2,000 horse-
Engineers functions under the author- power installed capacity.
ity of the Federal Power Act (FPA) ad- (3) Minor projects. Hydroelectric
ministered by the Department of En- projects having installed capacity of
ergy, Federal Energy Regulatory Com- 2,000 horsepower or less.
mission (FERC), formerly Federal (4) Preliminary permit application. An
Power Commission. Based on a specific application filed by a non-Federal enti-
request from FERC, these functions in- ty with the FERC as a preliminary step
clude: in anticipation of filing for a license to
(1) Investigation of applications filed construct and operate a hydroelectric
with FERC for permits and licenses, project. A preliminary permit does not
and for relicensing of projects to ascer- authorize construction. It merely gives
tain impacts on Corps of Engineers re- the permittee priority of application
sponsibilities. for a FERC license over other non-Fed-
(2) Investigation of applications for eral entities for a period of time. The
surrender or termination of license to permittee then develops information
ascertain impacts on Corps of Engi- necessary for inclusion in an applica-
neers responsibilities. tion for license to construct and oper-
(3) Supervision and inspection of op- ate a hydroelectric project. Analysis of
erations of licensed hydroelectric this information may result in a deci-
projects to ascertain impacts on Corps sion to apply for the license or to with-
of Engineers responsibilities. draw the intent.
(b) Applicability. This regulation ap- (5) Relicensing. A procedure applicable
plies to all field operating agencies to projects for which the original pe-
having Civil Works responsibilities. riod of license (usually 50 years) will
(c) References. (1) Federal Power Com- expire or has expired and application
mission publication entitled ‘‘Federal for new license has been or will be filed
Power Act’’, as amended, dated 1 April with the FERC.
1975. The Act was originally enacted 10 (6) Take over. An act whereby the
June 1920 (41 Stat. 1063, 16 U.S.C. 791– Federal government assumes project
823). This publication can be obtained ownership. Upon expiration of a license
from the U.S. Government Printing Of- for a hydroelectric project, the United
fice, Washington, D.C. 20402. States, under certain specific condi-
(2) Code of Federal Regulations, Title tions set forth in section 14 of the Fed-
18, part 1 to 149 relating to FERC Gen- eral Power Act may ‘‘take over’’, main-
eral Rules and Regulations, available tain and operate the project. This does
at the U.S. Government Printing Of- not apply to any project owned by a
fice, Washington, D.C. 20402. State or local government. Take over
procedures are not applicable to
‘‘Minor Projects.’’
1 This regulation supersedes ER 1140–2–4, 8
December 1967, and ER 1140–2–2, 10 Sep- 2 33 CFR 209.120 was removed at 42 FR 37133,
tember 1965. July 19, 1977.
182
(e) Authorities. The Federal Power report is to be submitted will be speci-

Act as amended delegates to the Sec- fied. The nature of investigation and
retary of the Army, the Chief of Engi- report by the Division Engineer will
neers and the Corps of Engineers cer- depend upon the nature of the request
tain functions necessary for the from the FERC. In general, reports as
FERC’s administration of the Act. Im- appropriate for the type of application
plementation was provided through in- filed with the Commission will con-
structions issued by the President in a sider the following items as pertinent
letter dated 18 May 1931 to the Sec- and will include recommendation of
retary of War. These functions are set pertinent license provisions:
forth in the following excerpts from (1) License applications. (i) The effect
the Act: of the project on navigation and flood
(1) Section 2 of the Act provides in control, including adequacies of the
part that: plans of the structures affecting navi-
gation. Section 4(e) of the Federal
The Commission may request the Presi-
dent to detail an officer or officers from the Power Act provides for approval of
Corps of Engineers, or other branches of the plans for hydroelectric power projects
United States Army to serve the Commission as noted in paragraph (e)(2) of this sec-
as engineer officer or officers * * *. tion. Section 4(e) approval normally
will obviate the need for a Department
(2) Section 4(e) of the Act provides in
of Army permit under section 10 of the
part that:
1899 River and Harbor Act. The basis
The Commission is hereby authorized and for Corps approval under section 4(e)
empowered * * * to issue licenses to citizens will be limited to effects on navigation;
of the United States, or to any associations however, section 4(e) does not obviate
of such citizens, or to any corporation orga- the need for a Department of the Army
nized under the laws of the United States or
any State thereof, or to any State or munici-
permit pursuant to section 404 of the
pality for the purpose of construction, oper- Federal Water Pollution Control Act
ating, and maintaining dams, water con- (see paragraph (i)(2)) of this section.
duits, reservoirs, powerhouses, transmission Such a permit is subject to a full public
lines, or other project works necessary or interest review pursuant to 33 CFR
convenient for the development and im- part 320 and the application of the En-
provement of navigation and for the develop- vironmental Protection Agency’s
ment, transmission, and utilization, of power guidelines in 40 CFR part 230.
across, along, from or in any of the streams
or other bodies of water over which Congress
(ii) Recommendations for license pro-
has jurisdiction * * *. visions required to protect the interest
* * *Provided that no license affecting the of navigation. This item is discussed
navigable capacity of any navigable water of under paragraphs 7, 8 and 9.
the United States shall be issued until the (iii) Consideration of the project in
plans of the dam or other structures affect- relation to a comprehensive plan for
ing navigation have been approved by the developing the basin water resources
Chief of Engineers and the Secretary of the from the standpoint of the Corps of En-
Army.
gineers’ programs and responsibilities.
(f) Investigation of application for per- Specific references should be made to
mits, licenses, or relicensing of projects. pertinent published Congressional doc-
Upon referral by the FERC, the Chief uments containing results of studies
of Engineers will assign the investiga- and/or to Congressional resolutions di-
tion of an application for permit, li- recting studies to be made to provide
cense or relicensing to the appropriate identification.
Division Engineer who will submit a (iv) Consideration of environmental
report on the investigation as specified aspects of a project as related to navi-
herein to HQDA (DAEN-CWE-HY) gation and flood control matters or
WASH DC 20314 (exempt from reports other specific Corps interests and re-
control, Paragraph 7–2y, AR 335–15). sponsibilities in particular cases.
The investigation should be coordi- (v) The matter of possible redevelop-
nated with all interested organization ment of an existing project to improve
elements including Engineering, Con- the usefulness of the project in relation
struction/Operations, Planning and Of- to the objectives of the Corps program

fice of the Counsel. The date that the in the basin. In the case of an
183
§ 221.1 33 CFR Ch. II (7–1–20 Edition)
unconstructed project, based on re- given to aspects of the project affect-

quest from the Commission, a rec- ing authorized functions of the Corps
ommendation along with justification, as well as to the responsibilities as-
should be included as to whether or not signed to the Corps by the Federal
development should be undertaken by Power Act. Accordingly, the Division
the United States. engineer in his report on an application
(vi) Consideration of structural safe- to the Chief of Engineers will always
ty and adequacy of spillway design consider the necessity for including in
flood for FERC licensed projects are any license or permit terms and condi-
the responsibility of the FERC. The tions to protect the interests of naviga-
Dam Safety Act, Pub. L. 92–367 pro- tion. Recommendations involving
vides that dams constructed pursuant other responsibilities of the Corps in
to license issued under the authority of the area of water control management
Federal Power Act are specifically ex- such as flood control, low flow aug-
empted from the Corps National in- mentation minimum instantaneous re-
spection program. This does not pre- leases, and other purposes should also
clude the Corps District and Division be considered.
offices from making comments on li- (h) Standard terms and conditions used
cense applications for the FERC infor- by the FERC in its permits and licenses.
mation, about any design deficiencies Appendix B to this Regulation includes
that are brought to their attention. standard terms and conditions used by
(2) Relicensing (new license) applica- the FERC in licenses for projects af-
tion. (i) Consider paragraphs (f) (1) fecting navigable waters of the U.S.
through (6) of this section. The standard articles, included in ap-
(ii) Recommendations should be fur- pendix B, are identified by the FERC in
nished to the FERC with respect to the following Forms:
possible need for ‘‘take over’’ of a (1) Form L–3 (Revised October 1975)
project by the Federal Government. Terms and Conditions of License for Con-
Details on ‘‘take over’’ under the Fed- structed Major Project Affecting Navigable
eral Power Act are provided in part 16 Waters of the United States.
of the CFR, title 18 (part 1 to 149). A (2) Form L–4 (Revised October 1975)
copy of part 16 is provided for ready
reference in appendix A of this part. Terms and Conditions of License for
Unconstructed Major Project Affecting Navi-
(iii) FERC Preliminary Permit Appli-
gable Waters of the United States.
cation. Consider appropriate rec-
ommendations to insure coordination Any special terms and conditions per-
of applicant’s studies with the Division taining to the Corps of Engineers re-
or District Engineer in cases where responsibilities, in addition to those
sponsibilities and interests of the Corps identifed in appendix B should be tai-
of Engineers would be affected. The re- lored to suit the situation involved.
port should include discussion of Corps Appendix B also provides a list of other
interests which could result in rec- FERC standard articles Forms that
ommendations for provisions to be in- could be obtained from FERC offices.
cluded in a subsequent license. In gen- (i) Distinction between Corps of Engi-
eral proposed construction of power fa- neers and FERC jurisdiction with respect
cilities at or in conjunction with a to non-Federal Hydroelectric projects. (1)
Corps reservoir project will be reviewed The following procedures are currently
with the objective of recommending de- being followed in connection with De-
sign, construction and operation fac- partment of Army permit responsibil-
tors that the applicant must consider ities involving pre-1920 legislation:
in its studies in order for the proposed (i) In regard to FERC licensing of
power development to be compatible, projects, Corps responsibilities under
physically and economically, with the section 10 of the River and Harbor Act
authorized function of the Corps of 1899, for power related activities,
project(s). may normally be met through the
(g) Terms and conditions for insertion FERC licensing procedure including in-
in FERC permits and licenses. In inves- sertion of terms and conditions in the
tigation of an application for FERC li- license of the interest of navigation.

cense or permit, consideration will be Section 4(e) of the Federal Power Act
184
provides for approval of plans of power water oriented activities, such

project works by the Chief of Engineers as recreational development, which are
and Secretary of the Army from the associated with the overall project but
standpoint of interests of navigation. may not be a part of the hydroelectric
The consideration for our approval power facilities at the project. Such
under section 4(e) will be limited to ef- cases, if involving navigable waters
fects of project power related activities should be reviewed from the standpoint
on navigation. of need for a section 10 permit. Such
(ii) Applications to Corps Divsion or section 10 permit actions would involve
District Engineers for approval of reconsideration of the overall public in-
pairs, maintenance or modification of terest, including water quality, fish
non-Federal water power projects au- and wildlife, recreation, general envi-
thorized under River and Harbor Acts ronmental concerns and the needs and
as well as special Acts of Congress welfare of the people. Corps respon-
prior to 1920, or requests for advice sibilities for permit requirements
with respect thereto should be referred under section 10 of the River and Har-
to the FERC for consideration in ac- bor Act of 1899 for nonpower activities
cordance with the provisions of the affecting navigable waters at the FERC
Federal Power Act. The permittee projects will be met only through the
should be advised that the application Corps permit procedures. The Corps’ re-
is being referred to the FERC for con- port to FERC through (DAEN-CWE-
sideration and that if a FERC license is HY) will specify the need for such per-
required Corps recommendations will mit when recommended by the Division
be furnished to the FERC. and District Engineers’ report.
(2) Responsibilities under section 404 (j) Investigation of applications for sur-
of the Federal Water Pollution Control render or termination of license. The pe-
Act as amended in 1972 (33 U.S.C. 1151) riod of the FERC license for hydro-
pertinent to discharge of dredged or fill electric projects is usually 50 years.
material into the navigble waters at During and/or upon the expiration of
specified disposal sites will be met only the period of a license, a licensee may
through the Department of Army per- file with the FERC an application for
mit procedures as specified in ER 1145– surrender or termination of its license.
2–303. In regard to FERC cases involv- These applications may encompass re-
ing section 404, our report to the FERC quests for physical removal of an exist-
through (DAEN-CWE-HY) will specify ing dam and/or powerhouse structures
the need for a Department of Army from a stream. Division Engineers who
permit (section 404) if, on the basis of would be assigned by the Chief of Engi-
the Division and District Engineers’ re- neers to review such applications will
ports, such permit is deemed necessary. consider, in their review and report to
A Department of the Army permit will DAEN-CWE-HY, the possibility that
be required for any portion of a pro- sediment discharge resulting from re-
posed project which involves the dis- moval of a dam structure from a navi-
charge of dredged or fill material into gable river or from any site that may
the waters of the United States. This affect navigable waters would impair
includes the placement of fill necessary the anchorage and navigation and/or
for construction of a project’s dam and flood carrying capacity of the stream.
appurtenant structures. In cases where there is a possibility of
(3) When applicable, FERC will be ad- significant downstream shoaling (sedi-
vised that the requirement for Depart- mentation) as the result of removal of
ment of the Army permit pursuant to a dam and its appurtenant structures,
section 103 of the Marine Protection, recommendation may be made to the
Research and Sanctuaries Act of 1972 FERC, through DAEN-CWE-HY, requir-
for the transport of dredged material ing licensee as a condition of approval
from the project site for the purpose of of dam removal to agree to bear the ex-
dumping it into the ocean waters will pense for removal of any shoaling at
be met only through the Department of the navigable river(s) which would be
the Army permit program. determined by the Corps to be detri-
(4) In connection with FERC licensed mental to navigation. Other rec-

projects there may be proposed non- ommendations to be considered include
185
§ 221.1 33 CFR Ch. II (7–1–20 Edition)
gradual lowering of a dam over a period any periodic or annual reports from the
of time and/or possibility of sediment Division offices regarding the oper-
removal prior to dam removal. It ation of FERC licensed hydroelectric
should also be noted that a Department projects. However, Division Engineers
of the Army permit under section 404 of will report to DAEN-CWE-HY on a cur-
the Federal Water Pollution Control rent basis any significant detrimental
Act amendments of 1972 (33 U.S.C. effects with respect to Corps of Engi-
1151), as discussed in Paragraph 9b of neers responsibilities or other matters
this regulation, may be needed in con- which come to their attention.
nection with removal of dams on or af- (l) Safety of licensed hydroelectric
fecting the navigable waters if a dis- projects. The Dam Safety Act, Public
charge of dredged or fill material also Law 92–367, provides that dams con-
occurs during the removal operation.
structed pursuant to licenses issued
Other recommendations within the
under the authority of the Federal
Corps authority that should be consid-
Power Act are specifically exempted
ered in reviewing applications for sur-
from the national inspection program
render or termination of licenses for
projects where their power facilities administered by the Corps. However,
have been removed, or recommended the law further provides that the Sec-
for removal, is that upon any approval retary of the Army upon request of the
of such application by the FERC, con- FERC may inspect dams which have
tinuation of existence of the nonpower been licensed under the Federal Power
project on or affecting the navigable Act. The Commission by letter dated
waters of the U.S. will require a De- August 29, 1972 informed the Corps that
partment of the Army permit in com- the Commission does not expect to re-
pliance with section 10 of the River and quest the Corps’ assistance for inspect-
Harbor Act of 1899. Furthermore, it ing the projects licensed under the Fed-
should be noted that in the absence of eral Power Act.
FERC nonpower use license, pursuant (m) Supervision of construction of li-
to 16 U.S.C. 808(b), the structural safety censed hydroelectric projects. In cases
and maintenance of dam and reservoir where the FERC may request the Corps
for a nonpower project will be governed to supervise the actual construction of
by the laws and regulations of the licensed hydroelectric project on behalf
State in which the project is located. of the Commission, instructions will be
(k) Supervision and inspection of oper- furnished to the appropriate District
ation of licensed hydroelectric projects. Engineer through the Division Engi-
Corps Division and District Engineers neer at the time the request is made.
responsibilities with respect to any (n) Other investigation under the Fed-
project affecting navigable waters in- eral Power Act. Corps of Engineers oper-
clude surveillance of operation and ations under the Federal Power Act
maintenance to insure that the inter-
also include participation in FERC pro-
ests of navigation are not adversely af-
cedures in determining headwater ben-
fected. In addition, in certain cases the
efits from Corps reservoir projects
Corps, at the request of the FERC, may
act as agent for the FERC for overall (RCS, 1461–FPC). This matter is dis-
supervision of project operation and cussed in ER 1140–2–1.
maintenance. Corps Division Engineers (o) Funding of operations under the
have, in the past, represented the Federal Power Act. (1) The salaries of
FERC in supervision and inspection of the Corps of Engineers personnel in-
a number of FERC licensed projects volved in investigations discussed here-
within their respective divisions. The in will be charged against funds for
Commission by letter dated March 4, ‘‘Special Investigations’’ under the ap-
1976 relieved the Corps of Engineers propriation for ‘‘General Expenses.’’
from acting as the Commission’s rep- The FERC may provide reimbursement
resentative for supervision and inspec- if requested by the Chief of Engineers
tion of its licensed projects. This re- to cover the nonpersonal expenses
sponsibility has been transferred by which may be incurred in the inves-
the Commission to its own regional en- tigation and supervision of projects
gineers. There are no requirements for under permits and licenses.
186
(2) Non-personal costs amounting to 34 FR 12269, July 25, 1969, unless otherwise
less than $100 for any single investiga- noted.
tion will not be reimbursed from the § 16.1 Purpose and coverage.
Commission funds but will be charged This part implements the amendments of
also to ‘‘Special Investigations’’ under sections 7(c), 14, and 15 of part I of the Fed-
the appropriations for ‘‘General Ex- eral Power Act, as amended, enacted by Pub-
penses.’’ Each Division Engineer lic Law 90–451, 82 Stat. 616, approved August
charged with a detailed investigation 3, 1968. It applies to projects subject to sec-
of an application for license or the su- tions 14 and 15 of the Federal Power Act in-
pervision of a project that will require cluding projects for which a nonpower li-
cense may be issued. Procedures are provided
more than a nominal amount of non-
for the filing of applications for either power
personal costs will be specifically re- or nonpower licenses for projects whose li-
quested to submit an estimate of the censes are expiring. A license for a power
funds required upon assignment of the project issued to either the original licensee
work by the Chief of Engineers. or another licensee is referred to in this part
(3) Reimbursement from the FERC as a ‘‘new license’’ and a license for a
funds for nonpersonal costs in excess of nonpower project as a ‘‘non-power license’’.
$100 will be made by the Chief of Engi- Also provided are procedures for the filing of
neers upon submission of a voucher on recommendations for takeover by Federal
Standard Form 1080 by the District En- departments or agencies and applications for
gineer through the Division Engineer. renewal of licenses not subject to section 14.
The voucher will show the fiscal year § 16.2 Public notice of projects under expiring
during which the work was done and license.
the Commission project number on In order that there should be adequate no-
which the money was spent. tice and opportunity to file timely applica-
tions for a license the Commission’s Sec-
APPENDIX A TO PART 221—PART 16–PRO- retary will give notice of the expiration of li-
CEDURES RELATING TO TAKEOVER cense of a project (except transmission line
AND RELICENSING OF LICENSED and minor projects) 5 years in advance there-
PROJECTS of in the same manner as provided in section
4(f) of the Act. The Secretary shall upon pro-
mulgation of the rules herein give notice, as
Sec.
provided in section 4(f) of the Act, of all
16.1 Purpose and coverage. whose license terms have expired since Janu-
16.2 Public notice of projects under expiring ary 1, 1968, or which will expire within 5
license. years of the effective date of this rule. In ad-
16.3 When to file. dition, the Commission each year will pub-
16.4 Notice upon filing of application. lish in its annual report and in the FEDERAL
16.5 Annual licenses.
REGISTER a table showing the projects which
16.6 Applications for new license for
will expire during the succeeding 5 years.
projects subject to sections 14 and 15 of
The table will list these licenses according
the Federal Power Act and all other
major projects. to their expiration dates and will contain the
16.7 Application for nonpower license. following information: (a) License expiration
16.8 Departmental recommendations for date; (b) licensee’s name; (c) project number;
takeover. (d) type of principal project works licensed,
16.9 Commission recommendation to Con- e.g., dam and reservoir, powerhouse, trans-
gress. mission lines; (e) location by State, county,
16.10 Motion for stay by Federal depart- and stream; also by city or nearby city when
ment or agency. appropriate; and (f) plant installed capacity.
16.11 Procedures upon congressional author- § 16.3 When to file.
ization of takeover.
(a) An existing licensee must file an appli-
16.12 Renewal of minor or minor part li-
censes not subject to sections 14 and 15. cation for a ‘‘new license’’ or ‘‘nonpower li-
16.13 Acceptance for filing or rejection of cense’’ or a statement of intention not to file
application. an application for a ‘‘new license’’ no earlier
than 5 years and no later than 3 years prior
AUTHORITY: Federal Power Act, secs. 7(c), to the expiration of its license, except that,
14, 15, 309 (16 U.S.C. 800, 807, 808, 825h. where the license will expire within 31⁄2 years
SOURCE: Order 141, 12 FR 8461, Dec. 19, 1947, of the issuance of this part, such applica-
as amended by Order 175, 19 FR 5212, Aug. 18, tions or statements shall be filed within 6
1954; Order 260, 28 FR 814, Jan. 11, 1963; 28 FR months from the effective date of this part.
1680, Feb. 21, 1963; 28 FR 2270, Mar. 8, 1963; Applicants which have applications pending
Order 288, 29 FR 14106, Oct. 14, 1964; Order 384, which were filed under previous Commission
187
Pt. 221, App. A 33 CFR Ch. II (7–1–20 Edition)
regulations shall supplement their applica- application, and that Exhibits N and O as
tions in accordance with pertinent provi- specified in § 4.41 of this chapter need only be
sions of this part within 6 months of the ef- filed as provided in paragraph (c) of this sec-
fective date of this part. tion. An original and fourteen conformed
(b) Any other person or municipality may copies of the application and all accom-
file an application for a ‘‘new license’’ or panying exhibits shall be submitted to the
‘‘non-power license’’ within 5 years of the ex- Commission plus one additional conformed
piration of the license, but in no event, un- copy for each interested State Commission.
less authorized by the Commission, later (b) An application for a ‘‘new license’’
than 6 months after issuance of notice of the hereunder shall include a statement showing
filing of an application or statement by the the amount which licensee estimates would
licensee under § 16.4 or 21⁄2 years before the be payable if the project were to be taken
expiration of the license, whichever is ear- over at the end of the license term pursuant
lier. to the provisions of sections 14 and 15 of the
(c) Any application submitted after the ex- Federal Power Act. This statement shall in-
piration of the time specified herein for fil- clude estimates of: (1) Fair value; (2) net in-
ing must be accompanied by a motion re- vestment; and (3) severance damages. (This
questing permission to file late, which mo- subsection is not applicable to State, munic-
tion shall detail the reasons of good cause ipal, or nonlicensee applicants.)
why the application was not timely filed and (c) If the applicant proposes project works
how the public interest would be served by in addition to those already under license,
its consideration. the maps, plans, and descriptions of the
§ 16.4 Notice upon filing of application. project works (Exs. I, J, L and M) shall dis-
When any timely application or statement tinguish the project works of parts thereof
within the meaning of § 16.3 is received, or which have been constructed from those to
when the Commission grants any motion for be constructed. Exhibits N and O shall also
consideration of a late filed application, no- be included in the application relating to
tice of receipt thereof will be furnished the new construction.
applicant, and public notice will be given in (d) Applicant shall furnish its plans for the
the same manner as provided in sections 4(f) future modification or redevelopment of the
and 15(b) of the Act (49 Stat. 838; 41 Stat. project, if any, and shall set forth in detail
1072; 82 Stat. 616; 16 U.S.C. 797, 808) §§ 1.37 and why technically feasible, additional capacity
2.1 of this chapter, the Fish and Wildlife Co- is not proposed for installation at the time
ordination Act, 48 Stat. 401, as amended, 16 of relicensing.
U.S.C. 661 et seq., and by publication in the (e) Applicant shall file a statement on the
FEDERAL REGISTER. effect that takeover by the United States or
§ 16.5 Annual licenses. relicensing to another applicant would have
No application for annual license need be upon the supply of electric energy to the sys-
filed nor will such application be accepted tem with which it is interconnected, the
under section 15 of the Act. An existing li- rates charged its customers, the licensee’s fi-
censee making timely filing for a new license nancial condition, and taxes collected by
will be deemed to have filed for an annual li- local, State, and Federal Governments. (This
cense. If the Commission has not acted upon subsection is not applicable to State, munic-
an application by licensee for a new license ipal or nonlicensee applicants.)
at the expiration of the license terms, by the § 16.7 Application for nonpower license.
issuance of an order granting, denying or dis- Each application for ‘‘non-power license’’
missing it, an annual license shall be issued shall generally follow the form prescribed in
by notice of the Secretary. § 131.6 of this chapter, except for subsections
§ 16.6 Applications for new license for projects 7 and 8 thereof. It shall be accompanied by
subject to sections 14 and 15 of the Federal Exhibits K, L, R, and S prepared as described
Power Act and all other major projects. in section 4.41, and shall include the informa-
(a) Each application for a new license here- tion specified in paragraphs (a) through (c) of
under shall conform in form to § 131.2 of this this section. Unless otherwise specified, an
chapter, and shall set forth in appropriate original and 14 conformed copies of the appli-
detail all information and exhibits pre- cation and all accompanying exhibits shall
scribed in §§ 4.40 through 4.42 of this chapter, be submitted with one additional conformed
inclusive and in § 4.51 of this chapter, as well copy for each interested State commission.
as additional information specified in para- Additional information may be requested by
graphs (b) through (e) of this section, except the Commission if desired.
that Exhibit A may be incorporated in an ap- (a) Applicant shall furnish a description of
plication by reference where one applicant the nonpower purpose for which the project
files applications for several projects, one of is to be utilized and a showing of how such
which already contains an Exhibit A or in use conforms with a comprehensive plan for
any case where applicant has filed an Exhibit improving or developing a waterway or wa-
A within 10 years preceding the filing of the terways for beneficial uses, including a
188
statement of the probable impact which con- ommendation intends to undertake oper-
version of the project to nonpower use will ation of the project. A copy of the rec-
have on the power supply of the system ommendation shall be served upon the li-
served by the project. censee by the Commission’s Secretary. Any
(b) Applicant shall identify the State, mu- applicant for a new license covering all or
nicipal, interstate or Federal agency, if any, part of the project involved in the takeover
which is authorized or willing to assume reg- recommendation shall have 120 days within
ulatory supervision over the land, waterways which to serve a reply to the recommenda-
and facilities to be included within the tion upon the Commission with copies to any
nonpower project. (If there is such an agen- parties in the proceeding.
cy, applicant shall foward one copy of the ap-
plication to such agency.) § 16.9 Commission recommendation to Congress.
(c) Applicant shall submit a proposal for If the Commission, after notice and oppor-
the removal or other disposition of power fa- tunity for hearing, concludes upon depart-
cilities of the project. mental recommendation, a proposal of any
A ‘‘non-power license’’ shall be effective party, or its own motion, that the standards
until such time as in the judgement of the of section 10(a) of the Act would best be
Commission a State, municipal, interstate, served if a project whose license is expiring
or Federal agency is authorized and willing is taken over by the United States, it will
to assume regulatory supervision over the issue its findings and recommendations to
land, waterways, and facilities included this effect, and after any modification there-
within the ‘‘non-power license’’ or until the of, upon consideration of any application for
project structures are removed. Such State, reconsideration, made in conformity with
municipal, interstate or Federal agency may the provisions of § 1.34 of this chapter gov-
petition the Commission for termination of a erning applications for rehearing, forward
‘‘non-power license’’ at any time. Where the copies of its findings and recommendations
existing project is located on the public to the Congress.
lands or reservations of the United States, § 16.10 Motion for stay by Federal department
and there is no application for relicensing as or agency.
a power project either by the original li-
censee, or some other entity, or a takeover If the Commission does not recommend to
recommendation, the Commission may, in the Congress that a project be taken over, a
its discretion, and upon a showing by the Federal department or agency which has
agency having jurisdiction over the lands or filed a timely recommendation for takeover
reservations that it is prepared to assume as provided in this part may, within thirty
requisite regulatory supervision for the (30) days of issuance of an order granting a
nonpower use of the project, terminate the license, file a motion, with copies to the par-
proceeding without issuing any license for ties in the proceeding, before the Commis-
nonpower use. sion requesting a stay of the license order.
Upon the filing of such a motion, the license
§ 16.8 Departmental recommendations for take-
order automatically will be stayed for 2
over.
years from the date of issuance of the order,
A recommendation that the United States unless the stay is terminated earlier upon
exercise its right to take over a project may motion of the department or agency request-
be filed by any Federal department or agen- ing the stay or by action of Congress. The
cy no earlier than 5 years and no later than Commission will notify Congress of any such
2 years prior to the expiration of the license stay. Upon expiration or termination of the
term; Provided, however, That such rec- stay, including any extension thereof by act
ommendation shall not be filed later than 9 of Congress, the Commission’s license order
months after the issuance of a notice of ap- shall automatically become effective in ac-
plication for a new license. Departments or cordance with its terms. The Commission
agencies filing such recommendations shall will notify Congress of each license order
thereby become parties to the relicensing- which has become effective by reason of the
takeover proceeding. An original and 14 cop- expiration or termination of a stay.
ies of the recommendation shall be filed to-
gether with one additional copy for each in- § 16.11 Procedures upon congressional author-
terested State commission. The rec- ization of takeover.
ommendation shall specify the project works A determination whether or not there is to
which would be taken over by the United be a Federal takeover of a project would ul-
States, shall include a detailed description of timately be made by Congress through the
the proposed Federal operation of the enactment of appropriate legislation. If Con-
project, including any plans for its redevel- gress authorizes takeover, the Secretary will
opment and shall indicate how takeover immediately give the Licensee not less than
would serve the public interest as fully as 2 years’ notice in writing of such action.
non-Federal development and operation. It Within 6 months of issuance of such notice

shall also include a statement indicating the Licensee shall present to the Commis-
whether the agency making the rec- sion any claim for compensation consistent
189
Pt. 221, App. B 33 CFR Ch. II (7–1–20 Edition)
with the provisions of section 14 of the Fed- change as the Commission may direct. Minor
eral Power Act and the regulations of the changes in project works, or in uses of
Commission. project lands and waters, or divergence from
§ 16.12 Renewal of minor or minor part licenses such approved exhibits may be made if such
not subject to sections 14 and 15. changes will not result in a decrease in effi-
ciency, in a material increase in cost, in an
Licenses whose minor or minor part li-
adverse environmental impact, or in impair-
censes are not subject to sections 14 and 15 of
ment of the general scheme of development;
the Act and wish to continue operation of
but any of such minor changes made without
the project after the end of the license term the prior approval of the Commission, which
shall file an application for a ‘‘new license’’ in its judgement have produced or will
1 year prior to the expiration of their origi- produce any of such results shall be subject
nal license in accordance with applicable to such alteration as the Commission may
provisions of part 4 of this chapter. direct.
§ 16.13 Acceptance for filing or rejection of ap- Article 4. The project, including its oper-
plication. ation and maintenance and any work inci-
Acceptance for filing or rejection of appli- dental to additions or alterations authorized
cations under this part shall be in accord- by the Commission, whether or not con-
ance with the provisions of § 4.31 of this chap- ducted upon lands of the United States, shall
ter. be subject to the inspection and supervision
of the Regional Engineer, Federal Power
APPENDIX B TO PART 221—FEDERAL EN- Commission, in the region wherein the
ERGY REGULATORY COMMISSION project is located, or of such other officer or
agent as the Commission may designate, who
FORM L–3 (REVISED OCTOBER 1975)
shall be the authorized representative of the
TERMS AND CONDITIONS OF LICENSE FOR CON- Commission for such purposes. The Licensee
STRUCTED MAJOR PROJECT AFFECTING NAVI- shall cooperate fully with said representa-
GABLE WATERS OF THE UNITED STATES tive and shall furnish him such information
as he may require concerning the operation
Article 1. The entire project, as described in and maintenance of the project, and any
this order of the Commission, shall be sub- such alterations thereto, and shall notify
ject to all of the provisions, terms, and con- him of the date upon which work with re-
ditions of the license. spect to any alteration will begin, as far in
Article 2. No substantial change shall be advance thereof as said representative may
made in the maps, plans, specifications, and reasonably specify, and shall notify him
statements described and designated as ex- promptly in writing of any suspension of
hibits and approved by the Commission in its work for a period of more than one week, and
order as a part of the license until such of its resumption and completion. The Li-
change shall have been approved by the Com- censee shall submit to said representative a
mission: Provided, however, That if the Li- detailed program of inspection by the Li-
censee or the Commission deems it necessary censee that will provide for an adequate and
or desirable that said approved exhibits, or qualified inspection force for construction of
any of them, be changed, there shall be sub- any such alterations to the project. Con-
mitted to the Commission for approval a re- struction of said alterations or any feature
vised, or additional exhibit or exhibits cov- thereof shall not be initiated until the pro-
ering the proposed changes which, upon ap- gram of inspection for the alterations or any
proval by the Commission, shall become a feature thereof has been approved by said
part of the license and shall supersede, in representative. The Licensee shall allow said
whole or in part, such exhibit or exhibits representative and other officers or employ-
theretofore made a part of the license as ees of the United States, showing proper cre-
may be specified by the Commission. dentials, free and unrestricted access to,
Article 3. The project area and project through, and across the project lands and
works shall be in substantial conformity projects works in the performance of their
with the approved exhibits referred to in Ar- official duties. The Licensee shall comply
ticle 2 herein or as changed in accordance with such rules and regulations of general or
with the provisions of said article. Except special applicability as the Commission may
when emergency shall require for the protec- prescribe from time to time for the protec-
tion of navigation, life, health, or property, tion of life, health, or property.
there shall not be made without prior ap- Article 5. The Licensee, within five years
proval of the Commission any substantial al- from the date of issuance of the license, shall
teration or addition not in conformity with acquire title in fee or the right to use in per-
the approved plans to any dam or other petuity all lands, other than lands of the
project works under the license or any sub- United States, necessary or appropriate for
stantial use of project lands and waters not the construction, maintenance, and oper-
authorized herein; and any emergency alteration of the project. The Licensee or its suc-
ation, addition, or use so made shall there- cessors and assigns shall, during the period
after be subject to such modification and of the license, retain the possession of all
190
Corps of Engineers, Dept. of the Army, DoD Pt. 221, App. B
project property covered by the license as tion of the amount of electric energy gen-
issued or as later amended, including the erated by the project works. The number,
project area, the project works, and all fran- character, and location of gages, meters, or
chises, easements, water rights, and rights of other measuring devices, and the method of
occupancy and use; and none of such prop- operation thereof, shall at all times be satis-
erties shall be voluntarily sold, leased, trans- factory to the Commission or its authorized
ferred, abandoned, or otherwise disposed of representative. The Commission reserves the
without the prior written approval of the right, after notice and opportunity for hear-
Commission, except that the Licensee may ing, to require such alterations in the num-
lease or otherwise dispose of interests in ber, character, and location of gages, meters,
projects lands or property without specific or other measuring devices, and the method
written approval of the Commission pursu- of operation thereof, as are necessary to se-
ant to the then current regulations of the cure adequate determinations. The installa-
Commission. The provisions of this article tion of gages, the rating of said stream or
are not intended to prevent the abandon- streams, and the determination of the flow
ment or the retirement from service of struc- thereof, shall be under the supervision of, or
tures, equipment, or other project works in in cooperation with, the District Engineer of
connection with replacements thereof when the United States Geological Survey having
they become obsolete, inadequate, or ineffi- charge of stream-gaging operations in the re-
cient for further service due to wear and gion of the project, and the Licensee shall
tear; and mortgage or trust deeds or judicial advance to the United States Geological Sur-
sales made thereunder, or tax sales, shall not vey the amount of funds estimated to be nec-
be deemed voluntary transfers within the essary for such supervision, or cooperation
meaning of this article. for such periods as may be mutually agreed
Article 6. In the event the project is taken upon. The Licensee shall keep accurate and
over by the United States upon the termi- sufficient records of the foregoing deter-
nation of the license as provided in Section minations to the satisfaction of the Commis-
14 of the Federal Power Act, or is transferred sion, and shall make return of such records
to a new licensee or to a non-power licensee annually at such time and in such form as
under the provisions of Section 15 of said Act the Commission may prescribe.
the Licensee, its successors and assigns shall Article 9. The Licensee shall, after notice
be responsible for, and shall make good any and opportunity for hearing, install addi-
defect of title to, or of right of occupancy tional capacity or make other changes in the
and use in, any of such project property that project as directed by the Commission, to
is necessary or appropriate or valuable and the extent that it is economically sound and
serviceable in the maintenance and oper- in the public interest to do so.
ation of the project, and shall pay and dis- Article 10. The Licensee shall, after notice
charge, or shall assume responsiblity for and opportunity for hearing, coordinate the
payment and discharge of, all liens or en- operation of the project, electrically and hy-
cumbrances upon the projects or project draulically, with such other projects or
property created by the Licensee or created power systems and in such manner as the
or incurred after the issuance of the license: Commission may direct in the interest of
Provided, That the provisions of this article power and other beneficial public uses of
are not intended to require the Licensee, for water resources, and on such conditions con-
the purpose of transferring the project to the cerning the equitable sharing of benefits by
United States or to a new licensee, to ac- the Licensee as the Commission may order.
quire any different title to, or right of occu- Article 11. Whenever the Licensee is di-
pancy and use in, any of such project prop- rectly benefited by the construction work of
erty than was necessary to acquire for its another licensee, a permittee, or the United
own purposes as the Licensee. States on a storage reservoir or other head-
Article 7. The actual legitimate original water improvement, the Licensee shall reim-
cost of the project, and of any addition burse the owner of the headwater improve-
thereto or betterment thereof, shall be deter- ment for such part of the annual charges for
mined by the Commission in accordance with interest, maintenance, and depreciation
the Federal Power Act and the Commission’s thereof as the Commission shall determine
Rules and Regulations thereunder. to be equitable, and shall pay to the United
Article 8. The licensee shall install and States the cost of making such determina-
thereafter maintain gages and stream-gaging tion as fixed by the Commission. For bene-
stations for the purpose of determining the fits provided by a storage reservoir or other
stage and flow of the stream or streams on headwater improvement of the United
which the project is located, the amount of States, the Licensee shall pay to the Com-
water held in and withdrawn from storage, mission the amounts for which it is billed
and the effective head on the turbines; shall from time to time for such headwater bene-
provide for the required reading of such fits and for the cost of making the deter-
gages and for the adequate rating of such minations pursuant to the then current regu-
stations; and shall install and maintain lations of the Commission under the Federal
standard meters adequate for the determina- Power Act.
191
Article 12. The United States specifically mission lines and telegraph, telephone and
retains and safeguards the right to use water other signal wires or power transmission
in such amount, to be determined by the lines constructed prior to its transmission
Secretary of the Army, as may be necessary lines and not owned by the Licensee, and
for the purposes of navigation on the navi- shall also place and maintain suitable struc-
gable waterway affected; and the operations tures and devices to reduce to a reasonable
of the Licensee, so far as they affect the use, degree the liability of any structures or
storage and discharge from storage of waters wires falling or obstructing traffic or endan-
affected by the license, shall at all time be gering life. None of the provisions of this ar-
controlled by such reasonable rules and regu- ticle are intended to relieve the Licensee
lations as the Secretary of the Army may from any responsibility or requirement
prescribe in the interest of navigation, and which may be imposed by any other lawful
as the Commission may prescribe for the authority for avoiding of eliminating induc-
protection of life, health, and property, and tive interference.
in the interest of the fullest practicable con- Article 15. The Licensee shall, for the con-
servation and utilization of such waters for servation and development of fish and wild-
power purposes and for other beneficial pub- life resources, construct, maintain, and oper-
lic uses, including recreational purposes, and ate, or arrange for the construction, mainte-
the Licensee shall release water from the nance, and operation of such reasonable fa-
project reservoir at such rate in cubic feet cilities, and comply with such reasonable
per second, or such volume in acre-feet per modifications of the project structures and
specified period of time, as the Secretary of
operation, as may be ordered by the Commis-
the Army may prescribe in the interest of
sion upon its own motion or upon the rec-
navigation, or as the Commission may pre-
ommendation of the Secretary of the Inte-
scribe for the other purposes hereinbefore
rior or the fish and wildlife agency or agen-
mentioned.
cies of any State in which the project or a
Article 13. On the application of any person,
part thereof is located, after notice and op-
association, corporation, Federal agency,
portunity for hearing.
State or municipality, the Licensee shall
permit such reasonable use of its reservoir or Article 16. Whenever the United States
other project properties, including works, shall desire, in connection with the project,
lands and water rights, or parts thereof, as to construct fish and wildlife facilities or to
may be ordered by the Commission, after no- improve the existing fish and wildlife facili-
tice and opportunity for hearing, in the in- ties at its own expense, the Licensee shall
terests of comprehensive development of the permit the United States or its designated
waterway or waterways involved and the agency to use, free of cost, such of the Li-
conservation and utilization of the water re- censee’s lands and interests in lands, res-
sources of the region for water supply or for ervoirs, waterways and project works as may
the purposes of steam-electric, irrigation, in- be reasonably required to complete such fa-
dustrial, municipal or similar uses. The Li- cilities or such improvements thereof. In ad-
censee shall receive reasonable compensa- dition, after notice and opportunity for hear-
tion for use of its reservoir or other project ing, the Licensee shall modify the project
properties or parts thereof for such purposes, operation as may be reasonably prescribed
to include at least full reimbursement for by the Commission in order to permit the
any damages or expenses which the joint use maintenance and operation of the fish and
causes the Licensee to incur. Any such com- wildlife facilities constructed or improved by
pensation shall be fixed by the Commission the United States under the provisions of
either by approval of an agreement between this article. This article shall not be inter-
the Licensee and the party or parties bene- preted to place any obligation on the United
fiting or after notice and opportunity for States to construct or improve fish and wild-
hearing. Applications shall contain informa- life facilities or to relieve the Licensee of
tion in sufficient detail to afford a full un- any obligation under this license.
derstanding of the proposed use, including Article 17. The Licensee shall construct,
satisfactory evidence that the applicant pos- maintain, and operate, or shall arrange for
sesses necessary water rights pursuant to ap- the construction, maintenance, and oper-
plicable State law, or a showing of cause why ation of such reasonable recreational facili-
such evidence cannot concurrently be sub- ties, including modifications thereto, such as
mitted, and a statement as to the relation- access roads, wharves, launching ramps,
ship of the proposed use to any State or mu- beaches, picnic and camping areas, sanitary
nicipal plans or orders which may have been facilities, and utilities, giving consideration
adopted with respect to the use of such wa- to the needs of the physically handicapped,
ters. and shall comply with such reasonable modi-
Article 14. In the construction or mainte- fications of the project, as may be prescribed
nance of the project works, the Licensee hereafter by the Commission during the
shall place and maintain suitable structures term of this license upon its own motion or
and devices to reduce to a reasonable degree upon the recommendation of the Secretary
the liability of contact between its trans- of the Interior or other interested Federal or
192
State agencies, after notice and opportunity pools, as may be required to complete and
for hearing. maintain such navigation facilities.
Article 18. So far as is consistent with prop- Article 23. The operation of any navigation
er operation of the project, the Licensee facilities which may be constructed as a part
shall allow the public free access, to a rea- of, or in connection with, any dam or diver-
sonable extent, to project waters and adja- sion structure constituting a part of the
cent project lands owned by the Licensee for project works shall at all times be controlled
the purpose of full public utilization of such by such reasonable rules and regulations in
lands and waters for navigation and for out- the interest of navigation, including control
door recreational purposes, including fishing of the level of the pool caused by such dam
and hunting: Provided, That the Licensee or diversion structure, as may be made from
may reserve from public access such portions time to time by the Secretary of the Army.
of the project waters, adjacent lands, and Article 24. The Licensee shall furnish power
project facilities as may be necessary for the free of cost to the United States for the oper-
protection of life, health, and property. ation and maintenance of navigation facili-
Article 19. In the construction, mainte- ties in the vicinity of the project at the volt-
nance, or operation of the project, the Li- age and frequency required by such facilities
censee shall be responsible for, and shall and at a point adjacent thereto, whether said
take reasonable measures to prevent, soil facilities are constructed by the Licensee or
erosion on lands adjacent to streams or by the United States.
other waters, stream sedimentation, and any Article 25. The Licensee shall construct,
form of water or air pollution. The Commis- maintain, and operate at its own expense
sion, upon request or upon its own motion, such lights and other signals for the protec-
may order the Licensee to take such meas- tion of navigation as may be directed by the
ures as the Commission finds to be necessary Secretary of the Department in which the
for these purposes, after notice and oppor- Coast Guard is operating.
tunity for hearing. Article 26. If the Licensee shall cause or suf-
Article 20. The Licensee shall clear and fer essential project property to be removed
keep clear to an adequate width lands along or destroyed or to become unfit for use,
open conduits and shall dispose of all tem- without adequate replacement, or shall
porary structures, unused timber, brush, abandon or discontinue good faith operation
refuse, or other material unnecessary for the of the project or refuse or neglect to comply
purposes of the project which results from with the terms of the license and the lawful
the clearing of lands or from the mainte- orders of the Commission mailed to the
nance or alteration of the project works. In record address of the Licensee or its agent,
addition, all trees along the periphery of the Commission will deem it to be the intent
project reservoirs which may die during op- of the Licensee to surrender the license. The
erations of the project shall be removed. All Commission, after notice and opportunity
clearing of the lands and disposal of the un- for hearing, may require the Licensee to re-
necessary material shall be done with due move any or all structures, equipment and
diligence and to the satisfaction of the au- power lines within the project boundary and
thorized representatives of the Commission to take any such other action necessary to
and in accordance with appropriate Federal, restore the project waters, lands, and facili-
State, and local statutes and regulations. ties remaining within the project boundary
Article 21. Material may be dredged or exca- to a condition satisfactory to the United
vated from, or placed as fill in, project lands States agency having jurisdiction over its
and/or waters only in the prosecution of lands or the Commission’s authorized rep-
work specifically authorized under the li- resentative, as appropriate, or to provide for
cense; in the maintenance of the project; or the continued operation and maintenance of
after obtaining Commission approval, as ap- nonpower facilities and fulfill such other ob-
propriate. Any such material shall be re- ligations under the license as the Commis-
moved and/or deposited in such manner as to sion may prescribe. In addition, the Commis-
reasonably preserve the environmental val- sion in its discretion, after notice and oppor-
ues of the project and so as not to interfere tunity for hearing, may also agree to the
with traffic on land or water. Dredging and surrender of the license when the Commis-
filling in a navigable water of the United sion, for the reasons recited herein, deems it
States shall also be done to the satisfaction to be the intent of the Licensee to surrender
of the District Engineer, Department of the the license.
Army, in charge of the locality. Article 27. The right of the Licensee and of
Article 22. Whenever the United States its successors and assigns to use or occupy
shall desire to construct, complete, or im- waters over which the United States has ju-
prove navigation facilities in connection risdiction, or lands of the United States
with the project, the Licensee shall convey under the license, for the purpose of main-
to the United States, free of cost, such of its taining the project works or otherwise, shall
lands and rights-of-way and such rights of absolutely cease at the end of the license pe-
passage through its dams or other struc- riod, unless the Licensee has obtained a new
tures, and shall permit such control of its license pursuant to the then existing laws
193
and regulations, or an annual license under Upon the completion of the project, or at
the terms and conditions of this license. such other time as the Commission may di-
Article 28. The terms and conditions ex- rect, the Licensee shall submit to the Com-
pressly set forth in the license shall not be mission for approval revised exhibits insofar
constructed as impairing any terms and con- as necessary to show any divergence from or
ditions of the Federal Power Act which are variations in the project area and project
not expressly set forth herein. boundary as finally located or in the project
works as actually constructed when com-
FEDERAL ENERGY REGULATORY COMMISSION pared with the area and boundary shown and
the works described in the license or in the
FORM L–4 (REVISED OCTOBER, 1975) exhibits approved by the Commission, to-
gether with a statement in writing setting
TERMS AND CONDITIONS OF LICENSE FOR forth the reasons which in the opinion of the
UNCONSTRUCTED MAJOR PROJECT AFFECTING Licensee necessitated or justified variation
NAVIGABLE WATERS OF THE UNITED STATES in or divergence from the approved exhibits.
Article 1. The entire project, as described in Such revised exhibits shall, if and when ap-
this order of the Commission, shall be sub- proved by the Commission, be made a part of
ject to all of the provisions, terms, and con- the license under the provisions of Article 2
ditions of the license. hereof.
Article 4. The construction, operation, and
Article 2. No substantial change shall be
maintenance of the project and any work in-
made in the maps, plans, specifications, and
cidental to additions or alterations shall be
statements described and designated as ex- subject to the inspection and supervision of
hibits and approved by the Commission in its the Regional Engineer, Federal Power Com-
order as a part of the license until such mission, in the region wherein the project is
change shall have been approved by the Com- located, or of such other officer or agent as
mission: Provided, however, That if the Li- the Commission may designate, who shall be
censee or the Commission deems it necessary the authorized representative of the Com-
or desirable that said approved exhibits, or mission for such purposes. The Licensee
any of them, be changed, there shall be sub- shall cooperate fully with said representa-
mitted to the Commission for approval a re- tive and shall furnish him a detailed pro-
vised, or additional exhibit or exhibits cov- gram of inspection by the Licensee that will
ering the proposed changes which, upon ap- provide for an adequate and qualified inspec-
proval by the Commission, shall become a tion force for construction of the project and
part of the license and shall supersede, in for any subsequent alterations to the
whole or in part, such exhibit or exhibits project. Construction of the project works or
theretofore made a part of the license as any feature or alterations thereof shall not
may be specified by the Commission. be initiated until the program of inspection
Article 3. The project works shall be con- for the project works or any such feature
structed in substantial conformity with the thereof has been approved by said represent-
approved exhibits referred to in Article 2 ative. The Licensee shall also furnish to said
herein or as changed in accordance with the representative such further information as
provisions of said article. Except when emer- he may require concerning the construction,
gency shall require for the protection of operation, and maintenance of the project,
navigation, life, health, or property, there and of any alteration thereof, and shall no-
shall not be made without prior approval of tify him of the date upon which work will
the Commission any substantial alteration begin, as far in advance thereof as said rep-
or addition not in conformity with the ap- resentative may reasonably specify, and
proved plans to any dam or other project shall notify him promptly in writing of any
works under the license or any substantial suspension of work for a period of more than
use of project lands and waters not author- one week, and of its resumption and comple-
ized herein; and any emergency alteration, tion. The Licensee shall allow said represent-
addition, or use so made shall thereafter be ative and other officers or employees of the
subject to such modification and change as United States, showing proper credentials,
the Commission may direct. Minor changes free and unrestricted access to, through, and
in project works, or in uses of project lands across the project lands and project works in
and waters, or divergence from such ap- the performance of their official duties. The
proved exhibits may be made if such changes Licensee shall comply with such rules and
will not result in a decrease in efficiency, in regulations of general or special applica-
a material increase in cost, in an adverse en- bility as the Commission may prescribe from
vironmental impact, or in impairment of the time to time for the protection of life,
general scheme of development; but any of health, or property.
such minor changes made without the prior Article 5. The Licensee, within 5 years from
approval of the Commission, which in its the date of issuance of the license, shall ac-
judgment have produced or will produce any quire title in fee or other right to use in per-
of such results, shall be subject to such al- petuity all lands, other than lands of the
teration as the Commission may direct. United States, necessary or appropriate for
194
the construction, maintenance, and oper- provide for the required reading of such
ation of the project. The Licensee or its suc- gages and for the adequate rating of such
cessors and assigns shall, during the period stations; and shall install and maintain
of the license, retain the possession of all standard meters adequate for the determina-
project property covered by the license as tion of the amount of electric energy gen-
issued or as later amended, including the erated by the project works. The number,
project area, the project works, and all fran- character, and location of gages, meters, or
chises, easements, water and rights of occu- other measuring devices, and the method of
pancy and use; and none of such properties operation thereof, shall at all times be satis-
shall be voluntarily sold, leased, transferred, factory to the Commission or its authorized
abandoned, or otherwise disposed of without representative. The Commission reserves the
the prior written approval of the Commis- right, after notice and opportunity for hear-
sion, except that the Licensee may lease or ing, to require such alterations in the num-
otherwise dispose of interests in project ber, character, and location of gages, meters,
lands or property without specific written or other measuring devices, and the method
approval of the Commission pursuant to the of operation thereof, as are necessary to se-
then current regulations of the Commission. cure adequate determinations. The installa-
The provisions of this article are not in- tion of gages, the rating of said stream or
tended to prevent the abandonment or the streams, and the determination of the flow
retirement from service of structures, equip- thereof, shall be under the supervision of, or
ment, or other project works in connection in cooperation with, the District Engineer of
with replacements thereof when they become the United States Geological Survey having
obsolete, inadequate, or inefficient for fur- charge of stream-gaging operations in the re-
ther service due to wear and tear; and mort- gion of the project, and the Licensee shall
gage or trust deeds or judicial sales made advance to the United States Geological Sur-
thereunder, or tax sales, shall not be deemed vey the amount of funds estimated to be nec-
voluntary transfers within the meaning of essary for such supervision, or cooperation
this article. for such periods as may be mutually agreed
Article 6. In the event the project is taken
upon. The Licensee shall keep accurate and
over by the United States upon the termi-
sufficient records of the foregoing deter-
nation of the license as provided in Section
minations to the satisfaction of the Commis-
14 of the Federal Power Act, or is transferred
sion, and shall make return of such records
to a new licensee or to a non-power licensee
annually at such time and in such form as
under the provisions of Section 15 of said
the Commission may prescribe.
Act, the Licensee, its successors and assigns
shall be responsible for, and shall make good Article 9. The Licensee shall, after notice
any defect of title to, or of right of occu- and opportunity for hearing, install addi-
pancy and use in, any of such project prop- tional capacity or make other changes in the
erty that is necessary or appropriate or valu- project as directed by the Commission, to
able and serviceable in the maintenance and the extent that it is economically sound and
operation of the project, and shall pay and in the public interest to do so.
discharge, or shall assume responsibility for Article 10. The Licensee shall, after notice
payment and discharge of, all liens or en- and opportunity for hearing, coordinate the
cumbrances upon the project or project prop- operation of the project, electrically and hy-
erty created by the Licensee or created or in- draulically, with such other projects or
curred after the issuance of the License: Pro- power systems and in such manner as the
vided, That the provisions of this article are Commission may direct in the interest of
not intended to require the Licensee, for the power and other beneficial public uses of
purpose of transferring the project to the water resources, and on such conditions con-
United States or to a new licensee, to ac- cerning the equitable sharing of benefits by
quire any different title to, or right of occu- the Licensee as the Commission may order.
pancy and use in, any of such project prop- Article 11. Whenever the Licensee is di-
erty than was necessary to acquire for its rectly benefited by the construction work of
own purposes as the Licensee. another licensee, a permittee, or the United
Article 7. The actual legitimate original States on a storage reservoir or other head-
cost of the project, and of any addition water improvement, the Licensee shall reim-
thereto or betterment thereof, shall be deter- burse the owner of the headwater improve-
mined by the Commission in accordance with ment for such part of the annual charges for
the Federal Power Act and the Commission’s interest, maintenance, and depreciation
Rules and Regulations thereunder. thereof as the Commission shall determine
Article 8. The Licensee shall install and to be equitable, and shall pay to the United
thereafter maintain gages and stream-gaging States the cost of making such determina-
stations for the purpose of determining the tion as fixed by the Commission. For bene-
stage and flow of the stream or streams on fits provided by a storage reservoir or other
which the project is located, the amount of headwater improvement of the United
water held in and withdrawn from storage, States, the Licensee shall pay to the Com-
and the effective head on the turbines; shall mission the amounts for which it is billed
195
from time to time for such headwater bene- Article 14. In the construction or mainte-
fits and for the cost of making the deter- nance of the project works, the Licensee
minations pursuant to the then current regu- shall place and maintain suitable structures
lations of the Commission under the Federal and devices to reduce to a reasonable degree
Power Act. the liability of contact between its trans-
Article 12. The United States specifically mission lines and telegraph, telephone and
retains and safeguards the right to use water other signal wires or power transmission
in such amount, to be determined by the lines constructed prior to its transmission
Secretary of the Army, as may be necessary lines and not owned by the Licensee, and
for the purposes of navigation on the navi- shall also place and maintain suitable struc-
gable waterway affected; and the operations tures and devices to reduce to a reasonable
of the Licensee, so far as they affect the use, degree the liability of any structures or
storage and discharge from storage of waters wires falling or obstructing traffic or endan-
affected by the license, shall at all times be gering life. None of the provisions of this ar-
controlled by such reasonable rules and regu- ticle are intended to relieve the Licensee
lations as the Secretary of the Army may from any responsibility or requirement
prescribe in the interest of navigation, and which may be imposed by any other lawful
as the Commission may prescribe for the authority for avoiding or eliminating induc-
protection of life, health, and property, and tive interference.
in the interest of the fullest practicable con- Article 15. The Licensee shall, for the con-
servation and utilization of such waters for servation and development of fish and wild-
power purposes and for other beneficial pub- life resources, construct, maintain, and oper-
lic uses, including recreational purposes, and ate, or arrange for the construction, mainte-
the Licensee shall release water from the nance, and operation of such reasonable fa-
project reservoir at such rate in cubic feet cilities, and comply with such reasonable
per second, or such volume in acre-feet per modifications of the project structures and
specified period of time, as the Secretary of operation, as may be ordered by the Commis-
the Army may prescribe in the interest of sion upon its own motion or upon the rec-
navigation, or as the Commission may pre- ommendation of the Secretary of the Inte-
scribe for the other purposes hereinbefore rior or the fish and wildlife agency or agen-
mentioned. cies of any State in which the project or a
Article 13. On the application of any person, part thereof is located, after notice and op-
association, corporation, Federal agency, portunity for hearing.
State or municipality, the Licensee shall Article 16. Whenever the United States
permit such reasonable use of its reservoir or shall desire, in connection with the project,
other project properties, including works, to construct fish and wildlife facilities or to
lands and water rights, or parts thereof, as improve the existing fish and wildlife facili-
may be ordered by the Commission, after no- ties at its own expense, the Licensee shall
tice and opportunity for hearing, in the in- permit the United States or its designated
terests of comprehensive development of the agency to use, free of cost, such of the Li-
waterway or waterways involved and the censee’s lands and interests in lands, res-
conservation and utilization of the water re- ervoirs, waterways and project works as may
sources of the region for water supply or for be reasonably required to complete such fa-
the purposes of steam-electric, irrigation, in- cilities or such improvements thereof. In ad-
dustrial, municipal or similar uses. The Li- dition, after notice and opportunity for hear-
censee shall receive reasonable compensa- ing, the Licensee shall modify the project
tion for use of its reservoir or other project operation as may be reasonably prescribed
properties or parts thereof for such purposes, by the Commission in order to permit the
to include at least full reimbursement for maintenance and operation of the fish and
any damages or expenses which the joint use wildlife facilities constructed or improved by
causes the Licensee to incur. Any such com- the United States under the provisions of
pensation shall be fixed by the Commission this article. This article shall not be inter-
either by approval of an agreement between preted to place any obligation on the United
the Licensee and the party or parties bene- States to construct or improve fish and wild-
fiting or after notice and opportunity for life facilities or to relieve the Licensee of
hearing. Applications shall contain informa- any obligation under this license.
tion in sufficient detail to afford a full un- Article 17. The Licensee shall construct,
derstanding of the proposed use, including maintain, and operate, or shall arrange for
satisfactory evidence that the applicant pos- the construction, maintenance, and oper-
sesses necessary water rights pursuant to ap- ation of such reasonable recreational facili-
plicable State law, or a showing of cause why ties, including modifications thereto, such as
such evidence cannot concurrently be sub- access roads, wharves, launching ramps,
mitted, and a statement as to the relation- beaches, picnic and camping areas, sanitary
ship of the proposed use to any State or mu- facilities, and utilities, giving consideration
nicipal plans or orders which may have been to the needs of the physically handicapped,
adopted with respect to the use of such wa- and shall comply with such reasonable modi-
ters. fications of the project, as may be prescribed
196
hereafter by the Commission during the of the District Engineer, Department of the
term of this license upon its own motion or Army, in charge of the locality.
upon the recommendation of the Secretary Article 22. Whenever the United States
of the Interior or other interested Federal or shall desire to construct, complete, or im-
State agencies, after notice and opportunity prove navigation facilities in connection
for hearing. with the project, the Licensee shall convey
Article 18. So far as is consistent with prop- to the United States, free of cost, such of its
er operation of the project, the Licensee lands and rights-of-way and such rights of
shall allow the public free access, to a rea- passage through its dams or other struc-
sonable extent, to project waters and adja- tures, and shall permit such control of its
cent project lands owned by the Licensee for pools, as may be required to complete and
the purpose of full public utilization of such maintain such navigation facilities.
lands and waters for navigation and for out- Article 23. The operation of any navigation
door recreational purposes, including fishing facilities which may be constructed as a part
and hunting: Provided, That the Licensee of, or in connection with, any dam or diver-
may reserve from public access such portions sion structure constituting a part of the
of the project waters, adjacent lands, and project works shall at all times be controlled
project facilities as may be necessary for the by such reasonable rules and regulations in
protection of life, health, and property. the interest of navigation, including control
Article 19. In the construction, mainte- of the level of the pool caused by such dam
nance, or operation of the project, the Li- or diversion structure, as may be made from
censee shall be responsible for, and shall
time to time by the Secretary of the Army.
take reasonable measures to prevent, soil
Article 24. The Licensee shall furnish power
erosion on lands adjacent to streams or
free of cost to the United States for the oper-
other waters, stream sedimentation, and any
form of water or air pollution. The Commis- ation and maintenance of navigation facili-
sion, upon request or upon its own motion, ties in the vicinity of the project at the volt-
may order the Licensee to take such meas- age and frequency required by such facilities
ures as the Commission finds to be necessary and at a point adjacent thereto, whether said
for these purposes, after notice and oppor- facilities are constructed by the Licensee or
tunity for hearing. by the United States.
Article 20. The Licensee shall consult with Article 25. The Licensee shall construct,
the appropriate State and Federal agencies maintain, and operate at its own expense
and, within one year of the date of issuance such lights and other signals for the protec-
of this license, shall submit for Commission tion of navigation as may be directed by the
approval a plan for clearing the reservoir Secretary of the Department in which the
area. Further, the Licensee shall clear and Coast Guard is operating.
keep clear to an adequate width lands along Article 26. If the Licensee shall cause or suf-
open conduits and shall dispose of all tem- fer essential project property to be removed
porary structures, unused timber, brush, or destroyed or to become unfit for use,
refuse, or other material unnecessary for the without adequate replacement, or shall
purposes of the project which results from abandon or discontinue good faith operation
the clearing of lands or from the mainte- of the project or refuse or neglect to comply
nance or alteration of the project works. In with the terms of the license and the lawful
addition, all trees along the periphery of orders of the Commission mailed to the
project reservoirs which may die during op- record address of the Licensee or its agent,
erations of the project shall be removed. the Commission will deem it to be the intent
Upon approval of the clearing plan all clear- of the Licensee to surrender the license. The
ing of the lands and disposal of the unneces- Commission, after notice and opportunity
sary material shall be done with due dili- for hearing, may require the Licensee to re-
gence and to the satisfaction of the author- move any or all structures, equipment and
ized representative of the Commission and in power lines within the project boundary and
accordance with appropriate Federal, State, to take any such other action necessary to
and local statutes and regulations. restore the project waters, lands, and facili-
Article 21. Material may be dredged or exca- ties remaining within the project boundary
vated from, or placed as fill in, project lands to a condition satisfactory to the United
and/or waters only in the prosecution of States agency having jurisdiction over its
work specifically authorized under the li- lands or the Commission’s authorized rep-
cense; in the maintenance of the project; or resentative, as appropriate, or to provide for
after obtaining Commission approval, as ap- the continued operation and maintenance of
propriate. Any such material shall be re- nonpower facilities and fulfill such other ob-
moved and/or deposited in such manner as to ligations under the license as the Commis-
reasonably preserve the environmental val- sion may prescribe. In addition, the Commis-
ues of the project and so as not to interfere sion in its discretion, after notice and oppor-
with traffic on land or water. Dredging and tunity for hearing, may also agree to the
filling in a navigable water of the United surrender of the license when the Commis-
States shall also be done to the satisfaction sion, for the reasons recited herein, deems it
197
Pt. 221, List 33 CFR Ch. II (7–1–20 Edition)
to be the intent of the Licensee to surrender FPC Title
the license. Forms 1
Article 27. The right of the Licensee and of L–19 ..... Terms and conditions of license for unconstructed
its successors and assigns to use or occupy minor project affecting navigable waters and
waters over which the United States has ju- lands of the United States.
risdiction, or lands of the United States 1 Revised Oct. 1975.
under the license, for the purpose of main-
taining the project works or otherwise, shall
absolutely cease at the end of the license pe-
riod, unless the Licensee has obtained a new
license pursuant to the then existing laws
PART 222—ENGINEERING AND
and regulations, or an annual license under DESIGN
the terms and conditions of this license.
Article 28. The terms and conditions ex- Sec.
pressly set forth in the license shall not be 222.2 Acquisition of lands downstream from
construed as impairing any terms and condi- spillways for hydrologic safety purposes.
tions of the Federal Power Act which are not 222.3 Clearances for power and communica-
expressly set forth herein. tion lines over reservoirs.
222.4 Reporting earthquake effects.
LIST OF FPC STANDARD ARTICLES 222.5 Water control management (ER 1110–
FORMS USED IN PERMITS AND LI- 2–240).
CENSES FOR HYDROELECTRIC 222.6 National Program for Inspection of
PROJECTS Non-Federal Dams.
AUTHORITY: 23 U.S.C. 116(d); delegation in
The following FPC standard articles
49 CFR 1.45(b); 33 U.S.C. 467 et seq.; 33 U.S.C.
Forms, in addition to the standard Forms L–
701, 701b, and 701c–1 and specific legislative
3, and L–4 which are provided in this appen-
authorization Acts and Public Laws listed in
dix, are available from the FPC offices:
appendix E of § 222.7.
FPC Title
Forms 1 § 222.2 Acquisition of lands down-
stream from spillways for hydro-
P–1 ....... Terms and conditions of preliminary permit. logic safety purposes.
L–1 ....... Terms and conditions of license for constructed
major project affecting lands of the United (a) Purpose. This regulation provides
States. guidance on the acquisition of lands
L–2 ....... Terms and conditions of license for unconstructed
major project affecting lands of the United
downstream from spillways for the pur-
States. pose of protecting the public from haz-
L–5 ....... Terms and conditions of license for constructed ards imposed by spillway discharges.
major projects affecting navigable waters and Guidance contained herein is in addi-
lands of the United States.
L–6 ....... Terms and conditions of license for unconstructed
tion to ER 405–2–150.
major project affecting navigable waters and (b) Applicability. This regulation is
lands of the United States. applicable to all OCE elements and all
L–9 ....... Terms and conditions of license for constructed field operating agencies having civil
minor projects affecting navigable waters of the
United States. works responsibilities.
L–10 ..... Terms and conditions of license for constructed (c) Reference. ER 405–2–150.
major project affecting the interests of interstate (d) Discussion. A policy of public safe-
or foreign commerce.
L–11 ..... Terms and conditions of license for unconstructed
ty awareness will be adhered to in all
major project affecting the interests of interstate phases of design and operation of dam
or foreign commerce. and lake projects to assure adequate
L–14 ..... Terms and conditions of license for unconstructed security for the general public in areas
minor project affecting navigable waters of the
United States. downstream from spillways. A real es-
L–15 ..... Terms and conditions of license for unconstructed tate interest will be required in those
minor project affecting the interests of interstate areas downstream of a spillway where
or foreign commerce. spillway discharge could create or sig-
L–16 ..... Terms and conditions of license for constructed
minor project affecting lands of the United
nificantly increase a hazardous condi-
States. tion. The real estate interest will ex-
L–17 ..... Terms and conditions of license for unconstructed tend downstream to where the spillway
minor project affecting lands of the United discharge would not significantly in-
States.
crease hazards. A real estate interest is
L–18 ..... Terms and conditions of license for constructed

minor project affecting navigable waters and not required in areas where flood con-
lands of the United States. ditions would clearly be nonhazardous.
198
(e) Hydrologic criteria. The construc- lence. Both debris and erosion must be
tion and operation of a dam and spill- evaluated and considered.
way may create or aggravate a poten- (6) Flood warning and response poten-
tial hazard in the spillway discharge tial. Small projects generally have
area. Therefore, an appropriate solu- short time periods available to warn
tion should be developed in a system- downstream inhabitants and may be
atic manner. All pertinent facts need unattended prior to spillway use. The
to be considered to assure that the risk ability to convince individuals to leave
to non-Federal interests does not ex- most of their worldly possessions to
ceed conditions that would prevail the ravages of spillway flow may be se-
without the project. General hydro- verely limited. In some cases flood
logic engineering considerations are as warning systems may be necessary;
follows: however, this subject is beyond the
(1) Probability of spillway use. Pool scope of this regulation. Warning sys-
elevation versus probability of filling tems are not an adequate substitute for
relationships can change materially a real estate interest in lands down-
after initial construction. Spillway use stream of spillways.
may be more frequent than antici- (7) Location of spillway. Spillways
pated. The infrequent use of a spillway should be located to minimize the haz-
is not a basis for the lack of adequate ards associated with their discharge
downstream real estate interest. and the total project cost (cost of spill-
(2) Changes in project functions. Water way structure and downstream lands).
resource needs within river basins Spillways, outlet works, stilling ba-
change and pool levels may be adjusted sins, and outlet channels should be de-
to provide more conservation storage, signed to minimize hazards to down-
particularly when high-level limited- stream interest insofar as is
service spillways are provided. Such engineeringly and economically rea-
sonable.
changes normally increase spillway use
(f) Real estate. The real estate inter-
and are to be considered.
est required downstream of spillways
(3) Volume and velocity of spillway
will be adequate to assure carrying out
flow. The amount of flow and destruc- project purposes and to protect non-
tive force of the flow from a spillway Federal interest from hazards created
during floods up to the spillway design by spillway flows. The interest may be
flood can vary from insignificant to ex- either fee or permanent easement. A
tremely hazardous magnitudes. The se- permanent easement must exclude all
verity and area of hazard associated overnight and/or permanent habi-
with spillway discharge will vary de- tation, structures subject to damage by
pending on specific project site condi- spillway flows and activities that
tions. Therefore, the hazard is to be would increase the potential hazards.
analyzed on a project-by-project basis. No real estate interest is required for:
(4) Development within floodway. If de- (1) Areas where the imposed or aggra-
velopment within the floodway down- vated flood condition is non-hazardous.
stream from a spillway is not present Affected interest should be informed of
at the time of project construction, the the nature of the imposed non-haz-
existence of the reservoir may encour- ardous flood condition.
age development. Adverse terrain con- (2) Areas where the construction and
ditions do not preclude development. operation of a dam and spillway do not
Sparse present development is not a increase or create a hazardous condi-
basis for lack of real estate acquisition.
tion. (g) Alternative land uses. In some
(5) Debris movement within floodway. cases land downstream from spillways
The availability of erodible material in can be effectively used for purposes
a spillway flow area intensifies the haz- other than hydrologic safety. There-
ards of spillway flow. In fact, debris fore, the entire cost of these lands may
may be transported to downstream not be an additional project cost. For
areas that otherwise would not be ad- example, the lands downstream of a
versely affected. Extreme erosion may spillway may be used for wildlife man-
result from high velocities and turbu- agement essential to project purposes
199
§ 222.3 33 CFR Ch. II (7–1–20 Edition)
in lieu of other lands suitable for simi- and estate required for hydrologic safe-
lar purposes at another location. ty purposes.
(h) Procedural guidance. Procedures (i) Reporting. Lands to be acquired
regarding the application of the prin- downstream from spillways and in-
ciples outlined in the above paragraphs tended purposes will be identified and
are as follows: the cost included in feasibility reports
(1) For various flood magnitudes up and real estate design memoranda. Ad-
to the probable maximum flood deter- ditional specific information in support
mine the ‘‘with’’ and ‘‘without project’’ of land acquisition should be provided
flood conditions downstream of a dam in Phase I or Phase II general design
spillway for the following: memoranda (GDM) and dam mod-
(i) Flooded area. ernization reports. This information
(ii) Flood depth. should include topographic maps, area
flooded maps, velocities, erosion and
(iii) Flood duration.
debris areas ‘‘with’’ and ‘‘without’’ the
(iv) Velocities.
project. Real estate boundaries and dis-
(v) Debris and erosion. cussions of items in paragraph (h)(4)
(2) Determine the combinations of are also essential in the GDM’s and
flood magnitudes and the above flood dam modernization reports.
conditions that could be the most haz-
ardous and/or result in the greatest in- [43 FR 35481, Aug. 10, 1978. Redesignated at 60
crease in hazard from ‘‘without’’ to FR 19851, Apr. 21, 1995]
‘‘with project’’ flood conditions. Des- § 222.3 Clearances for power and com-
ignate these combinations of flood munication lines over reservoirs.
magnitude and flood conditions as the
critical conditions. (a) Purpose. This regulation pre-
(3) For the critical conditions se- scribes the minimum vertical clear-
lected above outline the areas where ances to be provided when relocating
the project could increase and/or create existing or constructing new power and
(impose) one or more of the critical communication lines over waters of
conditions. Areas where spillway flows reservoir projects.
(b) Applicability. This regulation ap-
do not create or increase flood condi-
plies to all field operating agencies
tions are excluded from further anal-
having Civil Works responsibilities.
ysis.
(c) References. (1) ER 1180–1–1 (Section
(4) Determine where the imposed
73).
critical conditions as outlined above
(2) National Electrical Safety Code
would be hazardous and non-hazardous.
(ANSI C2), available from IEEE Service
Non-hazardous areas are defined as
Center, 445 Hoes Lane, Piscataway,
those areas where:
N.J. 08854.
(i) Flood depths are maximum of 2 (d) Definitions—(1) Design high water
feet in urban and rural areas. level. The design high water level above
(ii) Flood depths are essentially non- which clearances are to be provided
damaging to urban property. shall be either: (i) The elevation of the
(iii) Flood durations are a maximum envelope profile of the 50 year flood, or
of 3 hours in urban areas and 24 hours flood series, routed through the res-
in agricultural areas. ervoir with a full conservation pool
(iv) Velocities do not exceed 4 feet after 50 years of sedimentation, or (ii)
per second. the elevation of the top of the flood
(v) Debris and erosion potentials are control pool, whichever is higher.
minimal. (2) Low point of line. The low point of
(vi) Imposed flood conditions would the line shall be the elevation of the
be infrequent. That is, the exceedence lowest point of the line taking into
frequency should be less than 1 per- consideration all factors including
cent. Hazardous areas are those where temperature, loading and length of
any of the above criteria are exceeded. spans as outlined in the National Elec-
(5) Based upon the information devel- trical Safety Code.
oped above and the principles outlined (3) Minimum vertical clearance. The
in paragraphs (c) through (f) of this minimum vertical clearance shall be

section, decide on the extent of area the distance from the design high
200
water lever (paragraph (d)(1) of this tially fail by an earthquake and whose
section) to the low point of the line failure or partial failure would endan-
(paragraph (d)(2) of this section). ger the lives of the public and/or cause
(e) Required clearances. Minimum substantial property damage, will be
vertical clearances for power and com- evaluated following potentially dam-
munication lines over reservoirs shall aging earthquakes to insure their con-
not be less than required by section 23, tinued structural stability, safety and
rule 232 of the latest revision of the Na- operational adequacy. These structures
tional Electrical Safety Code (ANSI include dams, navigation locks,
C2). powerhouses, and appurtenant struc-
(1) In general, minimum vertical tures, (intakes, outlet works, build-
clearances shall not be less than shown ings, tunnels, paved spillways) which
in Table 232–1, Item 7, of ANSI C2, even are operated by the Corps of Engineers
for reservoirs or areas not suitable for and for which the Corps is fully respon-
sailboating or where sailboating is pro- sible. Also included are major levees,
hibited. floodwalls, and similar facilities de-
(2) If clearances not in accordance signed and constructed by the Corps of
with Table 232–1 of ANSI C2 are pro- Engineers and for whose structural
posed, justification for the clearances safety and stability the Corps has a
should be provided. public obligation to be aware of al-
(f) Navigable waters. For parts of res- though not responsible for their main-
ervoirs that are designated as navi- tenance and operation. The evaluation
gable waters of the United States, of these structures will be based upon
greater clearances will be provided if post-earthquake inspections which will
so required. The clearances required be conducted to detect conditions of
over navigable waters are covered by 33 significant structural distress and to
CFR 322.5(i)(2) and are not affected by provide a basis for timely initiation of
this regulation. restorative and remedial measures.
[43 FR 14013, Apr. 4, 1978. Redesignated at 60 (e) Post-earthquake inspections and
FR 19851, Apr. 21, 1995] evaluation surveys—(1) Limitations of
present knowledge. The design of struc-
§ 222.4 Reporting earthquake effects. tures for earthquake loading is limited
(a) Purpose. This regulation states by the infrequent opportunity to com-
policy, defines objectives, assigns func- pare actual performance with the de-
tions, and establishes procedures for sign. Damage which would affect the
assuring the structural integrity and function of the project is unlikely if
operational adequacy of major Civil peak accelerations are below 0.1g.; but
Works structures following the occur- it cannot be assumed that a structure
rence of significant earthquakes. It pri- will not be damaged from earthquake
marily concerns damage surveys fol- loadings below that for which it was
lowing the occurrences of earthquakes. designed. Furthermore, earthquakes
(b) Applicability. This regulation is have occurred in several parts of the
applicable to all field operating agen- country where significant seismic ac-
cies having Civil Works responsibil- tivity had not been predicted by some
ities. seismic zoning maps. This indicates the
(c) References. (1) ER 1110–2–100 possibility that earthquake induced
(§ 222.2). loads may not have been adequately
(2) ER 1110–2–1806. considered in the design of older struc-
(3) ER 1110–2–8150. tures.
(4) ER 1130–2–419. (2) Types of reportable damage. Many
(5) State-of-the-Art for Assessing types of structural damage can be in-
Earthquake Hazards in the United duced by ground motion from earth-
States—WES Miscellaneous Papers S– quakes or from large nuclear blasts
73–1—Reports 1 thru 14. Available from (which also tend to induce ground vi-
U.S. Army Engineer Waterways Experi- brations in the more damaging lower
ment Station, P.O. Box 631, Vicksburg, frequency ranges). Any post-earth-
Mississippi 39180. quake change in appearance or func-
(d) Policy. Civil Works structures tional capability of a major Civil

which could be caused to fail or par- Works structure should be evaluated
201
§ 222.4 33 CFR Ch. II (7–1–20 Edition)
and reported. Examples are symptoms lowing a significant earthquake, HQDA

of induced stresses in buildings made (DAEN-CWE) WASH DC 20314 will be
evident by cracked plaster, windows or notified of the inspection program as
tile, or in binding of doors or windows; soon as it is established.
cracked or shifted bridge pier footings (4) As a general rule, the structures
or other concrete structures; turbidity which would be of concern following an
or changed static level of water wells; earthquake are also the structures
cracks in concrete dams or earth em- which are involved in the inspection
bankments; and misalignment of hy- program under ER 1110–2–100. Whenever
draulic control structures or gates. In- feasible, instrumentation and proto-
duced dynamic loading on earth dams type testing programs undertaken
may result in loss of freeboard by set- under ER 1110–2–100 to monitor struc-
tlement, or cause localized quick con- tural performance and under ER 1110–2–
ditions within the embankment sec- 8150 to develop design criteria will be
tions or earth foundations. Also, new utilized in the post-earthquake safety
seepage paths may be opened up within evaluation programs. Additional spe-
the foundation or through the embank- cial types of instrumentation will be
ment section. Ground motion induced incorporated in selected structures in
landslides may occur in susceptible
which it may be desirable to measure
areas of the reservoir rim, causing em-
forces, pressures, loads, stresses,
bankment overtopping by waves and
strains, displacements, deflections, or
serious damage. All such unusual con-
other conditions relating to damage
ditions should be evaluated and re-
and structural safety and stability in
ported.
case of an earthquake.
(f) Inspection and evaluation programs.
(1) If the project is located in an area (5) Where determined necessary, a de-
where the earthquake causes signifi- tailed, systematic engineering inspec-
cant damage (Modified Mercalli Inten- tion will be made of the post-earth-
sity VII or greater) to structures in the quake condition of each structure, tak-
vicinity, the Chief, Engineering Divi- ing into account its distinctive fea-
sion, should be immediately notified tures. For structures which have in-
and an engineering evaluation and incurred earthquake damage a formal
spection team should be sent to the technical report will be prepared in a
project. format similar to inspection reports re-
(2) If the project is located in an area quired under ER 1110–2–100. (Exempt
where the earthquake is felt but causes from requirements control under para-
no or insignificant damage (Modified graph 7–2b, AR 335–15.) The report will
Mercalli Intensity VI or less) to struc- include summaries of the instrumenta-
tures in the vicinity of the project, tion and other observation data for
project operations personnel should each inspection, for permanent record
make an immediate inspection. This and reference purposes. This report will
inspection should determine: (i) Wheth- be used to form a basis for major reme-
er there is evidence of earthquake dam- dial work when required. Where
age or disturbance, and (ii) whether accelerometers or other types of strong
seismic instrumentation, where motion instruments have been in-
present, has been triggered. The Chief, stalled, readings and interpretations
Engineering Division should be notified from these instruments should also be
by phone of the results of the inspec- included in the report. The report will
tion. If damage is observed, which is contain recommendations for remedial
considered to threaten the immediate work when appropriate, and will be
safety or operational capability of the transmitted through the Division Engi-
project, immediate action should be neer for review and to HQDA (DAEN-
taken as covered in paragraph (f)(1) of CWE) WASH DC 20314 for review and
this section. For other situations, the approval. For structures incurring no
Chief of Engineering Division will de- damage a simple statement to this ef-
termine the need for and urgency for fect will be all that is required in the
an engineering inspection. report, unless seismic instrumentation
(3) When an engineering inspection of at the project is activated. (See para-

structures is deemed necessary fol- graph (h)(4) of this section.)
202
(g) Training. The dam safety training strumental records from each of the
program covered by paragraph 6 of ER strong motion machines activated. (Ex-
1130–2–419 should include post-earth- empt from requirements control under
quake inspections and the types of paragraph 7–2v, AR 335–15).
damage operations personnel should (5) The Engineering Divisions of the
look for. Division offices will select structures
(h) Responsibilities. (1) The Engineer- for special instrumentation for earth-
ing Divisions of the District offices will quake effects, and will review and mon-
formulate the inspection program, con- itor the data collection, processing,
duct the post-earthquake inspections, evaluating, and inspecting activities.
process and analyze the data of instru- They will also be specifically respon-
mental and other observations, evalu- sible for promptly informing HQDA
ate the resulting condition of the (DAEN-CWE) WASH DC 20314, when
structures, and prepare the inspection evaluation of the condition of the
reports. The Engineering division is structure or analyses of the instrumen-
also responsible for planning special in- tation data indicate the stability of a
strumentation felt necessary in se- structure is questionable. (Exempt for
lected structures under this program. requirements control under paragraph
Engineering Division is responsible for 7–2o, AR 335–15.)
providing the training discussed in (6) Division Engineers are responsible
paragraph (g) of this section. for issuing any supplementary regula-
(2) The Construction Divisions of the tions necessary to adapt the policies
District offices will be responsible for and instructions herein to the specific
the installation of the earthquake in- conditions within their Division.
strumentation devices and for data col- (i) Funding. Funding for the evalua-
lection if an earthquake occurs during tion and inspection program will be
the construction period. under the Appropriation 96X3123, Oper-
(3) The Operations Division of the ations and Maintenance, General.
District offices will be responsible for Funds required for the inspections, in-
the immediate assessment of earth- cluding Travel and Per Diem costs in-
quake damage and notifying the Chief, curred by personnel of the Division of-
Engineering Division as discussed in fice or the Office, Chief of Engineers,
paragraphs (f)(1) and (2). The Oper- will be from allocations made to the
ations Division will also be responsible various projects for the fiscal year in
for earthquake data collection after which the inspection occurs.
the construction period in accordance [44 FR 43469, July 25, 1979. Redesignated at 60
with the instrumental observation pro- FR 19851, Apr. 21, 1995]
grams, and will assist and participate
in the post-earthquake inspections. § 222.5 Water control management (ER
(4) The U.S. Geological Survey has 1110–2–240).
the responsibility for servicing and col- (a) Purpose. This regulation pre-
lecting all data from strong motion in- scribes policies and procedures to be
strumentation at Corps of Engineers followed by the U.S. Army Corps of En-
dam projects following an earthquake gineers in carrying out water control
occurrence. However, the U.S. Army management activities, including es-
Waterways Experiment Station (WES) tablishment of water control plans for
is assigned the responsibility for ana- Corps and non-Corps projects, as re-
lyzing and interpreting these earth- quired by Federal laws and directives.
quake data. Whenever a recordable (b) Applicability. This regulation is
earthquake record is obtained from applicable to all field operating activi-
seismic instrumentation at a Corps ties having civil works responsibilities.
project, the Division will send a report (c) References. Appendix A lists U.S.
of all pertinent instrumentation data Army Corps of Engineers publications
to the Waterways Experiment Station, and sections of Federal statutes and
ATTN: WESGH, P.O. Box 631, Vicks- regulations that are referenced herein.
burg, Mississippi 39180. The report on (d) Authorities—(1) U.S. Army Corps of
each project should include a complete Engineers projects. Authorities for allo-
description of the locations and types cation of storage and regulation of

of instruments and a copy of the in- projects owned and operated by the
203
§ 222.5 33 CFR Ch. II (7–1–20 Edition)
Corps of Engineers are contained in jectives of the particular project, act-

legislative authorization acts and ref- ing separately or in combination with
erenced project documents. These pub- other projects in a system. Schedules
lic laws and project documents usually are usually expressed in the form of
contain provisions for development of graphs and tabulations, supplemented
water control plans, and appropriate by concise specifications.
revisions thereto, under the discre- (f) General policies. (1) Water control
tionary authority of the Chief of Engi- plans will be developed for reservoirs,
neers. Some modifications in project locks and dams, reregulation and
operation are permitted under congres- major control structures and inter-
sional enactments subsequent to origi- related systems to comform with ob-
nal project authorization. Questions jectives and specific provisions of au-
that require interpretations of author- thorizing legislation and applicable
izations affecting regulation of specific Corps of Engineers reports. They will
reservoirs will be referred to CDR include any applicable authorities es-
USACE (DAEN-CWE-HW), WASH DC tablished after project construction.
20314, with appropriate background in- The water control plans will be pre-
formation and analysis, for resolution. pared giving appropriate consideration
(2) Non-Corps projects. The Corps of to all applicable Congressional Acts re-
Engineers is responsible for prescribing lating to operation of Federal facili-
flood control and navigation regula- ties, i.e., Fish and Wildlife Coordina-
tions for certain reservoir projects con- tion Act (Pub. L. 85–624), Federal Water
structed or operated by other Federal, Project Recreation Act-Uniform Poli-
non-Federal or private agencies. There cies (Pub. L. 89–72), National Environ-
are several classes of such projects: mental Policy Act of 1969 (Pub. L. 91–
Those authorized by special acts of 190), and Clean Water Act of 1977 (Pub.
Congress; those for which licenses L. 95–217). Thorough analysis and test-
issued by the Federal Energy Regu- ing studies will be made as necessary
latory Commission (formerly Federal to establish the optimum water control
Power Commission) provide that oper- plans possible within prevailing con-
ation shall be in accordance with in- straints.
structions of the Secretary of the (2) Necessary actions will be taken to
Army; those covered by agreements be- keep approved water control plans up-
tween the operating agency and the to-date. For this purpose, plans will be
Corps of Engineers; and those that fall subject to continuing and progressive
under the terms of general legislative study by personnel in field offices of
and administrative provisions. These the Corps of Engineers. These per-
authorities, of illustrative examples, sonnel will be professionally qualified
are described briefly in Appendix B. in technical areas involved and famil-
(e) Terminology: Water control plans iar with comprehensive project objec-
and reservoir regulation schedules. (1) tives and other factors affecting water
Water control plans include coordi- control. Organizational requirements
nated regulation schedules for project/ for water control management are fur-
system regulation and such additional ther discussed in ER 1110–2–1400.
provisions as may be required to col- (3) Water control plans developed for
lect, analyze and disseminate basic specific projects and reservoir systems
data, prepare detailed operating in- will be clearly documented in appro-
structions, assure project safety and priate water control manuals. These
carry out regulation of projects in an manuals will be prepared to meet ini-
appropriate manner. tial requirements when storage in the
(2) The term ‘‘reservoir regulation reservoir begins. They will be revised
schedule’’ refers to a compilation of op- as necessary to conform with changing
erating criteria, guidelines, rule curves requirements resulting from develop-
and specifications that govern basi- ments in the project area and down-
cally the storage and release functions stream, improvements in technology,
of a reservoir. In general, schedules in- new legislation and other relevant fac-
dicate limiting rates of reservoir re- tors, provided such revisions comply
leases required during various seasons with existing Federal regulations and
of the year to meet all functional ob- established Corps of Engineers policy.
204
(4) Development and execution of sible hazards from project regulation

water control plans will include appro- activities.
priate consideration for efficient water (8) In carrying out water control ac-
management in conformance with the tivities, Corps of Engineers personnel
emphasis on water conservation as a must recognize and observe the legal
national priority. The objectives of ef- responsibility of the National Weather
ficient water control management are Service (NWS), National Oceanic and
to produce beneficial water savings and Atmospheric Administration (NOAA),
improvements in the availability and for issuing weather forecasts and flood
quality of water resulting from project warnings, including river discharges
regulation/operation. Balanced re- and stages. River forecasts prepared by
source use through improved regula- the Corps of Engineers in the execution
tion should be developed to conserve as of its responsibilities should not be re-
much water as possible and maximize leased to the general public, unless the
all project functions consistent with NWS is willing to make the release or
project/system management. Contin- agrees to such dissemination. However,
uous examination should be made of release to interested parties of factual
regulation schedules, possible need for information on current storms or river
storage reallocation (within existing conditions and properly quoted NWS
authority and constraints) and to iden- forecasts is permissible. District offices
tify needed changes in normal regula- are encouraged to provide assistance to
tion. Emphasis should be placed on communities and individuals regarding
evaluating conditions that could re- the impact of forecasted floods. Typ-
quire deviation from normal release ical advice would be to provide approx-
schedules as part of drought contin- imate water surface elevations at loca-
gency plans (ER 1110–2–1941). tions upstream and downstream of the
NWS forecasting stream gages. An-
(5) Adequate provisions for collec-
nouncement of anticipated changes in
tion, analysis and dissemination of
reservoir release rates as far in ad-
basic data, the formulation of specific
vance as possible to the general public
project regulation directives, and the
is the responsibility of Corps of Engi-
performance of project regulation will
neers water control managers for
be established at field level.
projects under their jurisdiction.
(6) Appropriate provisions will be (9) Water control plans will be devel-
made for monitoring project oper- oped in concert with all basin interests
ations, formulating advisories to high- which are or could be impacted by or
er authorities, and disseminating infor- have an influence on project regula-
mation to others concerned. These action. Close coordination will be main-
tions are required to facilitate proper tained with all appropriate inter-
regulation of systems and to keep the national, Federal, State, regional and
public fully informed regarding all per- local agencies in the development and
tinent water control matters. execution of water control plans. Effec-
(7) In development and execution of tive public information programs will
water control plans, appropriate atten- be developed and maintained so as to
tion will be given to project safety in inform and educate the public regard-
accordance with ER 1130–2–417 and ER ing Corps of Engineers water control
1130–2–419 so as to insure that all water management activities.
impounding structures are operated for (10) Fiscal year budget requests for
the safety of users of the facilities and water control management activities
the general public. Care will be exer- will be prepared and submitted to the
cised in the development of reservoir Office of the Chief of Engineers in ac-
regulation schedules to assure that cordance with requirements estab-
controlled releases minimize project lished in Engineer Circular on Annual
impacts and do not jeopardize the safe- Budget Requests for Civil Works Ac-
ty of persons engaged in activities tivities. The total annual costs of all
downstream of the facility. Water con- activities and facilities that support
trol plans will include provisions for the water control functions, (excluding
issuing adequate warnings or otherwise physical operation of projects, but in-

alerting all affected interests to pos- cluding flood control and navigation
205
§ 222.5 33 CFR Ch. II (7–1–20 Edition)
regulation of projects subject to 33 change the water control plan do not

CFR 208.11) are to be reported. Informa- require public meetings.
tion on the Water Control Data Sys- (C) For those conditions described in
tems and associated Communications paragraph (g)(2)(i)(A) of this section,
Category of the Plant Replacement and the Corps will provide information to
Improvement Program will be sub- the public concerning proposed water
mitted with the annual budget. Report- control management decisions at least
ing will be in accordance with the an- 30 days in advance of a public meeting.
nual Engineer Circular on Civil Works In so doing, a separate document(s)
Operations and Maintenance, General should be prepared that explains the
Program. recommended water control plan or
(g) Responsibilities: US Army Corps of change, and provides technical infor-
Engineers projects—(1) Preparation of mation explaining the basis for the rec-
water control plans and manuals. Nor- ommendation. It should include a de-
mally, district commanders are pri- scription of its impacts (both monetary
marily responsible for background and nonmonetary) for various pur-
studies and for developing plans and poses, and the comparisons with alter-
manuals required for reservoirs, locks native plans or changes and their ef-
and dams, reregulation and major con- fects. The plan or manual will be pre-
trol structures and interrelated sys- pared only after the public involve-
tems in their respective district areas. ment process associated with its devel-
Policies and general guidelines are pre- opment or change is complete.
scribed by OCE engineer regulations (D) For those conditions described in
while specific requirements to imple- paragraph (g)(2)(i)(A) of this section,
ment OCE guidance are established by the responsible division office will send
the division commanders concerned. each proposed water control manual to
Master Water Control Manuals for the Army Corps of Engineers Head-
river basins that include more than one quarters, Attn: CECW-EH-W for review
district are usually prepared by or and comments prior to approval by the
under direct supervision of division responsible division office.
representatives. Division commanders (ii) Information availability. The water
are responsible for providing such man- control manual will be made available
agement and technical assistance as for examination by the general public
may be required to assure that plans upon request at the appropriate office
and manuals are prepared on a timely of the Corps of Engineers. Public notice
and adequate basis to meet water con- shall be given in the event of occurring
trol requirements in the division area, or anticipated significant changes in
and for pertinent coordination among reservoir storage or flow releases. The
districts, divisions, and other appro- method of conveying this information
priate entities. shall be commensurate with the ur-
(2) Public involvement and informa- gency of the situation and the lead
tion—(i) Public meeting and public in- time available.
volvement. The Corps of Engineers will (3) Authority for approval of plans and
sponsor public involvement activities, manuals. Division commanders are del-
as appropriate, to appraise the general egated authority for approval of water
public of the water control plan. In de- control plans and manuals, and associ-
veloping or modifying water control ated activities.
manuals, the following criteria is ap- (4) OCE role in water control activities.
plicable. OCE will establish policies and guide-
(A) Conditions that require public in- lines applicable to all field offices and
volvement and public meetings infor such actions as are necessary to as-
clude: Development of a new water con- sure a reasonable degree of consistency
trol manual that includes a water con- in basic policies and practices in all Di-
trol plan; or revision or update of a vision areas. Assistance will be pro-
water control manual that changes the vided to field offices during emer-
water control plan. gencies and upon special request.
(B) Revisions to water control manu- (5) Methods improvement and staff
als that are administratively or infor- training. Division and district com-
mational in nature and that do not manders are responsible for conducting
206
appropriate programs for improving herein, the term ‘‘water control man-
technical methods applicable to water ual’’ refers to manuals that relate pri-
control activities in their respective marily to the functional regulation of
areas. Suitable training programs an individual project or system of
should be maintained to assure a satis- projects. Although such manuals nor-
factory performance capability in mally include background information
water control activities. Appropriate concerning physical features of
coordination of such programs with projects, they do not prescribe rules or
similar activities in other areas will be methods for physical maintenance or
accomplished to avoid duplication of care of facilities, which are covered in
effort, and to foster desirable exchange other documents. (References 15 and 23,
of ideas and developments. Initiative in appendix A.)
re-evaluating methods and guidelines (2) Water control manuals prepared
previously established in official docu- in substantially the detail and format
ments referred to in paragraph (e) of specified in instructions referred to in
this section is encouraged where needs paragraph 8 are required for all res-
are evident. However, proposals for ervoirs under the supervision of the
major deviations from basic concepts, Corps of Engineers, regardless of the
policies and general practices reflected purpose or size of the project. Water
in official publications will be sub- Control manuals are also required for
mitted to CDR USACE (DAEN-CWE) lock and dam, reregulation and major
WASH DC 20314 for concurrence or control structure projects that are
comment before being adopted for sub- physically regulated by the Corps of
stantial application in actual project Engineers. Where there are several
regulation at field level. projects in a drainage basin with inter-
(h) Directives and technical instruction related purposes, a ‘‘Master Manual’’
manuals. (1) Directives issued through shall be prepared. The effects of non-
OCE Engineer Regulations will be used Corps projects will be considered in ap-
to foster consistency in policies and propriate detail, including an indica-
basic practices. They will be supple- tion of provisions for interagency co-
mented as needed by other forms of ordination.
communication. (3) ‘‘Preliminary water control manu-
(2) Engineering Manuals (EM) and als,’’ for projects regulated by the
Engineer Technical Letters (ETL) are Corps of Engineers should contain reg-
issued by OCE to serve as general ulation schedules in sufficient detail to
guidelines and technical aids in devel- establish the basic plan of initial
oping water control plans and manuals project regulation.
for individual projects or systems. (4) As a general rule, preliminary
(3) EM 1110–2–3600 discusses principles manuals should be superseded by more
and concepts involved in developing detailed interim or ‘‘final’’ manuals
water control plans. Instructions relat- within approximately one year after
ing to preparation of ‘‘Water Control the project is placed in operation.
Manuals for speicfic projects’’ are in- (5) Each water control manual will
cluded. EM 1110–2–3600 should be used contain a section on special regula-
as a general guide to water control actions to be conducted during emer-
tivities. The instructions are suffi- gency situations, including droughts.
ciently flexible to permit adaptation to Preplanned operations and coordina-
specific regions. Supplemental infor- tion are essential to effective relief or
mation regarding technical methods is assistance.
provided in numerous documents dis- (6) One copy of all water control
tributed to field offices as ‘‘hydrologic manuals and subsequent revisions shall
references.’’ be forwarded to DAEN-CWE-HW for file
(4) Special assistance in technical purposes as soon as practicable after
studies is available from the Hydro- completion, preferably within 30 days
logic Engineering Center, Corps of En- from date of approval at the division
gineers, 609 Second Street, Davis, Cali- level.
fornia 95616 and DAEN-CWE-HW. (j) Policies and requirements for pre-
(i) Water control manuals for US Army paring regulations for non-Corps projects.
Corps of Engineers projects. (1) As used (1) Division and district commanders
207
§ 222.5 33 CFR Ch. II (7–1–20 Edition)
will develop water control plans as re- hydrologic parameters, such as snow
quired by section 7 of the 1944 Flood cover.
Control Act, the Federal Power Act (5) Water control plans should be de-
and section 9 of Pub. L. 436–83 for all veloped to attain maximum flood con-
projects located within their areas, in trol or navigation benefits, consistent
conformance with ER 1110–2–241, 33 with other project requirements, from
CFR part 208. That regulation pre- the storage space provided for these
scribes the policy and general proce- purposes. When reservoir storage ca-
dures for regulating reservoir projects pacity of the category referred to in
capable of regulation for flood control paragraph (j)(4)(iii) is utilized for flood
or navigation, except projects owned control or navigation, jointly with
and operated by the Corps of Engi- other objectives, the hydrologic param-
neers; the International Boundary and eters and related rules developed under
Water Commission, United States and provisions of ER 1110–2–241, 33 CFR part
Mexico; those under the jurisdiction of 208 should conform as equitably as pos-
the International Joint Commission, sible with the multiple-purpose objec-
United States and Canada, and the Co- tives established in project authoriza-
lumbia River Treaty. ER 1110–2–241, 33 tions and other pertinent legislation.
CFR part 208 permits the promulgation (6) Storage allocations made for flood
of specific regulations for a project in control or navigation purposes in non-
compliance with the authorizing acts, Corps projects are not subject to modi-
when agreement on acceptable regula- fications by the Corps of Engineers as a
tions cannot be reached between the prerequisite for prescribing 33 CFR
Corps Engineers and the owners. Ap- 208.11 regulations. However, regula-
pendix B provides a summary of the tions developed for use of such storage
Corps of Engineers responsibilities for should be predicated on a mutual un-
prescribing regulations for non-Corps derstanding between representatives of
reservoir projects. the Corps and the operating agency
(2) Water control plans will be devel- concerning the conditions of the allo-
oped and processed as soon as possible cations in order to assure reasonable
for applicable projects already com- achievement of basic objectives in-
pleted and being operated by other en- tended. In the event field representa-
tities, including projects built by the tives of the Corps of Engineers, and the
Corps of Engineers and turned over to operating agency are unable to reach
others for operation. necessary agreements after all reason-
(3) In so far as practicable, water con- able possibilities have been explored,
trol plans for non-Corps projects should appropriate background explanations
be developed in cooperation with own- and recommendations should be sub-
ing/operating agencies involved during mitted to DAEN-CWE-HW for consider-
project planning stages. Thus, ten- ation.
tative agreements on contents, includ- (7) The Chief of Engineers is respon-
ing pertinent regulation schedules and sible for prescribing regulations for use
diagrams, can be accomplished prior to of flood control or navigation storage
completion of the project. and/or project operation under the pro-
(4) The magnitude and nature of stor- visions of the referenced legislative
age allocations for flood control or acts. Accordingly, any regulations es-
navigation purposes in non-Corps tablished should designate the division/
projects are governed basically by con- district commander who is responsible
ditions of project authorizations or to the Chief of Engineers as the rep-
other legislative provisions and may resentative to issue any special in-
include any or all of the following structions required under the regula-
types of storage assignments: tion. However, to the extent prac-
(i) Year-round allocations: Storage ticable, project regulations should be
remains the same all year. written to permit operation of the
(ii) Seasonal allocations: Storage project by the owner without interpre-
varies on a fixed seasonal basis. tations of the regulations by the des-
(iii) Variable allocations of flood con- ignated representative of the Com-

trol from year to year, depending on mander during operating periods.
208
(8) Responsibility for compliance the dam, spillway and outlet struc-
with 33 CFR 208.11 regulations rests tures; major relocations; land acquisi-
with the operating agency. The divi- tions, administrative arrangements
sion or district commander of the area and other project requirements have
in which the project is located will be reached stages that permit relatively
kept informed regarding project oper- normal project regulation. With re-
ations to verify reasonable conform- spect to non-Corps projects, regula-
ance with the regulations. The Chief of tions normally become applicable when
Engineers or his designated representa- water control agreements have been
tive may authorize or direct deviation signed by the designated signatories,
from the established water control plan subject to special provisions in specific
when conditions warrant such devi- cases. In some instances, implementa-
ation. In the event unapproved devi- tion of regulations has been delayed by
ations from the prescribed regulations legal provisions, contract limitations,
seem evident, the division or district or other considerations. These delays
commander concerned will bring the can result in loss of potential project
matter to the attention of the oper-
benefits and possible hazards. Accord-
ating agency by appropriate means.
ingly, it is essential that appropriate
If corrective actions are not taken water control and contingency plans be
promptly, the operating agency should established for use from the date any
be notified of the apparent deviation in storage may accumulate behind a par-
writing as a matter of record. Should tially completed dam until the project
an impasse arise, in that the project is formally accepted for normal oper-
owner or the designated operating enti- ations. Division commanders shall
ty persists in noncompliance with reg- make certain that construction-stage
ulations prescribed by the Corps of En-
regulation plans are established and
gineers, the Office of Chief Counsel
maintained in a timely and adequate
should be advised through normal
manner for projects under the super-
channels and requested to take nec-
vision of the Corps of Engineers. In ad-
essary measures to assure compliance.
dition, the problems referred to should
(9) Regulations should contain infor-
be discussed with authorities who are
mation regarding the required ex-
change of basic data between the rep- responsible for non-Corps projects,
resentative of the operating agency with the objective of assuring that
and the U.S. Army Corps of Engineers, such projects operate as safely and ef-
that are pertinent to regulation and fectively as possible during the critical
coordination of interrelated projects in construction stage and any period that
the region. may elapse before regular operating ar-
(10) All 33 CFR 208.11 regulations rangements have been established.
shall contain provisions authorizing These special regulation plans should
the operating agency to temporarily include consideration for protection of
deviate from the regulations in the construction operations; safety of
event that it is necessary for emer- downstream interests that might be
gency reasons to protect the safety of jeopardized by failure of partially com-
the dam, to avoid health hazards, and pleted embankments; requirements for
to alleviate other critical situations. minimizing adverse effects on partially
(k) Developing and processing regula- completed relocations or incomplete
tions for non-Corps projects. Guidelines land acquisition; and the need for ob-
concerning technical studies and devel- taining benefits from project storage
opment of regulations are contained in that can be safely achieved during the
ER 1110–2–241, 33 CFR part 208 and EM construction and early operation pe-
1110–2–3600. Appendix C of this regula- riod.
tion summarizes steps normally fol- (m) Advisories to OCE regarding water
lowed in developing and processing reg- control activities—(1) General. Division
ulations for non-Corps projects. commanders will keep the Chief of En-
(l) Water control during project con- gineers currently informed of any un-
struction stage. Water control plans dis- usual problems or activities associated
cussed in preceding paragraphs are in- with water control that impact on his
tended primarily for application after responsibilities.
209
§ 222.5 33 CFR Ch. II (7–1–20 Edition)
(2) Annual division water control man- control of the agency. General guid-
agement report (RCS DAEN-CWE–16(R1)). ance is provided in references 24 and 25,
Division commanders will submit an appendix A, for carrying out this agen-
annual report on water control man- cy’s responsibility. Annual division
agement activities within their divi- water quality reports are required by
sion. The annual report will be sub- reference 24, appendix A. The report is
mitted to (DAEN-CWE-HW) by 1 Feb- submitted in two parts. The first part
ruary each year and cover significant addresses the division Water quality
activities of the previous water year management plan while the second
and a description of activities to be ac- part presents specific project informa-
complished for the current year. Fund- tion. A major objective of this report is
ing information for water control ac- to summarize information pertinent to
tivities will be provided in the letter of water quality aspects of overall water
transmittal for in-house use only. The management responsibilities. The an-
primary objective of this summary is nual division water quality report may
to keep the Chief of Engineers in- be submitted along with the annual re-
formed regarding overall water man- port on water control management ac-
agement activities Corps-wide, thus tivities discussed in paragraph 13b
providing a basis to carry out OCE re- above.
sponsibilities set forth in paragraph (6) Master plans for water control data
(g)(4) of this section. systems (RCS DAEN-CWE–21). (i) A
(3) Status of water control manuals. A water control data system is all of the
brief discussion shall be prepared annu- equipment within a division which is
ally by each division commander, as a used to acquire, process, display and
separate section of the annual report distribute information for real-time
on water control management activi- project regulation and associated inter-
ties discussed in paragraph (m)(2) of agency coordination. A subsystem is
this section listing all projects cur- all equipment as defined previously
rently in operation in his area, or ex- within a district. A network is all
pected to begin operation within one- equipment as defined previously which
year, with a designation of the status is used to regulate a single project or a
of water control manuals. The report group of projects which must be regu-
should also list projects for which the lated interdependently.
Corps of Engineers is responsible for
(ii) Master plans for water control
prescribing regulations, as defined in
data systems and significant revisions
ER 1110–2–241, 33 CFR part 208.
thereto will be prepared by division
(4) Monthly water control charts (RCS
water control managers and submitted
DAEN-CWE–6 (R1)). A monthly record
of reservoirs/lakes operated by the to DAEN-CWE-HW by 1 February each
Corps of Engineers and other agencies, year for review and approval of engi-
in accordance with 33 CFR 208.11, will neering aspects. Engineering approval
be promptly prepared and maintained does not constitute funding approval.
by district/division commanders in a After engineering approval is obtained,
form readily available for transmittal equipment in the master plan is eligi-
to the Chief of Engineers, or others, ble for consideration in the funding
upon request. Record data may be pre- processes described in ER 1125–2–301
pared in either graphical form as and engineering circulars on the an-
shown in EM 1110–2–3600, or tabular nual budget request for civil works ac-
form as shown in the sample tabulation tivities. Master plans will be main-
in appendix D. tained current and will:
(5) Annual division water quality re- (A) Outline the system performance
ports (RCS DAEN-CWE–15). By Execu- requirements, including those resulting
tive Order 12088, the President ordered from any expected expansions of Corps
the head of each Executive Agency to missions.
be responsible for ensuring that all (B) Describe the extent to which ex-
necessary actions are taken for preven- isting facilities fulfill performance re-
tion, control, and abatement of envi- quirements.
ronmental pollution with respect to (C) Describe alternative approaches

Federal facilities and activities under which will upgrade the system to meet
210
the requirements not fulfilled by exist- should be submitted only if the equip-
ing facilities, or are more cost effective ment is identified in an approved mas-
then the existing system. ter plan.
(D) Justify and recommend a system (vii) Justification for the Automatic
considering timeliness, reliability, eco- Data Processing Equipment (ADPE) as-
nomics and other factors deemed im- pects of water control data systems
portant. must conform to AR 18–1, Appendix I or
(E) Delineate system scope, imple- J as required. The ‘‘Funding for ADPE’’
mentation schedules, proposed annual paragraph in Appendixes I and J must
capital expenditures by district, total cite the source of funds and reference
costs, and sources of funding. relevant information in the approved
(iii) Modified master plans should be master plan and detailed plan.
submitted to DAEN-CWE-HW by 1 Feb- (viii) Division water control man-
ruary, whenever revisions are required, agers will submit annual letter sum-
to include equipment not previously maries of the status of their respective
approved or changes in scope or ap- water control systems and five-year
proach. Submittal by the February plan for improvements. These sum-
date will allow adequate time for OCE maries will be submitted to DAEN-
review and approval prior to annual CWE by 1 June for coordination with
budget submittals. DAEN-CWO, CWB and DSZ-A, prior to
(iv) Division commanders are dele- the annual budget request. Summaries
gated authority to approve detailed should not be used to obtain approval
plans for subsystems and networks of of significant changes in master plans.
approved master plans. Plans approved Sources of funding for all items for
by the division commander should each district and for the division
meet the following conditions: should be delineated so that total sys-
(A) The plan conforms to an approved tem expenditures and funding requests
master plan. are identified. Changes in the master
(B) The equipment is capable of func- plan submitted 1 February should be
tioning independently. documented in this letter summary if
(C) An evaluation of alternatives has the changes were approved.
been completed considering reliability, (7) Summary of runoff potentials in cur-
cost and other important factors. rent season (RCS DAEN-CWO–2). (i) The
(D) The plan is economically justi- Chief of Engineers and staff require in-
fied, except in special cases where legal formation to respond to inquiries from
requirements dictate performance members of Congress and others re-
standards which cannot be economi- garding runoff potentials. Therefore,
cally justified. the division commander will submit a
(v) Copies of plans approved by the snowmelt runoff and flood potential
division commander shall be forwarded letter report covering the snow accu-
to appropriate elements in OCE in sup- mulation and runoff period, beginning
port of funding requests and to obtain generally in February and continuing
approval of Automatic Data Processing monthly, until the potential no longer
Equipment (ADPE), when applicable. exist. Dispatch of supplemental reports
(vi) Water control data systems may will be determined by the urgencies of
be funded from Plant Revolving Fund; situations as they occur. The reports
O&M General; Flood Control, MR&T, will be forwarded as soon as hydrologic
and Construction, General. Funding for data are available, but not later than
water control equipment that serves the 10th of the month. For further in-
two or more projects will be from Plant formation on reporting refer to ER 500–
Revolving Fund in accordance with ER 1–1, 33 CFR part 203.
1125–2–301. District and division water (ii) During major drought situations
control managers will coordinate plant or low-flow conditions, narrative sum-
revolving fund requests with their re- maries of the situation should be fur-
spective Plant Replacement and Im- nished to alert the Chief of Engineers
provement Program (PRIP) representa- regarding the possibility of serious
tives following guidance provided in runoff deficiencies that are likely to
ER 1125–2–301. Budget funding requests call for actions associated with Corps
under the proper appropriation title of Engineers reservoirs.
211
§ 222.5 33 CFR Ch. II (7–1–20 Edition)
(iii) The reports referred to in para- (o) List of projects. Projects owned and
graphs (m)(7) (i) and (ii) of this section operated by the Corps of Engineers sub-
will include general summaries regard- ject to this regulation are listed with
ing the status of reservoir storage, ex- pertinent data in Appendix E. This list
isting and forecasted at the time of the will be updated periodically to include
reports. Corps projects completed in the future.
(8) Reports on project operations during Federal legislation, Federal regula-
flood emergencies. Information on tions and local agreements have given
project regulations to be included in the Corps of Engineers wide respon-
reports submitted to the Chief of Engi- sibilities for operating projects which
neers during flood emergencies in ac- it does not own. Non-Corps projects
cordance with ER 500–1–1 include rate subject to this regulation are included
of inflow and outflow in CFS, reservoir in Appendix A of ER 1110–2–241.
levels, predicted maximum level and
anticipated date, and percent of flood APPENDIX A TO § 222.5—REFERENCES
control storage utilized to date. Max-
1. The Federal Power Act, Pub. L. 436–83, ap-
imum use should be made of computer-
proved 10 June 1920, as amended (41 Stat.
ized communication facilities in re- 1063; 16 U.S.C. 791(a))
porting project status to DAEN-CWO- 2. Section 3 of the Flood Control Act ap-
E/CWE-HW in accordance with the re- proved 22 June 1936, as amended (49 Stat.
quirements of ER 500–1–1, 33 CFR part 1571; 33 U.S.C. 701(c))
203. 3. Section 9(b) of Reclamation Project Act of
1939, approved 4 August 1939 (53 Stat. 1187;
(9) Post-flood summaries of project regu-
43 U.S.C. 485)
lation. Project regulation effects in- 4. Section 7 of the Flood Control Act ap-
cluding evaluation of the stage reduc- proved 22 December 1944 (58 Stat. 890; 33
tions at key stations and estimates of U.S.C. 709)
damages prevented by projects will be 5. Section 5 of Small Reclamation Projects
included in the post flood reports re- Act of 6 August 1956, as amended (70 Stat.
quired by ER 500–1–1, 33 CFR part 203. 1046; 43 U.S.C. 422(e))
6. Section 9 of Pub. L. 436–83d Congress (68
(n) Water Control Management Boards. Stat. 303)
(1) The Columbia River Treaty Perma- 7. The Fish and Wildlife Coordination Act of
nent Engineering Board was formed in 1958, Pub. L. 85–624
accordance with the Columbia River 8. The Federal Water Project Recreation Act
Treaty with Canada. This board, com- Uniform Policies, Pub. L. 89–72
posed of U.S. and Canadian members, 9. The National Environmental Policy Act of
1969, Pub. L. 91–190
oversees the implementation of the
10. The Clean Water Act of 1977, Pub. L. 95–
Treaty as carried out by the U.S. and 217
Canadian Entities. 11. Executive Order 12088, Federal Compli-
(2) The Mississippi River Water Con- ance with Pollution Control Standards, 13
trol Management Board was estab- October 1978
lished by ER 15–2–13. It consists of the 12. 33 CFR 208.10, Local flood protection
works; maintenance and operation of
Division Commanders from LMVD,
structures and facilities (9 FR 9999; 9 FR
MRD, NCD, ORD, and SWD with the 10203)
Director of Civil Works serving as 13. 33 CFR 208.11, Regulations for use of Stor-
chairman. The purposes of the Board age Allocated for Flood Control or Naviga-
are: tion and/or Project Operation at Reservoirs
(i) To provide oversight and guidance subject to Prescription of Rules and Regu-
during the development of basin-wide lations by the Secretary of the Army in
the Interest of Flood Control and Naviga-
management plans for Mississippi tion (43 FR 47184)
River Basin projects for which the US 14. AR 18–1
Army Corps of Engineers has oper- 15. ER 11–2–101
ation/regulation responsibilities. 16. ER 15–2–13
(ii) To serve as a forum for resolution 17. ER 500–1–1, 33 CFR part 203
of water control problems among US 18. ER 1110–2–241, 33 CFR part 208
19. ER 1110–2–1400
Army Corps of Engineers Divisions 20. ER 1110–2–1402
within the Mississippi River Basin
21. ER 1110–2–1941
when agreement is otherwise 22. ER 1125–2–301
unobtainable. 23. ER 1130–2–303
212
24. ER 1130–2–334 control or navigation as part of the cost of
25. ER 1130–2–415 new projects or supplemental works; and
26. ER 1130–2–417 that in connection therewith he shall con-
27. ER 1130–2–419 sult with the Chief of Engineers and may
28. EM 1110–2–3600 perform any necessary investigations under
a cooperative agreement with the Secretary
of the Army. These projects are subject to 33
APPENDIX B TO § 222.5—SUMMARY OF CORPS OF CFR 208.11 regulations.
ENGINEERS RESPONSIBILITIES FOR PRE- 4. Several dams have been constructed by
SCRIBING REGULATIONS FOR NON-CORPS RES- State agencies under provisions of legisla-
ERVOIR PROJECTS tive acts wherein the Secretary of the Army
is directed to prescribe rules and regulations
Summary for project operation in the interest of flood
1. (a) ‘‘Regulations for Use of Storage Allo- control and navigation. These projects are
cated for Flood Control or Navigation and/or subject to 33 CFR 208.11 regulations.
Project Operation at Reservoirs subject to 5. There are few dams constructed under
Prescription of Rules and Regulations by the Emergency Conservation work authority or
Secretary of the Army in the Interest of similar programs, where the Corps of Engi-
Flood Control and Navigation’’ (33 CFR neers has performed major repairs or reha-
208.11) prescribe the responsibilities and gen- bilitation, that are operated and maintained
eral procedures for regulating reservoir by local agencies which are subject to 33
projects capable of regulation for flood con- CFR 208.11 regulations.
trol or navigation and the use of storage al- 6. The Federal Power Act, approved 10
located for such purposes and provided on June 1920, as amended (41 Stat. 1063, 16 U.S.C.
the basis of flood control and navigation, ex- 791 (A)), established the Federal Power Com-
cept projects owned and operated by the mission, now Federal Energy Regulatory
Corps of Engineers; the International Bound- Commission (FERC), with authority to issue
ary and Water Commission, United States licenses for constructing, operating, and
and Mexico; and those under the jurisdiction maintaining dams or other project works for
of the International Joint Commission, the development of navigation, for utiliza-
United States and Canada, and the Columbia tion of water power and for other beneficial
River Treaty. public uses in any streams over which Con-
(b) Pertinent information on projects for gress has jurisdiction. The Chief of Engineers
which regulations are prescribed under Sec- is called upon for advice and assistance as
tion 7 of the 1944 Flood Control Act, (Pub. L. needed in formulating reservoir regulation
78–58 Stat. 890 (33 U.S.C. 709)) the Federal requirements somewhat as follows:
Power Act (41 Stat. 1063 (16 U.S.C. 791(A))) a. In response to requests from the FERC,
and Section 9 of Pub. L. 436–83d Congress (68 opinions and technical appraisals are fur-
Stat. 303) is published in the FEDERAL REG- nished by the Corps of Engineers for consid-
ISTER in accordance with 33 CFR 208.11. eration prior to issuance of licenses by the
Publication in the FEDERAL REGISTER es- FERC. Such assistance may be limited to
tablishes the fact and the date of a project’s general presentations, or may include rel-
regulation plan promulgation. atively detailed proposals for water control
2. Section 7 of Act of Congress approved 22 plans, depending upon the nature and scope
December 1944 (58 Stat. 890; 33 U.S.C. 709), of projects under consideration. The infor-
reads as follows: mation furnished is subject to such consider-
‘‘Hereafter, it shall be the duty of the Sec- ation and use as the Chairman, FERC, deems
retary of War to prescribe regulations for the appropriate. This may result in inclusion of
use of storage allocated for flood control or simple provisions in licenses without elabo-
navigation at all reservoirs constructed ration, or relatively detailed requirements
wholly or in part with Federal funds pro- for reservoir regulation schedules and plans.
vided on the basis of such purposes, and the b. Some special acts of Congress provide
operation of any such project shall be in ac- for construction of dams and reservoirs by
cordance with such regulations: Provided, non-Federal agencies or private firms under
That this section shall not apply to the Ten- licenses issued by the FERC, subject to stip-
nessee Valley Authority, except that in case ulation that the operation and maintenance
of danger from floods on the Lower Ohio and of the dams shall be subject to reasonable
Mississippi Rivers the Tennessee Valley Au- rules and regulations of the Secretary of the
thority is directed to regulate the release of Army in the interest of flood control and
water from the Tennessee River into the navigation. Ordinarily no Federal funds are
Ohio River in accordance with such instruc- involved, thus Section 7 of the 1944 Flood
tions as may be issued by the War Depart- Control Act does not apply. However, if
ment.’’ issuance of regulations by the Secretary of
3. Section 9(b) of the Reclamation Project the Army is required by the authority under
Act of 1939, approved 4 August 1939 (53 Stat. which flood control or navigation provisions
1189, 43 U.S.C. 485), provides that the Sec- are included as functions of the specific
retary of the Interior may allocate to flood project or otherwise specified in the FERC
213
§ 222.5 33 CFR Ch. II (7–1–20 Edition)
license, regulation plans will be prescribed in b. Background information on the project
accordance with 33 CFR 208.11 regulations. and conditions requiring flood control or
7. Projects constructed by the Corps of En- navigation services, and other relevant fac-
gineers for local flood protection purposes tors, are assembled by the District Engineer
are subject to conditions of local cooperation and incorporated in a ‘‘Preliminary Informa-
as provided in Section 3 of the Flood Control tion Report’’. The Preliminary Information
Act approved 22 June 1936, as amended. One Report will be submitted to the Division En-
of those conditions is that a responsible local gineer for review and approval. Normally,
agency will maintain and operate all works the agency having jurisdiction over the par-
after completion in accordance with regula- ticular project is expected to furnish infor-
tions prescribed by the Secretary of the mation on project features, the basis for
Army. Most such projects consist mainly of storage allocations and any other available
levees and flood walls with appurtenant data pertinent to the studies. The Corps of
drainage structures. Regulations for oper- Engineers supplements this information as
ation and maintenance of these projects has required.
c. Studies required to develop reservoir
been prescribed by the Secretary of the
regulation schedules and plans usually will
Army in 33 CFR 208.10. When a reservoir is
be conducted by Corps of Engineers per-
included in such a project, it may be appro-
sonnel at District level, except where the
priate to apply 33 CFR 208.10 in establishing
project regulation affects flows in more than
regulations for operation, without requiring one district, in which case the studies will be
their publication in the FEDERAL REGISTER. conducted by or under supervision of Divi-
For example, if the reservoir controls a sion personnel. Assistance as may be avail-
small drainage area, has an uncontrolled able from the project operating agency or
flood control outlet with automatic oper- others concerned will be solicited.
ation or contains less than 12,500 acre-feet of d. When necessary agreements are reached
flood control or navigation storage, 33 CFR at district level, and regulations developed
208.10 may be suitable. However, 33 CFR in accordance with 33 CFR 208.11 and EM
208.11 regulations normally would be applica- 1110–2–3600, they will be submitted to the Di-
ble in prescribing flood control regulations vision Commander for review and approval,
for the individual reservoir, if the project with information copies for DAEN-CWE-HW.
has a gated flood control outlet by which the Usually the regulations include diagrams of
local agency can regulate floods. operating parameters.
8. Regulation plans for projects owned by e. For projects owned by the Bureau of
the Corps of Engineers are not prescribed in Reclamation, the respective Regional Direc-
accordance with 33 CFR 208.11. However, reg- tors are designated as duly authorized rep-
ulation plans for projects constructed by the resentatives of the Commissioner of Rec-
Corps of Engineers and turned over to other lamation. By letter of 20 October 1976, the
agencies or local interests for operation may Commissioner delegated responsibilities to
be prescribed in accordance with 33 CFR the Regional Directors as follows: ‘‘Regard-
208.11. ing the designated authorization of rep-
9. The Small Reclamation Projects Act of resentatives of the Commissioner of Rec-
6 August 1956 provides that the Secretary of lamation in matters relating to the develop-
the Interior may make loans or grants to ment and processing of Section 7 flood con-
local agencies for the construction of rec- trol regulations, we are designating each Re-
lamation projects. Section 5 of the Act pro- gional Director as our duly authorized rep-
vides in part that the contract covering any resentative to sign all letters of under-
such grant shall set forth that operation be standing, water control agreements, water
in accordance with regulations prescribed by control diagrams, water control release
the head of the Federal department or agen- schedules and other documents which may
cy primarily concerned. Normally, 33 CFR become part of the prescribed regulations.
208.11 is not applicable to these projects. The Regional Director also will be respon-
sible for obtaining the signature of the des-
ignated operating agency on these docu-
APPENDIX C TO § 222.5—PROCEDURES FOR DE- ments where such is required. Regarding in-
VELOPING AND PROCESSING REGULATIONS ternal coordination within the Bureau of
FOR NON-CORPS PROJECTS IN CONFORMANCE Reclamation, the Regional Directors will ob-
WITH 33 CFR 208.11 tain the review and approval of this office
and at appropriate offices with our Engineer-
1. Sequence of actions. a. Discussions leading and Research Center, Denver, Colorado,
ing to a clarification of conditions governing prior to signing water control documents.’’
allocations of storage capacity to flood con- f. In accordance with the delegation cited
trol or navigation purposes and project regu- in paragraph e, 33 CFR 208.11 regulations per-
lation are initiated by District/Division En- taining to Bureau of Reclamation projects
gineers through contacts with owners and/or will be processed as follows:

operating agencies concerned at regional (1) After regulation documents submitted
level. by District Commanders are reviewed and
214
approved by the Division Commander they ordination required between the Corps of En-
are transmitted to the respective Regional gineers and the operating agency will be ac-
Director of the Bureau of Reclamation for complished at field level.
concurrence of comment, with a request that h. Upon completion of actions listed above,
tracings of regulation diagrams be signed Division Commanders are responsible for in-
and returned to the Division Commander. forming the operating agencies at field level
(2) If any questions arise at this stage ap- that regulations have been promulgated.
propriate actions are taken to resolve dif- 2. Signature blocks: Some 33 CFR 208.11 reg-
ferences. Otherwise, the duplicate tracings of ulations contain diagrams of parameter
the regulation diagram are signed by the Di- curves that cannot be published in the FED-
vision Commander and transmitted to the of- ERAL REGISTER, but are made a part thereof
fice of the project owner for filing.
by appropriate reference. Each diagram
(3) After full agreement has been reached
bears a title block with spaces for the signa-
in steps (1) and (2), the text of proposed regu-
ture of authenticating officials of the Corps
lations is prepared in final form. Copies of
of Engineers and the owner/operating agency
any diagrams involved are included for infor-
of the project involved.
mation only.
(4) A letter announcing completion of ac- 3. Designation of Corps of Engineers Rep-
tion on processing the regulations, with per- resentatives. Division Commanders are des-
tinent project data as specified in paragraph ignated representatives of the Chief of Engi-
208.11(d)(11) of 33 CFR 208.11, and one copy of neers in matters relating to development and
the signed tracings of diagrams are for- processing of 33 CFR 208.11 regulations for
warded to HQDA (DAEN-CWE-HW) WASH DC eventual promulgation through publication
20314 for promulgation and filing. The office of selected data specified in paragraph (d)(11)
of the Chief of Engineers will forward the § 208.11. Division Commanders are designated
pertinent project data to the Liaison Officer as the Corps of Engineers signee on all let-
with the Federal Register, requesting publi- ters of understanding, water control agree-
cation in the FEDERAL REGISTER. ments and other documents which may be-
g. Regulations developed in accordance come part of prescribed regulations for
with 33 CFR 208.11 and applicable to projects projects located in their respective geo-
that are not under supervision of the Bureau graphic areas, and which are subject to the
of Reclamation are processed in substan- provisions of 33 CFR 208.11.
tially the manner described above. All co-
APPENDIX D TO § 222.5—SAMPLE TABULATION
Bardwell Lake, Monthly Lake Report, May 1975
Elevations 0800: Storage Evap Pump Release Inflow Rain,

Day 2,400 feet-MSL 2400 A-F DSF DSF DSF adj. DSF inch
1 ...................................................................... 421.30 421.31 55979 28 2.0 0 84 0.00

2 ...................................................................... 421.32 421.37 56196 5 2.0 0 117 .00
3 ...................................................................... 421.43 421.44 56449 23 1.9 0 152 .14
4 ...................................................................... 421.45 421.47 56558 1 1.8 0 58 .00
5 ...................................................................... 421.49 421.34 56088 1 2.0 324 50 .00
6 ...................................................................... 421.20 421.01 54902 14 1.9 632 50 .00
7 ...................................................................... 420.88 420.89 54473 4 2.0 269 59 .09
8 ...................................................................... 420.89 420.91 54544 5 2.3 0 44 .00
9 ...................................................................... 420.90 420.89 54473 11 1.5 0 38 .00
10 .................................................................... 420.90 420.90 54509 28 3.0 0 27 .00
11 .................................................................... 420.91 421.35 56124 26 1.8 0 824 .00
12 .................................................................... 421.54 421.65 57213 31 2.1 0 582 1.61
13 .................................................................... 421.70 421.75 57578 29 2.2 0 216 .00
14 .................................................................... 421.78 421.76 57614 34 1.9 249 303 .03
15 .................................................................... 421.69 421.52 56739 22 1.9 643 225 .57
16 .................................................................... 421.39 421.28 55871 39 2.1 535 138 .00
17 .................................................................... 421.19 421.09 55188 10 2.2 393 119 .00
18 .................................................................... 421.03 421.05 55045 46 2.0 143 60 .00
19 .................................................................... 421.04 421.07 55116 17 2.3 0 55 .00
20 .................................................................... 421.06 421.30 55943 21 2.1 0 440 .21
21 .................................................................... 421.39 421.47 56558 20 2.1 0 332 .97
22 .................................................................... 421.50 421.39 56268 42 2.1 247 145 .00
23 .................................................................... 421.37 424.91 69726 31 2.0 328 7146 .22
24 .................................................................... 425.61 426.15 74825 22 2.0 0 2595 2.38
25 .................................................................... 426.15 426.55 76523 18 2.3 0 876 .11
26 .................................................................... 426.72 426.80 77598 42 2.1 0 586 .00
27 .................................................................... 426.95 427.00 78465 23 2.0 0 462 .00
28 .................................................................... 427.14 427.15 79116 31 2.1 0 361 .19
29 .................................................................... 427.31 427.70 81528 61 1.9 0 1279 .20

30 .................................................................... 427.94 428.05 83082 11 2.0 0 796 1.02
31 .................................................................... 428.20 428.22 83837 7 2.1 0 389 .00
215
§ 222.5 33 CFR Ch. II (7–1–20 Edition)
APPENDIX D TO § 222.5—SAMPLE TABULATION—Continued

Bardwell Lake, Monthly Lake Report, May 1975
Elevations 0800: Storage Evap Pump Release Inflow Rain,

Day 2,400 feet-MSL 2400 A-F DSF DSF DSF adj. DSF inch
Monthly total:
(DSF) ....................................................... ............................ ................ 700 64 3763 18626 7.74
(A-F) ......................................................... ............................ 27966 1389 126 7464 36945 ............
APPENDIX E TO § 222.5—LIST OF PROJECTS

Storage
State/coun- Project M.S.L.
Project name 1 Stream 1 1,000 Auth legis 3
ty purpose 2 AF Upper Lower
Upper Lower
Lower Mississippi Valley Division
Alligator—Cat- MS Little Sun- F ............... 0.0 0.0 0.0 0 0 FCA Jun 36.
fish FG. Issaque- flower.
na.
Arkabutla Lk ... MS Desoto Coldwater .... F ............... 525.0 238.3 209.3 33,400 5,100 FCA Jun 36.
Ascalmore— MS Ascalmore ... F ............... 0.0 136.0 118.0 0 0 FCA Jun 36.
Tippo FG & Tallahat-
CS. chie.
Bienvenue FG LA St Ber- Bayou F ............... 0.0 2.0 2.0 0 0 PL 298–89
nard. Bienvenue.
Big Lk Ditch AR Mis- Ditch 81 Ex- C .............. 0.0 0.0 230.0 0 0 FCA Oct 65.
#81 CS. sissippi. tension..
Big Lk Div CS AR Mis- Little R ......... C .............. 0.0 0.0 230.0 0 0 FCA Oct 65.
sissippi.
Big Lk North AR Mis- Little R ......... C .............. 0.0 0.0 230.0 0 0 FCA Oct 65.
End CS. sissippi.
Big Lk South AR Mis- Ditch 28 ....... C .............. 0.0 0.0 230.0 0 0 FCA Oct 65.
end CS. sissippi.
Birds Point— MO New Mississippi ... F ............... 0.0 330.5 328.5 131,000 71,000 FCA May 28.
New Madrid Madrid.
Div
Floodway.
Bodcau Lk ...... LA Bossier Bayou F ............... 35.3 199.5 157.0 21,000 110 PL 74–839.
Bodcau.
Bonnet Carre LA St Mississippi R F ............... 0.0 24.0 20.0 0 0 FCA May 28.
Div Spillway. Charles.
Bowman Lock LA GIWW ......... I ................ 0.0 1.2 1.2 0 0 PL 79–14.
Vermilion.
Caddo Lk ........ LA Caddo Cypress N .............. 128.6 182.7 168.5 59,000 26,800 FCA Oct 65.
Bayou.
Cairo 10th & IL Pulaski Ohio ............ F ............... 0.0 310.5 299.0 0 0 PL 90–483.
20th St PS.
Calcasieu SW LA Calcasieu R I ................ 0.0 1.2 1.2 0 0 RHA Oct 62.
Barrier & Calcasie- PL 79–525.
Lock. u.
Calion L&D ..... AR Union Ouachita ...... N .............. 0.0 77.0 77.0 12,200 12,200 RHA 1950.
Calument FG LA St Mary Wax Lake FN ............ 0.0 3.0 3.0 0 0 FCA Jun 36.
East & West. Outlet
Bayou
Teche.
Cannon Re-reg MO Ralls .. Salt R .......... PCA .......... 5.8 528.0 521.0 1,020 460 HD 507.
Carlyle Lk ....... IL Clinton .. Kaskaskia R F ............... 699.0 462.5 445.0 50,440 24,580 SD 44.
NMCAR .... 233.0 445.0 429.5 0 7,100
Catahoula Lk LA LaSalle Catahoula CR ............ 118.0 34.0 27.0 25,000 94 RHA 1960.
CS. Div.
Catfish Point LA Cam- Mermentau FN ............ 0.0 1.2 1.2 0 0 FCA Aug 41,
CS. eron. R. RHA Jul 64.
Charenton FG LA St Mary Grand Lk ..... FN ............ 0.0 0.0 0.0 0 0 RHA Jul 46,
FCA May
28.
Cocodrie FG LA Bayou F ............... 0.0 46.0 13.0 0 0 FCA Aug 41.
FG. Concori- Cocodrie.
da.
Collins Cr ........ MS Warren Collins Cr .... F ............... 0.0 84.0 67.0 0 0 FCA 1941.
Columbia L&D LA Ouachita ...... N .............. 0.0 52.0 52.0 7,070 7,070 RHA 1950.
Caldwell.
Connerly CS ... AR Chicot Connerly FCR .......... 0.0 116.0 106.0 0 0 FCA Aug 68.
Bayou.
216
APPENDIX E TO § 222.5—LIST OF PROJECTS—Continued

Storage
Upper Lower
Courtableau LA St Bayou F ............... 0.0 18.0 16.0 0 0 FCA May 28,

Drainage CS. Landry. Courtable- PL 391–70.
au.
Darbonne CS .. LA St. Bayou FI .............. 0.0 18.0 16.0 0 0 FCA May 28,
Landry. Darbonne. PL 391–70.
DeGray LK ...... AR Desoto Caddo ......... FNPMRA .. 881.9 423.0 345.0 23,800 6,400 RHA 1950,
WSA 1958.
DeGray Rereg. AR Clark .. Caddo ......... NMRA ...... 3.6 221.0 209.0 430 90 RHA 1950.
St. WSA 1958.
Ditch Bayou AR Chicot Ditch Bayou FCR .......... 0.0 106.0 93.0 0 0 FCA Aug 68.
Dam.
Drainage Dist AR Mis- Ditch 71 ....... F ............... 3.0 236.0 228.0 4,100 0 FCA Aug 68,
#17 PS. sissippi. PL 90–483.
Drinkwater PS MO Mis- Drinkwater F ............... 20.6 315.0 307.0 4,000 700 FCA May 50,
sissippi. Sewer. PL 516.
Dupre FG ........ LA St Ber- Bayou Dupre F ............... 0.0 2.0 2.0 0 0 PL 298–89.
nard.
East St Louis IL St. Clair IDD .............. F ............... 0.0 0.0 0.0 0 0 FC Act 36.
PS.
Empire FG LA Plaque Mississippi R F ............... 0.0 5.0 5.0 0 0 PL 874–87.
Hurr Prot & mines.
Lock.
Enid Lk ........... MS Yacona ........ F ............... 660.0 268.0 230.0 28,000 6,100 FCA Jun 36.
Yalobus-
ha.
Felsenthal L&D AR Union Ouachita ...... N .............. 32.5 70.0 65.0 46,500 17,500 RHA 1950.
Finley Street TN Dyer ... Forked Deer F ............... 0.5 269.0 257.0 94 22 FCA 1948, PL
PS. 85–500.
Freshwater LA Freshwater I ................ 0.0 0.0 0.0 0 0 PL 86–645.
Lock. Vermilion. Bayou.
NI.
Graham Burke AR Phillips White ........... F ............... 2,805.0 174.8 140.0 149,000 2,500 FCA May 28,
PS. PL 85–500.
Grenada Lk ..... MS Gre- Yalobusha F ............... 1,357.4 231.0 193.0 64,600 9,800 FCA Jun 36.
nada. Skuna.
Huxtable PS ... AR Lee ..... St Francis .... F ............... 2,863.0 207.2 165.0 18,500 1,400 FCA May 50.
Jonesville L&D LA Black ........... N .............. 0.0 34.0 34.0 7,120 7,120 RHA 1950.
Catahou-
la.
Kaskaskia L&D IL Ran- Kaskaskia R N .............. 1.1 368.0 363.0 1,300 1,200 SD 44.
dolph.
L&D 1 ............. LA Red R .......... N .............. 0.0 40.0 40.0 0 0 PL 90–483.
Catahula.
L&D 2 ............. LA Red R .......... N .............. 0.0 71.2 64.0 0 0 PL 90–483.
Rapides.
L&D 3 ............. LA Red R .......... N .............. 0.0 95.0 91.5 0 0 PL 90–483.
Rapides.
L&D 4 ............. LA Red R .......... N .............. 0.0 120.0 119.6 0 0 PL 90–483.
Natchito-
ches.
L&D 5 ............. LA Red R Red R .......... N .............. 0.0 145.0 140.2 0 0 PL 90–483.
L&D 24 ........... MO Pike ... Mississippi R N .............. 29.7 449.0 445.0 13,000 12,000 R&H Act, Jul
3/30.
R&H Act, Aug
30/35.
L&D 25 ........... MO Lincoln Mississippi R N .............. 49.7 434.0 429.7 18,000 16,600 R&H Act, Jul
3/30.
R&H Act, 8/30/
35.
L&D 26 ........... IL Madison Mississippi R N .............. 107.1 419.0 414.0 30,000 27,700 R&H Act, Jul
3/30.
R&H Act, 8/30/
1935.
Larose to Gold- LA Bayou F ............... 0.0 3.0 3.0 0 0 FCA Oct 65,
en Meadow LaFourc- LaFourche. PL 89–298.
Hurr Prot FG. he.
Little Sun flow- MS Lit. Sun- F ............... 0.0 85.0 60.0 0 0 FCA 1941.
er CS. Issaque- flower.
na.
217
§ 222.5 33 CFR Ch. II (7–1–20 Edition)

Storage
Upper Lower
Lk #9 Culvert & KY Fulton Mississippi ... F ............... 6.5 286.0 282.0 0 0 FCA Oct 65.
PS.
Lk Chicot PS .. AR Chicot Macon Lk .... FCR .......... 0.0 118.2 90.0 0 0 FCA Aug 68.
Lk Greeson ..... AR Pike .... Little Mis- P ............... 0.0 563.0 436.9 0 0 FCA 1941.
souri.
FP ............ 407.9 563.0 504.0 9,800 2,500
Lk Ouachita .... AR Gar- Ouachita ...... P ............... 0.0 592.0 480.0 0 0 FCA Dec 44.
land.
Long Branch LA Catahoula F ............... 0.0 32.5 32.5 0 0 FCA May 50.
DS. Catahou- Div.
la.
Mark Twain Lk MO Ralls .. Salt R .......... F ............... 894.0 638.0 606.0 38,400 18,600 HD 507.
PMCAR .... 457.0 606.0 567.2 18,600 5,900
Marked Tree AR St. Francis ... F ............... 0.0 229.0 198.3 0 0 FCA Jun 30.
Siphon. Poinsett.
Morganza Div LA Point Morganza F ............... 0.0 59.5 49.0 0 0 FCA May 28.
CS. Coupee. Floodway.
Muddy Bayou MS Warren Muddy FC ............ 30.0 76.9 70.0 4,350 2,860 FCA Oct 65.
CS. Bayou.
Old River Div LA W. Old R ........... F ............... 0.0 70.0 5.0 0 0 PL 83–780.
CS Low Sill Feliciana.
Overbank &
Aux.
Old River Lock LA W Old R ........... N .............. 0.0 65.4 10.0 0 0 FCA Sep 54,
Feliciana. PL 780–83.
Port Allen Lock LA Port GIWW ......... N .............. 0.0 46.1 2.6 0 0 RHA Jul 46.
Allen.
Prairie Dupont IL St Clair IDD .............. F ............... 0.0 0.0 0.0 0 0 FC Act 62.
East & West
PS.
Rapides-Boeuf LA Bayou F ............... 0.0 66.0 62.2 0 0 FCA Aug 41,
Div Canal Rapides. Rapides. GD 359–77.
CS.
Rend Lk .......... IL Franklin Big Muddy R F ............... 109.0 405.0 410.0 24,800 18,900 HD 541.
MA ............ 160.0 405.0 391.3 18,900 5,400
Sardis Lk ........ MS Panola Little Sun- F ............... 1,569.9 281.4 236.0 58,500 10,700 FCA Jun 36.
flower.
Schooner LA Schooner I ................ 0.0 1.2 1.2 0 0 FCA Aug 41.
Bayou CS & Vermilion. Bayou.
Lock.
Shelbyville Lk IL Shelby .. Kaskaskia R F ............... 474.0 626.5 599.7 25,300 11,100 HD 232.
NMCAR .... 180.0 599.7 573.0 11,100 3,000
Sorrell Lock .... LA Iberville GIWW ......... N .............. 0.0 29.7 3.5 0 0 FCA May 28.
St Francis Lk AR Oak Donnick C .............. 0.0 0.0 210.0 0 2,240 FCA Oct 65.
CS. Poinsett. Floodway.
Steele Bayou MS Steele Bayou F ............... 0.0 68.5 60.0 0 0 FCA 1941.
CS. Issaque-
na.
Tchula Lk MS Hum- Tchula Lk .... F ............... 0.0 110.0 84.0 0 0 FCA Jun 36.
Lower FG. phreys.
Tchula Lk MS Hum- Tchula Lk .... F ............... 0.0 108.0 92.0 0 0 FCA Jun 36.
Upper FG. phreys.
Teche- LA St Mary Atchafalaya MI ............. 0.1 18.0 16.0 0 0 PL 89–789,
Vermilion PS R. FCA May
& CS. 28.
Tensas- LA Bayou F ............... 0.0 37.0 23.0 0 0 FCA Oct 65.
Cocodrie PS. Cocordia. Corcodrie.
Treasure Island MO Little R ......... F ............... 23.4 252.0 235.0 7,800 180 FCA Jul 46.
PS. Dunklin.
Wallace Lk ...... LA Caddo Cypress F ............... 96.1 158.0 142.0 9,300 2,300 RHA Mar 45,
Bayou. PL 75–761.
Wappapello Lk MO Wayne St Francis R F ............... 613.2 394.7 354.7 23,200 5,200 HD 159.
Wasp Lk ......... MS Hum- Wasp Lk- F ............... 0.0 111.6 88.5 0 0 FCA Jun 36.
phreys. Bear Cr.
West Hickman KY Fulton Mississippi ... F ............... 0.0 302.0 296.0 9 4 FCA 1948.
PS.
Wood R PS .... IL Madison IDD .............. F ............... 0.0 0.0 0.0 0 0 FC Act 38.
Yazoo City PS MS Yazoo Yazoo .......... F ............... 0.0 96.0 69.0 0 0 FCA Jun 36.
218

Storage
Upper Lower
Missouri River Division
Bear Creek CO Jeffer- Bear Cr ....... F ............... 28.8 5,635.5 5,558.0 718 109 PL 90–483.
Dam & Res. son.
FCR .......... 1.9 5,558.0 5,528.0 109 17 SD 87–90.
Big Bend Dam SD Lyman Missouri R ... F ............... 61.0 1,423.0 1,422.0 61,000 60,000 PL 78–534.
& Lk Sharpe. Buffalo
Hughes.
FNPIMCA- 117.0 1,422.0 1,420.0 60,000 57,000 SD 247–78.
R.
Blue Springs MO Jack- Little Blue R F ............... 15.8 820.0 802.0 982 722 PL 90–483.
Dam & Lk. son.
FRC .......... 10.8 802.0 760.0 722 0 HD 169–90.
Blue Stem NE Lan- Olive Br. Salt F ............... 7.2 1,322.5 1,307.4 660 315 PL 85–500.
Lake & Dam caster. Creek.
4.
FCR .......... 3.0 1,307.4 1,277.0 315 1 HD 396–84.
Bowman-Haley ND Bow- No Fk Grand F ............... 72.7 2,777.0 2,754.8 5,131 1,732 PL 87–874.
Dam & Res. man. River.
FMCR ....... 15.5 2,754.8 2,740.0 1,732 565 HD 574–87.
Branched Oak NE Lan- Oak Creek F ............... 71.6 1,311.0 1,284.0 3,640 1,780 PL 85–500.
Lk & Dam 18. caster. trib. Salt
Creek.
FCR .......... 26.0 1,284.0 1,250.0 1,780 0 HD 396–84.
Bull Hook Dam MT Hill ...... Bull Hook Cr F ............... 6.5 2,593.0 2,540.0 283 0 PL 78–534.
Scott Cou-
lee.
Cedar Canyon SD Pen- Deadman’s F ............... 0.1 3,545.0 3,526.0 11 2 PL 80–858.
Dam. nington. Gulch.
Chatfield Dam CO Doug- S Platte ....... F ............... 204.7 5,500.0 5,432.0 4,742 1,412 PL 81–516.
& Res. las.
FQ ............ 26.7 5,432.0 5,385.0 1,412 12 HD 669–80.
Cherry Cr Dam CO Cherry Cr .... F ............... 80.0 5,598.0 5,550.0 2,637 852 PL 77–228.
& Res. Araphah-
oe.
FR ............ 14.0 5,550.0 5,504.0 852 0 HD 426–76,
PL 78–534.
Clinton Dam & KS Doug- Wakarusa R F ............... 267.8 903.4 875.5 12,891 7,006 PL 87–874.
Lk. las.
FMCAR .... 129.2 875.5 820.0 7,006 0 SD 122–87.
Cold Brook SD Fall Cold Brook .. F ............... 6.7 3,651.4 3,585.0 198 36 PL 77–228.
Dam & Res. River.
FR ............ 0.5 3,585.0 3,548.0 36 0 HD 655–76.
Conestoga NE Lan- Holmes Cr F ............... 8.0 1,252.0 1,232.9 620 230 PL 85–500.
Lake & Dam caster. Trib to Salt
12. Cr.
FCR .......... 2.6 1,232.9 1,197.0 230 1 HD 396–84.
Cottonwood SD Fall Cottonwood F ............... 7.7 3,936.0 3,875.0 214 44 PL 77–228.
Springs Dam River. Springs Cr.
& Res.
FR ............ 0.2 3,875.0 3,868.0 44 30 HD 655–76.
Fort Peck Dam MT Valley, Missouri R ... F ............... 977.0 2,250.0 2,246.0 249,000 240,000 PL 73–409.
& Res. Mc Cone
Garfield.
FNPIMCA- 13,649.0 2,246.0 2,160.0 240,000 92,000 PL 75–529,
R. HD 238–73.
PL 78–534, SD
247–78.
Fort Randall SD Greg- Missouri R ... F ............... 985.0 1,375.0 1,365.0 102,000 95,000 PL 78–534.
Dam, Lk ory
Francis Case. Charles.
FNPIMCA- 3,021.0 1,365.0 1,320.0 95,000 41,000 SD 247–78.
R.
Garrison Dam, ND Mercer Missouri R ... F ............... 1,494.0 1,854.0 1,850.0 382,000 365,000 PL 78–534.
Lk McLean.
Sakakawea.
FNPIMCA- 17,440.0 1,850.0 1,775.0 365,000 129,000 SD 247–78.
R.
219
§ 222.5 33 CFR Ch. II (7–1–20 Edition)
Storage
Upper Lower
Gavins Point SD Missouri R ... F ............... 61.0 1,210.0 1,208.0 32,000 29,000 PL 78–534.
Dam, Lewis Yankton.
& Clark Lk.
NE Knox ... FNPIMCA- 95.0 1,208.0 1,204.5 29,000 25,000 SD 247–78.
R.
Glenn NE Doug- Little Papil- F ............... 14.0 1,142.0 1,121.0 922 392 PL 90–483.
Cunningham las. lion Cr.
Lk, Dam 11.
FRCA ....... 3.9 1,121.0 1,085.0 392 0 HD 349–90.
Harlan County NE Harlan Republican F ............... 498.0 1,973.5 1,946.0 23,064 13,249 PL 77–228.
Lk. R.
FI .............. 342.6 1,946.0 1,875.0 13,249 0 HD 892–76,
PL–78–534.
Harry S Tru- MO Benton Osage R ...... F ............... 4,005.9 739.6 706.0 209,300 55,600 PL 83–780.
man Dam &
Res.
FPCR ....... 1,203.4 706.0 635.0 55,600 0 HD 549–81,
PL 87–874.
HD 578–87.
Hillsdale Lk ..... KS Miami Big Bull Cr ... F ............... 83.6 931.0 917.0 7,410 4,580 PL 83–780.
FNMCAR .. 76.3 917.0 852.4 4,580 0 HD 642–81.
Holmes Park NE Lan- Antelope Cr F ............... 5.7 1,266.0 1,242.4 410 100 PL 85–500.
Lk & Dam 17. caster. Trib to Salt
Cr.
FCR .......... 0.8 1,242.4 1,218.0 100 3 HD 396–84.
Kanopolis Lk ... KS Ells- Smoky Hill R F ............... 370.0 1,508.0 1,463.0 13,999 3,560 PL 75–761.
worth.
FI .............. 55.8 1,463.0 1,425.0 3,560 0 PL 78–534,
HD 842–76.
Kelly Road CO Westerly Cr F ............... 0.3 5,362.0 5,342.0 38 0 PL 80–858, PL
Dam. Araphoe. 84–99.
Long Branch MO Ran- Little East Fk F ............... 30.4 801.0 791.1 3,670 2,429 PL 89–298.
Lk. dolph. Chariton R.
FCAR ....... 34.6 791.0 751.1 2,429 0 HD 238–89.
Longview Lk ... MO Jack- Little Blue R F ............... 24.8 909.0 891.0 1,960 930 PL 90–483.
son.
FCAR ....... 22.1 891.0 810.0 930 0 HD 169–90.
Melvern Lk ...... KS Osage Marais des F ............... 208.4 1,057.0 1,036.0 13,948 6,928 PL 83–780.
Cygnes R.
FNMCAR .. 154.4 1,036.0 960.0 6,928 0 PL 75–761,
HD 549–81.
Milford Lk ........ KS Geary Republican F ............... 756.7 1,176.2 1,144.4 27,255 17,270 PL 83–780.
R.
FCA .......... 388.8 1,144.4 1,080.0 15,709 0 HD 642–81,
PL 75–761.
Oahe Dam & ND 4 Missouri R ... F ............... 1,097.0 1,620.0 1,617.0 373,000 359,000 PL 78–534.
Lk. Counties.
SD 8 FNPIMCA- 16,789.0 1,617.0 1,540.0 359,000 117,000 SD 247–78.
Counties. R.
Olive Cr Lk & NE Lan- Olive Br of F ............... 4.0 1,350.0 1,335.0 355 174 HD 396–84.
Dam 2. caster. Salt Cr.
FCR .......... 1.5 1,335.0 1,314.0 174 4 PL 85–500.
Papio Dam NE Doug- Boxelder Cr F ............... 7.1 1,128.2 1,110.0 595 255 PL 90–483.
Site #18 & las. Papio Cr.
Lk.
FCAR ....... 3.4 1,110.0 1,060.5 255 0 HD 349–90.
Papio Dam NE Sarpy Trib South F ............... 6.1 1,113.1 1,096.0 493 246 PL 90–483.
Site #20 & Branch
Lk. Papio.
FCAR ....... 2.7 1,096.0 1,069.0 246 10 HD 349–90.
Pawnee Lk & NE Lan- No. Middle F ............... 21.0 1,263.5 1,244.3 1,470 728 PL 85–500.
Dam 14. caster. Cr of Salt
Cr.
FCR .......... 8.5 1,244.3 1,206.0 728 1 HD 396–84.
Perry Lk .......... KS Jeffer- Delaware R F ............... 521.9 920.6 891.5 25,342 12,202 PL 83–780.
son.
FN ............ 243.2 891.5 825.0 122 0 HD 642–81.
Pipestem Dam ND Pipestem Cr F ............... 137.0 1,496.3 1,442.4 4,754 885 PL 89–298.
& Res. Stutsma-
n.
220

Storage
Upper Lower
FRC .......... 9.6 1,442.4 1,415.0 885 62 HD 266–89.

Pomme De MO Polk ... Pomme De F ............... 407.2 874.0 839.0 15,980 7,890 PL 75–761.
Terre Lk. Terre R.
FNPCAR .. 241.6 839.0 750.0 7,890 0 HD 549–81,
PL 83–780.
Pomona Lk ..... KS Osage 110 Mile Cr F ............... 176.8 1,003.0 974.0 8,520 400 PL 83–780.
FNMAR .... 70.6 974.0 912.0 4,000 0 HD 549–81.
Rathbun Lk ..... IA Chariton R ... F ............... 346.3 926.0 904.0 20,948 11,013 PL 83–780.
Appano-
ose.
FNM ......... 205.4 904.0 844.0 11,013 0 HD 561–81.
Smithville Lk ... MO Clay ... Little Platte F ............... 101.8 876.2 864.2 9,995 7,192 PL 89–298.
R.
FMCAR .... 144.6 864.2 799.0 7,192 0 HD 262–89.
Spring Gulch CO Doug- Spring Gulch F ............... 1.8 5,600.00 5,535.0 88 0 PL 81–516,
Imbankment. las. HD 669–80.
Stagecoach Lk NE Lan- Hickman Br F ............... 4.7 1,285.0 1,271.1 490 196 PL 85–500.
& Dam 9. caster. of Salt Cr.
FRC .......... 1.9 1,271.1 1,246.0 196 0 HD 396–84.
Standing Bear NE Doug- Trib Big Pa- F ............... 3.7 1,121.0 1,104.0 302 137 PL 90–483.
Lk & Dam 16. las. pillion Cr.
FRC .......... 1.5 1,104.0 1,060.0 137 0 HD 349–90.
Stockton Lk ..... MO Cedar Sac R .......... F ............... 779.6 892.0 867.0 38,288 24,777 PL 83–780.
FARPN ..... 887.1 867.0 760.0 24,777 0 HD 549–89.
Tuttle Creek Lk KS Riley ... Big Blue R ... F ............... 1,937.4 1,136.0 1,075.0 54,179 14,875 PL 75–761.
FN ............ 177.1 1,075.0 1,061.0 14,875 0 HD 842–76.
Twin Lakes & NE Seward Middle Cr F ............... 5.3 1,355.0 1,341.0 505 255 PL 85–500.
Dam 13. Salt Cr.
CFR .......... 2.8 1,341.0 1,306.0 255 1 HD 396–84.
Wagon Train NE Lan- Hickman Br F ............... 6.8 1,302.0 1,287.8 660 303 PL 85–500.
Lk & Dam 8. caster. of Salt Cr.
FCR .......... 2.5 1,287.8 1,260.0 303 4 HD 396–84.
Wehrspann Lk NE Sarpy Trib South F ............... 6.1 1,113.1 1,096.0 493 246 PL 90–483.
& Dam 20. Branch
Papio.
FCAR ....... 2.7 1,096.0 1,069.0 246 10 HD 349–90.
Wilson Lk ........ KS Russell Saline R ...... F ............... 530.7 1,554.0 1,516.0 19,980 9,040 PL 78–534.
FRC .......... 247.8 1,516.0 1,440.0 9,040 0 SD 191–78,
SD 247–78.
Yankee Hill Lk NE Lan- Cardwell Br F ............... 5.6 1,262.0 1,244.9 475 208 PL 85–500.
& Dam 10. caster. of Salt Cr.
FCR .......... 2.0 1,244.9 1,218.0 208 0 HD 396–84.
North Atlantic Division
Almond Lake .. NY Steu- Canacadea F ............... 14.6 1,300.0 1,255.0 489 124 PL 74–738.
ben. Cr.
Alvin R. Bush PA Clinton Kettle Cr ...... F ............... 73.4 937.0 840.0 1,430 160 FCA Sep 54.
Dam.
Arkport Dam ... NY Steu- Canisteo R .. F ............... 8.0 1,304.0 1,218.0 192 0 PL 74–738.
ben.
Aylesworth Cr PA Lacka- Aylesworth F ............... 1.7 1,150.0 1,108.0 87 7 PL 87–874.
Lk. wanna. Cr.
Beltzville Dam PA Car- Pohopoco Cr F ............... 27.0 651.0 628.0 1,411 947 PL 87–874.
& Lk. bon,
Monroe.
FMA ......... 39.8 628.0 537.0 947 113
Bloomington Lk MD Garret North Branch F ............... 36.2 1,500.0 1,466.0 1,184 952 PL 87–874.
Potomac R.
FMA ......... 92.0 1,466.0 1,255.0 952 42
Blue Marsh PA Leb- Tulpehocken F ............... 27.1 307.0 290.0 2,159 1,147 PL 87–874.
Dam & Lk. anon CR.
Berks.
FMA ......... 19.9 290.0 261.0 1,147 323
Cowanesque PA Tioga .. Cowanesque F ............... 82.0 1,117.0 1,045.0 2,060 410 PL 85–500.
Lk. R.
Curwensville PA West Branch F ............... 114.7 1,228.0 1,162.0 3,020 790 FCA Sep 54.
Lk. Clearfiel- Susque-
d. hanna R.
221
§ 222.5 33 CFR Ch. II (7–1–20 Edition)
Storage
Upper Lower
East Sidney Lk NY Dela- Ouleout Cr .. F ............... 30.2 1,203.0 1,150.0 1,100 210 PL 74–738.
ware.
Foster Joseph PA Centre Bald Eagle F ............... 70.2 657.0 630.0 3,450 1,730 FCA Sept 54.
Sayers Dam. Cr.
Francis E. Wal- PA Car- Lehigh R ..... F ............... 107.8 1,450.0 1,300.0 1,830 80 PL 79–526.
ter Dam & bon,
Res. Luzerne,
Monroe.
Gathright Dam VA Jackson R ... F ............... 79.9 1,610.0 1,582.0 3,160 2,530 PL 79–526.
& Lk Allegha-
Moomaw. ny, Bath.
AR ............ 60.7 1,582.0 1,554.0 2,530 1,780
General Edgar PA Wayne Dyberry Cr .. F ............... 24.5 1,053.0 973.0 659 0 PL 80–858.
Jadwin Dam.
Prompton Dam PA Wayne W Br F ............... 48.5 1,205.0 1,125.0 910 290 PL 80–858.
& Res. Lackawax-
en R.
Raystown Lk ... PA Hun- Raystown Br F ............... 248.0 812.0 786.0 10,800 8,300 PL 87–874.
tingdon.
FR ............ 514.0 786.0 622.8 8,300 150
Stillwater Lk .... PA Sus- Lackawanna F ............... 11.6 1,621.0 1,572.0 422 83 PL 77–228.
quehan- R.
na.
Tioga-Ham- PA Tioga .. Crooked Cr F ............... 54.2 1,131.0 1,086.0 1,770 680 PL 85–500.
mond Lakes
Hammond.
Tioga-Ham- PA Tioga .. Tioga R ....... F ............... 52.5 1,131.0 1,081.0 1,630 470 PL 85–500.
mond Lakes
Tioga.
Whitney Piont NY Otselic R ..... F ............... 66.5 1,010.0 973.0 3,340 1,200 PL 74–738.
Lk. Broome.
York Indian PA York .... Codorus Cr F ............... 28.0 435.0 370.0 1,430 0 PL 74–738.
Rock Dam.
North Central Division
Badhill Dam & ND Barnes Sheyenne R FM ............ 68.6 1,266.0 1,257.2 5,430 4,430 FCA Dec 44.
Res.
Brandon Road IL Will ....... Illinois R ...... N .............. 8.0 539.0 538.0 300 250 PL 71–126.
L&D.
Cedars L&D .... WI Fox R .......... N .............. 1.8 703.6 698.7 255 140 RHA of 1882,
Outaga- 1885.
mie.
Coralville Dam IA Johnson Iowa R ......... F ............... 439.0 712.0 680.0 24,800 3,580 PL 75–761.
& Res.
C .............. 40.3 680.0 652.0 3,580 0 PL 75–761.
Depree L&D .... WI Brown Fox R .......... N .............. 9.4 591.0 586.7 926 0 PL 71–126.
Dresden Island IL Grundy Illinois R ...... N .............. 1.0 505.0 504.0 1,690 1,550 FCA 1958.
L&D.
Eau Galle Dam WI Pierce Eau Galle R FCR .......... 1.6 940.0 938.5 1,500 1,350 PL 78–534.
& Res.
Farmdale Dam IL Tazwell Farm Cr ....... F ............... 11.3 616.0 551.0 385 0 PL 78–534.
Fondulac Dam IL Tazwell Fondulac Cr F ............... 2.3 579.0 530.0 97 0 PL 78–534.
Gull Lk Dam & MN Cass .. Gull R .......... N .............. 70.4 1,194.0 1,192.7 13,100 12,700 RHA 1899.
Res.
Highway 75 MN Minnesota R FC ............ 11.1 952.3 947.3 2,790 910 FCA Oct 65.
Dam & Res. Bigstone,
Lacqui,
Parle.
Homme Dam & ND Walsh Park R ......... FM ............ 3.7 1,080.0 1,074.0 190 176 FCA of 22 Dec
Res. 44.
L&D 1 ............. MN Hen- Mississippi R N .............. 13.0 725.1 722.8 5,800 5,500 RHA 1910.
nepin,
Ramsey.
L&D 2 ............. MN Da- Mississippi R N .............. 8.0 687.2 686.5 11,810 11,000 RHA 1927.
kota,
Wash.
L&D 3 ............. MN Good- Mississippi R N .............. 17.8 675.0 674.0 17,950 17,650 RHA 1930.
hue,
Pierce.
222
Storage
Upper Lower
L&D 4 ............. WI Mississippi R N .............. 18.0 667.0 666.5 38,820 36,600 RHA 1930.
Wabash-
a, Buf-
falo.
L&D 5 ............. MN Wi- Mississippi R N .............. 6.2 660.0 659.5 12,680 12,000 RHA 1930.
nona,
Buffalo.
L&D 5A ........... MN Wi- Mississippi R N .............. 7.2 651.0 650.0 7,500 7,000 RHA 1930.
nona,
Buffalo.
nona.
nona.
WI La- .............
Crosse.
L&D 8 ............. MN Hous- Mississippi R N .............. 20.4 631.0 630.0 20,800 20,000 RHA 1930.
ton.
WI Vernon .............
L&D 9 ............. WI Mississippi R N .............. 28.7 620.0 619.0 29,125 28,300 RHA 1930.
Crawford.
IA .............
Allamak-
ee.
L&D 10 ........... IA Clayton Mississippi R N .............. 16.8 611.0 610.0 17,070 16,500 RHA 1930.
WI Grant .. .............
L&D 11 ........... IA Du- Mississippi R N .............. 19.1 603.1 602.0 21,100 20,000 PL 71–520.
buque.
L&D 12 ........... IA Jackson Mississippi R N .............. 12.2 592.1 591.0 13,000 12,400 PL 71–520.
L&D 13 ........... IL Mississippi R N .............. 24.2 583.1 582.0 30,000 28,500 PL 71–520.
Whitesid-
e.
L&D 14 ........... IA Scott .... Mississippi R N .............. 9.0 572.1 571.0 10,500 9,980 PL 71–520.
L&D 15 ........... IL Rock Is- Mississippi R N .............. 5.5 561.1 559.0 3,725 3,540 PL 71–520.
land.
L&D 16 ........... IL Rock Is- Mississippi R N .............. 12.1 545.1 544.0 13,000 12,400 PL 71–520.
land.
L&D 17 ........... IL Mercer .. Mississippi R N .............. 7.5 537.1 536.0 7,580 7,200 PL 71–520.
L&D 18 ........... IL Hender- Mississippi R N .............. 11.0 529.1 528.0 13,300 12,600 PL 71–520.
son.
L&D 19 ........... IA Lake ..... Mississippi R N .............. 55.0 518.2 517.2 33,500 31,800 PL 71–520.
L&D 20 ........... MO Lewis Mississippi R N .............. 5.8 481.5 476.5 7,960 7,550 PL 71–520.
L&D 21 ........... IL Adams .. Mississippi R N .............. 8.6 470.1 469.6 9,390 8,910 PL 71–520.
L&D 22 ........... MO Polke Mississippi R N .............. 8.4 459.6 459.1 8,660 8,230 PL 71–520.
Lac qui Parle MN Chip- Minnesota R FC ............ 119.3 941.1 931.2 13,500 6,400 FCA of 22 Jun
Dam & Res. pewa 36.
Swift.
Lagrange L&D IL Brown ... Illinois R ...... N .............. 0.0 429.0 429.0 10,500 10,500 PL 73–184.
Leech Lake MN Cass .. Leech R ...... N .............. 300.2 1,295.7 1,293.2 139,000 107,200 RHA of 1882
Dam & Res. 1895.
Little Kaukauna WI Brown Fox R .......... N .............. 3.6 601.0 592.8 447 42.0 RHA of 1882
L&D. 1885.
Little Chute WI Fox R .......... N .............. 0.4 694.2 688.9 74 67 RHA of 1882
L&D. Outaga- 1885.
mie.
Lockport Lock IL Will ....... Chicago San FNP .......... 2.7 579.0 577.5 1,850 1,800 RHA 1930.
Ship Canal.
Lower Appleton WI Fox R .......... N .............. 0.2 710.9 706.3 43 40 RHA of 1882
L&D. Outaga- 1895.
mie.
Marseilles Lk & IL LaSalle Illinois R ...... N .............. 0.7 483.0 482.8 1,400 1,320 PL 71–126.
Dam.
Marsh Lake MN Swift, Minnesota R FC ............ 23.9 941.1 937.6 8,650 5,150 FCA Jun 36.
Dam & Res. Lacqui,
Parle.
Menasha Dam WI Winne- Fox R .......... FN ............ 452.0 746.8 743.5 181,120 168,500
Lk Winne- bago.
bago.
Mount Morris NY Living- Genesee R .. F ............... 337.4 760.0 585.0 3,300 0 PL 74–738.
Dam. ston.
223
§ 222.5 33 CFR Ch. II (7–1–20 Edition)

Storage
Upper Lower
O’Brien L&D ... IL Cook .... Calumet ....... N .............. 0.3 581.9 578.2 50 50 RHA of 1946.
Peoria L&D ..... IL Peoria .. Illinois R ...... N .............. 0.0 440.0 440.0 27,800 27,800 PL 73–184.
Pine Dam & MN Crow Pine R ......... N .............. 40.4 1,230.3 1,227.3 13,900 13,000 RHA of 1899.
Res. Wing.
Pokegama MN Itasca Mississippi R N .............. 52.4 1,274.4 1,270.3 13,700 12,000 RHA of 1899.
Dam & Res.
Rapid Croche WI Fox R .......... N .............. 3.4 608.5 602.1 568 0 RHA 1885.
L&D. Outaga-
mie.
Red Lake Dam MN Clear- Red Lake R FA ............ 1,810.0 1,174.0 1,173.5 288,800 287,300 FCA Dec 44.
& Res. water.
Red Rock Dam IA Marion Des Monies F ............... 1,670.0 780.0 728.0 65,400 8,000 PL 75–761.
& Res. R.
R .............. 72.0 728.0 690.0 8,000 0 PL 75–761.
Reservation MN Tra- ................ FC ............ 58.8 981.0 976.0 12,400 10,950 FCA 1936.
Control Res. verse.
SD Rob-
erts.
Sandy Lake MN Aitkin Sandy R ...... N .............. 37.5 1,218.3 1,214.3 10,600 8,200 RHA of 1899.
Dam & Res.
Saylorville Dam IA Polk ..... Des Moines F ............... 586.0 890.0 836.0 16,700 5,950 FCA 1936.
& Res. R.
P ............... 90.0 836.0 810.0 5,950 0 FCA.
St Anthony MN Hen- Mississippi R N .............. 0.0 750.0 750.0 50 50 RHA of 1937
Falls Lwr nepin. 1945.
L&D.
St Anthony MN Hen- Mississippi R N .............. 17.4 801.0 799.0 8,800 8,600 RHA of 1937
Falls Upr nepin. 1945.
L&D.
Starved Rock IL LaSalle Illinois R ...... N .............. 1.0 459.0 458.0 1,155 1,020 PL 69–100.
L&D.
Upper Appleton WI Fox R .......... N .............. 7.4 738.7 735.4 1,171 1,040 RHA of 1882
L&D. Outaga- 1885.
mie.
Upper WI Fox R .......... N .............. 1.1 656.8 652.8 134 115 RHA of 1882
Kaukauna Outaga- 1885.
L&D. mie.
White Rock MN Tra- Bois De FC ............ 78.6 981.0 972.0 10,500 4,000 FCA 1936.
Dam & Res. verse. Souix.
SD Rob-
erts.
Winnibigoshish MN Cass Mississippi R N .............. 98.7 1,300.9 1,296.9 98,700 62,000 RHA of 1899.
Dam & Res. Itasca.
New England Division
Ball Mountain VT West R ........ F ............... 52.4 1,017.0 830.5 810 20 PL 78–534,
Lk. Windha- 83–780.
m.
Barre Falls MA Ware R ........ F ............... 24.0 807.0 761.0 1,400 0 PL 78–228.
Dam. Worces-
ter.
Birch Hill Dam MA Millers R ...... F ............... 49.9 852.0 815.0 3,200 0 PL 75–761.
Worces-
ter.
Black Rock Lk CT Branch F ............... 8.5 520.0 437.0 190 21 PL 86–45.
Litchfield. Brook.
Blackwater NH Blackwater R F ............... 46.0 566.0 515.0 3,280 0 PL 75–111.
Dam. Merrima-
ck.
Buffumville Lk MA Little R ......... F ............... 11.3 524.0 492.5 530 200 PL 77–228.
Worces-
ter.
Colebrook CT West Branch F ............... 50.2 761.0 708.0 1,185 750 PL 86–645.
River Lk. Litchfield.
MA Farmington
Bekshire. R.
Conant Brook MA Hamp- Conant F ............... 3.7 757.0 694.0 158 0 PL 86–645.
Dam. den. Brook.
224

Storage
Upper Lower
East Brimfield MA Hamp- Quinebaug R F ............... 29.9 653.0 632.0 2,300 360 PL 77–228.
Lk. den,
Worces-
ter.
Edward Mac- NH HIlls- Nubanusit F ............... 12.8 946.0 911.0 840 165 PL 75–111.
Dowell Lk. boro. Brook.
Everett Lk ....... NH Hills- Piscataquog F ............... 91.5 418.0 340.0 2,900 130 PL 75–761.
boro, R.
Merrima-
ck.
Franklin Falls NH Pemigewass- F ............... 150.6 389.0 307.0 2,800 440 PL 75–111.
Dam. Belknap, et R.
Merrima-
ck.
Hancock Brook CT Hancock F ............... 3.9 484.0 460.0 266 40 PL 86–645.
Lk. Litchfield. Brook.
Hodges Village MA French R ..... F ............... 13.3 501.0 465.5 740 0 PL 77–228.
Dam. Worces-
ter.
Hop Brook Lk CT New Hop Brook ... F ............... 6.9 364.0 310.0 270 21 PL 86–645.
Haven.
Hopkinton Lk .. NH Contoocook F ............... 70.1 416.0 380.0 3,700 220 PL 75–761.
Merrima- R.
ck.
Knightville Dam MA Hamp- Westfield R F ............... 49.0 610.0 480.0 960 0 PL 75–761.
shire.
Littleville Lk ..... MA Hamp- Middle Br, F ............... 23.0 576.0 518.0 510 275 PL 85–500.
den, Westfield
Hamp- R.
shire.
Mansfield Hol- CT Tolland Natchaug R F ............... 49.2 257.0 205.5 1,880 200 PL 77–228.
low Lk.
New Bedford- MA Bristol ..................... F ............... 0.0 0.0 0.0 0 0 PL 85–500.
Fairhaven
Hurr Barrier.
North Hartland VT Wind- Ottauquech- F ............... 68.8 546.5 425.0 1,100 215 PL 75–761.
Lk. sor. ee R.
North Spring- VT Wind- Black R ....... F ............... 50.0 545.5 467.0 1,200 100 PL 75–761.
field Lk. sor.
Northfield Br Lk CT Northfield Br F ............... 2.4 576.0 500.0 67 7 PL 86–645.
Litchfield.
Otter Br Lk ...... NH Chesh- Otter Brook F ............... 17.6 781.0 701.0 374 70 PL 83–780.
ire.
Stamford Hurr CT Fair- ..................... F ............... 0.0 0.0 0.0 0 0 PL 86–645.
Barrier. field.
Surry Mountain NH Chesh- Ashuelot R .. F ............... 31.7 550.0 500.0 970 260 PL 75–761.
Lk. ire.
Thomaston CT Naugatuck R F ............... 42.0 494.0 380.0 960 0 PL 78–534.
Dam. Litchfield.
Townshend Lk VT West R ........ F ............... 32.9 553.0 478.0 735 95 PL 78–534, PL
Windha- 83–780.
m.
Tully Lk ........... MA East Br Tully F ............... 20.5 668.0 636.0 1,130 78 PL 75–761.
Worces- R.
ter.
Union Village VT Orange Ompompan- F ............... 38.0 564.0 420.0 740 0 PL 74–738.
Dam. oosuc R.
West Hill Dam MA West R ........ F ............... 12.4 264.0 234.0 1,025 0 PL 78–534.
Worces-
ter.
West CT Quinebaug R F ............... 25.6 342.5 305.0 1,250 200 PL 86–645.
Thomspon. Windha-
m.
Westville Lake MA Quinebaug R F ............... 11.0 572.0 525.0 913 23 PL 77–228.
Worces-
ter.
225
§ 222.5 33 CFR Ch. II (7–1–20 Edition)

Storage
Upper Lower
North Pacific Division
Albeni Falls ID Bonner Pend Oreille FNP .......... 1,155.0 2,062.5 2,049.7 95,000 86,000 PL 81–516.
Dam, Lk R.
Pend, Oreille.
Applegate Lk .. OR Jack- Applegate R FIR ........... 75.2 1,987.0 1,854.0 988 221 FCA 1962, PL
son. 87–874, PL
87–874.
Big Cliff Dam .. OR Marion, N Santiam R P ............... 3.5 1,206.0 1,182.0 130 98 HD 544, PL
Linn. 75–761, PL
87–874.
Blue River Lk .. OR Lane .. Blue R ......... F ............... 6.5 1,357.0 1,350.0 975 940 HD 531.
FNI ........... 78.8 1,350.0 1,180.0 940 133 PL 81–516.
Bonneville L&D WA Columbia R NP ............ 138.0 77.0 70.0 20,800 19,850 RHA 1935.
Lk. Skaman-
ia.
Chena River AK North Chena R ...... F ............... 34.0 506.7 490.0 5,400 400 PL 90–483.
Lakes. Star
Burough.
Chief Joseph WA Doug- Columbia R P ............... 192.3 956.0 930.0 8,400 6,800 HD 693, PL
Dam Rufus las, 79–525.
Woods Lk. Okanog-
an.
Cottage Grove OR Lane .. Coast Fk, F ............... 29.8 791.0 750.0 1,155 295 HD 544, PL
Lk. Willamete 75–761.
R.
Cougar Lk ....... OR Lane .. South Fk ..... F ............... 11.3 1,699.0 1,690.0 1,280 1,235 HD 531.
FNPI ......... 143.9 1,690.0 1,532.0 1,235 635 PL 81–516.
P ............... 9.9 1,532.0 1,516.0 635 602 PL 83–870.
Detroit Lk ........ OR Marion North F ............... 19.1 1,569.0 1,563.0 3,490 3,455 HD 544, PL
Santiam. 75–761.
FNPI ......... 281.6 1,563.5 1,450.0 3,455 1,725
P ............... 40.3 1,450.0 1,425.0 1,725 1,415
Dexter Dam .... OR Lane .. Middle Fk, FNPI ......... 4.8 695.0 690.0 990 940 HD 544, PL
Willamette 75–761.
R.
Dorena Lk ....... OR Lane .. Cow R ......... F ............... 5.5 835.0 832.0 1,885 1,815 HD 544.
FNI ........... 65.0 832.0 770.5 1,815 520 PL 75–761.
Dworshak Dam ID Clear- North Fk, FNP .......... 2,016.0 1,600.0 1,445.0 17,090 9,050 HD 403, PL
and Res. water. Clearwater 87–874.
R.
Fall Cr Dam OR Lane .. Fall Cr ......... F ............... 7.5 834.0 830.0 1,865 1,760 HD 531.
and Lk.
FNI ........... 107.5 830.0 728.0 1,760 460 PL 81–516
Fern Ridge Lk OR Lane .. Long Tom R F ............... 15.7 375.1 373.5 10,305 9,340 HD 544.
FNI ........... 93.9 373.5 353.0 9,340 1,515 PL 75–761
Foster Lake .... OR Linn .... South F ............... 4.9 641.0 637.0 1,260 1,195 HD 544
Santiam R.
FNPI ......... 24.9 637.0 613.0 1,195 895 PL 86–645
Green Peter Lk OR Linn .... Middle Fk, F ............... 18.3 1,015.0 1,010.0 3,705 3,605 HD 531.
Santiam R.
FNPI ......... 249.9 1,010.0 992.0 3,605 2,072 PL 81–516, PL
83–780.
Hills Creek Lk OR Lane .. Middle Fk, F ............... 5.6 1,543.0 1,541.0 2,850 2,710 HD 531.
Willamette
R.
FNPI ......... 194.6 1,541.0 1,448.0 2,710 1,575 PL 81–516.
Howard Han- WA King ... Green R ...... F ............... 80.0 1,206.0 1,141.0 1,750 763 HD 531.
son Dam.
FA ............ 25.6 1,141.0 1,040.0 763 13 PL 81–516.
Ice Harbor WA Walla, Snake R ...... NP ............ 24.9 440.0 437.0 8,370 8,210 HD 704, PL
Dam Lk Walla, 79–14.
Sacajawea. Franklin.
John Day Dam OR Sher- Columbia R F ............... 158.0 268.0 265.0 55,000 52,000 HD 531.
Lk Umatilla. man.
FNP .......... 150.0 265.0 262.0 52,000 49,000 PL 81–516.
F ............... 192.0 262.0 257.0 49,000 42,000

Libby Dam Lk MT Lincoln Kootenai R .. FP ............ 4,979.5 2,459.0 2,287.0 46,365 14,391 HD 531, PL
Koocanusa. 81–516.
226
Storage
Upper Lower
Little Goose WA Colum- Snake R ...... PN ............ 49.0 638.0 633.0 10,030 9,620 HD 704, PL
L&D Lk bia, 79–14.
Bryan. Whitman.
Lookout Point OR Lane .. Middle Fk, P ............... 12.2 825.0 819.0 2,090 1,860 HD 544.
Lk. Willamette
R.
FNPI ......... 324.2 926.0 825.0 4,255 2,090 PL 75–761.
Lost Creek Lk OR Jack- Rogue R ...... FPIR ......... 315.0 1,872.0 1,751.0 3,430 1,800 HD 566, PL
son. 87–874.
Lower Granite WA Gar- Snake R ...... NPI ........... 43.6 738.0 733.0 8,900 8,540 HD 704, PL
L&D. field, 79–14.
Whitman.
Lucky Peak ID Ada ...... Boise R ....... F ............... 13.9 3,060.0 3,055.0 2,817 2,745 PL 79–526.
Dam and Lk.
FI .............. 264.4 3,055.0 2,905.0 2,817 802
Lwr Monu- WA Walla, Snake R ...... NP ............ 20.0 540.0 537.0 6,700 6,550 HD 704, PL
mental L&D Walla, 79–14.
Lk HG West. Franklin.
McNary L&D, WA Benton Columbia R NP ............ 185.0 340.0 335.0 38,800 36,000 HD 704, PL
Dam Lk 79–14.
Wallula.
OR ..................... .................. .............. .............. .............. .............. ..............
Umatilla.
Mill Creek Dam WA Walla, Mill Cr .......... F ............... 7.5 1,265.0 1,205.0 225 53 HD 578, PL
Lk. Walla. 75–761.
Mud Mountain WA King, White R ....... F ............... 106.3 1,215.0 895.0 963 0 PL 74–738.
Dam. Pierce.
The Dalles WA Columbia R NP ............ 52.5 160.0 155.0 11,200 10,350 HD 531, PL
L&D Lk Klickitat. 81–516.
Celilo.
OR Wasco ..................... .................. .............. .............. .............. .............. ..............
Willow Creek OR Morrow Willow Cr ..... F ............... 11.6 2,113.5 2,047.0 269 96 PL 89–298.
Lk.
Wynoochee WA Grays, Wynoochee FMCA ....... 65.4 800.0 700.0 1,170 193 HD 601, PL
Dam and Lk. Harbor. R. 93–251.
Ohio River Division
Allegheny L&D PA Alle- Allegheny R N .............. 0.0 721.0 710.0 0 0 RHA 1935.
2. gheny.
3. gheny.
4. gheny
West-
moreland.
Allegheny L&D PA Arm- Allegheny R N .............. 0.0 756.8 745.0 0 0 RHA 1912
5. strong.
Allegheny L&D PA Arm- Allegheny R N .............. 0.0 769.0 756.8 0 0 RHA 1912.
6. strong.
7. strong.
Allegheny L&D PA Arm- Allegheny R N .............. 0.0 800.0 782.1 0 0 RHA 1912,
8. strong. 1935.
9. strong.
Allegheny Res PA Warren Allegheny R F ............... 607.0 1,365.0 1,328.0 21,180 12,080 PL 74–738.
Kinzua Dam.
FPCAR ..... 549.0 1,328.0 1,240.0 12,080 1,900
Alum Cr Lk ..... OH Dela- Alum Cr ....... F ............... 53.1 901.0 888.0 4,852 3,387 PL 87–874.
ware.
FMCR ....... 79.2 888.0 885.0 3,387 3,105
Atwood Lk ....... OH Indian Fk Cr F ............... 26.1 941.0 928.0 2,460 1,540 PW 1933.
Tuscara-
was.
FCR .......... 7.6 928.0 922.5 1,540 1,250
Barkley Dam Ky Lyon, Cumberland F ............... 1,213.0 375.0 359.0 93,430 57,920 PL 79–525.
Lk Barkley. Livgst. R.
FP ............ 259.0 359.0 354.0 57,920 45,210
N .............. 610.0 354.0 233.0 45,210 0
227
§ 222.5 33 CFR Ch. II (7–1–20 Edition)

Storage
Upper Lower
Barren River KY Allen, Barren R ..... F ............... 558.8 590.0 552.0 20,150 10,000 PL 75–261.
Lk. Barren.
FMR ......... 190.3 552.0 525.0 10,000 4,340
Beach City Lk OH Sugar Cr ..... F ............... 69.9 976.5 948.0 6,150 420 PW 1933.
Tuscara-
was.
FCR .......... 0.0 0.0 0.0 0 420
Beech Fk Lk ... WV Wayne Beech Fk Cr F ............... 28.3 614.5 592.0 1,847 725 PL 87–874.
FCR .......... 5.0 592.0 583.5 725 460
Belleville L&D WV Wood Ohio R ......... N .............. 0.0 582.0 560.0 0 0 RHA 1909.
OH Meigs ..................... .................. .............. .............. .............. .............. ..............
Berlin Lk ......... OH Mahoning R F ............... 38.3 1,032.0 1,024.7 5,500 3,590 PL 75–761.
Mahonin-
g, Por-
tage.
FMCAR .... 56.6 1,024.7 1,016.5 3,590 2,200
Bluestone Lk ... WV Sum- New R ......... F ............... 592.6 1,520.0 1,410.0 9,180 2,040 PL 74–738.
mers.
FCR .......... 7.5 1,410.0 1,406.0 2,040 1,800 PL 75–761.
Bolivar Dam .... OH Stark, Sandy Cr ..... F ............... 149.6 962.0 895.0 6,500 0 PW 1933.
Tuscara-
was.
Brookville Lk ... IN Franklin E Fork of FMR ......... 128.4 748.0 713.0 5,260 2,430 PL 75–761.
Whitewater
R.
Buckhorn Lk ... KY Leslie .. Middle Fk of F ............... 135.8 840.0 782.0 3,610 1,230 PL 75–761.
Kentucky
R.
FR ............ 21.8 782.0 757.0 1,230 550
Burnsville Lk ... WV L Kanawha F ............... 51.5 825.0 789.0 1,902 965 PL 75–761.
Braxton. R.
FCAR ....... 10.2 789.0 776.0 965 553
CJ Brown Dam OH Clark .. Buck Cr ....... F ............... 26.8 1,023.0 1,012.0 2,720 2,120 PL 87–874.
& Res.
CM Harden Lk IN Parke ... Raccoon Cr F ............... 83.5 690.0 661.0 3,910 2,060 PL 75–761
FAR .......... 33.1 661.0 640.0 2,060 1,100
Caesar Cr Lk .. OH Warren Caesar Cr ... F ............... 140.2 883.0 849.0 6,110 2,830 PL 75–761.
FMAR ....... 88.7 849.0 800.0 2,830 700
Cagles Mill Lk IN Putman Mill Cr .......... F ............... 201.0 704.0 636.0 4,840 1,400 PL 75–761.
Cannelton L&D KY Han- Ohio R ......... N .............. 0.0 383.0 358.0 0 0 RHA 1909
cock.
IN Perry .... ..................... .................. .............. .............. .............. .............. ..............
Carr Fk Lk ...... KY Knott ... Carr Cr ........ F ............... 25.1 1,055.0 1027.0 1,120 710 PL 87–874.
FAR .......... 10.8 1,027.0 1009.0 710 530
Cave Run Lk .. KY Rowan Licking R ..... F ............... 391.5 765.0 730.0 14,870 8,270 PL 74–738
FAR .......... 75.3 730.0 720.0 8,270 6,790
Center Hill Lk .. TN Dekalb Caney FK .... F ............... 762.0 685.0 648.0 23,060 18,220 PL 75–761.
P ............... 492.0 648.0 618.0 18,220 14,590
Charles Mill Lk OH Ash- Black Fk ...... F ............... 80.6 1,020.0 997.0 6,050 1,350 PW 1933.
land.
FCR .......... 4.5 997.0 993.0 1,350 827
Cheatham L&D TN Cumberland P ............... 19.8 385.0 382.0 7,450 5,630 RHA 1946, PL
Cheatha- R. 396.
m.
N .............. 84.2 382.0 345.0 5,630 0 PL 396.
Clendening Lk OH Har- Brush Fk ..... F ............... 27.5 910.5 898.0 2,620 1,800 PW 1933.
rison.
FCR .......... 8.0 898.0 893.0 1,800 1,430
Conemaugh PA Indi- Conemaugh F ............... 270.0 975.0 880.0 6,820 300 PL 74–738, PL
River Lk. ana, R. 75–761.
West-
moreland.
Cordell Hull TN Smith .. Cumberland PR ............ 17.8 504.5 499.0 12,200 9,820 RHA 1946.
Dam & Res. R.
NR ............ 0.0 499.0 424.0 9,820 0
Crooked Cr Lk PA Arm- Crooked Cr F ............... 89.4 920.0 840.0 1,940 350 PL 74–738, PL
strong. 75–761.
Dale Hollow Lk TN Clay .... Obey R ........ F ............... 353.0 663.0 651.0 30,990 27,700 PL 75–761.
P ............... 496.0 651.0 631.0 27,700 21,880
228
Storage
Upper Lower
Dashields L&D PA Alle- Ohio R ......... N .............. 0.0 692.0 682.0 0 0 RHA 1909.
gheny.
Deer Cr Lk ...... OH Deer Cr ....... F ............... 81.5 844.0 810.0 4,046 1,277 PL 75–761.
Pickawa-
y.
FCR .......... 14.6 810.0 796.0 1,277 727
Delaware Lk ... OH Dela- Olentangy R F ............... 118.0 947.0 915.0 8,550 1,270 PL 75–761
ware.
FCAR ....... 5.6 915.0 910.0 1,270 950
Dewey Lk ........ KY Floyd .. Johns Cr ..... F ............... 76.1 686.0 650.0 3,340 1,100 PL 75–761
FCR .......... 4.9 650.0 645.0 1,100 880
Dillon Lk .......... OH Licking R ..... F ............... 256.5 790.0 737.0 10,280 1,560 PL 75–761.
Musking-
um.
FCR .......... 4.4 737.0 734.0 1,560 1,330
Dover Dam ..... OH Tuscarawas F ............... 203.0 916.0 858.0 10,100 0 PW 1933.
Tuscara- R.
was.
E Br Clarion PA Elk ...... E Br Clarion F ............... 19.0 1,685.0 1,670.0 1,370 1,160 PL 78–526.
River Lake. R.
FCAR ....... 19.8 1,670.0 1,651.0 1,160 920
E Fk Res Wm OH E Fk Little F ............... 202.2 795.0 733.0 4,600 2,160 PL 75–761.
H Harsha Lk. Clermont. Miami R.
FMCAR .... 73.6 733.0 683.0 2,160 820
East Lynn Lk .. WV Wayne E Fk F ............... 65.3 701.0 662.0 2,351 1,005 PL 75–761.
Twelvepol-
e.
FCR .......... 5.5 662.0 656.0 1,005 823
Emsworth L&D PA Alle- Ohio R ......... N .............. 0.0 710.0 692.0 0 0 RHA 1909.
gheny.
Fishtrap Lk ...... KY Pike .... Levisa Fk .... F ............... 126.7 825.0 757.0 2,681 1,131 PL 75–761.
FCAR ....... 27.2 757.0 725.0 1,131 569
Gallipolis L&D WV Mason Ohio R ......... N .............. 0.0 538.0 515.0 0 0 RHA 1935.
OH Gallia ..................... .................. .............. .............. .............. .............. ..............
Grayson Lk ..... KY Carter L Sandy R ... F ............... 89.6 681.0 645.0 3,633 1,509 PL 86–645.
FCAR ....... 10.7 645.0 637.0 1,509 1,159
Green R L&D 1 KY Hen- Green R ...... N .............. 0.0 349.1 337.3 0 0 RHA 1888.
derson.
Green R L&D 2 KY Green R ...... N .............. 0.0 363.4 349.1 0 0 RHA 1888.
McLean.
Green River Lk KY Taylor Green R ...... F ............... 479.1 713.0 675.0 19,100 8,210 PL 75–761.
FAR .......... 81.5 675.0 664.0 8,210 6,650
Greenup L&D KY Ohio R ......... N .............. 0.0 515.0 485.0 0 0 RHA 1909.
3. Greenup.
OH Scioto ..................... .................. .............. .............. .............. .............. ..............
Hannibal L&D WV Wetzel Ohio R ......... N .............. 0.0 623.0 602.0 0 0 RHA 1909.
OH Mon- ..................... .................. .............. .............. .............. .............. ..............
roe.
Hildebrand WV Monongahel- N .............. 0.0 835.0 814.0 0 0 RHA 1950.
L&D. Monong- a.
alia.
Huntington Lk IN Hunt ..... Wabash R ... F ............... 140.6 798.0 749.0 7,900 900 PL 85–500.
FR ............ 8.4 749.0 737.0 900 500
J Percy Priest TN David- Stones R ..... F ............... 252.0 504.5 490.5 22,720 14,400 PL 75–761.
Dam & Res. son.
FP ............ 15.0 490.5 489.5 14,400 14,000
FPR .......... 0.0 489.5 483.0 14,000 11,630
PR ............ 0.0 483.0 480.0 11,630 10,570
JW Flannagan VA Pound R ...... F ............... 78.6 1,446.0 1,396.0 2,098 1,143 PL 75–761.
Dam & Res. Dickens-
on.
FMCR ....... 16.5 1,396.0 1,380.0 1,143 310
Kentucky R KY Carroll Kentucky R N .............. 0.0 430.0 421.8 0 0 RHA 1879.
L&D 1.
Kentucky R KY Henry Kentucky R N .............. 0.0 444.0 430.0 0 0 RHA 1879.
L&D 2. Owen.
Kentucky R KY Henry Kentucky R N .............. 0.0 457.1 444.0 0 0 RHA 1879.
L&D 3. Owen.
Kentucky R KY Frank- Kentucky R N .............. 0.0 470.4 457.1 0 0 RHA 1879.
L&D 4. lin.
229
§ 222.5 33 CFR Ch. II (7–1–20 Edition)
Storage
Upper Lower
Laurel River Lk KY Laurel, Laurel R ...... P ............... 185.0 1,018.5 982.0 6,060 4,200 PL 86–645.
Whitley.
R .............. 250.6 982.0 760.0 4,200 0
Leesvillie Lake OH Carroll McGuire Cr. F ............... 17.9 977.5 963.0 1,470 1,000 PW 1933.
FCR .......... 5.5 963.0 957.0 1,000 829
London L&D ... WV Kanawha R N .............. 0.0 614.0 590.0 0 0 RHA 1930.
Kanawha.
Loyalhanna Lk PA West- Loyalhanna F ............... 93.3 975.0 910.0 3,280 210 PL 74–738.
moreland. Cr.
FC ............ 0.0 0.0 0.0 0 0 PL 75–761.
M J Kirwan OH Por- W. Br F ............... 22.0 993.0 985.5 3,240 2,650 PL–74–738
Dam & Res. tage. Mahoning
R.
FCAR ....... 52.9 985.5 951.0 2,650 570 PL 75–761.
Mahoning Cr PA Arm- Mahoning Cr F ............... 64.7 1,162.0 1,098.0 2,370 280 PL 74–738.
Lk. strong.
FRC .......... 5.1 1,098.0 1,075.0 280 170 PL 75–761.
Markland L&D IN Switzer- Ohio R ......... N .............. 0.0 455.0 420.0 0 0 RHA 1909
land.
KY Gallatin .............
Marmet L&D ... WV Kanawha ..... N .............. 0.0 590.0 566.0 0 0 RHA 1930.
Kanawha
R.
Martins Fk Lk .. KY Harlan Martins Fk of F ............... 14.3 1,341.0 1,310.0 578 340 PL 89–298.
Clover R.
FAR .......... 3.1 1,310.0 1,300.0 340 274
R .............. 3.7 1,300.0 1,265.0 274 0
Maxwell L&D .. PA Fayette Monongahel- N .............. 0.0 763.0 743.5 0 0 RHA 1909.
Wash- a R.
ington.
McAlpine L&D KY Jeffer- Ohio R ......... N .............. 0.0 420.0 383.0 0 0 RHA 1909.
son.
IN Clark .... .............
Meldahl L&D ... KY Ohio R ......... N .............. 0.0 485.0 455.0 0 0 RHA 1909.
Bracken.
OH .............
Clermont.
Mississinewa IN Miami ... MIssissinewa F ............... 293.2 779.0 737.0 12,830 3,180 PL 85–500.
Lk. R.
FR ............ 51.9 737.0 712.0 3,180 1,280 .
Mohawk Dam OH Walhonding F ............... 285.0 890.0 799.2 7,950 0 PW 1933.
Coshoct- R.
on.
Mohicanville OH Ash- Lk Fork ........ F ............... 102.0 963.0 932.0 8,800 0 PW 1933.
Dam. land.
Monongahela PA Alle- Monongahel- N .............. 0.0 718.7 710.0 0 0 RHA 1902.
R L&D 2. gheny. a R.
Monongahela PA Alle- Monongahel- N .............. 0.0 726.9 718.7 0 0 RHA 1905.
R L&D 3. gheny. a R.
Monongahela PA Wash- Monongahel- N .............. 0.0 743.5 726.9 0 0 RHA 1909.
R L&R 4. ington a R.
West-
moreland.
Monongahela PA Monongahel- N .............. 0.0 778.0 763.0 0 0 RHA 1922.
R L&D 7. Greene, a R.
Fayette.
Monongahela PA Monongahel- N .............. 0.0 797.0 778.0 0 0 RHA 1922,
R L&D 8. Greene, a R. 1950, 1973.
Fayette.
Monroe Lk ...... IN Monroe Salt Cr ......... F ............... 258.8 556.0 538.0 18,450 10,750 FCA 1958.
FMA ......... 159.9 538.0 515.0 10,750 3,280 .
Montgomery Is- PA Beaver Ohio R ......... N .............. 0.0 682.0 664.5 0 0 RHA 1909.
land L&D.
Morgantown WV N ................. 0.0 ............ 814.0 797.0 0 0 RHA
L&D. Monong- 1909.
alia
Monong-
ahela R.
Mosquito Cr Lk OH Trum- Mosquito Cr F ............... 21.7 904.0 901.4 8,900 7,850 PL 75–761.
bull.
230
Storage
Upper Lower
FMCAR .... 80.4 901.4 899.9 7,850 7,220

N Br Kokosing OH Knox .. North Br of F ............... 13.9 1,146.0 1,121.0 1,140 154 PL 87–874.
River Lk. Kokosing
R.
N Fk Pound Lk VA Wise ... N Fk Pound F ............... 8.0 1,644.0 1,611.0 349 154 PL 86–645.
R.
FMCR ....... 1.3 1,611.0 1,601.0 154 106 .
New Cum- WV Han- Ohio R ......... N .............. 0.0 664.5 644.0 0 0 RHA 1909.
berland L&D. cock.
OH Jeffer- .............
son.
Newburgh L&D KY Hen- Ohio R ......... N .............. 0.0 358.0 342.0 0 0 RHA 1909.
derson.
IN Warrick .............
Nolin Lk .......... KY Nolin R ........ F ............... 439.2 560.0 515.0 14,530 5,790 PL 75–761.
Edmons-
on.
FR ............ 106.4 515.0 490.0 5,790 2,890
Ohio R L&D 52 KY Ohio R ......... N .............. 0.0 302.0 290.0 0 0 RHA 1909,
McCrac- 1910, 1918.
ken.
IL Massac .............
Ohio R L&D 53 KY Ballard Ohio R ......... N .............. 0.0 290.0 276.6 0 0 RHA 1909,
1910, 1918.
IL Pulaski .............
Old Hickory TN David- Cumberland P ............... 63.0 445.0 442.0 22,500 19,550 RHA 1946.
L&D. son R.
Sumner.
N .............. 357.0 442.0 375.0 19,550 0
Opekiska L&D WV Monongahel- N .............. 0.0 857.0 835.0 0 0 RHA 1950.
Monong- a R.
ahela.
Paint Cr Lk ..... OH Ross, Paint Cr ....... F ............... 124.7 845.0 798.0 4,761 1,190 PL 75–761.
Highland.
FMCAR .... 11.4 798.0 787.5 1,190 770
Paintsville Lk .. KY John- Paint Cr ....... F ............... 32.8 731.0 709.0 1,867 1,139 PL 89–298.
son.
FCAR ....... 36.3 709.0 650.0 1,139 261
Patoka Lk ....... IN DuBois Patoka R ..... F ............... 121.1 548.0 536.0 11,300 8,880 PL 89–298.
FMCAR .... 167.3 536.0 506.0 8,880 2,010
Piedmont Lk ... OH Har- Stillwater Cr F ............... 32.2 924.6 913.0 3,170 2,310 PW 1933.
rison.
FCR .......... 8.6 913.0 909.0 2,310 1,987
Pike Island WV Ohio .. Ohio R ......... N .............. 0.0 644.0 623.0 0 0 RHA 1909.
L&D.
OH Bel- .............
mont.
Pleasant Hill Lk OH Ash- Clear Fk ...... F ............... 74.2 1,065.0 1,020.0 2,600 850 PW 1933.
land.
FCR .......... 5.5 1,020.0 1,012.5 850 627
R D Bailey Lk WV Mingo, Guyandot R F ............... 169.5 1,155.0 1,035.0 2,850 630 PL 87–874.
Wyoming.
FCAR ....... 12.2 1,035.0 1,012.0 630 440
Racine L&D .... WV Mason Ohio R ......... N .............. 0.0 560.0 538.0 0 0 RHA 1909.
OH Meigs .............
Rough River Lk Grayson, Rough R ...... F ............... 214.4 524.0 495.0 10,260 5,100 PL 75–761.
Breckin-
ridge.
Ridge ........ FMR ......... 90.2 495.0 470.0 5,100 2,180
Salamonie Lk .. IN Wabash Salamonie R F ............... 202.9 793.0 755.0 9,340 2,860 PL 85–500.
FR ............ 47.6 755.0 730.0 2,860 976
Senecaville Lk OH Guern- Seneca Fk ... F ............... 45.1 842.5 832.2 5,170 3,550 PW 1933.
sey.
FCR .......... 12.8 832.2 828.2 3,550 2,912
Shenango PA Mercer Shenango R F ............... 151.0 919.0 896.0 11,090 3,560 PL 75–761.
River Lk.
FCAR ....... 29.9 896.0 885.0 3,560 1,910
Smithland L&D KY Living- Ohio R ......... N .............. 0.0 324.0 302.0 0 0 RHA 1909.
ston.
IL Pope .... .............
231
§ 222.5 33 CFR Ch. II (7–1–20 Edition)
Storage
Upper Lower
Summersville WV Nich- Gauley R ..... F ............... 221.9 1,710.0 1,1652.0 4,913 2,790 PL 75–761.
Lk. olas.
FRCA ....... 161.8 1,652.0 1,535.0 2,790 514
Sutton Lk ........ WV Elk R ........... FCAR ....... 60.0 925.0 850.0 1,520 270 PL 75–761.
Braxton.
Tappan Lk ...... OH Har- L Stillwater F ............... 26.5 909.0 899.3 3,100 2,350 PW 1933.
rison. Cr.
FCR .......... 11.4 899.3 894.0 2,350 1,960
Tionesta Lk ..... PA Forest Tionesta Cr F ............... 125.6 1,170.0 1,085.0 2,770 480 PL 74–738. PL
75–761.
Tom Jenkins OH Athens E Br Sandy F ............... 17.6 740.0 721.0 1,192 664 FCA 1944.
Dam, Burr Cr.
Oak, Lk.
FRM ......... 5.8 721.0 710.0 664 394 PL 78–534.
Tygart Lake .... WV Taylor Tygart R ...... F ............... 178.1 1,167.0 1,094.0 3,430 1,740 PWA 1934.
FMACR .... 99.9 1,094.0 1,010.0 1,740 620
Union City Res PA Erie ..... French Cr .... F ............... 47.6 1,278.0 1,210.0 2,290 0 PL 87–874.
Uniontown L&D KY Union .. Ohio R ......... N .............. 0.0 342.0 324.0 0 0 RHA 1909.
IN Posey .. .............
W FK of Mill Cr OH Ham- W Fk Mill Cr F ............... 9.8 702.0 675.0 557 183 PL 79–526.
Winton ilton.
Woods Lk.
Willow Island WV Pleas- Ohio R ......... N .............. 0.0 602.0 582.0 0 0 RHA 1909.
L&D. ants.
OH Wash- .............
ington.
Wills Cr Lk ...... OH F ............... 190.0 779.0 742.0 11,450 900 PW 1933.
Coshoc-
kton
Wills Cr,
Musking-
um.
CR ............ 0.0 0.0 0.0 0 0
Winfield L&D ... WV Put- Kanawha R N .............. 0.0 566.0 538.0 0 0 RHA 1935.
nam.
Wolf Cr Dam, KY Russell Cumberland P ............... 2,142.0 723.0 673.0 50,250 35,820
Lk Cum- R.
berland.
F ............... 2,094.0 760.0 723.0 63,530 50,250 PL 75–761.
Woodcock Cr PA Woodcock F ............... 15.0 1,209.0 1,181.0 775 325 FCA 1962.
Lk. Crawford. Cr.
FCAR ....... 5.0 1,181.0 1,162.5 325 100
Youghiogheny PA Fayette Youghioghe- F ............... 99.5 1,470.0 1,439.0 3,570 2,840 FCA 1938.
R Lk. ny R.
FCAR ....... 149.3 1,439.0 1,419.0 2,840 2,300
South Atlantic Division
Aberdeen L&D MS Mon- Tombigbee N .............. 3.9 190.5 189.5 4,359 3,883 PL 79–525.
and Res. roe. R.
Aliceville Lock AL Pickens Tombigbee N .............. 7.6 136.5 135.5 8,655 7,945 PL 79–525.
Dam & Res. R.
Allatoona Dam GA Bartow Etowah R .... F ............... 302.6 860.0 840.0 19,201 11,862 PL 77–228.
& Res.
PMAR ....... 284.6 840.0 800.0 11,862 3,251
B Everett Jor- NC Chat- Haw R ......... F ............... 538.4 240.0 216.0 31,811 13,942 PL 88–253.
dan Dam & ham.
Lk.
FMCAR .... 140.4 216.0 202.0 13,942 6,658
Bay Springs MS Tombigbee N .............. 37.0 414.0 408.0 6,700 5,740 PL 79–525.
Lock Dam & Tishomi- R.
Res. ngo.
Buford Dam GA Chattahoo- F ............... 598.8 1,085.0 1,071.0 47,182 38,542 PL 79–14.
Lk, Sidney Forsyth, chee R. PNMR ...... 1,087.6 1,071.0 1,035.0 38,542 22,442
Lanier. Gwinnett.
Carters Dam & GA Murray Coosawattee F ............... 89.2 1,099.0 1,074.0 3,880 3,275 PL 79–14.
Res. R.
PRA .......... 41.4 1,074.0 1,022.0 3,275 2,196

Claiborne Lock AL Monroe Alabama R .. N .............. 16.6 35.0 32.0 5,930 5,210 PL 79–14.
Dam & Res.
232

Storage
Upper Lower
Clarks Hill Dam GA Colum- Savannah R F ............... 390.0 335.0 330.0 78,500 71,100 PL 78–534.
& Lk. bia.
SC McCor- ..................... FP ............ 1,045.0 330.0 312.0 71,100 45,000
mick.
Coffeeville AL Clark, Tombigbee N .............. 19.9 32.5 30.0 8,500 7,500 PL 60–317.
Lock Dam & Choctaw. R.
Res.
Columbus Lock MS Tombigbee N .............. 8.5 163.5 162.5 9,400 8,500 PL 79–525.
Dam & Res. Lowndes. R.
Demopolis AL Sumter, Tombigbee N .............. 0.0 73.0 73.0 10,000 10,000 PL 60–317.
Lock Dam & Marengo. R.
Res.
Falls Dam & Lk NC Wake Neuse R ...... F ............... 220.9 264.0 250.1 20,810 11,310 PL 89–298.
FMCAR .... 89.7 250.1 236.5 11,310 2,600
G W Andrews AL Hous- Chattahoo- N .............. 8.2 102.0 96.0 1,540 1,190 PL 79–14.
L&D and ton. chee R.
Res.
GA Early .. ..................... .................. .............. .............. .............. .............. ..............
Gainesville AL Sumter, Tombigbee N .............. 5.8 109.5 108.5 6,920 5,900 PL 79–525.
L&D and Greene. R.
Res.
Hartwell Dam GA Hart .... Savannah R F ............... 293.0 665.0 660.0 61,400 55,950 PL 81–516.
& Lk.
SC Ander- ..................... FP ............ 1,416.0 660.0 625.0 55,950 27,650
son.
Holt Lock Dam AL Tusca- Black-War- NP ............ 3.3 187.0 186.0 3,296 3,252 PL 60–317.
& Res. loosa. rior R.
Inglis Dam Lk FL Levy, Cross FL N .............. 13.0 27.5 24.0 4,030 2,040 PL 77–675.
Rousseau. Marion, Barge
Citrus. Canal.
Jim Woodruf FL Gads- Apalachicola NP ............ 20.0 77.5 76.5 38,850 36,000 PL 79–14.
L&D. den, R.
Jackson.
John H Kerr VA Meck- Roanoke R .. F ............... 1,281.4 320.0 300.0 83,200 48,900 PL 78–534.
Dam & Res. lenburg.
FP ............ 1,027.0 300.0 268.0 48,900 19,700
John Hollis AL Tusca- Black-War- NP ............ 27.1 255.0 252.0 9,245 8,730 PL 60–168.
Bankhead loosa. rior R.
L&D and
Res.
Lk Okee- FL Okee- Central and FNIMC ...... 2,859.0 17.5 10.5 454,900 326,000 PL 71–520, PL
chobee. chobee, Southern 75–392, PL
Glades, FL. 79–14, PL
Hendry, 80–858, PL
Palm 83–780, PL
Beach, 90.
Martin.
Lock A ............ MS Mon- Tombigbee N .............. 0.9 220.5 219.5 980 850 PL 79–525.
roe. R.
Lock B ............ MS Mon- Tombigbee N .............. 2.7 245.5 244.5 2,841 2,615 PL 79–525.
roe. R.
Lock C ............ MS Tombigbee N .............. 1.6 270.5 269.5 1,699 1,586 PL 79–525.
Itawamb- R.
a.
Lock D ............ MS Tombigbee N .............. 2.0 300.5 299.5 2,021 1,959 PL 79–525.
Itawamb- R.
a.
Lock E ............ MS Tombigbee N .............. 0.9 330.5 329.5 889 821 PL 79–525.
Itawamb- R.
a,
Prentiss.
Millers Ferry AL Wilcox Alabama R .. NP ............ 16.7 80.0 79.0 17,201 16,160 PL 79–14.
L&D.
Okatibbee Dam MS Lau- Okatibbee Cr F ............... 46.5 352.0 343.0 6,580 3,800 PL 87–874.
& Res. derdale.
Chickasawb- RMA ......... 34.3 343.0 328.0 3,800 1,275
ay R.
Philpott Dam & VA Henry Smith R ....... F ............... 34.2 985.0 974.0 3,370 2,880 PL 78–534.
Lk.
233
§ 222.5 33 CFR Ch. II (7–1–20 Edition)

Storage
Upper Lower
FP ............ 111.2 974.0 920.0 2,880 1,350

R B Russell GA Elbert Savannah R F ............... 140.0 480.0 475.0 29,340 26,653 PL 89–789.
Dam and Lk.
SC Abbe- ..................... FP ............ 126.8 475.0 470.0 26,653 24,117
ville.
Robert F Henry AL Alabama R .. NP ............ 44.6 125.0 124.0 13,300 10,470 PL 79–14.
Lock Dam & Autauga,
Res. Lowndes.
Rodman Dam FL Putman Cross FL N .............. 48.0 23.2 20.0 17,350 12,950 PL 77–675.
& Lk & Marion. Barge
Ocklawaha. Canal.
S–10 & Water FL Palm Central and F ............... 181.9 18.3 17.0 141,250 141,250 PL 80–858.
Cons Area 1. Beach. Southern
FL.
FIMC ........ 273.2 17.0 14.0 141,250 26,00
S–11 & Water FL Palm Central and F ............... 236.3 16.6 14.5 110,500 110,500 PL 80–858.
Cons Area Beach Southern
2A. Broward. FL.
FIMC ........ 165.0 14.5 13.0 110,500 107,500 PL 83–780.
S–12 & Water FL Central and F ............... 1,661.0 14.5 10.5 487,200 385,000 PL 80–858.
Cons Area Broward Southern
3A. & Dade. FL.
FIMC ........ 465.0 10.5 9.5 385,000 316,000 PL 83–780.
Selden Lock AL Hale, Black-War- N .............. 9.1 95.5 94.0 8,200 6,900 PL 60–317.
and Res. Greene. rior R.
W Kerr Scott NC Wilkes Yadkin R ..... F ............... 112.0 1,075.0 1,030.0 4,000 1,475 PL 79–526.
Dam & Res.
FM ............ 33.0 1,030.0 1,000.0 1,475 675
Walter F GA Clay ... Chattahoo- NP ............ 244.0 190.0 184.0 45,181 36,375 PL 81–516.
George L&D. chee R.
AL Henry .. ..................... .................. .............. .............. .............. .............. ..............
West Point GA Troup Chattahoo- NPMAR .... 306.1 635.0 620.0 25,864 15,512 PL 87–874.
Dam & Res. chee R.
William Bacon AL Tusca- Black War- N .............. 0 122.9 122.9 790 790 PL 60–317.
Oliver L&D loosa. rior R.
and Res.
South Pacific Division
Alamo Dam & AZ Mo- Bill Williams F ............... 1,046.2 1,235.0 1,174.0 13,307 7,045 PL 78–534.
Lk. have, R.
Yuma.
Bear Dam ....... CA Bear Cr ....... F ............... 7.7 413.5 344.0 265 0 PL 78–534.
Mariposa.
Black Butte Lk CA Stony Cr ...... FI .............. 137.1 473.5 414.6 4,453 577 PL 78–534.
Tehama.
Brea Dam & CA Orange Brea Cr ....... F ............... 4.0 279.0 208.0 163 0 FCA 1936.
Res.
Buchanan Dam CA Madera Chowchilla R F ............... 45.0 587.0 559.0 1,785 1,482 PL 78–874.
H.V. East-
man Lk.
FI .............. 140.0 587.0 466.0 1,785 484
Burns Dam ..... CA Merced Burns Cr ...... F ............... 6.8 300.0 266.0 662 0 PL 78–534.
Carbon Can- CA Orange Carbon Cr ... F ............... 6.6 475.0 403.0 225 0 PL 74–738.
yon Dam &
Res.
Coyote Valley CA East Fork, F ............... 50.1 764.8 737.5 1,922 1,740 PL 75–761.
Dam Lk Mendoci- Russian R.
Mendocino. no.
IM ............. 72.3 737.5 637.0 1,740 20
Dry Cr (Warm CA Dry Cr ......... F ............... 136.0 495.0 451.1 3,600 2,600 PL 87–874.
Springs) Lk Sonoma.
& Channel.
MR ........... 225.0 451.1 291.0 2,600 500
Farmington CA San Littlejohn Cr F ............... 52.0 156.5 120.0 4,107 0 PL 78–534.
Dam. Joaquin,
Stanisla-
us.
234

Storage
Upper Lower
Fullerton Dam CA Orange Fullerton Cr F ............... 0.8 290.0 261.0 62 0 FCA 1936.
& Res.
Hansen Dam CA Los Tujunga F ............... 25.4 1,060.0 990.0 781 0 FCA 1936.
Res. Angeles. Wash.
Hidden Dam CA Madera Fresno R ..... F ............... 65.0 540.0 485.8 1,567 811 PL 87–874.
Hensley Lk.
FI .............. 85.0 540.0 448.0 1,567 280
Isabella Lk ...... CA Kern ... Kern R ......... FI .............. 568.1 2,605.5 2,470.0 11,454 26 PL 785–34.
Lopez Dam CA Los Pocoima F ............... 0.4 1,272.9 1,253.7 40 0 FCA 1936.
Res. Angeles. Wash.
Mariposa Dam CA Mariposa Cr F ............... 15.0 439.5 370.0 512 0 PL 78–534.
Mariposa.
Martis Cr Lk .... CA Nevada Martis Cr ..... F ............... 19.6 5,838.0 5,780.0 762 61 PL 87–874.
Mathews Can- NV Lincoln Mathews F ............... 6.3 5,461.0 5,420.0 300 0 PL 81–516.
yon Dam & Canyon.
Res.
Mojave River CA San Mojave R ..... F ............... 89.7 3,134.0 2,988.0 1,978 0 PL 86–645.
Dam & Res. Bernardi-
no.
New Hogan Lk CA Calaveras R F ............... 165.0 713.0 666.2 4,333 2,818 PL 78–534.
Calaver-
as.
FI .............. 302.2 713.0 586.0 4,333 702
Owens Dam .... CA Owens Cr .... F ............... 3.6 407.5 347.0 174 0 PL 78–534.
Mariposa.
Painted Roc AZ Mari- Gila R .......... F ............... 2,491.5 661.0 524.0 53,200 0 PL 81–516.
Dam & Res. copa.
Pine Canyon NV Lincoln Pine Canyon F ............... 7.8 5,675.0 5,604.0 254 0 PL 81–516.
Dam & Res.
Pine Flat Lk CA Fresno Kings R ....... F ............... 1,000.0 951.5 565.5 5,956 0 PL 78–534.
Kings R.
Prado Dam & CA River- Santa Ana R F ............... 196.2 543.0 460.0 6,630 0 FCA 1936.
Res. side.
San Antonio CA Los San Antonio F ............... 7.7 2,238.0 2,125.0 145 0 FCA 1936.
Dam & Res. Angeles. Cr.
Santa Fe Dam CA Los San Gabriel F ............... 32.1 496.0 421.0 1,084 0 FCA 1936,
& Res. Angeles. R. 1941.
Sepolveda CA Los Los Angeles F ............... 17.4 710.0 668.0 1,335 0 FCA 1936.
Dam & Res. Angeles. R.
Success Lk ..... CA Tulare Tule R ......... FI .............. 75.0 652.5 588.9 2,477 409 PL 78–534.
Terminus Dam CA Tulare Kaweah R ... FI .............. 136.1 694.0 570.0 1,913 276 PL 78–534.
Lk Kaweah.
Whitlow Ranch AZ Pinal ... Queen Cr .... F ............... 35.6 2,166.0 2,056.0 828 0 PL 79–526.
Dam & Res.
Whittler Mar- CA Los San Gabriel F ............... 34.9 228.5 184.0 2,411 0 FCA 1936.
rows Dam & Angeles. Rio Hondo
Res. R.
Southwestern Division
Abiquiu Dam ... NM Rio Rio Chama .. F ............... 572.2 6,283.5 6,220.0 7,469 4,120 PL 80–858.
Arriba.
FM ............ 191.3 6,220.0 6,060.0 4,120 0
Addicks Res ... TX Harris .. Buffalo F ............... 200.8 112.0 71.1 16,423 0 HD250–83–2.
Bayou.
Aquilla Lk ........ TX Hill ...... Aquilla Cr .... F ............... 161.4 564.5 537.5 8,980 3,280 PL 90–483.
MR ........... 93.6 537.5 478.6 3,280 26
Arcadia Lk ...... OK Okla- Deep Fork R F ............... 64.4 1,029.5 1,006.0 3,820 1,820 PL 91–611.
homa.
FMCR ....... 27.4 1,006.0 970.0 1,820 20
BA TX Taylor, Neches R .... F ............... 24.5 83.0 81.0 13,700 10,950 SD98–76–1.
Steinhagen Jasper.
Lk.
Bardwell Lk ..... TX Ellis ..... Waxahachie F ............... 79.6 439.0 421.0 6,040 3,570 PL 86–399.
Cr.
M .............. 42.8 421.0 372.6 3,570 0

Barker Res ..... TX Harris Buffalo F ............... 209.0 106.0 73.2 16,734 0 HD250–83–2,
Ft Bend. Bayou. RHA 1938.
235
§ 222.5 33 CFR Ch. II (7–1–20 Edition)

Storage
Upper Lower
Beaver Lk ....... AR Carrol, White R ....... F ............... 299.6 1,130.0 1,120.0 31,700 28,220 PL 83–780.
Benton,
Wash-
ington.
FPM ......... 925.1 1,120.0 1,077.0 28,220 15,540 PL 85–500.
Belton Lk ........ TX Bell ..... Leon R ........ F ............... 640.0 631.0 594.0 23,600 12,400 PL 79–526.
MI ............. 372.7 594.0 470.0 12,400 42 HD88–81–1.
Benbrook Lk ... TX Tarrant, Clear Fk F ............... 170.4 724.0 694.0 7,630 3,770 HD103–771.
Parker. Trinity R.
NM ........... 72.5 694.0 656.0 3,770 730
Big Hill LK ....... KN Labette Big HIll Cr ... F ............... 13.1 867.5 858.0 1,520 1,240 PL 87–874.
FMR ......... 27.2 858.0 814.0 1,240 70 HD572–87–2.
Birch Lk .......... OK Osage Birch Cr ....... F ............... 39.0 774.0 750.5 2,340 1,140 PL 87–874.
FMCAR .... 15.8 750.5 730.0 1,140 384 HD563–87–2.
Blue Mountain AR Yell, Petit Jean R F ............... 233.3 419.0 384.0 11,000 2,910 PA 75–761.
Lk. Logan.
Broken Bow Lk OK Mountain Fk F ............... 450.2 627.5 599.5 18,000 14,200 PL 85–500.
McCurta- R.
in.
FRPMAC .. 469.8 599.5 559.5 14,200 9,200
Bull Shoals Lk AR Baxter, White R ....... F ............... 2,360.0 695.0 654.0 71,240 45,440 PL 77–228.
Marion,
Boone.
MO Ozark, PF ............ 1,003.0 654.0 628.5 45,440 33,800
Taney.
Canton Lk ....... OK Blain ... N Canadian F ............... 265.8 1,638.0 1,615.4 15,710 7,910 PL 75–761.
R.
FMI ........... 97.2 1,615.4 1,596.5 7,910 2,710 HD56–/75–3.
Canyon Lk ...... TX Comal Guadalupe R F ............... 346.4 934.0 909.0 12,890 8,240 PL 79–14.
M .............. 366.4 909.0 75.0 8,240 0
Clearwater Lk MO Rey- Black R ....... F ............... 391.8 567.0 494.0 10,400 1,630 PL 75–761.
nolds,
Wayne.
Cochiti Lk ........ NM Rio Grande F ............... 545.0 5,460.5 5,356.6 9,361 1,200 PL 86–645.
Sandov-
al, Sante
Fe, Los
Alamos.
FRC .......... 43.0 5,356.6 5,330.0 1,200 0
Conchas Lk .... NM San Candian R ... F ............... 198.8 4,218.0 4,201.0 13,664 9,692 HD 308–74.
Miguel.
FI .............. 259.6 4,201.0 4,155.0 9,692 3,000
Copan Lk ........ OK Wash- L Caney R ... F ............... 184.3 732.0 710.0 13,380 4,850 PL 87–874.
ington.
KS Chau- ..................... FMCA ....... 42.8 710.0 687.5 4,850 110 HD563–87–2.
tauqua.
Council Grove KS Morris Neosho R .... F ............... 63.8 1,289.0 1,274.0 5,400 3,230 PL 81–516.
Lk.
FMAR ....... 48.5 1,274.0 1,240.0 3,230 42
DeQueen Lk ... AR Sevier Rolling Fork F ............... 101.3 473.5 437.0 4,050 1,680 PL 85–500.
R.
FMCRQ .... 25.5 437.0 415.0 1,680 710
Dierks Lk ........ AR Sevier, Saline R ...... F ............... 67.1 557.5 526.0 2,970 1,360 PL 85–500.
Howard.
FMCR ....... 15.1 526.0 512.0 1,360 810
Eldorado Lk .... KS Butler .. Walnut R ..... F ............... 79.2 1,347.5 1,339.0 10,740 8,000 PL 89–298.
FMAR ....... 154.0 1,339.0 1,296.0 8,000 420 HD232–89–1.
Elk City Lk ...... KS Mont- Elk R ........... F ............... 239.5 825.0 796.0 13,150 4,450 HD440–76–1.
gomery.
FMA ......... 44.8 796.0 764.0 4,450 64
Eufaula Lk ...... OK Candian R ... F ............... 1,510.9 597.0 585.0 147,960 105,480 PL 79–525.
McIntos-
h, Pitts-
burg,
Haskell.
FNPM ....... 1,463.0 585.0 565.0 105,480 46,120
Fall River Lk ... KS Green- Fall R .......... F ............... 234.5 987.5 948.5 10,400 2,350 HD440–76–1.
wood.
FA ............ 15.0 948.5 940.0 2,350 1,170
236
Storage
Upper Lower
Fort Gibson Lk OK Wag- Neosho F ............... 919.2 582.0 554.0 51,000 19,900 FEC 1941.
oner. (Grand) R.
FP ............ 53.9 554.0 551.0 19,100 16,950 RHA 1946.
Fort Supply Lk OK Wood- Wolf Cr ........ F ............... 86.8 2,028.0 2,004.0 5,690 1,820 PL 74–738.
ward.
FM ............ 13.9 2,004.0 1,988.0 1,820 0
Galisteo Dam .. NM Santa Galisteo Cr .. F ............... 79.4 5,608.0 5,496.0 2,060 0 PL 86–645.
Fe.
Georgetown Lk TX N.F. San Ga- F ............... 87.6 834.0 791.0 3,220 1,310 PL 87–874.
Williams- briel R.
on.
MC ........... 29.2 791.0 699.0 1,310 0 HD 591–82–2.
Gillham Lk ...... AR How- Cossatot R .. F ............... 188.7 569.0 502.0 4,680 1,370 PL 85–500.
ard, Polk.
FMCQ ...... 29.3 502.0 464.5 1,370 310
Granger Lk ..... TX San Gabriel F ............... 162.2 528.0 504.0 11,040 4,400 PL 87–874.
Williams- R.
on.
M .............. 37.9 504.0 440.0 4,400 0
Grapevine Lk .. TX Denton, Denton Cr ... F ............... 243.1 560.0 535.0 12,710 7,280 HD103–77–1.
Tarrant.
M .............. 154.3 535.0 451.0 7,380 41
Great Salt OK Alfalfa Salt Fk ......... F ............... 240.0 1,138.5 1,125.0 27,730 8,693 PL 74–738.
Plains Lk.
Arkansas R FC ............ 31.4 1,125.0 1,115.0 8,690 0
Greers Ferry AR Little Red R F ............... 934.0 487.0 461.0 40,480 31,460 PL 75–761.
Lk. Cleburn-
e, Van
Buren.
FP ............ 716.5 461.0 435.0 31,460 23,740 PL 83–780.
Heyburn Lk ..... OK Creek Polecat Cr ... F ............... 48.4 784.0 761.5 3,700 917 PL 79–526.
FM ............ 3.8 761.5 55.5 917 394
Hords Cr Lk .... TX Cole- Hords Cr ..... F ............... 16.7 1,920.0 1,900.0 1,260 510 PL 77–228.
man.
M .............. 5.8 1,900.0 1,848.0 510 0
Hugo Lk .......... OK Choc- Kiamichi R ... F ............... 809.1 437.5 404.5 34,490 13,250 PL 79–526.
taw.
FMCAR .... 127.2 404.5 390.0 13,250 4,500
Hulah Lk ......... OK Osage Caney R ...... F ............... 257.9 765.0 733.0 13,000 3,570 PL 74–738.
KS ..................... FMA ......... 31.1 733.0 710.0 3,570 0 PL 84–843.
Chautau-
gua.
Jemez Canyon NM Jemez R ...... F ............... 73.0 5,232.0 5,196.1 2,877 1,370 PL 80–858
Dam. Sandoval. PL 81–516.
Joe Pool Lk .... TX Dalla, Mountain Cr F ............... 1,238.0 536.0 522.0 10,940 7,470 PL 89–298.
Ellis,
Tarrant.
M .............. 176.9 522.0 456.0 7,470 10
John Martin CO Bent ... Arkansas R F ............... 270.3 3,870.0 3,851.0 17,630 11,655 PL 74–738.
Res.
FRC .......... 350.9 3,851.0 0.0 11,655 0
John Redmond KS Coffee Neosho R .... F ............... 559.0 1,068.0 1,039.0 31,700 9,300 PL 81–516.
Dam & Res.
FMAR ....... 70.8 1,039.0 1,020.0 9,300 108
Kaw Lk ............ OK Kay, Arkansas R F ............... 919.4 1,044.5 1,010.0 38,020 17,040 PL 87–874.
Osage.
KS Cowley ..................... FMARC .... 343.5 1,010.0 978.0 17,040 5,590
Keystone Lk .... OK Tulsa .. Arkansas R F ............... 1,180.0 754.0 723.0 54,300 23,600 PL 81–516.
FNPMC .... 296.7 723.0 706.0 23,600 13,300
L&D 01, Norrell AR Arkan- Arkansas N .............. 0.0 142.0 142.0 140 140 HD 758–79,
sas. Post Canal. RHA 1946.
L&D 02, Wilbur AR Desha, Arkansas R N .............. 18.7 162.3 160.5 10,700 9,400 HD 758–79,
D. Mills Dam. Arkansas. RHA 1946.
L&D 03 ........... AR Jeffer- Arkansas R N .............. 8.3 182.3 180.0 3,750 3,180 HD 758–79,
son, Lin- RHA 1946.
coln.
son. RHA 1946.

son. RHA 1946.
237
§ 222.5 33 CFR Ch. II (7–1–20 Edition)
Storage
Upper Lower
L&D 06, David AR Pulaski Arkansas R N .............. 9.6 231.3 229.0 4,830 4,130 HD 758–79.
D. Terry.
L&D 07, Mur- AR Pulaski Arkansas R N .............. 24.7 249.7 247.0 10,350 8,100 RHA 1946.
ray.
L&D 08, Toad AR Faulk- Arkansas R N .............. 8.7 265.3 263.0 4,130 3,600 RHA 1946.
Suck Ferry. ner,
Perry.
L&D 09, Arthur AR Arkansas R N .............. 15.8 287.0 284.0 5,660 4,910 HD 758–79.
V. Ormond Conway.
L&D, W.
Rockefeller
Lk.
L&D 10, Lk AR Pope Arkansas R NP ............ 72.3 338.2 336.0 34,700 31,140 HD 758–79,
Dardanelle. Yell. RHA 1946.
L&D 11, Ozark- AR Frank- Arkansas ..... NPR ......... 25.3 372.5 370.0 11,100 8,800 RHA 1946, HD
Jetta Taylor. lin. 758–79.
L&D 13, James AR Sebas- Arkansas R N .............. 18.1 392.0 389.0 6,820 5,200 RHA 1946.
W. Trimble. tian,
Crawford.
L&D 14, W. D. OK Arkansas R N .............. 0.0 413.0 0.0 1,600 0 PL 79–525.
Mayo. Sequoy-
ah,
Leflore.
L&D 15, Robert OK Leflore, Arkansas R NP ............ 84.7 460.0 458.0 43,800 40,760 PL 79–525.
S. Kerr Res. Sequoy-
ah.
L&D 16, OK Arkansas R NP ............ 32.4 490.0 487.0 10,900 9,300 PL 79–525.
Webbers Muskog-
Falls Res. ee.
L&D 17, OK Wag- Verdigris R .. N .............. 0.0 511.0 511.0 2,270 2,270 PL 79–525,
Chouteau. oner. HD 758–79–
2.
L&D 18, Newt OK Wag- Verdigris R .. N .............. 0.0 532.0 532.0 1,490 1,490 PL 97–525.
Graham. oner.
Lake O’ The TX Marion Cypress Cr .. F ............... 579.5 249.5 228.5 38,200 18,700 PL 79–526.
Pines.
M .............. 250.0 228.5 201.0 18,700 1,100
Lavon Lk ......... TX Collin .. East Fork, F ............... 275.6 503.5 492.0 29,450 21,400 HD 533–78–2.
Trinity R. M .............. 380.0 492.0 433.0 21,400 2,87
Lewisville Lk TX Denton Elm Fork F ............... 525.2 532.0 515.0 39,080 23,280 HD 403–77–1.
Garza-Little Trinity R.
Elm Dam.
M .............. 436.0 515.0 433.0 23,280 12
Marion Lk ........ KS Marion Cottonwood F ............... 60.2 1,358.5 1,350.5 9,050 6,200 PL 81–516.
R.
FMAR ....... 83.3 1,350.5 1,320.0 6,200 170
Millwood Lk ..... AR Little R Little R ......... F ............... 1,650.0 287.0 259.2 95,200 29,200 PL 79–526.
Hemp-
stead.
FMC ......... 153.3 259.2 252.0 29,200 13,100 HD 785–79.
Navarro Mills TX Navarro Richland Cr F ............... 143.2 443.0 424.5 11,700 5,070 HD 498–83–2.
Lk. Hill.
M .............. 53.2 424.5 375.3 5,070 0
Nimrod Lk ....... AR Perry, Fourche La F ............... 307.0 373.0 342.0 18,300 3,550 FCA 1938.
Yell. Fave R.
Norfork Lk ....... AR Baxter, North Fork R F ............... 731.8 580.0 552.0 30,700 21,990 PL 75–761.
Fulton.
MO Ozark ..................... FP ............ 707.0 552.0 510.0 21.990 12,320 FCA 1941
North Fork Lk TX N.F. San Ga- F ............... 87.6 834.0 791.0 3,220 1,310 PL 87–874.
Williams- briel R.
on.
MC ........... 29.2 791.0 699.0 1,310 0 HD 591–82–2.
O. C. Fisher Lk TX Tom N. Concho R F ............... 277.2 1,938.5 1,908.0 12,700 5,440 PL 77–228.
Green.
M .............. 80.4 1,908.0 1,836.0 5,440 3
Oologah Lk ..... OK Rogers Verdigris R .. F ............... 965.6 661.0 638.0 56,800 29,460 PL 75–761.
FMN ......... 544.1 638.0 592.0 29,460 1,120
Optima Lk ....... OK Texas N. Candian F ............... 100.5 2,779.0 2,763.5 7,640 5,340 PL 74–738.
R.
FMRC ....... 117.7 2,763.5 2,726.0 5,340 1,335
238

Storage
Upper Lower
Pat Mayse Lk TX Lamar Sanders Cr .. F ............... 64.6 460.5 451.0 7,680 5,993 PL 87–874.
FMCR ....... 119.9 451.0 415.0 5,993 996 HD 88–71.
Pine Cr ........... OK Little R ......... F ............... 388.1 480.0 443.5 17,230 4,980 PL 85–500.
McCurta-
in.
FMAC ....... 77.6 443.5 414.0 4,980 700 HD 170–85–1.
Proctor Lk ....... TX Coman- Leon R ........ F ............... 310.1 1,197.0 1,162.0 14,010 4,610 PL 83–780,
che. HD 535–81–
2.
Sam Rayburn TX Jasper, Angelina R .. F ............... 1,099.4 173.0 164.4 142,700 114,500 HD 981–76–1.
Res. San Au-
gustine,
Angelina.
PMC ......... 1,446.2 164.4 149.0 114,500 74,040
Santa Rosa ..... NM Gua- Pecos R ...... F ............... 340.0 4,746.2 4,776.5 10,740 3,823 PL 83–780.
dalupe.
FI .............. 160.0 4,776.5 4,746.2 7,115 3,823
Sardis ............. OK Jackfork Cr .. F ............... 122.6 607.0 599.0 16,960 13,610 HD 602–79–2.
Pushma-
tah.
FMR ......... 274.2 599.0 542.0 13,610 40
Somerville Lk .. TX Wash- Yegua Cr ..... F ............... 337.7 258.0 238.0 24,400 11,460 PL 83–780.
ington,
Lee,
Burleson.
M .............. 143.9 238.0 200.0 11,460 0
Stiatook ........... OK Osage Hominy Cr ... F ............... 178.0 729.0 714.0 13,690 10,190 HD 563–87.
FMARC .... 311.6 714.0 657.0 10,190 1,430
Stillhouse H. TX Bell ..... Lampasas R F ............... 390.6 666.0 622.0 11,830 6,430 PL 83–780.
Lk.
M .............. 204.9 622.0 498.0 6,430 0
Table Rock Lk MO Taney, White R ....... F ............... 760.0 931.0 915.0 52,250 43,070 PL 77–228.
Stone,
Barry.
AR Carroll, FP ............ 1,181.50 915.0 881.0 43,070 27,300 FCA 1938.
Boone.
Tenkiller Ferry OK Cher- Illinois R ...... F ............... 576.7 667.0 632.0 20,800 12,900 RHA 1946.
Lk. okee,
Sequoy-
ah.
FP ............ 371.0 632.0 594.5 12,900 7,370
Texoma Lk, TX Mar- Red R .......... F ............... 2,669.0 640.0 617.0 144,000 88,000 PL 75–761.
Denison shall.
Dam.
OK Bryan, ..................... FPM ......... 1,612.0 617.0 590.0 88,000 41,000
Cook,
Grayson.
Toronto Lk ...... KS Wood- Verdigris R .. F ............... 179.8 931.0 901.5 11,740 2,660 HD 440–76–1.
son.
FMA ......... 10.7 901.5 896.7 2,660 1,720
Trinidad Lk ...... CO Las Purgatorie R F ............... 58.0 6,260.0 6,230.0 2,107 1,453 PL 85–500.
Animas.
FI .............. 20.0 6,230.0 0.0 1,453 0
Two Rivers NM Rio Hondo R F ............... 150.0 4,032.0 3,945.0 4,806 0 PL 83–780.
Dam. Chaves.
Waco Lk ......... TX Bosque R .... F ............... 3.3 500.0 455.0 19,440 7,270 PL 83–780.
Mclenna-
n.
M .............. 100.8 455.0 370.0 7,240 0 HD 535–81–2.
Waurika Lk ..... OK Jeffer- Beaver Cr .... F ............... 140.4 962.5 951.4 15,000 10,100 PL 88–253.
son.
FMCAR .... 199.7 951.4 910.0 10,100 830
Whitney Lk ...... TX Hill, Brazos R ..... F ............... 1,372.0 571.0 533.0 49,820 23,560 PL 77–228.
Bosquel.
PM ............ 381.9 533.0 425.0 23,560 475 HD 390–76–1.
Wister Lk ........ OK Leflore Pouteau R ... F ............... 387.0 502.5 474.6 23,070 5,000 PL 75–761.
Wright Patman TX Bowie, Sulphur R .... F ............... 2,363.7 259.5 220.0 119,700 20,300 PL 79–526.
Lk. Cass.
239
§ 222.6 33 CFR Ch. II (7–1–20 Edition)

Storage
Upper Lower
FM ............ 142.7 220.0 180.0 20,300 0

1 Res—Reservoir; Lk—Lake; Div—Diversion: R—River; Cr—Creek; Fk—Fork; L&D—Lock & Dam; GIWW—Gulf Intercoastal
Waterway; FG—Floodgate; CS—Control Structure: DS—Drainage Structure; PS—Pump Station.
2 F—Flood Control; N—Navigation; P—Hydropower; I—Irrigation; M—Municipal and/or Industrial Water/Supply; C—Fish and
Wildlife Conservation; R—Recreation; A—Low Flow Augmentation or Pollution Abatement; Q—Quality or Silt Control.
3 PL—Public Law; HD—House Document; RHA—River & Harbor Act; PW—Public Works: FCA—Flood Control Act; WSA—
Water Supply Act.
[47 FR 44544, Oct. 8, 1982, as amended at 52 FR 15804, Apr. 30, 1987; 52 FR 23816, June 25, 1987;
57 FR 35757, Aug. 11, 1992. Redesignated at 60 FR 19851, Apr. 21, 1995]
§ 222.6 National Program for Inspec- (iv) Specifically excluded from the
tion of Non-Federal Dams. national inspection program are:
(a) Purpose. This regulation states (A) Dams under the jurisdiction of
objectives, assigns responsibilities and the Bureau of Reclamation, the Ten-
prescribes procedures for implementa- nessee Valley Authority, the Inter-
tion of a National Program for Inspec- national Boundary and Water Commis-
tion of Non-Federal Dams. sion and the Corps of Engineers and
(B) Dams which have been con-
(b) Applicability. This regulation is
structed pursuant to licenses issued
applicable to all Divisions and Dis-
under the authority of the Federal
tricts having Civil Works functions.
Power Act, and
(c) References. (1) The National Dam
(C) Dams which have been inspected
Inspection Act, Pub. L. 92–367, 8 August
within the 12-month period imme-
1972.
diately prior to the enactment of this
(2) Freedom of Information Act, Pub. act by a State agency and which the
L. 87–487, 4 July 1967. Governor of such State requests be ex-
(3) ER 500–1–1. cluded from inspection.
(d) Authority. The National Dam In- (f) Objectives. The objectives of the
spection Act, Public Law 92–367, 8 Au- program are:
gust 1972 authorizes the Secretary of (1) To update the National Inventory
the Army, acting through the Chief of of Dams by 30 September 1980.
Engineers, to carry out a national pro- (2) To perform the initial technical
gram of inspection of non-Federal inspection and evaluation of the non-
dams for the purpose of protecting Federal dams described in paragraph
human life and property. 222.8(e) of this section to identify con-
(e) Scope. The program provides for: ditions which constitute a danger to
(1) An update of the National Inven- human life or property as a means of
tory of Dams. expediting the correction of hazardous
(2) Inspection of the following non- conditions by non-Federal interests.
Federal dams (the indicated hazard po- The inspection and evaluation is to be
tential categories are based upon the completed by 30 September 1981.
location of the dams relative to devel- (3) To obtain additional information
oped areas): and experience that may be useful in
(i) Dams which are in the high hazard determining if further Federal actions
potential category (located on Federal are necessary to assure national dam
and non-Federal lands). safety.
(ii) Dams in the significant hazard (4) Encourage the States to establish
potential category believed by the effective dam safety programs for non-
State to represent an immediate dan- Federal dams by 30 September 1981 and
ger to the public safety due to the ac- assist the States in the development of
tual condition of the dam. the technical capability to carry out
(iii) Dams in the significant hazard such a program.
potential category located on Federal (g) Program execution—(1) Responsibil-

lands. ities. (i) The owner has the basic legal
240
responsibility for potential hazards (G) Responding to Congressional,

created by their dam(s). Phase II stud- media, scientific and engineering orga-
ies, as described in Chapter 4, Appendix nization and general public inquiries.
D, and remedial actions are the owner’s Division and District offices are re-
responsibility. sponsible for executing the program at
(ii) The State has the basic responsi- the State level. Assignment of Division
bility for the protection of the life and reponsibilities for States is shown in
property of its citizens. Once a dam has appendix A.
been determined to be unsafe, it is the (2) State participation. Where State ca-
State’s responsibility to see that time- pability exists, every effort should be
ly remedial actions are taken. made to encourage the State to exe-
(iii) The Corps of Engineers has the cute the inspection program either
responsibility for executing the na- with State personnel or with Archi-
tional program. The Federal program tect-Engineer (A-E) contracts under
for inspection of dams does not modify State supervision. If the State does not
the basic responsibilities of the States have the capability to carry out the in-
or dam owners. The Engineering Divi- spection program, the program will be
sion of the Civil Works Directorate is managed by the Corps of Engineers uti-
responsible for overall program goals, lizing Corps employees or contracts
guidance, technical criteria for inspec- with A-E firm.
tions and inventory and headquarters (h) Update of National Inventory of
level coordination with other agencies. Dams. (RCS-DAEN-CWE-17/OMB No. 49–
The Water Resources Support Center RO421)
(WRSC) located at Kingman Building, (1) The National Inventory of Dams
Fort Belvoir, Virginia 22060 is respon- should be updated and verified to in-
sible for: clude all Federal and non-Federal dams
(A) Program Coordination of both the covered by the Act. Those dams are de-
inventory and inspection programs. fined as all artificial barriers together
with appurtenant works which im-
(B) Developing and defining func-
pound or divert water and which: (1)
tional tasks to achieve program objec-
Are twenty-five feet or more in height
tives.
or (2) have an impounding capacity of
(C) Determining resource require- fifty acre-feet or more. Barriers which
ments. (Budget) are six feet or less in height, regardless
(D) Compiling and disseminating of storage capacity or barriers which
progress reports. have a storage capacity at maximum
(E) Monitoring and evaluating pro- water storage elevation of fifteen acre-
gram progress and recommending cor- feet or less regardless of height are not
rective measures as needed. included.
(F) Collecting and evaluating data (2) Inventory data for all dams shall
pertaining to inspection reports, dam be provided in accordance with appen-
owners’ responses to inspection report dix B.
recommendations, attitudes and capa- (3) The hazard potential classifica-
bilities of State officials, State dam tion shall be in accordance with para-
safety legislation, Architect-Engineer graph 2.1.2 Hazard Potential of the Rec-
performance, etc., for defining a com- ommended Guideline for Safety Inspec-
prehensive national dam safety pro- tion of Dams (Appendix D to this sec-
gram. tion).
TABLE 2—HAZARD POTENTIAL CLASSIFICATION
Category Urban development Economic loss
Low .................................. No permanent structure for human habitation ..... Minimal (Undeveloped to occasional structures
or agriculture).
Significant ........................ No urban development and no more than a Appreciable (Notable agriculture, industry or
small number of habitable structures. structures).
High ................................. Urban development with more than a small num- Excessive (Extensive community, industry or ag-
ber of habitable structures. riculture).
241
§ 222.6 33 CFR Ch. II (7–1–20 Edition)
(4) As in the original development of (j) Inspection Program. (RCS-DAEN-

the inventory, the States should be en- CWE-17 and OMB No. 49–RO421)
couraged to participate in the work of (1) Scheduling of inspections. The Gov-
completing, verifying and updating the ernor of each State or his designee will
inventory. Also, when available, per- continue to be involved in the selection
sonnel of other appropriate Federal and scheduling of the dams to be in-
agencies should be utilized for the inspected. Priority will be given to in-
ventory work on a reimbursable basis. spection of those dams considered to
Work in any State may be accom- offer the greatest potential threat to
plished: public safety.
(i) Under State supervision utilizing (i) No inspection of a dam should be
State personnel or Architect-Engineers initiated until the hazard potential
contracts. classification of the dam has been
(ii) Under Corps supervision utilizing verified to the satisfaction of the
Corps employees, employees of other Corps. Dams in the significant hazard
Federal agencies or Architect-Engineer category should be inspected only if re-
contracts. quested by the State and only then if
(5) A minimum staff should be as- the State can provide information to
signed in Districts and Divisions to ad- show that the dam has deficiencies
minister and monitor the inventory ac- that pose an immediate danger to the
tivities. Generally, the work should be public safety. Guidance for the selec-
accomplished by architect-engineers or tion of significant category non-Fed-
other Federal agency personnel under eral dams on Federal lands will be
State or Corps supervision. Corps per- given in the near future.
sonnel should participate in the inven-
(ii) Selection for inspection of non-
tory only to the extent needed to as-
Federal dams located on Federal lands
sure that accurate data are collected.
or non-Federal dams designed and con-
(6) The National Inventory of Dams
structed under the jurisdiction of some
computerized data base in stored on
Federal agency, should be coordinated
the Boeing Computer Services (BCS)
with the responsible Federal agency.
EKS computer system in Seattle,
The appropriate State or regional rep-
Washington. The data base uses Data
Base Management System 2000 and is resentative of the Federal agency also
accessible for query by all Corps of- should be contacted to obtain all avail-
fices. able data on the dam. Representatives
(7) Appendix B indicates details on of the agency may participate in the
accessing and updating inventory data. inspection if they desire and should be
given the opportunity to review and
(8) Appendix I describes the proce-
dure for using NASA Land Satellite comment on the findings and rec-
(LANDSAT) Multispectral Scanner ommendations in the inspection report
data along with NASA’s Surface Water prior to submission to the Governor
Detection and Mapping (DAM) com- and the dam owner. Examples of such
puter program to assist in updating dams are: non-Federal dams built on
and verifying and National Inventory lands managed by National Forest
of Dams. Service, Bureau of Land Management,
(9) All inventory data for dams will Fish and Wildlife Service, etc.; non-
be completed and verified utilizing all Federal dams designed and constructed
available sources of information (in- by the Soil Conservation Service of the
cluding LANDSAT overlay maps) and U.S. Department of Agriculture; high
will include site visitation if required. hazard mine tailings and coal mine
It is the responsibility of the District waste dams under the jurisdiction of
Engineer to insure that the inventory the Mine Safety and Health Adminis-
of each State within his area of respon- tration, Department of Labor.
sibility is accurate and contains the in- (iii) Indian-owned dams on trust
formation required by the General In- lands are considered to be non-Federal
structions for completing the forms for dams. All dams in the high hazard po-
each Federal and non-Federal dam. tential category will be inspected. Pri-
(i) [Reserved] vately-owned dams located on Indian
242
lands are to be included in the pro- only one representative of each re-
gram, however BIA-owned dams on In- quired discipline in order to control the
dian lands are Federal dams and are ex- costs of the inspection without sacri-
empt. ficing the quality of the inspection.
(2) Procedures. The Division Engineer The inspection team for the smaller
is responsible for the quality of inspec- less complex dams should be limited to
tions and reports prepared by the Dis- two or three representatives from ap-
trict Engineer. Close liaison between propriate technical areas with addi-
the District Engineer and the State tional specialists used only as special
agency or A-E firm responsible for the conditions warrant. The larger more
inspections will be required in order to complex projects may require inspec-
obtain a dependable result. To avoid tion teams of three or four specialists.
undesirable delays in the evaluation of Performance of overly detailed and
safety of individual dams, contracts precise surveys and mapping should be
with A-E’s or agreements with States avoided. Necessary measurement of
which are managing the program will spillway, dam slopes, etc. can generally
provide that reports be completed and be made with measuring tapes and
furnished to the District Engineer hand levels.
within a specified time after comple-
(iv) Additional engineering studies.
tion of the on-site inspection of the
Dam inspections should be limited to
dam.
Phase I investigations as outlined in
(i) Inspection guidelines. The inspec-
Chapter 3 of appendix D. However, if
tion should be conducted in accordance
recommended by the investigating en-
with the Recommended Guidelines for
gineer and approved by the District En-
Safety Inspection of Dams (Appendix D
gineer, some additional inexpensive in-
to this section). Expanded Guidance for
Hydrologic and Hydraulic Assessment vestigations may be performed when a
of Dams is provided in appendix C. The reasonable judgment on the safety of
criteria in the recommended guidelines the dam cannot be made without addi-
are screening criteria to be used only tional investigation. Any further Phase
for initial determinations of the ade- II investigation needed to prove or dis-
quacy of the dam. Conditions found prove the findings of the District Engi-
during the investigation which do not neer or to devise remedial measures to
meet the guideline recommendations correct deficiencies are the responsi-
should be assessed as to their impor- bility of the owner and will not be un-
tance from the standpoint of the degree dertaken by the Corps of Engineers.
of risk involved. (v) Assessment of the investigation. (A)
(ii) Coordinators. Experience has The findings of the visual inspection
shown that coordination and commu- and review of existing engineering data
nications among technical disciplines, for a dam shall be assessed to deter-
Public Affairs Office, emergency offi- mine its general condition. Dams as-
cials, training officers, operations per- sessed to be in generally good condi-
sonnel, State representatives and A-E tion should be so described in the in-
firms has been best in those districts spection report. Deficiencies found in a
where one person was delegated the dam should be described and assessed
responsiblity for coordinating the ac- as to the degree of risk they present.
tions of all involved elements. Each The degree of risk should consider only
district should evaluate its overall co- loss of life and/or property damage re-
ordination procedures to insure that sulting from flooding due to dam fail-
all involved elements have the best ure. Loss of project benefits i.e., munic-
possible access to necessary data. ipal water supply, etc., should not be
(iii) Field investigations should be considered. If deficiencies are assessed
carried out in a systematic manner. A to be of such a nature that, if not cor-
detailed checklist or inspection form rected, they could result in the failure
should be developed and used for each of the dam with subsequent loss of life
dam inspection and appended to the in- and/or substantial property damage,
spection report. The size of the field in- the dam should be assessed as ‘‘Un-
spection team should be as small as safe.’’ If the probable failure of an

practicable, generally consisting of ‘‘Unsafe’’ dam is judged to be imminent
243
§ 222.6 33 CFR Ch. II (7–1–20 Edition)
and immediate action is required to re- after the completion of the field in-
duce or eliminate the hazard, the ‘‘un- spection and assessment. A suggested
safe’’ condition of the dam should be report format is attached as appendix
considered an ‘‘emergency.’’ If the E. It is important that the inspection
probable failure is judged not to be im- report be completed in a timely man-
minent, the ‘‘unsafe’’ condition should ner. For inspections being done by
be considered a ‘‘non-emergency.’’ Corps employees, it is suggested that
(B) Adequacy of spillway. The ‘‘Rec- once an inspection team has been as-
ommended Guidelines for Safety In- signed to a dam inspection it be al-
spection of Dams,’’ appendix D, provide lowed to complete the inspection and
current, acceptable inspection stand- report without interruption by other
ards for spillway capacity. Any spill- work.
way capacity that does not meet the (ii) Review and approval. The coordi-
criteria in the ‘‘Guidelines’’ is consid- nating engineer should determine
ered inadequate. When a spillway’s ca- which disciplines should review the re-
pacity is so deficient that it is seri- port and establish a procedure to ac-
ously inadequate, the project must be complish the review in a timely man-
considered unsafe. If all of the fol- ner. A review panel, made up of the ap-
lowing conditions prevail, the Gov- propriate Division and Branch Chiefs
ernor of the State shall be informed has worked well in some districts. Use
that such project is unsafe: of a review panel should be seriously
(1) There is high hazard to loss of life considered by all districts. All inspec-
from large flows downstream of the tion reports shall be approved by the
dam. District Engineer who will maintain a
(2) Dam failure resulting from over- complete file of final approved reports.
topping would significantly increase Any State or Federal agency having ju-
the hazard to loss of life downstream risdiction over the dam or the land on
from the dam over that which would which the dam is built should be given
exist just before overtopping failure. the opportunity to review and com-
(3) The spillway is not capable of ment on the report prior to submission
passing one-half of the probable max- to the Governor or dam owner. The
imum flood without overtopping the District Engineer will transmit final
dam and causing failure. approved reports to the Governor of
Classification of dams with seriously the State and the dam owner (or the
inadequate spillways as ‘‘unsafe, non- Governor only, when requested in writ-
emergency’’ is generally a proper des- ing by State officials). If the report is
ignation of the urgency of the unsafe initially furnished to the Governor
condition. However, there may be cases only, a period of up to ten days may be
where the spillway capacity is unusu- allowed before the report is furnished
ally small and the consequences of dam to the dam owner. If the Governor or
overtopping and failure would be cata- the owner indicates additional tech-
strophic. In such cases, the unsafe dam nical information is available that
should be classified as an emergency might affect the assessment of the
situation. dam’s condition, the District Engineer
(vi) All inspection reports will re- will furnish the proposed final report
ceive one level of independent review to the Governor and the owner and es-
by the Corps. If the reports are pre- tablish a definite time period for com-
pared by the Corps, the independent re- ments to be furnished to the District
view may be performed internally Engineer prior to report approval.
within the district office. However, in (iii) In general the Governor will be
cases which involve significant eco- responsible for public release of an in-
nomic, social or political impacts and spection report and for initiating any
technical uncertainties in evaluating public Statements. However, an ap-
the dams, advice may be obtained from proved report must be treated as any
the staffs of the Division Engineer and other document subject to release upon
the Office, Chief of Engineers. request under the Freedom of Informa-
(3) Reports—(i) Preparation. A written tion Act. The letters of transmittal to
report on the condition of each dam the Governor and owner should indi-
should be prepared as soon as possible cate that under the provisions of the
244
Freedom of Information Act, the docu- Engineer will be recommended to the

ments will be subject to release upon Governor who has the responsibility
request after receipt by the Governor. for any corrective actions. As provided
Proposed final reports will be consid- in ER 500–1–1, Corps assistance under
ered as internal working papers not Pub. L. 84–99 ‘‘Advance Measures,’’ may
subject to release under the Freedom of be made available to complement the
Information Act. Corps personnel, A-E owner’s and Governor’s action under
contractor personnel and others work- certain conditions and subject to the
ing under supervision of the Corps will approval of the Director of Civil Works.
be cautioned to avoid public state- The District Engineer’s Emergency Op-
ments about the condition of the dam eration Officer will coordinate the ad-
until after the District Engineer has vance measures request in accordance
approved the report. The Corps will re- with existing procedures. Coordination
spond fully to inquiries after the Gov- will be maintained between the Dis-
ernor has received the approved report trict responsible for emergency action
or been notified of an unsafe dam. An under Pub. L. 84–90 and the District re-
information copy of the report should sponsible for the inspection.
be sent to the District office normally (5) Emergency action plans. An emer-
having jurisdiction if other than the gency action plan should be available
District responsible for the inspection. for every dam in the high and signifi-
(iv) Follow-up action. A Federal in- cant hazard category. Such plans
vestment of the magnitude anticipated should outline actions to be taken by
for this inspection program makes it the operator to minimize downstream
desirable that a reporting system be es- effects of an emergency and should in-
tablished to keep the District Engineer clude an effective warning system. If
abreast of the implementation of the an emergency action plan has not been
recommendations in the inspection re- developed, the inspection report should
ports. The letters of transmittal to the recommend that the owner develop
Governor and owner will request that such an action plan. However, the
the District Engineer be informed of Corps has no authority to require an
the actions taken on the recommenda- emergency action plan.
tions in the inspection reports. How- (k) Progress reports. Progress reports
ever, the National Dam Inspection Act should be submitted monthly by the
only authorizes the initial inspection Division Engineer to WRSC. The re-
of certain dams; therefore, once a reports shall include progress through
port is completed no reinspection will the last Saturday of the month and
be undertaken. should be mailed by the following Mon-
(4) Unsafe dams. The investigating en- day. The reports shall contain the in-
gineer will be required to immediately formation and be typewritten in the
notify the District Engineer when a format shown in appendix G. Copies of
dam is assessed as being unsafe. He will Unsafe Dam Data Sheets will be sub-
also indicate if probable failure of the mitted with the progress report. Copies
unsafe dam is judged to be imminent of the completed inspection report for
and immediate action is required to re- Dams in the Unsafe-Emergency cat-
duce or eliminate the threat. The Dis- egory will be submitted also. (RCS-
trict Engineer will evaluate the find- DAEN-CWE-19)
ings of the investigating team and will (l) Contracts—(1) Corps of Engineers
immediately notify the Governor and supervision. Contracts for performing
the owner if the findings are Unsafe inventory and inspection activities
Non-Emergency or Unsafe-Emergency. under supervision of the Corps of Engi-
The appropriate State agency and the neers shall be Fixed-Price Architect
Corps of Engineers officials having Engineer Contracts for Services. A
emergency operation responsibility for sample scope of work setting forth re-
the area in which the dam is located quirements is provided in appendix H.
will also be notified. The information Experience has shown that costs for in-
provided in the unsafe dam notice shall dividual dam inspection have been
be as indicated in Appendix F. Any lower when multiple inspections are in-
emergency procedures or remedial ac- cluded in one contract. Therefore, each

tions deemed necessary by the District A-E contract should include multiple
245
§ 222.6 33 CFR Ch. II (7–1–20 Edition)
dam inspections where practicable. not deter or delay these principle pro-
Corps participation in A-E inspections gram functions.
should be held to a minimum. Corps (2) Salaries, per diem and travel ex-
representatives should participate in penses relating to training activities of
only enough A-E inspections to assure State employees will be a State ex-
the equality of the inspections. pense. There will be no tuition charge
(2) State supervision. Contracts with for State employees.
States for performing inventory and in- (3) Architect-Engineer firms will be
spection activities under State super- required to pay expenses and tuition
vision may be either a Cost-Reimburse- costs for their employees participating
ment type A-E Contract for Services or in Corps-sponsored training activities.
a Fixed-Price type contract. The selec- (4) Corps-sponsored training will re-
tion of Architect-Engineers by the quire that each trainee is a qualified
State should require approval of the engineer or geologist and will con-
Corps of Engineers Contracting Officer. centrate on engineering technology re-
The negotiated price for A-E services lated directly to dam safety. (This may
under cost-reimbursement type con- require screening of proposed can-
tracts with States will also require ap- didates for training.)
proval by the Contracting Officer. Con-
(5) Under this program, the Corps
tracts with States should require timely
will not sponsor training that is in-
submission of the inspection reports to
tended primarily to satisfy require-
the District Engineer for review and
ments for a degree.
approval. The contract provisions
should also prevent public release of or (6) Training by participation in ac-
public comment on the inspection re- tual dam inspections and/or manage-
port until the District Engineer has re- ment of the inspection program should
viewed and approved the report. Corps be encouraged.
of Engineers participation in State in-
spections should be limited to occa- APPENDIX A TO § 222.6—DIVISION ASSIGNMENTS
sional selected inspections to assure
the quality of the State program. To facilitate better coordination with the
(m) Training. As indicated in para- States, the Division Engineers are respon-
graph (f) of this section, one objective sible for the dam inspection program by
States as follows:
of the inspection program for non-Fed-
eral Dams is to prepare the States to New England Division: Maine, Rhode Island,
provide effective dam safety programs. Connecticut, Vermont, New Hampshire,
Massachusetts
In many States this will require train-
North Atlantic Division: New York, New Jer-
ing of personnel of State agencies in sey, Pennsylvania, Delaware, Maryland,
the technical aspects of dam inspec- Virginia, District of Columbia
tions. The Office, Chief of Engineers is Ohio River Division: West Virginia, Ohio, Ken-
studying the need for and content of a tucky, Tennessee, Indiana
comprehensive Corps-sponsored train- South Atlantic Division: North Carolina,
ing program in dam inspection tech- South Carolina, Georgia, Florida, Ala-
nology. Pending the possible adoption bama, Puerto Rico, Virgin Islands
of such a comprehensive plan, division Lower Mississippi Valley Division: Mississippi,
and district Engineers are encouraged Louisiana, Missouri
to take advantage of suitable opportu- North Central Division: Michigan, Wisconsin,
nities to provide needed training in Illinois, Minnesota, Iowa
dam safety activities to qualified em- Southwestern Division: Arkansas, Oklahoma,
Texas, New Mexico
ployees of State agencies and, when ap-
Missouri River Division: Kansas, Nebraska,
propriate, to employees of architect- South Dakota, North Dakota, Wyoming,
engineer firms engaged in the program. Colorado
The following general considerations North Pacific Division: Oregon, Idaho, Mon-
should be observed in providing such tana, Washington, Alaska
training: South Pacific Division: Utah, California, Ari-
(1) Priority must be placed on inspec- zona, Nevada
tion of dams and updating the national Pacific Ocean Division: Hawaii, Trust Terri-
dam inventory; hence, diversion of re- tories, American Samoa

sources to training activities should
246
APPENDIX B TO § 222.6—INVENTORY OF DAMS Kansas City District. This procedure is de-
scribed in the ‘‘HOTDAM’’ file.
(RCS-DAEN-CWE-17 and OMB No. 49–RO421) 6. Federal agencies will be uniformly des-
1. The updating of the inventory will in- ignated by major and minor abbreviations
clude the completion of all items of data for according to the following list whenever ap-
all dams now included in the inventory, plicable to Items 46 through 53. Abbrevia-
verification of the data now included in the tions are to be left justified within the field
inventory, and inclusion of complete data for with one blank separating major and minor
all appropriate existing dams not previously abbreviations.
listed. Data completion, verification and up- Major Minor
dating will be scheduled over a three year pe-
riod. a. International Boundary and Water IBWC
2. The inventory data will be recorded on Commission.
Engineering Form 4474 and 4474A (Exhibit 2). b. U.S. Department of Agriculture:
(1) Soil Conservation Service ............ USDA SCS
The general instructions for completing the
(2) Forest Service ............................... USDA FS
forms are printed on the back of the forms. c. U.S. Department of Energy Federal En- DOE FERC
Parts I and II of the forms are to be fully ergy Regulatory Commission.
completed. The instruction for completing d. Tennessee Valley Authority .................. TVA
Item 29, Line 5, Para. II (Engr Form 4474A) is e. U.S. Department of Interior:
revised to conform identically with the haz- (1) Bureau of Sport Fisheries and DOI BSFW
ard potential classification contained in the Wildlife.
(2) Geological Survey ......................... DOI GS
recommended guidelines for safety inspec- (3) Bureau of Land Management ....... DOI BLM
tion of dams. Additional data has been added (4) Bureau of Reclamation ................. DOI USBR
to designate Corps districts in which the (5) Bureau of Indian Affairs ................ DOI BIA
dam is located, Federal agency owned dams, f. U.S. Department of Labor: (1) Mine DOL MSHA
Corps owned dams, Federal agency regulated Safety and Health Administration.
dams, dams constructed with technical or fi- g. Corps of Engineers:
(1) Lower Mississippi Valley Division:
nancial assistance of the U.S. Soil Conserva- (a) Memphis District .................... DAEN LMM
tion Service, and privately owned dams lo- (b) New Orleans District .............. DAEN LMN
cated on Federal property. (c) St. Louis District ..................... DAEN LMS
3. All inventory data will be verified uti- (d) Vicksburg District ................... DAEN LMK
lizing all available sources of information (2) Missouri River Division:
and will include site visitation if required. (a) Kansas City District ............... DAEN MRK
(b) Omaha District ....................... DAEN MRO
4. The Inventory Data Base is stored on the (3) New England Division ................... DAEN NED
Boeing Computer Services (BCS) EKS Sys- (4) North Atlantic Division:.
tem in Seattle, Washington. The data is (a) Baltimore District ................... DAEN NAB
available to all Corps offices for queries (b) New York District ................... DAEN NAN
using Data Base Management System 2000 (c) Norfolk District ....................... DAEN NAO
(S2K). (d) Philadelphia District ............... DAEN NAP
(5) North Central Division:
a. To access the National Data Base log on (a) Buffalo District ....................... DAEN NCB
BCS and type the following: (b) Chicago District ..................... DAEN NCC
GET,DAMS/UN = CECELB (c) Detroit District ........................ DAEN NCE
(d) Rock Island District ................ DAEN NCR
CALL,DAMS (e) St. Paul District ...................... DAEN NCS
b. For current information and changes to (6) North Pacific Division:
the National Inventory Data Base, type: (a) Alaska District ........................ DAEN NPA
(b) Portland District ..................... DAEN NPP
OLD,HOTDAM/UN = CEC1AT (c) Seattle District ........................ DAEN NPS
LIST (d) Walla Walla District ............... DAEN NPW
(7) Ohio River Division:
5. The inventory update data will be fur- (a) Huntington District ................. DAEN ORH
nished and the National Data Base will be (b) Louisville District .................... DAEN ORL
updated on a monthly basis. The monthly (c) Nashville District .................... DAEN ORN
submission will cover all dams whose inven- (d) Pittsburgh District .................. DAEN ORP
tory data were completed since the last re- (8) Pacific Ocean Division .................. DAEN POD
port. The update data will be loaded directly (9) South Atlantic Division:
(a) Charleston District ................. DAEN SAC
onto the Boeing Computer by the field office. (b) Jacksonville District ............... DAEN SAJ
a. The procedure for loading the data on (c) Mobile District ........................ DAEN SAM
the Boeing Computer can be printed by ac- (d) Savannah District .................. DAEN SAS
cessing the Boeing Computer and listing the (e) Wilmington District ................. DAEN SAW
information file ‘‘HOTDAM.’’ (See paragraph (10) South Pacific Division:
4b. above.) (a) Los Angeles District ............... DAEN SPL
(b) Sacramento District ............... DAEN SPK
b. It is the responsibility of the submitting
(c) San Franciso District ............. DAEN SPN
office to edit the data prior to furnishing it (11) Southwestern Division:
for the update. Editing will be accomplished (a) Albuquerque District .............. DAEN SWA
by processing the data using the Inventory (b) Fort Worth District ................. DAEN SWF
Edit Computer program developed by the (c) Galveston District ................... DAEN SWG
247
§ 222.6 33 CFR Ch. II (7–1–20 Edition)
Major Minor Columns 1 thru 7—Item 1 identification as-

signed to the dam
(d) Little Rock District .................. DAEN SWL
(e) Tulsa District .......................... DAEN SWT
Columns 8 thru 10—Item 2, Division Code
Columns 11 thru 16—The word DELETE
7. Procedures for Revising and Updating the Columns 17 thru 79—Blank Spaces
Inventory of Dams Master File. Column 80—A zero
a. To Change Correct or Add an Item. Submit 8. Keypunch Instructions and Punched Card
a change card that contains the identifica- Formats.
tion assigned to the dams (Columns 1 thru 7),
a. Table 1 describes the character set to be
the proper card code (Column 80) and only
the item or items changed, corrected or used for keypunch cards of Engr. Forms 4474
added. Data on the master file is added or re- and 4474A.
placed on an item for item basis. b. Exhibit 1 is the EDPC keypunch instruc-
b. To Delete an Item. Submit a change card tions and punch card formats defining the
that contains the identification assigned to data fields (Items) and card columns to be
the dam, (Columns 1 thru 7), the proper card used in preparing punched cards in compli-
code (Column 80), and an asterisk (*) in the ance with the requirements of this regula-
left most column of the item or items to be tion.
deleted. More than one item can be changed, c. Exhibit 2 are prints of Engr. Forms 4474
corrected, added on or deleted from the same and 4474A which are laid out in punch card
card. format to facilitate punching cards directly
c. To Delete the Entire Data for a Dam from from the completed forms.
the Master File. Submit a zero (0) card
punched as follows:
248
249
EC31OC91.000</GPH>
§ 222.6 33 CFR Ch. II (7–1–20 Edition)
250
EC31OC91.001</GPH>
251
EC31OC91.002</GPH>
§ 222.6 33 CFR Ch. II (7–1–20 Edition)
252
EC31OC91.003</GPH>
253
EC31OC91.004</GPH>
§ 222.6 33 CFR Ch. II (7–1–20 Edition)
254
EC31OC91.005</GPH>
255
EC31OC91.006</GPH>
§ 222.6 33 CFR Ch. II (7–1–20 Edition)
256
EC31OC91.007</GPH>
257
EC31OC91.008</GPH>
§ 222.6 33 CFR Ch. II (7–1–20 Edition)
258
EC31OC91.009</GPH>
259
EC31OC91.010</GPH>
§ 222.6 33 CFR Ch. II (7–1–20 Edition)
methods or systematized computer programs

that take minimal effort. The Hydrologic
APPENDIX C TO § 222.6—HYDROLOGIC AND Engineering Center (HEC) has developed a
HYDRAULIC ASSESSMENT OF DAMS special computer program for hydrologic and
1. Phase I inspections are not intended to hydraulic analyses to be used with the Phase
provide detailed hydrologic and hydraulic I inspection program. Other Field Operating
analyses of dam and reservoir capabilities. Agencies have developed similar computer
However, when such analyses are available, programs or generalized procedures which
they should be evaluated for reliability and are acceptable for use. All such efforts
completeness. If a project’s ability to pass should be completed with minimum re-
the appropriate flood (see Table 3, page D–12 sources.
of Recommended Guidelines) can be deter- 2. A finding that a dam will not safely pass
mined from available information of a brief the flood indicated in the Recommended
study, such an assessment should be made. It Guidelines does not necessarily indicate that
the dam should be classified as unsafe. The
should be noted that hydrologic and hydrau-

lic analyses connected with the Phase I in- degree of inadequacy of the spillway to pass
spections should be based on approximate
260
EC31OC91.011</GPH>
the appropriate flood and the probable ad- 5. During the inspection of a dam, consid-
verse impacts of dam failure because of over- eration should be given to impacts on other
topping must be considered in making such dams located downstream from the project
classification. The following criteria have being inspected. When failure of a dam would
been selected which indicate when spillway be likely to cause failure of another dam(s)
capacity is so seriously inadequate that a downstream, its designation as an unsafe
project must be classified as unsafe. All of dam could result in multiple impacts. There-
the following conditions must prevail before fore, the information should be explicitly de-
designating a dam unsafe: scribed in the inspection report. Such infor-
a. There is high hazard to loss of life from mation may be vital to the priorities estab-
large flows downstream of the dam. lished by State Governors for dam improve-
b. Dam failure resulting from overtopping ments. Similarly, when the failure of an up-
would significantly increase the hazard to stream dam (classified as unsafe) could cause
loss of life downstream from the dam from failure of the dam being inspected, this in-
that which would exist just before overtop- formation should be prominently displayed
ping failure. in the inspection report.
6. The criteria established in paragraph 2
c. The spillway is not capable of passing
for designating unsafe dams because of seri-
one-half of the probable maximum flood
ously inadequate spillways are considered
without overtopping the dam and causing
reasonable and prudent. They provide a con-
failure.
sistent bases for declaring unsafe dams and
3. The above criteria are generally ade- also serve as an effective compromise be-
quate for evaluating most non-Federal dams. tween the Recommended Guidelines and un-
However, in a few cases the increased hazard duly low standards suggested by special in-
potential from overtopping and failure is so terests and individuals unfamiliar with flood
great as to result in catastrophic con- hazard potential.
sequences. In such cases, the evaluation of 7. The Hydrometeorological Branch (HMB)
condition 2c should utilize a flood more of the National Weather Service has re-
closely approximating the full probable max- viewed some 500 experienced large storms in
imum flood rather than one-half the flood. the United States. The purpose of the review
An example of such a situation would be a was to ascertain the relative magnitude of
large dam immediately above a highly popu- experienced large storms to probable max-
lated flood plain, with little likelihood of imum precipitation (PMP) and their dis-
time for evacuation in the event of an emer- tribution throughout the country. Their re-
gency. view reveals that about 25 percent of the
4. Conditions 2a and 2b require an approxi- major storms have exceeded 50 percent of the
mation of housing location in relation to probable maximum precipitation for one or
flooded areas. Resources available in Phase I more combinations of area and duration. In
inspections do not permit detailed surveys or fact some storms have very closely approxi-
time-consuming studies to develop such rela- mated the PMP values. Exhibits C–1 thru C–
tionships. Therefore, rough estimates will 5 indicate locations where experienced
generally be made from data obtained during storms have exceeded 50 percent of the PMP.
the inspection and from readily available 8. There are several options to consider
maps and drawings. Brief computer routings when selecting mitigation measures to avoid
such as the HEC–1 dam break analysis, using severe consequences of a dam failure from
available data, are recommended in marginal overtopping. The following measures may be
cases. The HEC–1, dam break version, is required by a Governor when sufficient legal
available on the Boeing Computer Services authority is available under State laws and a
or may be obtained from the Hydrologic En- dam presents a serious threat to loss of life.
gineering Center, Davis, California. Avail- a. Remove the dam.
able resources do not permit detailed studies b. Increase the height of dam and/or spill-
or investigations to establish the amount of way size to pass the probable maximum flood
overtopping that would cause a dam to fail, without overtopping the dam.
as designated in condition 2c. Professional c. Purchase downstream land that would
judgment and available information will be adversely impacted by dam failure and re-
have to be used in these determinations. strict human occupancy.
When detailed investigations and studies are d. Enhance the stability of the dam to per-
required to make a reasonable judgment of mit overtopping by the probable maximum
the conditions which designate an unsafe flood without failure.
dam, the inspection report should rec- e. Provide a highly reliable flood warning
ommend that such studies be the responsi- system (generally does not prevent damage
bility of the dam owner. but avoids loss of life).
261
§ 222.6 33 CFR Ch. II (7–1–20 Edition)
TABLE 1—STORMS WITH RAINFALL ≥150% OF PMP, U.S. EAST OF THE 105TH MERIDIAN (FOR 10
MI2, 6 HOURS; 200 MI2, 24 HOURS AND/OR 1,000 MI2, 48 HOURS)
Storm center
Index Corps assignment Lon-
Storm date Latitude
No. No. (if available) gitude
Town State
July 26, 1819 ..................................... 1 ................................. Catskill ........................ NY ........ 42°12′ 73°53′
Aug. 5, 1843 ...................................... 2 ................................. Concordville ................ PA ......... 39°53′ 75°32′
Sept. 10–13, 1878 ............................. 3 OR 9–19 ................. Jefferson ..................... OH ........ 41°45′ 80°46′
Sept. 20–24, 1882 ............................. 4 NA 1–3 .................... Paterson ..................... NJ ......... 40°55′ 74°10′
June 13–17, 1886 .............................. 5 LMV 4–27 ............... Alexandria ................... LA ......... 31°19′ 92°33′
June 27–July 11, 1899 ...................... 6 GM 3–4 ................... Turnersville ................. TX ......... 30°52′ 96°32′
Aug. 24–28, 1903 .............................. 7 MR 1–10 ................. Woodburn ................... IA .......... 40°57′ 93°35′
Oct. 7–11, 1903 ................................. 8 GL 4–9 .................... Paterson ..................... NJ ......... 40°55′ 74°10′
July 18–23, 1909 ............................... 9 UMV 1–11B ............ Ironwood ..................... MI ......... 46°27′ 90°11′
July 18–23, 1909 ............................... 10 UMV 1–11A ............ Beaulieu ...................... MN ........ 47°21′ 95°48′
July 22–23, 1911 ............................... 11 ................................. Swede Home .............. NB ........ 40°22′ 96°54′
July 19–24, 1912 ............................... 12 GL 2–29 .................. Merrill .......................... WI ......... 45°11′ 89°41′
July 13–17, 1916 ............................... 13 SA 2–9 .................... Altapass ...................... NC ........ 35°33′ 82°01′
Sept. 8–10, 1921 ............................... 14 GM 4–12 ................. Taylor .......................... TX ......... 30°35′ 97°18′
Oct. 4–11, 1924 ................................. 15 SA 4–20 .................. New Smyrna ............... FL ......... 29°07′ 80°55′
Sept. 17–19, 1926 ............................. 16 MR 4–24 ................. Boyden ........................ IA .......... 43°12′ 96°00′
Mar. 11–16, 1929 .............................. 17 UMV 2–20 ............... Elba ............................. AL ......... 31°25′ 86°04′
June 30–July 2, 1932 ........................ 18 GM 5–1 ................... State Fish Hatchery .... TX ......... 30°01′ 99°07′
Sept. 16–17, 1932 ............................. 19 ................................. Ripogenus Dam .......... ME ........ 45°53′ 69°09′
July 22–27, 193 ................................. 20 LMV 2–26 ............... Logansport .................. LA ......... 31°58′ 94°00′
Apr. 3–4 1934 .................................... 21 SW 2–11 ................. Cheyenne ................... OK ........ 35°37′ 99°40′
May 30–31, 1935 ............................... 22 MR 3–28A ............... Cherry Creek .............. CO ........ 39°13′ 104°32′
May 31, 1935 ..................................... 23 GM 5–20 ................. Woodward ................... TX ......... 29°20′ 99°28′
July 6–10, 1935 ................................. 24 NA 1–27 .................. Hector ......................... NY ........ 42°30′ 76°53′
Sept. 2–6, 1935 ................................. 25 SA 1–26 .................. Easton ......................... MD ........ 38°46′ 76°01′
Sept. 14–18, 1936 ............................. 26 GM 5–7 ................... Broome ....................... TX ......... 31°47′ 100°50′
June 19–20, 1939 .............................. 27 ................................. Snyder ........................ TX ......... 32°44′ 100°55′
July 4–5, 1939 ................................... 28 ................................. Simpson ...................... KY ......... 38°13′ 83°22′
Aug. 19, 1939 .................................... 29 NA 2–3 .................... Manahawkin ................ NJ ......... 39°42′ 74°16′
June 3–4, 1940 .................................. 30 MR 4–5 ................... Grant Township .......... NB ........ 42°01′ 96°53′
Aug. 6–9, 1940 .................................. 31 LMV 4–24 ............... Miller Isl ...................... LA ......... 29°45′ 92°10′
Aug. 10–17, 1940 .............................. 32 SA 5–19A ................ Keysville ...................... VA ......... 37°03′ 78°30′
Sept. 1, 1940 ..................................... 33 NA 2–4 .................... Ewan ........................... NJ ......... 39°42′ 75°12′
Sept. 2–6, 1940 ................................. 34 SW 2–18 ................. Hallet ........................... OK ........ 36°15′ 96°36′
Aug. 28–31, 1941 .............................. 35 UMV 1–22 ............... Haywood ..................... WI ......... 46°00′ 91°28′
Oct. 17–22, 1941 ............................... 36 SA 5–6 .................... Trenton ....................... FL ......... 29°48′ 82°57′
July 17–18, 1942 ............................... 37 OR 9–23 ................. Smethport ................... PA ......... 41°50′ 78°25′
Oct. 11–17, 1942 ............................... 38 SA 1–28A ................ Big Meadows .............. VA ......... 38°31′ 78°26′
May 6–12, 1943 ................................. 39 SW 2–20 ................. Warner ........................ OK ........ 35°29′ 95°18′
May 12–20, 1943 ............................... 40 SW 2–21 ................. Nr. Mounds ................. OK ........ 35°52′ 96°04′
July 27–29, 1943 ............................... 41 GM 5–21 ................. Devers ........................ TX ......... 30°02′ 94°35′
Aug. 4–5, 1943 .................................. 42 OR 3–30 ................. Nr. Glenville ................ WV ........ 38°56′ 80°50′
June 10–13, 1944 .............................. 43 MR 6–15 ................. Nr. Stanton ................. NB ........ 41°52′ 97°03′
Aug. 12–15, 1946 .............................. 44 MR 7–2A ................. Cole Camp .................. MO ........ 38°40′ 93°13′
Aug. 12–16, 1946 .............................. 45 MR 7–2B ................. Nr. Collinsville ............. IL .......... 38°40′ 89°59′
Sept. 26–27, 1946 ............................. 46 GM 5–24 ................. Nr. San Antonio .......... TX ......... 29°20′ 98°29′
June 23–24, 1948 .............................. 47 ................................. Nr. Del Rio .................. TX ......... 29°22′ 100°37′
Sept. 3–7, 1950 ................................. 48 SA 5–8 .................... Yankeetown ................ FL ......... 29°03′ 82°42′
June 23–28, 1954 .............................. 49 SW 3–22 ................. Vic Pierce ................... TX ......... 30°22′ 101°23′
Aug. 17–20, 1955 .............................. 50 NA 2–22A ............... Westfield ..................... MA ........ 42°07′ 72°45′
May 15–16, 1957 ............................... 51 ................................. Hennessey .................. OK ........ 36°02′ 97°56′
June 14–15, 1957 .............................. 52 ................................. Nr. E. St. Louis ........... IL .......... 38°37′ 90°24′
June 23–24, 1963 .............................. 53 ................................. David City ................... NB ........ 41°14′ 97°05′
June 13–20, 1965 .............................. 54 ................................. Holly ............................ CO ........ 37°43′ 102°23′
June 24, 1966 .................................... 55 ................................. Glenullin ...................... ND ........ 47°21′ 101°19′
Aug. 12–13, 1966 .............................. 56 ................................. Nr. Greely ................... NB ........ 41°33′ 98°32′
Sept. 19–24, 1967 ............................. 57 SW 3–24 ................. Falfurrias ..................... TX ......... 27°16′ 98°12′
July 16–17, 1968 ............................... 58 ................................. Waterloo ..................... IA .......... 42°30′ 92°19′
July 4–5, 1969 ................................... 59 ................................. Nr. Wooster ................ OH ........ 40°50′ 82°00′
Aug. 19–20, 1969 .............................. 60 NA 2–3 .................... Nr. Tyro ....................... VA ......... 37°49′ 79°00′
June 9, 1972 ...................................... 61 ................................. Rapid City ................... SD ........ 44°12′ 103°31′
June 19–23, 1972 .............................. 62 ................................. Zerbe .......................... PA ......... 40°37′ 76°31′
July 21–22, 1972 ............................... 63 ................................. Nr. Cushing ................. MN ........ 46°10′ 94°30′
Sept. 10–12, 1972 ............................. 64 ................................. Harlan ......................... IA .......... 41°43′ 95°15′
Oct. 10–11, 1973 ............................... 65 ................................. Enid ............................. OK ........ 36°25′ 97°52′
262
TABLE 2—STORMS WITH RAINFALL ≥50% OF PMP, U.S. WEST OF CONTINENTAL DIVIDE (FOR 10 MI
2 6 HOURS OR 1,000 MI2 FOR ONE DURATION BETWEEN 6 AND 72 HOURS)
Storm center Duration

Index Lon- for
Storm date Latitude
No. gitude 1,000
Town State mi2
Aug. 11, 1890 ...................................... 1 Palmetto ...................................... NV ......... 37°27′ 117°42′ ..............
Aug. 12, 1891 ...................................... 2 Campo ......................................... CA ......... 32°36′ 116°28′ ..............
Aug. 28, 1898 ...................................... 3 Ft. Mohave .................................. AZ ......... 35°03′ 114°36′ ..............
Oct. 4–6, 1911 ..................................... 4 Gladstone .................................... CO ......... 37°53′ 107°39′ ..............
Dec. 29, 1913–Jan. 3, 1914 ................ 5 ..................................................... CA ......... 39°55′ 121°25′ ..............
Feb. 17–22, 1914 ................................. 6 Colby Ranch ................................ CA ......... 34°18′ 118°07′ ..............
Feb. 20–25, 1917 ................................. 7 ..................................................... CA ......... 37°35′ 119°36′ ..............
Sept. 13, 1918 ..................................... 8 Red Bluff ..................................... CA ......... 40°10′ 122°14′ ..............
Feb. 26–Mar 4, 1938 ........................... 9 ..................................................... CA ......... 34°14′ 117°11′ ..............
Mar. 30–Apr. 2, 1931 ........................... 10 ..................................................... ID .......... 46°30′ 114°50′ 24
Feb. 26, 1932 ....................................... 11 Big Four ...................................... WA ........ 48°05′ 121°30′ ..............
Nov. 21, 1933 ...................................... 12 Tatoosh Is ................................... WA ........ 48°23′ 124°44′ ..............
Jan. 20–25, 1935 ................................. 13 ..................................................... WA ........ 47°30′ 123°30′ 6
Jan. 20–25, 1935 ................................. 14 ..................................................... WA ........ 47°00′ 122°00′ 72
Feb. 4–8, 1937 ..................................... 15 Cyamaca Dam ............................ CA ......... 33°00′ 116°35′ ..............
Dec. 9–12, 1937 .................................. 16 ..................................................... CA ......... 38°51′ 122°43′ ..............
Feb. 27–Mar. 4, 1938 .......................... 17 ..................................................... AZ ......... 34°57′ 111°44′ 12
Jan. 19–24, 1943 ................................. 18 ..................................................... CA ......... 37°35′ 119°25′ 18
Jan. 19–24, 1943 ................................. 19 Hoegee’s Camp .......................... CA ......... 34°13′ 118°02′ ..............
Jan. 30–Feb. 3, 1945 ........................... 20 ..................................................... CA ......... 37°35′ 119°30′ ..............
Dec. 27, 1945 ...................................... 21 Mt. Tamalpias .............................. CA ......... 37°54′ 122°34′ ..............
Nov. 13–21, 1950 ................................ 22 ..................................................... CA ......... 36°30′ 118°30′ 24
Aug. 25–30, 1951 ................................ 23 ..................................................... AZ ......... 34°07′ 112°21′ 72
July 19, 1955 ....................................... 24 Chiatovich Flat ............................ CA ......... 37°44′ 118°15′ ..............
Aug. 16, 1958 ...................................... 25 Morgan ........................................ UT ......... 41°03′ 111°38′ ..............
Sept. 18, 1959 ..................................... 26 Newton ........................................ CA ......... 40°22′ 122°12′ ..............
June 7–8, 1964 .................................... 27 Nyack Ck ..................................... MT ......... 48°30′ 113°38′ 12
Sept. 3–7, 1970 ................................... 28 ..................................................... UT ......... 37°38′ 109°04′ 6
Sept. 3–7, 1970 ................................... 29 ..................................................... AZ ......... 33°49′ 110°56′ 6
June 7, 1972 ........................................ 30 Bakersfield ................................... CA ......... 35°25′ 119°03′ ..............
Dec. 9–12, 1937 .................................. 31 ..................................................... CA ......... 39°45′ 121°30′ 48
263
§ 222.6 33 CFR Ch. II (7–1–20 Edition)
264
EC31OC91.012</GPH>
265
EC31OC91.013</GPH>
§ 222.6 33 CFR Ch. II (7–1–20 Edition)
266
EC31OC91.014</GPH>
267
EC31OC91.015</GPH>
§ 222.6 33 CFR Ch. II (7–1–20 Edition)
268
EC31OC91.016</GPH>
with use of the guidelines, suggestions for fu-
ture revisions will be generated. All such
APPENDIX D TO § 222.6—RECOMMENDED suggestions should be directed to the Chief of
GUIDELINES FOR SAFETY INSPECTION OF DAMS Engineers, U.S. Army, DAEN-CWE-D, Wash-
ington, D.C. 20314.
Department of the Army—Office of the Chief
of Engineers RECOMMENDED GUIDELINES FOR SAFETY
INSPECTION OF DAMS
Preface
The recommended guidelines for the safety Table of Contents
inspection of dams were prepared to outline Preface
principal factors to be weighed in the deter-
mination of existing or potential hazards and CHAPTER 1—INTRODUCTION
to define the scope of activities to be under-
taken in the safety inspection of dams. The Para.
establishment of rigid criteria or standards 1.1 Purpose.
is not intended. Safety must be evaluated in 1.2 Applicability.
the light of peculiarities and local conditions 1.3 Authority.
at a particular dam and in recognition of the CHAPTER 2—GENERAL REQUIREMENTS
many factors involved, some of which may
not be precisely known. This can only be 2.1 Classification of dams.
done by competent, experienced engineering 2.1.1 Size.
judgment, which the guidelines are intended 2.1.2 Hazard potential.
to supplement and not supplant. The guide- 2.2 Selection of dams to be investigated.
lines are intended to be flexible, and the 2.3 Technical investigations.
proper flexibility must be achieved through 2.4 Qualifications of investigators.
the employment of experienced engineering 2.5 Reports.
personnel.
Conditions found during the investigation CHAPTER 3—PHASE I INVESTIGATION
which do not meet guideline recommenda- 3.1 Purpose.
tions should be assessed by the investigator 3.2 Scope.
as to their import from the standpoint of the 3.3 Engineering data.
involved degree of risk. Many deviations will 3.4 Field inspections.
not compromise project safety and the inves- 3.5 Evaluation of hydraulic and hydrologic
tigator is expected to identify them in this features.
manner if that is the case. Others will in- 3.5.1 Design data.
volve various degrees of risk, the proper 3.5.2 Experience data.
evaluation of which will afford a basis for 3.6 Evaluation of structural stability.
priority of subsequent attention and possible 3.6.1 Design and construction data.
remedial action. 3.6.2 Operating records.
The guidelines present procedures for in- 3.6.3 Post contruction changes.
vestigating and evaluating existing condi- 3.6.4 Seismic stability.
tions for the purpose of identifying defi-
ciencies and hazardous conditions. The two CHAPTER 4—PHASE II INVESTIGATION
phases of investigation outlined in the guide- 4.1 Purpose.
lines are expected to accomplish only this 4.2 Scope.
and do not encompass in scope the engineer- 4.3 Hydraulic and hydrologic analysis.
ing which will be required to perform the de- 4.3.1 Maximum water surface based on SDF
sign studies for corrective modification peak inflow.
work. 4.3.1.1 Peak for 100-year flood.
It is recognized that some States may have 4.3.1.2 Peak for PMF or fraction thereof.
established or will adopt inspection criteria 4.3.2 Maximum water surface based on SDF
incongruous in some respects with these hydrograph.
guidelines. In such instances assessments of 4.3.3 Acceptable procedures.
project safety should recognize the State’s 4.3.4 Freeboard allowances.
requirements as well as guideline rec- 4.4 Stability investigations.
ommendations. 4.4.1 Foundation and material investiga-
The guidelines were developed with the tions.
help of several Federal agencies and many 4.4.2 Stability assessment.
State agencies, professional engineering or- 4.4.2.1 Seismic stability.
ganizations, and private engineers. In re- 4.4.2.2 Clay shale foundation.
viewing two drafts of the guidelines they 4.4.3 Embankment dams.
have contributed many helpful suggestions. 4.4.3.1 Liquefaction.
Their contributions are deeply appreciated 4.4.3.2 Shear failure.
and have made it possible to evolve a docu- 4.4.3.3 Loading conditions.

ment representing a consensus of the engi- 4.4.3.4 Safety factors.
neering fraternity. As experience is gained 4.4.3.5 Seepage failure.
269
§ 222.6 33 CFR Ch. II (7–1–20 Edition)
4.4.3.6 Seepage analyses. safety inspection of dams throughout the
4.4.4 Concrete dams and appurtenant struc- United States. The Chief of Engineers issues
tures. these guidelines pursuant to that authority.
4.4.4.1 Requirements for stability.
4.4.4.2 Loads. CHAPTER 2—GENERAL REQUIREMENTS
4.4.4.3 Stresses. 2.1. Classification of dams. Dams should be
4.4.4.4 Overturning. classified in accordance with size and hazard
4.4.4.5 Sliding. potential in order to formulate a priority
4.4.4.5.1 Sliding resistance. basis for selecting dams to be included in the
4.4.4.5.2 Downstream resistance.
inspection program and also to provide com-
4.4.4.5.3 Safety factor.
patibility between guideline requirements
CHAPTER 5—REPORTS and involved risks. When possible the initial
classifications should be based upon informa-
5.1 General. tion listed in the National Inventory of
5.2 Preparation of report. Dams with respect to size, impoundment ca-
5.2.1 Phase I reports. pacity and hazard potential. It may be nec-
5.2.2 Phase II reports. essary to reclassify dams when additional in-
formation becomes available.
TABLES
2.1.1. Size. The classification for size based
Table on the height of the dam and storage capac-
1 Size classification. ity should be in accordance with Table 1. The
2 Hazard potential classification. height of the dam is established with respect
3 Hydrologic evaluation guidelines. to the maximum storage potential measured
4 Factors of safety (embankment dams). from the natural bed of the stream or water-
course at the downstream toe of the barrier,
FIGURES or if it is not across a stream or watercourse,
Fig. the height from the lowest elevation of the
1 Seismic zone map of contiguous States. outside limit of the barrier, to the maximum
2 Seismic zone map of California, Nevada water storage elevation. For the purpose of
and Arizona. determining project size, the maximum stor-
3 Seismic zone map of Alaska. age elevation may be considered equal to the
4 Seismic zone map of Hawaii. top of dam elevation. Size classification may
5 Design envelope for Case I (Table 4). be determined by either storage or height,
6 Design envelope for Cases II and III (Table whichever gives the larger size category.
4).
TABLE 1—SIZE CLASSIFICATION
APPENDIXES
Impoundment
Appendix I to App. D—Engineering data Category
Storage (ac-ft) Height (ft)
Appendix II to App. D—Inspection items
Appendix III to App. D—Pub. L. 92–367 Small ............. <1,000 and ≥50 ........... <40 and ≥25.
Intermediate .. ≥1,000 and <50,000 .... ≥40 and <100.
CHAPTER 1—INTRODUCTION Large ............ ≥50,000 ........................ ≥100.
1.1. Purpose. This document provides rec-
ommended guidelines for the inspection and 2.1.2. Hazard Potential. The classification
evaluation of dams to determine if they con- for potential hazards should be in accordance
stitute hazards to human life or property. with Table 2. The hazards pertain to poten-
1.2. Applicability. The procedures and guide- tial loss of human life or property damage in
lines outlined in this document apply to the the area downstream of the dam in event of
inspection and evaluation of all dams as de- failure or misoperation of the dam or appur-
fined in the National Dam Inspection Act, tenant facilities. Dams conforming to cri-
Public Law 92–367. Included in this program teria for the low hazard potential category
are all artificial barriers together with ap- generally will be located in rural or agricul-
purtenant works which impound or divert tural areas where failure may damage farm
water and which (1) are twenty-five feet or buildings, limited agricultural land, or town-
more in height or (2) have an impounding ca- ship and country roads. Significant hazard
pacity of fifty acre-feet or more. Not in- potential category structures will be those
cluded are barriers which are six feet or less located in predominantly rural or agricul-
in height, regardless of storage capacity, or tural areas where failure may damage iso-
barriers which have a storage capacity at lated homes, secondary highways or minor
maximum water storage elevation of fifteen railroads or cause interruption of use or
acre-feet or less regardless of height. service of relatively important public utili-
1.3. Authority. The Dam Inspection Act, ties. Dams in the high hazard potential cat-
Public Law 92–367 (Appendix III), authorized egory will be those located where failure
the Secretary of the Army, through the may cause serious damage to homes, exten-
Corps of Engineers, to initiate a program of sive agricultural, industrial and commercial
270
facilities, important public utilities, main
highways, or railroads.
TABLE 2—HAZARD POTENTIAL CLASSIFICATION

Category Loss of life (extent of development) Economic loss (extent of development)
Low .................................. None expected (No permanent structures for Minimal (Undeveloped to occasional structures
human habitation). or agriculture).
Significant ........................ Few (No urban developments and no more than Appreciable (Notable agriculture, industry or
a small number of inhabitable structures). structures).
High ................................. More than few ....................................................... Excessive (Extensive community, industry or ag-
riculture).
2.2. Selection of dams to be investigated. The knowledgeable in the investigation, design,

selection of dams to be investigated should construction and operation of dams.
be based upon an assessment of existing de-
velopments in flood hazard areas. Those CHAPTER 3—PHASE I INVESTIGATION
dams possessing a hazard potential classified 3.1. Purpose. The primary purpose of the
high or significant as indicated in Table 2 Phase I investigation program is to identify
should be given first and second priorities, expeditiously those dams which may pose
respectively, in the inspection program. In- hazards to human life or property.
spection priorities within each category may 3.2. Scope. The Phase I investigation will
be developed from a consideration of factors develop an assessment of the general condi-
such as size classification and age of the tion with respect to safety of the project
dam, the population size in the downstream based upon available data and a visual in-
flood area, and potential developments an- spection, determine any need for emergency
ticipated in flood hazard areas. measures and conclude if additional studies,
2.3. Technical Investigations. A detailed, sys- investigation and analyses are necessary and
tematic, technical inspection and evaluation warranted. A review will be made of perti-
should be made of each dam selected for in- nent existing and available engineering data
vestigation in which the hydraulic and hy- relative to the design, construction and oper-
drologic capabilities, structural stability ation of the dam and appurtenant structures,
and operational adequacy of project features including electrical and mechanical oper-
are analyzed and evaluated to determine if ating equipment and measurements from in-
the dam constitutes a danger to human life spection and performance instruments and
or property. The investigation should vary in devices; and a detailed systematic visual in-
scope and completeness depending upon the spection will be performed of those features
availability and suitability of engineering relating to the stability and operational ade-
data, the validity of design assumptions and quacy of the project. Based upon findings of
analyses and the condition of the dam. The the review of engineering data and the visual
minimum investigation will be designated inspection, an evaluation will be made of the
Phase I, and an in-depth investigation des- general condition of the dam, including
ignated Phase II should be made where where possible the assessment of the hydrau-
deemed necessary. Phase I investigations lic and hydrologic capabilities and the struc-
should consist of a visual inspection of the tural stability.
dam, abutments and critical appurtenant 3.3. Engineering data. To the extent feasible
structures, and a review of readily available the engineering data listed in Appendix I re-
engineering data. It is not intended to per- lating to the design, construction and oper-
form costly explorations or analyses during ation of the dam and appurtenant structures,
Phase I. Phase II investigations should con- should be collected from existing records and
sist of all additional engineering investiga- reviewed to aid in evaluating the adequacy
tions and analyses found necessary by re- of hydraulic and hydrologic capabilities and
sults of the Phase I investigation. stability of the dam. Where the necessary en-
2.4. Qualifications of investigators. The tech- gineering data are unavailable, inadequate
nical investigations should be conducted or invalid, a listing should be made of those
under the direction of licensed professional specific additional data deemed necessary by
engineers experienced in the investigation, the engineer in charge of the investigation
design, construction and operation of dams, and included in the Phase I report.
applying the disciplines of hydrologic, hy- 3.4. Field inspections. The field inspection of
draulic, soils and structural engineering and the dam, appurtenant stuctures, reservoir
engineering geology. All field inspections area, and downstream channel in the vicin-
should be conducted by qualified engineers, ity of the dam should be conducted in a sys-
engineering geologists and other specialists, tematic manner to minimize the possibility
including experts on mechanical and elec- of any significant feature being overlooked.
trical operation of gates and controls, A detailed checklist should be developed and
271
§ 222.6 33 CFR Ch. II (7–1–20 Edition)
followed for each dam inspected to document TABLE 3—HYDROLOGIC EVALUATION
the examination of each significant struc- GUIDELINES—Continued
tural and hydraulic feature including elec- [Recommended spillway design floods]
trical and mechanical equipment for oper-
ation of the control facilities that affect the Spillway design flood
Hazard Size
safety of the dam. (SDF) 1
3.4.1. Particular attention should be given
High ............... Small ............ ⁄ PMF to PMF.
12
to detecting evidence of leakage, erosion, Intermediate PMF.
seepage, slope instability, undue settlement, Large ............ PMF.
displacement, tilting, cracking, deteriora-
1 The recommended design floods in this column represent
tion, and improper functioning of drains and the magnitude of the spillway design flood (SDF), which is in-
relief wells. The adequacy and quality of tended to represent the largest flood that need be considered
maintenance and operating procedures as in the evaluation of a given project, regardless of whether a
they pertain to the safety of the dam and op- spillway is provided; i.e., a given project should be capable of
safely passing the appropriate SDF. Where a range of SDF is
eration of the control facilities should also indicated, the magnitude that most closely relates to the in-
be assessed. volved risk should be selected.
3.4.2. Photographs and drawings should be 1000-yr = 100-Year Exceedence Interval. The
used freely to record conditions in order to flood magnitude expected to be exceeded,
minimize descriptions. on the average, of once in 100 years. It
3.4.3. The field inspection should include
may also be expressed as an exceedence
appropriate features and items, including
frequency with a one-percent chance of
but not limited to those listed in Appendix
being exceeded in any given year.
II, which may influence the safety of the
PMF = Probable Maximum Flood. The flood
dam or indicate potential hazards to human
that may be expected from the most se-
life or property.
vere combination of critical meteoro-
3.5. Evaluation of hydraulic and hydrologic
logic and hydrologic conditions that are
Features.
reasonably possible in the region. The
3.5.1. Design data. Original hydraulic and
PMF is derived from probable maximum
hydrologic design assumptions obtained
precipitation (PMP), which information
from the project records should be assessed
is generally available from the National
to determine their acceptability in evalu-
Weather Service, NOAA. Most Federal
ating the safety of the dam. All constraints
agencies apply reduction factors to the
on water control such as blocked entrances,
PMP when appropriate. Reductions may
restrictions on operation of spillway and
be applied because rainfall isohyetals are
outlet gates, inadequate energy dissipators
unlikely to conform to the exact shape of
or restrictive channel conditions, significant
the drainage basin and/or the storm is
reduction in reservoir capacity by sediment
not likely to center exactly over the
deposits and other factors should be consid-
drainage basin. In some cases local to-
ered in evaluating the validity of discharge
pography will cause changes from the
ratings, storage capacity, hydrographs,
generalized PMP values, therefore it may
routings and regulation plans. The discharge
be advisable to contact Federal construc-
capacity and/or storage capacity should be
tion agencies to obtain the prevailing
capable of safely handling the recommended
practice in specific areas.
spillway design flood for the size and hazard
3.5.2. Experience data. In some cases where
potential classification of the dam as indi-
design data are lacking, an evaluation of
cated in Table 3. The hydraulic and hydro-
overtopping potential may be based on wa-
logic determinations for design as obtained
tershed characteristics and rainfall and res-
from project records will be acceptable if
ervoir records. An estimate of the probable
conventional techniques similar to the pro-
maximum flood may also be developed from
cedures outlined in paragraph 4.3. were used
a conservative, generalized comparison of
in obtaining the data. When the project de-
the drainage area size and the magnitude of
sign flood actually used exceeds the rec-
recently adopted probable maximum floods
ommended spillway design flood, from Table
for damsites in comparable hydrologic re-
3, the project design flood will be acceptable
gions. Where the review of such experience
in evaluating the safety of the dam.
data indicates that the recommended spill-
way design flood would not cause overtop-
TABLE 3—HYDROLOGIC EVALUATION GUIDELINES
ping additional hydraulic and hydrologic de-
[Recommended spillway design floods]
terminations will be unnecessary.
Spillway design flood 3.6. Evaluation of structural stability. The
Hazard Size Phase I evaluations of structural adequacy
(SDF) 1
of project features are expected to be based
Low ................ Small ............ 50 to 100-yr frequency. principally on existing conditions as re-
Intermediate 100-yr to 1⁄2 PMF.
vealed by the visual inspection, together
Large ............ ⁄ PMF to PMF.
12
Significant ...... Small ............ 100-yr to 1⁄2 PMF. with available design and construction infor-
Intermediate 1⁄2 PMF to PMF. mation and records of performance. The ob-
Large ............ PMF. jectives are to determine the existence of
272
conditions which are hazardous, or which 3.6.4. Seismic stability. An assessment should
with time might develop into safety hazards, be made of the potential vulnerability of the
and to formulate recommendations per- dam to seismic events and a recommenda-
taining to the need for any additional stud- tion developed with regard to the need for
ies, investigations, or analyses. The results additional seismic investigation. In general,
of this phase of the inspection must rely projects located in Seismic Zones 0, 1 and 2
very substantially upon the experience and may be assumed to present no hazard from
judgment of the inspecting engineer. earthquake provided static stability condi-
3.6.1. Design and construction data. The tions are satisfactory and conventional safe-
principal design assumptions and analyses ty margins exist. Dams in Zones 3 and 4
obtained from the project records should be should, as a minimum, have on record suit-
assessed. Original design and construction able analyses made by conventional equiva-
records should be used judiciously, recog- lent static load methods. The seismic zones
nizing the restricted applicability of such together with appropriate coefficients for
data as material strengths and use in such analyses are shown in Figures 1
permeabilities, geological factors and con- through 4. Boundary lines are approximate
struction descriptions. Original stability and in the event of doubt about the proper
studies and analyses should be acceptable if zone, the higher zone should be used. All
conventional techniques and procedures high hazard category dams in Zone 4 and
similar to those outlined in paragraph 4.4 high hazard dams of the hydraulic fill type
were employed, provided that review of oper- in Zone 3 should have a stability assessment
ational and performance data confirm that based upon knowledge of regional and local
the original design assumptions were ade- geology, engineering seismology, in situ
quately conservative. The need for such properties of materials and appropriate dy-
analyses where either none exist or the origi- namic analytical and testing procedures. The
nals are incomplete or unsatisfactory will be assessment should include the possibility of
determined by the inspecting engineer based physical displacement of the structures due
upon other factors such as condition of to movements along active faults. Departure
structures, prior maximum loadings and the from this general guidance should be made
hazard degree of the project. Design assump- whenever in the judgment of the inves-
tions and analyses should include all appli- tigating engineer different seismic stability
cable loads including earthquake and indi- requirements are warranted because of local
cate the structure’s capability to resist over- geological conditions or other reasons.
turning, sliding and overstressing with ade-
quate factors of safety. In general seepage CHAPTER 4—PHASE II INVESTIGATION
and stability analyses comparable to the re- 4.1. Purpose. The Phase II investigation
quirements of paragraph 4.4 should be on will be supplementary to Phase I and should
record for all dams in the high hazard cat- be conducted when the results of the Phase I
egory and large dams in the significant haz- investigation indicate the need for addi-
ard category. This requirement for other tional in-depth studies, investigations or
dams will be subject to the opinion of the in- analyses.
specting engineer. 4.2. Scope. The Phase II investigation
3.6.2. Operating records. The performance of should include all additional studies, inves-
structures under prior maximum loading tigations and analyses necessary to evaluate
conditions should in some instances provide the safety of the dam. Included, as required,
partial basis for stability evaluation. Satis- will be additional visual inspections, meas-
factory experience under loading conditions urements, foundation exploration and test-
not expected to be exceeded in the future ing, materials testing, hydraulic and hydro-
should generally be indicative of satisfactory logic analysis and structural stability anal-
stability, provided adverse changes in phys- yses.
ical conditions have not occurred. Instru- 4.3. Hydraulic and hydrologic analysis. Hy-
mentation observations of forces, pressures, draulic and hydrologic capabilities should be
loads, stresses, strains, displacements, de- determined using the following criteria and
flections or other related conditions should procedures. Depending on the project charac-
also be utilized in the safety evaluation. teristics, either the spillway design flood
Where such data indicate abnormal behavior, peak inflow or the spillway design flood
unsafe movement or deflections, or loadings hydrograph should be the basis for deter-
which adversely affect the stability or func- mining the maximum water surface ele-
tioning of the structure, prompt reporting of vation and maximum outflow. If the oper-
such circumstances is required without the ation or failure of upstream water control
delay for preparation of the official inspec- projects would have significant impact on
tion report. peak flow or hydrograph analyses, the im-
3.6.3. Post construction changes. Data should pact should be assessed.
be collected on changes which have occurred 4.3.1. Maximum water surface based on SDF
since project construction that might influ- peak inflow. When the total project discharge
ence the safety of the dam such as road cuts, capability at maximum pool exceeds the
quarries, mining and groundwater changes. peak inflow of the recommended SDF, and
273
§ 222.6 33 CFR Ch. II (7–1–20 Edition)
operational constraints would not prevent flood can be obtained from the NWS publica-
such a release at controlled projects, a res- tion ‘‘Rainfall Frequency Atlas of the United
ervoir routing is not required. The maximum States,’’ Technical Paper No. 40; Atlas 2,
discharge should be assumed equal to the ‘‘Precipitation Frequency Atlas of Western
peak inflow of the spillway design flood. United States;’’ or other NWS publications.
Flood volume is not controlling in this situa- The maximum water surface elevation and
tion and surcharge storage is either absent spillway design flood outflow are then deter-
or is significant only to the extent that it mined by routing the inflow hydrograph
provides the head necessary to develop the through the reservoir surcharge storage, as-
release capability required. suming a starting water surface at the bot-
4.3.1.1. Peak for 100-year flood. When the 100- tom of surcharge storage, or lower when ap-
year flood is applicable under the provisions propriate. For projects where the bottom of
of Table 3 and data are available, the spill- surcharge space is not distinct, or the flood
way design flood peak inflow may be deter- control storage space (exclusive of sur-
mined by use of ‘‘A Uniform Technique for charge) is appreciable, it may be appropriate
Determining Flood Frequencies,’’ Water Re- to select starting water surface elevations
sources Council (WRC), Hydrology Com- below the top of the flood control storage for
mittee, Bulletin 15, December 1967. Flow fre- routings. Conservatively high starting levels
quency information from regional analysis is should be estimated on the basis of
generally preferred over single station re- hydrometeorological conditions reasonably
sults when available and appropriate. Rain- characteristic for the region and flood re-
fall-runoff techniques may be necessary lease capability of the project. Necessary ad-
when there are inadequate runoff data avail- justment of reservoir storage capacity due to
able to make a reasonable estimate of flow existing or future sediment or other en-
frequency. croachment may be approximated when ac-
4.3.1.2. Peak for PMF or fraction thereof. curate determination of deposition is not
When either the Probable Maximum Flood practicable.
peak or a fraction thereof is applicable under 4.3.3. Acceptable procedures. Techniques for
the provisions of Table 3, the unit performing hydraulic and hydrologic anal-
hydrograph—infiltration loss technique is yses are generally available from publica-
generally the most expeditious method of tions prepared by Federal agencies involved
computing the spillway design flood peak for in water resources development or textbooks
most projects. This technique is discussed in written by the academic community. Some
the following paragraph. of these procedures are rather sophisticated
4.3.2. Maximum water surface based on SDF and require expensive computational equip-
hydrograph. Both peak and volume are re- ment and large data banks. While results of
quired in this analysis. Where surcharge such procedures are generally more reliable
storage is significant, or where there is in- than simplified methods, their use is gen-
sufficient discharge capability at maximum erally not warranted in studies connected
pool to pass the peak inflow of the SDF, con- with this program unless they can be per-
sidering all possible operational constraints, formed quickly and inexpensively. There
a flood hydrograph is required. When there may be situations where the more complex
are upstream hazard areas that would be im- techniques have to be employed to obtain re-
periled by fast rising reservoirs levels, SDF liable results; however, these cases will be
hydrographs should be routed to ascertain exceptions rather than the rule. Whenever
available time for warning and escape. De- the acceptability of procedures is in ques-
termination of probable maximum precipitation, the advice of competent experts should
tion or 100-year precipitation, which ever is be sought. Such expertise is generally avail-
applicable, and unit hydrographs or runoff able in the Corps of Engineers, Bureau of
models will be required, followed by the de- Reclamation and Soil Conservation Service.
termination of the PMF or 100-year flood. Many other agencies, educational facilities
Conservative loss rates (significantly re- and private consultants can also provide ex-
duced by antecedent rainfall conditions pert advice. Regardless of where such exper-
where appropriate) should be estimated for tise is based, the qualification of those indi-
computing the rainfall excess to be utilized viduals offering to provide it should be care-
with unit hydrographs. Rainfall values are fully examined and evaluated.
usually arranged with gradually ascending 4.3.4. Freeboard allowances. Guidelines on
and descending rates with the maximum rate specific minimum freeboard allowances are
late in the storm. When applicable, conserv- not considered appropriate because of the
atively high snowmelt runoff rates and ap- many factors involved in such determina-
propriate releases from upstream projects tions. The investigator will have to assess
should be assumed. The PMP may be ob- the critical parameters for each project and
tained from National Weather Service (NWS) develop its minimum requirement. Many
publications such as Hydrometeorological projects are reasonably safe without
Report (HMR) 33. Special NWS publications freeboard allowance because they are de-
for particular areas should be used when signed for overtopping, or other factors mini-
available. Rainfall for the 100-year frequency mize possible overtopping. Conversely,
274
freeboard allowances of several feet may be pore water pressures may contribute to in-
necessary to provide a safe condition. Pa- stability. Special tests may be necessary to
rameters that should be considered include determine physical properties of particular
the duration of high water levels in the res- materials. The results of stability analyses
ervoir during the design flood; the effective afford a means of evaluating the structure’s
wind fetch and reservoir depth available to existing resistance to failure and also the ef-
support wave generation; the probability of fects of any proposed modifications. Results
high wind speed occurring from a critical di- of stability analyses should be reviewed for
rection; the potential wave runup on the compatibility with performance experience
dam based on roughness and slope; and the when possible.
ability of the dam to resist erosion from 4.4.2.1. Seismic stability. The inertial forces
overtopping waves. for use in the conventional equivalent static
4.4 Stability investigations. The Phase II sta- force method of analysis should be obtained
bility investigations should be compatible by multiplying the weight by the seismic co-
with the guidelines of this paragraph. efficient and should be applied as a hori-
4.4.1 Foundation and material investigations. zontal force at the center of gravity of the
The scope of the foundation and materials section or element. The seismic coefficients
investigation should be limited to obtaining suggested for use with such analyses are list-
the information required to analyze the ed in Figures 1 through 4. Seismic stability
structural stability and to investigate any investigations for all high hazard category
suspected condition which would adversely dams located in Seismic Zone 4 and high haz-
affect the safety of the dam. Such investiga- ard dams of the hydraulic fill type in Zone 3
tions may include borings to obtain con- should include suitable dynamic procedures
crete, embankment, soil foundation, and and analyses. Dynamic analyses for other
bedrock samples; testing specimens from dams and higher seismic coefficients are ap-
these samples to determine the strength and propriate if in the judgment of the inves-
elastic parameters of the materials, includ- tigating engineer they are warranted be-
ing the soft seams, joints, fault gouge and cause of proximity to active faults or other
expansive clays or other critical materials in reasons. Seismic stability investigations
the foundation; determining the character of should utilize ‘‘state-of-the-art’’ procedures
the bedrock including joints, bedding planes, involving seismological and geological stud-
fractures, faults, voids and caverns, and ies to establish earthquake parameters for
other geological irregularities; and install- use in dynamic stability analyses and, where
ing instruments for determining movements, appropriate, the dynamic testing of mate-
strains, suspected excessive internal seepage rials. Stability analyses may be based upon
pressures, seepage gradients and uplift either time-history or response spectra tech-
forces. Special investigations may be nec- niques. The results of dynamic analyses
essary where suspect rock types such as should be assessed on the basis of whether or
limestone, gypsum, salt, basalt, claystone, not the dam would have sufficient residual
shales or others are involved in foundations integrity to retain the reservoir during and
or abutments in order to determine the ex- after the greatest or most adverse earth-
tent of cavities, piping or other deficiencies quake which might occur near the project lo-
in the rock foundation. A concrete core drill- cation.
ing program should be undertaken only when 4.4.2.2. Clay shale foundation. Clay shale is
the existence of significant structural cracks a highly overconsolidated sedimentary rock
is suspected or the general qualitative condi- comprised predominantly of clay minerals,
tion of the concrete is in doubt. The tests of with little or no cementation. Foundations
materials will be necessary only where such of clay shales require special measures in
data are lacking or are outdated. stability investigations. Clay shales, par-
4.4.2. Stability assessment. Stability assess- ticularly those containing montmorillonite,
ments should utilize in situ properties of the may be highly susceptible to expansion and
structure and its foundation and pertinent consequent loss of strength upon unloading.
geologic information. Geologic information The shear strength and the resistance to de-
that should be considered includes ground- formation of clay shales may be quite low
water and seepage conditions; lithology, and high pore water pressures may develop
stratigraphy, and geologic details disclosed under increase in load. The presence of
by borings, ‘‘as-built’’ records, and geologic slickensides in clay shales is usually an indi-
interpretation; maximum past overburden at cation of low shear strength. Prediction of
site as deduced from geologic evidence; bed- field behavior of clay shales should not be
ding, folding and faulting; joints and joint based solely on results of conventional lab-
systems; weathering; slickensides, and field oratory tests since they may be misleading.
evidence relating to slides, faults, move- The use of peak shear strengths for clay
ments and earthquake activity. Foundations shales in stability analyses may be
may present problems where they contain unconservative because of nonuniform stress
adversely oriented joints, slickensides or fis- distribution and possible progressive fail-
sured material, faults, seams of soft mate- ures. Thus the available shear resistance
rials, or weak layers. Such defects and excess may be less than if the peak shear strength
275
§ 222.6 33 CFR Ch. II (7–1–20 Edition)
were mobilized simultaneously along the en- analyzing stability, as pertinent, should be
tire failure surface. In such cases, either used. The circular arc method is generally
greater safety factors or residual shear applicable to essentially homogeneous em-
strength should be used. bankments and to soil foundations con-
4.4.3. Embankment dams. sisting of thick deposits of fine-grained soil
4.4.3.1. Liquefaction. The phenomenon of containing no layers significantly weaker
liquefaction of loose, saturated sands and than other strata in the foundation. The
silts may occur when such materials are sub- wedge method is generally applicable to
jected to shear deformation or earthquake rockfill dams and to earth dams on founda-
shocks. The possibility of liquefaction must tions containing weak layers. Other methods
presently be evaluated on the basis of empir- of analysis such as those employing complex
ical knowledge supplemented by special lab-
shear surfaces may be appropriate depending
oratory tests and engineering judgment. The
on the soil and rock in the dam and founda-
possiblitity of liquefaction in sands dimin-
tion. Such methods should be in reputable
ishes as the relative density increases above
approximately 70 percent. Hydraulic fill usage in the engineering profession.
dams in Seismic Zones 3 and 4 should receive 4.4.3.3. Loading conditions. The loading con-
particular attention since such dams are sus- ditions for which the embankment struc-
ceptible to liquefaction under earthquake tures should be investigated are (I) Sudden
shocks. drawdown from spillway crest elevation or
4.4.3.2. Shear failure. Shear failure is one in top of gates, (II) Partial pool, (III) Steady
which a portion of an embankment or of an state seepage from spillway crest elevation
embankment and foundation moves by slid- or top of gate elevation, and (IV) Earth-
ing or rotating relative to the remainder of quake. Cases I and II apply to upstream
the mass. It is conventionally represented as slopes only; slopes; and Case IV applies to
occurring along a surface and is so assumed both upstream and downstream Case III ap-
in stability analyses, although shearing may plies to downstream slopes. A summary of
occur in a zone of substantial thickness. The suggested strengths and safety factors are
circular arc or the sliding wedge method of shown in Table 4.
TABLE 4—FACTORS OF SAFETY 1
Factor
Case and loading condition of safe- Shear 2 strength Remarks
ty
I Sudden drawdown from spillway crest or 3 1.2 Minimum composite of Within the drawdown zone submerged unit
top of gates to minimum drawdown ele- R and S shear weights of materials are used for com-
vation. strengths. See Fig- puting forces resisting sliding and satu-
ure 5. rated unit weights are used for computing
forces contributing to sliding.
II Partial pool with assumed horizontal 1.5 R + S/2 for R<S ......... Composite intermediate envelope of R and
steady seepage saturation. S for R>S ................... S shear strengths. See Figure 6.
III Steady seepage from spillway crest or 1.5 Same as Case II.
top of gates with Kh/Kv = 9 assumed 4.
IV Earthquake (Cases II and III with seismic 1.0 (5 ) ............................... See Figures 1 through 4 for Seismic Coeffi-
loading). cients.
1 Not applicable to embankments on clay shale foundation. Experience has indicated special problems in determination of de-
sign shear strengths for clay shale foundations and acceptable safety factors should be compatible with the confidence level in
shear strength assumptions.
2 Other strength assumptions may be used if in common usage in the engineering profession.
3 The safety factor should not be less than 1.5 when drawdown rate and pore water pressure developed from flow nets are
used in stability analyses.
4 K /K is the ratio of horizontal to vertical permeability. A minimum of 9 is suggested for use in compacted embankments and
h v
alluvial sediments.
5 Use shear strength for case analyzed without earthquake. It is not necessary to analyze sudden drawdown for earthquake
loading. Shear strength tests are classified according to the controlled drainage conditions maintained during the test. R tests are
those in which specimen drainage is allowed during consolidation (or swelling) under initial stress conditions, but specimen drain-
age is not allowed during application of shearing stresses. S tests allow full drainage during initial stress application and shearing
is at a slow rate so that complete specimen drainage is permitted during the complete test.
4.4.3.4. Safety factors. Safety factors for em- C = Cohesion

bankment dam stability studies should be j = Angle of internal friction
based on the ratio of available shear s = Normal stress
strength to developed shear strength, SD:
The factors of safety listed in Table 4 are
C σ tan φ recommended as minimum acceptable. Final
SD = + (1) accepted factors of safety should depend
F. S. F. S. upon the degree of confidence the inves-

Where: tigating engineer has in the engineering data
276
EC15NO91.000</GPH>
available to him. The consequences of a fail- overturning, sliding and overstressing with
ure with respect to human life and property adequate factors of safety for normal and
damage are important considerations in es- maximum loading conditions.
tablishing factors of safety for specific inves- 4.4.4.2. Loads. Loadings to be considered in
tigations. stability analyses include the water load on
4.4.3.5. Seepage failure. A critical uncon- the upstream face of the dam; the weight of
trolled underseepage or through seepage con- the structure; internal hydrostatic pressures
dition that develops during a rising pool can (uplift) within the body of the dam, at the
quickly reduce a structure which was stable base of the dam and within the foundation;
under previous conditions, to a total struc- earth and silt loads; ice pressure, seismic and
tural failure. The visually confirmed seepage thermal loads, and other loads as applicable.
conditions to be avoided are (1) the exit of Where tailwater or backwater exists on the
the phreatic surface on the downstream downstream side of the structure it should
slope of the dam and (2) development of hy- be considered, and assumed uplift pressures
drostatic heads sufficient to create in the should be compatible with drainage provi-
area downstream of the dam sand boils that sions and uplift measurements if available.
erode materials by the phenomenon known Where applicable, ice pressure should be ap-
as ‘‘piping’’ and (3) localized concentrations plied to the contact surface of the structure
of seepage along conduits or through per- of normal pool elevation. A unit pressure of
vious zones. The dams most susceptible to not more than 5,000 pounds per square foot
seepage problems are those built of or on should be used. Normally, ice thickness
pervious materials of uniform fine particle should not be assumed greater than two feet.
size, with no provisions for an internal drain- Earthquake forces should consist of the iner-
age zone and/or no underseepage controls. tial forces due to the horizontal acceleration
4.4.3.6. Seepage analyses. Review and modi- of the dam itself and hydrodynamic forces
fications to original seepage design analyses
resulting from the reaction of the reservoir
should consider conditions observed in the
water against the structure. Dynamic water
field inspection and piezometer instrumenta-
pressures for use in a conventional methods
tion. A seepage analysis should consider the
of analysis may be computed by means of the
permeability ratios resulting from natural
‘‘Westergaard Formula’’ using the parabolic
deposition and from compaction placement
approximation (H.M. Westergaard, ‘‘Water
of materials with appropriate variation be-
Pressures on Dams During Earthquakes,’’
tween horizontal and vertical permeability.
Trans., ASCE, Vol 98, 1933, pages 418–433), or
An underseepage analysis of the embank-
similar method.
ment should provide a critical gradient fac-
tor of safety for the maximum head condi- 4.4.4.3. Stresses. The analysis of concrete
tion of not less than 1.5 in the area down- stresses should be based on in situ properties
stream of the embankment. of the concrete and foundation. Computed
maximum compressive stresses for normal
i c H c /D b ( γm − γw) operating conditions in the order of 1⁄3 or less
F. S. = = = Db (2) of in situ strengths should be satisfactory.
i H/D b Hγw Tensile stresses in unreinforced concrete
should be acceptable only in locations where
Where: cracks will not adversely affect the overall
ic = Critical gradient performance and stability of the structure.
i = Design gradient Foundation stresses should be such as to pro-
H = Uplift head at downstream toe of dam vide adequate safety against failure of the
measured above tailwater foundation material under all loading condi-
Hc = The critical uplift tions.
Db = The thickness of the top impervious 4.4.4.4. Overturning. A gravity structure
blanket at the downstream toe of the should be capable of resisting all overturning
dam forces. It can be considered safe against over-
gm = The estimated saturated unit weight of turning if the resultant of all combinations
the material in the top impervious blan- of horizontal and vertical forces, excluding
ket earthquake forces, acting above any hori-
gw = The unit weight of water zontal plane through the structure or at its
Where a factor of safety less than 1.5 is ob- base is located within the middle third of the
tained the provision of an underseepage con- section. When earthquake is included the re-
trol system is indicated. The factor of safety sultant should fall within the limits of the
of 1.5 is a recommended minimum and may plane or base, and foundation pressures must
be adjusted by the responsible engineer based be acceptable. When these requirements for
on the competence of the engineering data. location of the resultant are not satisfied the
4.4.4. Concrete dams and appurtenant struc- investigating engineer should assess the im-
tures. portance to stability of the deviations.
4.4.4.1. Requirements for stability. Concrete 4.4.4.5. Sliding. Sliding of concrete gravity
dams and structures appurtenant to embank- structures and of abutment and foundation
ment dams should be capable of resisting rock masses for all types of concrete dams
277
EC15NO91.001</GPH>
§ 222.6 33 CFR Ch. II (7–1–20 Edition)
should be evaluated by the shear-friction re- strength at no normal load (cohesion) and
sistance concept. The available sliding re- the angle of friction on a potential failure
sistance is compared with the driving force surface. It is determined by computing the
which tends to induce sliding to arrive at a maximum horizontal driving force which
sliding stability safety factor. The investiga- could be resisted along the sliding path
tion should be made along all potential slid- under investigation. The following general
ing paths. The critical path is that plane or formula is obtained from the principles of
combination of planes which offers the least statics and may be derived by resolving
resistance.
forces parallel and perpendicular to the slid-
4.4.4.5.1. Sliding resistance. Sliding resist-
ing plane:
ance is a function of the unit shearing
cA
R R = V tan (φ + α ) + (3)
cos α(1 − tan φ tan α )
Where: c = Unit shearing strength at zero normal

RR = Sliding Resistance (maximum hori- loading along potential failure plane
zontal driving force which can be resisted A = Area of potential failure plane devel-
by the critical path) oping unit shear strength ‘‘c’’
j = Angle of internal friction of foundation a = Angle between inclined plane and hori-
material or, where applicable, angle of zontal (positive for uphill sliding)
sliding friction
For sliding downhill the angle a is negative
V = Summation of vertical forces (including
and Equation (1) becomes:
uplift)
cA
R R = V tan (φ − α ) + ( 4)
cos α(1 + tan φ tan α )
When the plane of investigation is hori- lized for sliding resistance. Rock that may
zontal, and the angle a is zero and Equation be subjected to high velocity water scouring
(1) reduced to the following: should not be used. The magnitude of the
downstream resistance is the lesser of (a) the
R R = V tan φ + cA (5) shearing resistance along the continuation
of the potential sliding plane until it day-
4.4.4.5.2. Downstream esistance. When the lights or (b) the resistance available from
base of a concrete structure is embedded in the downstream rock wedge along an in-
rock or the potential failure plane lies below clined plane. The theoretical resistance of-
the base, the passive resistance of the down- fered by the passive wedge can be computed
stream layer of rock may sometimes be uti- by a formula equivalent to formula (3):
cA
Pp = W tan (φ + α ) + (6) EC15NO91.005</GPH>
cos α ( I − tan φ tan α )
Where: c = Unit shearing strength at zero normal

Pp = Passive resistance of rock wedge load along failure plane
EC15NO91.003</GPH> EC15NO91.004</GPH>
W = Weight (buoyant weight if applicable) of A = Area of inclined plane of resistance

downstream rock wedge above inclined
plane of resistance, plus any super- When considering cross-bed shear through
imposed loads a relatively shallow, competent rock strut,
j = Angle of internal friction or, if applica- without adverse jointing or faulting, W and a
may be taken at zero and 45°, respectively,
ble, angle of sliding friction

a = Angle between inclined failure plane and and an estimate of passive wedge resistance
horizontal
278
EC15NO91.002</GPH>
per unit width obtained by the following the owner of the dam. Each report should
equation: contain the information indicated in the fol-
lowing paragraphs. The signature and reg-
Pp = 2 cD (7) istration identification of the professional
engineer who directed the investigation and
Where: who was responsible for evaluation of the
D = Thickness of the rock strut dam should be included in the report.
4.4.4.5.3. Safety factor. The shear-friction 5.2.1. Phase I reports. Phase I reports should
safety factor is obtained by dividing the re- contain the following information:
sistance RR by H, the summation of hori- 5.2.1.1. Description of dam including re-
zontal service loads to be applied to the gional vicinity map showing location and
structure: plans, elevations and sections showing the
essential project features and the size and
RR hazard potential classifications.
SS− f = (8) 5.2.1.2. Summary of existing engineering
H data, including geologic maps and informa-
When the downstream passive wedge con- tion.
tributes to the sliding resistance, the shear 5.2.1.3. Results of the visual inspection of
friction safety factor formula becomes: each project feature including photographs
and drawings to minimize descriptions.
R R + PP 5.2.1.4. Evaluation of operational adequacy
SS− f = ( 9) of the reservoir regulation plan and mainte-
H nance of the dam and operating facilities and
features that pertain to the safety of the
The above direct superimposition of pas-
dam.
sive wedge resistance is valid only if shear-
5.2.1.5. Description of any warning system
ing rigidities of the foundation components
in effect.
are similar. Also, the compressive strength
5.2.1.6. Evaluation of the hydraulic and hy-
and buckling resistance of the downstream
drologic assumptions and structural sta-
rock layer must be sufficient to develop the bility.
wedge resistance. For example, a foundation 5.2.1.7. An assessment of the general condi-
with closely spaced, near horizontal, rel- tion of the dam with respect to safety based
atively weak seams might not contain suffi- upon the findings of the visual inspection
cient buckling strength to develop the mag- and review of engineering data. Where data
nitude of wedge resistance computed from on the original design indicate significant
the cross-bed shear strength. In this case departure from or non-conformance with
wedge resistance should not be assumed guidelines contained herein, the engineer-in-
without resorting to special treatment (such charge of the investigation will give his
as installing foundation anchors). Computed opinion of the significance, with regard to
sliding safety factors approximating 3 or safety, of such factors. Any additional stud-
more for all loading conditions without ies, investigations and analyses considered
earthquake, and 1.5 including earthquake, essential to assessment of the safety of the
should indicate satisfactory stability, de- dam should be listed, together with an opin-
pending upon the reliability of the strength ion about the urgency of such additional
parameters used in the analyses. In some work.
cases when the results of comprehensive 5.2.1.8. Indicate alternative possible reme-
foundation studies are available, smaller dial measures or revisions in operating and
safety factors may be acceptable. The selec- maintenance procedures which may (subject
tion of shear strength parameters should be to further evaluation) correct deficiencies
fully substantiated. The bases for any as- and hazardous conditions found during the
sumptions; the results of applicable testing, investigation.
studies and investigations; and all pre-exist- 5.2.2. Phase II reports. Phase II reports
ing, pertinent data should be reported and should describe the detailed investigations
evaluated. and should supplement Phase I reports. They
CHAPTER 5—REPORTS should contain the following information:
5.2.2.1. Summary of additional engineering
5.1. General. This chapter outlines the pro- data obtained to determine the hydraulic
cedures for reporting the results of the tech- and hydrologic capabilities and/or structural
nical investigations. Hazardous conditions stability.
EC15NO91.007</GPH> EC15NO91.008</GPH>
should be reported immediately upon detec- 5.2.2.2. Results of all additional studies, in-
tion to the owner of the dam, the Governor vestigations, and analyses performed.
of the State in which the dam is located and 5.2.2.3. Technical assessment of dam safety
the appropriate regulatory agency without including deficiences and hazardous condi-
delay for preparation of the formal report. tions found to exist.
5.2. Preparation of report. A formal report 5.2.2.4. Indicate alternative possible reme-
should be prepared for each dam investigated dial measures or revision in maintenance
for submission to the regulatory agency and and operating procedures which may (subject
279
EC15NO91.006</GPH>
§ 222.6 33 CFR Ch. II (7–1–20 Edition)
to further evaluation) correct deficiencies
and hazardous conditions found during the
investigation.
280
EC31OC91.017</GPH>
281
EC31OC91.018</GPH>
§ 222.6 33 CFR Ch. II (7–1–20 Edition)
282
EC31OC91.019</GPH>
283
EC31OC91.020</GPH>
§ 222.6 33 CFR Ch. II (7–1–20 Edition)
APPENDIX I TO APP. D TO § 222.6—ENGINEERING to the extent available, included in the

DATA
This appendix lists engineering data which

should be collected from project records and,
284
EC31OC91.021</GPH>
Phase I investigation report. The list is in- quired for breaching, along with the assumed
tended to serve as a checklist and not to es- results of breaching.
tablish rigid data requirements. Such a com- n. Location and top elevation of dikes and
pilation should also facilitate future inspec- floodwalls (overflow and non-overflow) af-
tions and investigations. Only data readily fected by reservoir. Include information on
available will be included in Phase I reports, low reaches of reservoir rim.
but data lacking and deemed necessary for o. Type, location, observations and records
an adequate safety evaluation should be of hydrometeorological gages appurtenant to
identified. the project.
1. General Project Data. p. Maximum non-damaging discharge, or
a. Regional Vicinity Map showing the loca- negligible damage rate, at potential damage
tion of the dam, the upstream drainage area locations downstream.
and the downstream area subject to poten- 3. Foundation Data and Geological Features
tial damage due to failure of the dam and including logs of borings, geological maps,
misoperation or failure of the operating profiles and cross sections, and reports of
equipment. foundation treatment.
b. As-Built Drawings indicating plans, ele- 4. Properties of Embankments and Foundation
vations and sections of the dam and appur- Materials including results of laboratory
tenant structures including the details of the tests, field permeability tests, construction
discharge facilities such as outlet works, control tests, and assumed design properties
limited service and emergency spillways, for materials.
flashboards, fuse plugs and operating equip- 5. Concrete Properties including the source
ment. and type of aggregate, cement used, mix de-
2. Hydrologic and Hydraulic Data including sign data and the results of testing during
the following: construction.
a. Drainage area and basin runoff charac- 6. Electrical and Mechanical Equipment type
teristics (indicating pending changes). and rating of normal and emergency power
b. Elevation of top of conservation pool or supplies, hoists, cranes, valves and valve op-
normal upper retention water surface ele- erator, control and alarm systems and other
vation, as applicable (base level of any flood electrical and mechanical equipment and
impoundment). systems that could affect the safe operation
c. Storage capacity including dead or inac- of the dam.
tive storage, corresponding to top of con- 7. Construction History including diversion
servation or normal upper retention level scheme, construction sequence, pertinent
(cumulative, excluding flood control and sur- construction problems, alterations, modi-
charge storage). fications and maintenance repairs.
d. Elevation of the top of flood control 8. Water Control Plan including regulation
pool. plan under normal conditions and during
e. Storage capacity of flood control zone flood events or other emergency conditions.
(incremental). The availability of dam tenders, means of
f. Elevation of maximum design pool (cor- communication between dam tenders and au-
responding to top of surcharge storage or thority supervising water control, and meth-
spillway design flood). od of gate operation (manual, automatic, or
g. Storage capacity of surcharge zone (in- remote control) should be included. Flood
cremental, above top of flood control pool or, warning systems should be described in suffi-
above normal upper retention level if flood cient detail to enable assessment of their re-
control space not provided). duction in the flood hazard potential.
h. Height of freeboard (distance between 9. Operation Record.
maximum design flood water surface and top a. Summary of past major flood events in-
of dam). cluding any experiences that presented a se-
i. Elevation of top of dam (lowest point of rious threat to the safety of the project or to
embankment or non-overflow structure). human life or property. The critical project
j. Elevation of crest, type, width, crest feature, date and duration of event, causa-
length and location of spillways (number, tive factor, peak inflow and outflow, max-
size and type of gates if controlled). imum elevation of water surface, wind and
k. Type, location, entrance and exit in- wave factors if significant, issuance of alert
verts of outlet works and emergency draw- or evacuation warnings and adequacy of
down facilities (number, size and shape of project feature involved should be included
conduits and gates, including penstocks and in the summary of past experience of serious
sluices). threat to the safety of the project.
l. Location, crest elevation, description of b. Records of performance observations in-
invert and abutments (concrete, rock, grass, cluding instrumentation records.
earth) and length of limited service and c. List of any known deficiencies that pose
emergency spillways. a threat to the safety of the dam or to
m. Location and dscription of flashboards human life or property.

and fuse plugs, including hydraulic head d. History of previous failures or defi-
(pool elevation) and other conditions re- ciencies and pending remedial measures for
285
§ 222.6 33 CFR Ch. II (7–1–20 Edition)
correcting known deficiencies and the sched- APPENDIX II TO APP. D TO § 222.6—INSPECTION
ule for accomplishing remedial measures ITEMS
should be indicated.
This appendix provides guidance for per-
10. Earthquake History including a summary forming field inspections and may serve as
of the seismic data of significant recorded the basis for developing a detailed checklist
earthquakes in the vicinity of the dam and for each dam.
information on major damage in the vicinity 1. Concrete Structures in General.
of the dam from both recorded and unre-
a. Concrete Surfaces. The condition of the
corded earthquakes. Regional geologic maps concrete surfaces should be examined to
and other documents showing fault locations evaluate the deterioration and continuing
should be collected. serviceability of the concrete. Descriptions
11. Inspection History including the results of concrete conditions should conform with
of the last safety inspection, the organiza- the appendix to ‘‘Guide for Making a Condi-
tion that performed the inspection, the date tion Survey of Concrete in Service,’’ Amer-
inspection performed and the authority for ican Concrete Institute (ACI) Journal, Pro-
conducting the inspection. ceedings Vol. 65, No. 11, November 1968, page
12. Principal Design Assumptions and Anal- 905–918.
yses. b. Structural Cracking. Concrete structures
a. Hydrologic and Hydraulic Determinations. should be examined for structural cracking
(1) Quantity, time and area distribution, resulting from overstress due to applied
and reference source of depth-area-duration loads, shrinkage and temperature effects or
data of spillway design storm precipitation differential movements.
(point precipitation if applicable). c. Movement—Horizontal and Vertical Align-
(2) Maximum design flood inflow ment. Concrete structures should be exam-
hydrograph including loss rates (initial and ined for evidence of any abnormal settle-
average for design flood conditions) and time ments, heaving, deflections, or lateral move-
of runoff concentration of reservior water- ments.
shed (peak inflow only when applicable). d. Junctions. The conditions at the junc-
(3) Maximum design flood outflow tions of the structure with abutments or em-
hydrograph (maximum outflow only when bankments should be determined.
applicable). e. Drains—Foundation, Joint, Face. All
(4) Discharge-frequency relationship, pref- drains should be examined to determine that
they are capable of performing their design
erably at damsite, including estimated fre-
function.
quency of spillway design flood for small
f. Water Passages. All water passages and
dams, when appropriate.
other concrete surfaces subject to running
(5) Reservior area and storage capacity
water should be examined for erosion, cavi-
versus water surface elevation (table or tation, obstructions, leakage or significant
curves). structural cracks.
(6) Rating curves (free flow and partial g. Seepage or Leakage. The faces, abutments
gate openings) for all discharge facilities and toes of the concrete structures should be
contributing to the maximum design flood examined for evidence of seepage or abnor-
outflow hydrograph. Also a composite-rating mal leakage, and records of flow of down-
of all contributing facilities, if appropriate. stream springs reviewed for variation with
(7) Tailwater rating curve immediately reservoir pool level. The sources of seepage
below damsite including elevation cor- should be determined if possible.
responding to maximum design flood dis- h. Monolith Joints—Construction Joints. All
charge and approximate nondamaging chan- monolith and construction joints should be
nel capacity. examined to determine the condition of the
(8) Hydrologic map of watershed above joint and filler material, any movement of
damsite including reservior area, water- joints, or any indication of distress or leak-
course, elevation contours, and principal age.
stream-flow and precipitation gaging sta- i. Foundation. Foundation should be exam-
tions. ined for damage or possible undermining of
b. Stability and Stress Analysis of the dam, the downstream toe.
spillway and appurtenant structures and fea- j. Abutments. The abutments should be ex-
tures including the assumed properties of amined for sign of instability or excessive
materials and all pertinent applied loads. weathering.
c. Seepage and Settlement Analyses. The de- 2. Embankment Structures.
termination of distribution, direction and a. Settlement. The embankments and down-
magnitude of seepage forces and the design stream toe areas should be examined for any
and construction measures for their control. evidence of localized or overall settlement,
Settlement estimates and steps adopted to depressions or sink holes.

compensate for total settlement and to mini- b. Slope Stability. Embankment slopes
mize differential settlements. should be examined for irregularities in
286
alignment and variances from smooth uni- ined for any conditions which may impose
form slopes, unusual changes from original constraints on the functioning of the spill-
crest alignment and elevation, evidence of way and present a potential hazard to the
movement at or beyond the toe, and surface safety of the dam.
cracks which indicate movement. d. Stilling Basin (Energy Dissipators).
c. Seepage. The downstream face of abut- Stilling basins including baffles, flip buckets
ments, embankment slopes and toes, em- or other energy dissipators should be exam-
bankment—structure contacts, and the ined for any conditions which may pose con-
downstream valley areas should be examined straints on the ability of the stilling basin to
for evidence of existing or past seepage. The prevent downstream scour or erosion which
sources of seepage should be investigated to may create or present a potential hazard to
determine cause and potential severity to the safety of the dam. The existing condition
dam safety under all operating conditions. of the channel downstream of the stilling
The presence of animal burrows and tree basin should be determined.
growth on slopes which might cause detri- 4. Outlet Works. The outlet works examina-
mental seepage should be examined. tion should include all structures and fea-
d. Drainage Systems. All drainage systems tures designed to release reservoir water
should be examined to determine whether below the spillway crest through or around
the systems can freely pass discharge and the dam.
that the discharge water is not carrying em- a. Intake Structure. The structure and all
bankment or foundation material. Systems features should be examined for any condi-
used to monitor drainage should be examined tions which may impose operational con-
to assure they are operational and func- straints on the outlet works. Entrances to
tioning properly. intake structure should be examined for con-
e. Slope Protection. The slope protection ditions such as silt or debris accumulation
should be examined for erosion-formed gul- which may reduce the discharge capabilities
lies and wave-formed notches and benches of the outlet works.
that have reduced the embankment cross- b. Operating and Emergency Control Gates.
section or exposed less wave resistant mate- The structural members, connections,
rials. The adequacy of slope protection guides, hoists, cables and operating machin-
against waves, currents, and surface runoff ery including the adequacy of normal and
that may occur at the site should be evalu- emergency power supplies should be exam-
ated. The condition of vegetative cover ined and tested to determine the structural
should be evaluated where pertinent. integrity and verify the operational ade-
3. Spillway Structures. Examination should quacy of the operating and emergency gates,
be made of the structures and features in- valves, bulkheads, and other equipment.
cluding bulkheads, flashboards, and fuse c. Conduits, Sluices, Water Passages, Etc. The
plugs of all service and auxiliary spillways interior surfaces of conduits should be exam-
which serve as principal or emergency spill- ined for erosion, corrosion, cavitation,
ways for any condition which may impose cracks, joint separation and leakage at
operational constraints on the functioning of cracks or joints.
the spillway. d. Stilling Basin (Energy Dissipator). The
a. Control Gates and Operating Machinery. stilling basin or other energy dissipator
The structural members, connections, hoists, should be examined for conditions which
cables and operating machinery and the ade- may impose any constraints on the ability of
quacy of normal and emergency power sup- the stilling basin to prevent downstream
plies should be examined and tested to deter- scour or erosion which may create or present
mine the structural integrity and verify the a potential hazard to the safety of the dam.
operational adequacy of the equipment. The existing condition of the channel down-
Where cranes are intended to be used for stream of the stilling basin should be deter-
handling gates and bulkheads, the avail- mined by soundings.
ability, capacity and condition of the cranes e. Approach and Outlet Channels. The ap-
and lifting beams should be investigated. Op- proach and outlet channels should be exam-
eration of control systems and protective ined for any conditions which may impose
and alarm devices such as limit switches, constraints on the functioning of the dis-
sump high water alarms and drainage pumps charge facilities of the outlet works, or
should be investigated. present a hazard to the safety of the dam.
b. Unlined Saddle Spillways. Unlined saddle f. Drawdown Facilities. Facilities provided
spillways should be examined for evidence of for drawdown of the reservoir to avert im-
erosion and any conditions which may impending failure of the dam or to facilitate re-
pose constraints on the functioning of the pairs in the event of stability or foundation
spillway. The ability of the spillway to resist problems should be examined for any condi-
erosion due to operation and the potential tions which may impose constraints on their
hazard to the safety of the dam from such functioning as planned.
operation should be determined. 5. Safety and Performance Instrumentation.

c. Approach and Outlet Channels. The ap- Instruments which have been installed to
proach and outlet channels should be exam- measure behavior of the structures should be
287
§ 222.6 33 CFR Ch. II (7–1–20 Edition)
examined for proper functioning. The avail- of major active or inactive landslide areas
able records and readings of installed instru- and to determine susceptibility of bedrock
ments should be reviewed to detect any un- stratigraphy to massive landslides of suffi-
usual performance of the instruments or evi- cient magnitude to significantly reduce res-
dence of unusual performance or distress of ervoir capacity or create waves that might
the structure. The adequacy of the installed overtop the dam.
instrumentation to measure the performance b. Sedimentation. The reservoir and drain-
and safety of the dam should be determined. age area should be examined for excessive
a. Headwater and Tailwater Gages. The ex- sedimentation or recent developments in the
isting records of the headwater and tailwater drainage basin which could cause a sudden
gages should be examined to determine the increase in sediment load thereby reducing
relationship between other instrumentation the reservoir capacity with attendant in-
measurements such as stream flow, uplift crease in maximum outflow and maximum
pressures, alignment, and drainage system pool elevation.
discharge with the upper and lower water
c. Potential Upstream Hazard Areas. The res-
surface elevations.
ervoir area should be examined for features
b. Horizontal and Vertical Alignment Instru-
mentation (Concrete Structures). The existing subject to potential backwater flooding re-
records of alignment and elevation surveys sulting in loss of human life or property at
and measurements from inclinometers, in- reservoir levels up to the maximum water
verted plumb bobs, gage points across cracks storage capacity including any surcharge
and joints, or other devices should be exam- storage.
ined to determine any change from the origi- d. Watershed Runoff Potential. The drainage
nal position of the structures. basin should be examined for any extensive
c. Horizontal and Vertical Movement, Consoli- alterations to the surface of the drainage
dation, and Pore-Water Pressure Instrumenta- basin such as changed agriculture practices,
tion (Embankment Structures). The existing timber clearing, railroad or highway con-
records of measurements from settlement struction or real estate developments that
plates or gages, surface reference marks, might extensively affect the runoff charac-
slope indicators and other devices should be teristics. Upstream projects that could have
examined to determine the movement his- impact on the safety of the dam should be
tory of the embankment. Existing piezom- identified.
eter measurements should be examined to 7. Downstream Channel. The channel imme-
determine if the pore-water pressures in the diately downstream of the dam should be ex-
embankment and foundation would under amined for conditions which might impose
given conditions impair the safety of the any constraints on the operation of the dam
dam. or present any hazards to the safety of the
d. Uplift Instrumentation. The existing dam. Development of the potential flooded
records of uplift measurements should be ex- area downstream of the dam should be as-
amined to determine if the uplift pressures sessed for compatibility with the hazard
for the maximum pool would impair the safe- classification.
ty of the dam.
8. Operation and Maintenance Features.
e. Drainage System Instrumentation. The ex-
isting records of measurements of the drain- a. Reservoir Regulation Plan. The actual
age system flow should be examined to es- practices in regulating the reservoir and dis-
tablish the normal relationship between pool charges under normal and emergency condi-
elevations and discharge quantities and any tions should be examined to determine if
changes that have occurred in this relation- they comply with the designed reservoir reg-
ship during the history of the project. ulation plan and to assure that they do not
f. Seismic Instrumentation. The existing constitute a danger to the safety of the dam
records of seismic instrumentation should be or to human life or property.
examined to determine the seismic activity b. Maintenance. The maintenance of the op-
in the area and the response of the struc- erating facilities and features that pertain to
tures of past earthquakes. the safety of the dam should be examined to
6. Reservoir. The following features of the determine the adequacy and quality of the
reservoir should be examined to determine maintenance procedures followed in main-
to what extent the water impounded by the taining the dam and facilities in safe oper-
dam would constitute a danger to the safety ating condition.
of the dam or a hazard to human life or prop-
erty.
a. Shore line. The land forms around the APPENDIX III TO APP. D TO § 222.6—PUB. L. 92–
reservoir should be examined for indications 367
288
289
EC31OC91.022</GPH>
§ 222.6 33 CFR Ch. II (7–1–20 Edition)
APPENDIX E TO § 222.6—SUGGESTED OUTLINE 1. Introduction
Inspection Report—National Dam Inspection a. Authority

Program (RCS-DAEN-CWE–17 and OMB No. b. Purpose and Scope of Inspection
49–R0421) 2. Project Information
Title Sheet a. Site Information
Name of Dam b. Description of Structures—Dam, Outlet,
ID Number from Inventory Spillway and other principal features.
State, County and River or Stream where c. Purpose of Dam
dam is located d. Design, Construction and Operating His-
Owner tory
Size and Hazard Classification
Names of Inspectors 3. Field Inspection
Names of Review Board Briefly describe physical condition of the
Approval Signature of District Engineer dam and appurtenant structures as they
were observed during the field inspection. (If
Table of Contents field inspection form is appended, only
present summary.) Describe operational pro-
General Assessment
cedures, including any warning system, con-
Give brief assessment of general condition dition of operating equipment, and provision
of dam with respect to safety, including a for emergency procedures. Describe any per-
listing of deficiencies, and recommendations tinent observations of the reservoir area and
indicating degree of urgency. downstream channel adjacent to dam.
290
EC31OC91.023</GPH>
4. Evaluation Appendixes
a. Structural and Geotechnical a. Inspection Checklist (if available)
(1) General b. Other Illustrations as follows:
(2) Embankment and/or Foundation Condi- (1) Include a map showing location of the
tion dam. Usually a portion of a USGS quad-
(3) Stability—Briefly discuss pertinent in- rangle sheet can be used which will show the
formation such as design, construction and topography of the area, location of the dam,
operating records. Assess stability under exent of the lake and drainage basin, and
maximum loading on basis of the record perhaps indicate the downstream develop-
data, together with observations of field in- ment.
spection and results of any additional, brief (2) If available, include a plan and section
calculations performed by inspectors. If ad- of the dam.
ditional, detailed stability analyses are con- (3) General photographs of the dam and
sidered necessary, recommend that the downstream channel should be included.
owner engage a qualified engineer or firm to (4) Color photographs of deficiencies should
provide the analysis. be included. These should be held to the min-
b. Hydrologic and Hydraulic imum required to illustrate the deficiencies.
(1) Spillway Adequacy—Briefly describe (5) Available engineering data including
pertinent record information such as hydro- Hydrologic/Hydraulic calculation and phys-
logic and hydraulic design data, flood of ical test results that might be available.
record, and previous analyses. Describe any
hydraulic and hydrologic analyses made for APPENDIX F TO § 222.6
this inspection. Present conclusion with re-
spect to adequacy of spillway to pass the rec- Instructions for Unsafe Dam Data Sheet
ommended spillway design flood without (RCS-DAEN-CWE-17 and OMB No. 49–R0421)
overtopping dam. If overtopping would The indicated information shall be pro-
occur, and if available from the type of anal- vided in the format shown on Pg F–3 for each
ysis used, give maximum depth over top of dam assessed to be unsafe during the report-
dam and duration of overtopping, assuming ing period. A separate data sheet should be
the dam does not fail. Also indicate the larg- provided for each unsafe dam. The informa-
est flood, as a percentage of the probable tion supplied should conform to the fol-
maximum flood which can be passed without lowing.
overtopping. a. Name—Name of dam.
(2) Effects of overtopping—If dam is over- b. Id. No.—Dam inventory identity number.
topped by the recommended spillway design c. Location—List state county, river or
flood, provide assessment as to whether or stream and nearest D/S city or town where
not dam would likely fail, and if, in case of the dam is located.
failure, the hazard to loss of life downstream d. Height—Maximum hydraulic height of
of the dam would be substantially increased dam.
over that which would exist without failure. e. Maximum Impoundment Capacity—List
If information upon which to base a reason- the capacity of the reservior at maximum at-
able assessment is insufficient, so state and tainable water surface elevation including
describe the needed data, and recommend any surcharge loading.
that the necessary studies be performed by f. Type—Type of dam, i.e., earth, rockfill,
engineers engaged by the owner. gravity, combination earth-gravity, etc.
c. Operation and Maintenance g. Owner—Owner of dam.
Assess operating equipment and proce- h. Date Governor Notified of Unsafe Condi-
dures, emergency power for gate operation, tion—The date and method of notification,
and Emergency Action Plan. Assess quality such as, by telegram, letter, report, etc.
of maintenance as it pertains to dam safety. i. Condition of Dam Resulting in Unsafe As-
5. Conclusions sessment—Brief description of the defi-
ciencies discovered which resulted in the un-
Provide conclusions on condition of dam safe assessment.
and list all deficiencies. If dam is considered j. Description of Danger Involved—Down-
unsafe, so state and give reason. stream (D/S) hazard potential category and a
brief description of the danger involved.
6. Recommendations
k. Recommendations Given to Governor—
List all recommended actions, including Brief description of the actions rec-
additional studies, installation of new sur- ommended to Governor at time of notifica-
veillance procedures and devices, develop- tion of unsafe condition to eliminate or re-
ment of Emergency Action Plans, and reme- duce the danger.
dial work. Recommend that a qualified engi- l. Urgency Category—State whether the un-
neering firm be retained to accomplish any safe condition of the dam is an emergency or
recommended additional investigations and non-emergency situation. An emergency sit-

studies and also to design and supervise re- uation should be considered to exist if the
medial works. failure of the dam is judged to be imminent
291
§ 222.6 33 CFR Ch. II (7–1–20 Edition)
and requires immediate action to eliminate 3.4. Number of Approved Inspection Re-
or reduce the danger. ports Submitted to the Governor.
m. Emergency Actions Taken—In case of an 4. Information Required for Each State Re-
emergency situation, list the actions taken. garding Inspections Performed Under AE
For non-emergency situation, put NA for Contracts (Cumulative):
‘‘not applicable.’’ 4.1. Number of Dams Contracted for Inspec-
n. Remedial Action Taken—For non-emer- tion by AE’s with State or Corps.
gency situations list remedial actions taken. 4.2. Number of Inspections Initiated by
o. Remarks—For other pertinent informa- AE’s by on-site inspection or the review of
tion. engineering data from project records. 1
4.3. Number of Inspections Completed by
Format for Unsafe Dam Data Sheet (RCS- AE’s (The number of inspection reports
DAEN-CWE-17 and OMB No. 49–R0421 which have been submitted to the District
Engineer for review and approval).
National Program of Inspection of Non- 4.4. Number of Approved Inspection Re-
Federal Dams—Unsafe Dam Data Sheet ports Prepared by AE’s Submitted to the
a. Name: Governor.
b. Type: II. Formation for Monthly Progress Report.
c. Height:
d. Id. No. National Program for Inspection of Non-
e. Location: Federal Dams—Monthly Progress Report
State: County: 1. Division Reporting:
Nearest D/S City, Town or Village: 2. Date:
River or Stream: 3. Information Required for Each State Re-
f. Owner: garding Total Number of Inspections Per-
g. Date Governor Notified of Unsafe Condi- formed (Cumulative):
tion:
h. Condition of Dam Resulting in Unsafe As- Inspec- Unsafe
Inspec- Ap-
tion Dams
sessment: State tion Initi- Com- Re- proved
i. Description of Danger Involved: ated Reports
pleted ported
(3.1) (3.4)
j. Recommendations Given to Governor: (3.2) (3.3)
k. Urgency Category:
l. Emergency Actions Taken:
m. Remarks:
APPENDIX G TO § 222.6 Total.
National Program for Inspection of Non-Fed- 4. Information Required for Each State Re-
eral Dams—Monthly Progress Report garding Inspections Performed Under A/E
(RCS-DAEN-CWE-19) Contracts (Cumulative):
I. Instructions for Monthly Progress Report.
The indicated information shall be provided A/E In-
Dams A/E In- A/E Re-
spec-
in the format shown on page G–2. Under spec- ports
tions
State A/E tions Ini- Ap-
Com-
1. Division Reporting: Contract tiated pleted proved
2. Date: (4.1) (4.2) (4.4)
(4.3)
3. Information Required for Each State Re-
garding Total Number of Inspections Per-
formed (AE Inspections included) (Cumu-
lative):
3.1. Number of Inspections Initiated by on- Totals.
site inspection or the review of engineering
data from project records. 1
APPENDIX H TO § 222.6
3.2. Number of Inspections Competed (The
number of inspection reports which have Suggested Scope of Work Contract for Archi-
been submitted to the District Engineer for tect-Engineer Services for Safety Inspec-
review and approval). tion of Dams Within the State of
3.3 Number of Dams Reported to the Gov- llll
ernor as Unsafe. 2
1. General Description of Scope of Work. The
1 Each of the initiated inspections reported services to be rendered by the Architect-En-
should be planned for completion within a gineer (AE) under the proposed contract
reasonable period of time (30 days.)
2 An unsafe dam is defined as a dam with with subsequent loss of lives or substantial
deficiencies of such a nature that if not cor- property damage.
rected could result in the failure of the dam 1 See footnote on previous page.
292
shall include all engineering functions, here- cinity of the dam and any other significant
inafter described, as needed to inspect the feature to determine how these features af-
dams listed in Appendix A of this contract fect the risk of failure of the dam. The in-
for the purpose of evaluating their risk of spection shall be conducted in a systematic
failure. A report which (a) describes the as- manner to minimize the possibility of any
sessed condition of the dam, (b) provides con- significant feature being overlooked. The
clusions as to which particular conditions visual inspection checklist provided by the
could cause failure, (c) makes recommenda- Contracting Officer shall be used as a guide
tions on remedial measures believed nec- to document the examination of each signifi-
essary, and (d) makes recommendations on cant feature.
whether and what type of future investiga- Particular attention shall be given to de-
tion should be conducted shall be provided tecting evidence of leakage, erosion, seepage,
for each inspected dam. The work shall pro- slope instability, undue settlement, displace-
ceed in accordance with Phase I of the Rec- ment, tilting, cracking, deterioration, and
ommended Guidelines for Safety Inspection improper functioning of drains and relief
of Dams established by the Office of the wells. The degree and quality of maintenance
Chief of Engineers (OCE) and the supple- and regulating procedures for operation of
mented requirements listed in paragraph 3 the control facilities shall be assessed. The
below. The OCE guidelines are listed in Ap- design and existing condition of such control
pendix B of this contract. facilities (i.e., spillway, outlet works, etc.)
2. Information and Services To Be Furnished shall be evaluated. An assessment of the de-
by the Government. The Contracting Officer gree of siltation that is evident and its effect
will furnish the following information and on the dam’s reservoir shall be performed.
services to the AE: Photographs and drawings should be used to
a. All information pertaining to each dam record conditions in order to minimize writ-
to be inspected as contained in the National ten descriptions.
Inventory of Dams.
(3) Engineering Analyses.
b. Copies of recommended format for prep-
aration of inspection report, engineering (a) Evaluation of Hydraulic and Hydrologic
data check list and visual inspection check (H&H) Features. Evaluation of the hydraulic
list. and hydrological features of each dam shall
c. All available pertinent information per- be based on criteria set forth in the OCE
taining to the Dam Inspection Program and guidelines. If it is determined that the avail-
previous investigations having a bearing on able H&H data are insufficient, the Con-
inspections to be performed under this contracting Officer must be so informed and
tract. may exercise an option of requiring the AE
d. Right-of-entry for access to each dam to perform an overtopping analysis at addi-
site. tional agreed-upon compensation. The meth-
3. Services To Be Rendered by the Architect- odology to be used by the AE for this anal-
Engineer. The principal services, subject to ysis will be based on the OCE guidelines and
the optional provisions of the contract, to be subject to the approval of the Contracting
rendered by the AE are itemized below: Officer.
a. Technical Investigations. (b) Evaluation of Structural Stability. The
(1) Engineering Data Collection. To the ex- evaluation of structural stability of each
tent feasible, the engineering data listed in dam is to be based principally on existing
Appendix I of the OCE guidelines relating to conditions as revealed by the visual inspec-
the design, construction and operation of the tion, available design and construction infor-
dam and appurtenant structures, should be mation, and records of performance. The ob-
collected from existing records and reviewed jectives are to determine the existence of
to aid in evaluating the general condition of conditions, identifiable by visual inspection
each dam, including an assessment of the hy- or from records, which may pose a high risk
draulic and hydrologic features and struc- of failure and to formulate recommendations
tural stability of the dam. Where the nec- pertaining to the need for any remedial im-
essary engineering data are unavailable, in- provements, additional studies, investiga-
adequate or invalid, a listing shall be made tions, or analysis. The results of this phase
of those specific additional data deemed nec- of the inspection must rely substantially
essary by the engineer in charge of the inves- upon the experience and judgment of the in-
tigation and included in the inspection re- specting engineer. Should it be determined
port. The engineering data checklist pro- that sufficient data are not available for a
vided by the Contracting Officer shall be reasonable evaluation of the structural sta-
used as a guide to compile this data. bility of a dam and appurtenances, the Con-
(2) Field Inspections. The field inspection of tracting Officer should be informed which in-
each dam shall include examination of the formation is required prior to attempting to
items listed in Appendix II of the OCE guide- evaluate the risk of failure of the dam.
lines, electrical and mechanical equipment (c) Evaluation of Operational Features.

for operation of the control facilities, res- Where critical mechanical/electrical oper-
ervoir area, downstream channel in the vi- ating equipment is used in controlling the
293
§ 222.6 33 CFR Ch. II (7–1–20 Edition)
reservoir of a dam, an evaluation of the oper- the *llll and other local authorities
ational characteristics of this equipment through the Contracting Officer as required
from the standpoint of risk of failure must to assure the orderly progression of the in-
be performed. spection. Copies of all correspondence with
(d) Evaluation of Reservoir Regulation Plan such authorities shall be provided to the
and Warning System. The operational charac- Contracting Officer.
6. Submission of Report.
teristics of each dam’s existing reservoir reg-
a. Each inspection report will be submitted
ulation plan and warning system in event of
for review to the Contracting Officer. Re-
a threatened failure shall be investigated. ports will be revised as required by the Con-
b. Emergency Situations. The Contracting tracting Officer. After all revisions have
Officer must be immediately notified of any been made, the original and ll copies of
observed condition which is deemed to re- each inspection report shall be submitted to
quire immediate remedial action. After the Contracting Officer.
being notified, the Contracting Officer will b. Text of all reports shall be typewritten
contact the appropriate State personnel and and printed on both sides of 8″ × 101⁄2″ paper.
will meet the AE at the site to determine the All notes, inspection forms, sketches or simi-
appropriate course of action. This will not lar matter shall be legible, distinct and suit-
relieve the AE of his responsibility to pre- able for reproduction.
pare a comprehensive inspection report at 7. Period of Services.
the earliest practicable date. a. All inspections and reports included
under this contract shall be completed with-
c. Qualifications of Investigators. The tech-
in ll days from date of Notice to Proceed.
nical investigations shall be conducted by li-
b. If the option for performing an H&H
censed professional engineers with a min- analysis for any particular site is exercised,
imum of five years experience after licensing the AE shall complete such analysis within
in the investigation, design and contruction ll days from date of Notice to Proceed.
of earthfill, rockfill and concrete dams and/ However, the overall completion time stated
or in making risk of failure evaluations of in paragraph 7a above shall not change.
completed dams. These engineers must be
knowledgeable in the disciplines of hydrol- APPENDIX I TO § 222.6
ogy, hydraulics, geotechnical, electrical, me- Procedure for Using NASA Land Satellite
chanical and structural engineering, as nec- Multispectral Scanner Data for
essary. All field inspections should be con- Verification and Updating the National In-
ducted by engineers, engineering geologists ventory of Dams
and other specialists who are knowledgeable
in the investigation, design, construction 1. Purpose. This appendix states the objec-
tive, defines the scope, prescribes proce-
and operation of dams, including experts on
dures, and assigns responsibilities for using
mechanical and electrical operation of gates
NASA Land Satellite (LANDSAT) Multispec-
and controls, where needed. tral Scanner data along with NASA’s Sur-
d. Preparation of Report. A formal report face Water Detection And Mapping (DAM)
shall be prepared for each dam inspected for Computer program to assist in verification
submission to the Contracting Officer. Each and updating the National Inventory of
report should contain the information speci- Dams.
fied in OCE guidelines and any other perti- 2. Applicability. This appendix is applicable
nent information. The recommended format to all divisions and districts having Civil
provided by the Contracting Officer shall be Works responsibilities except POD.
used to document each report. The signature 3. Reference. NASA, DETECTION AND
and registration identification of the profes- MAPPING PACKAGE, Users Manuals, Vol-
sional engineer who directed the investiga- umes 1, 2a, 2b, and 3 dated June 1976, pub-
tion and who was responsible for evaluation lished by the Johnson Space Center, Hous-
of the dam should be included in the report. ton, Texas.
4. Supervision and Approval of Work. All 4. Objectives. Provide a uniform method,
nation-wide, to help insure that all dams
work performed under this contract shall be
subject to Public Law 92–367, 8 August 1972
subject to the review and approval of the
are properly identified and located in the Na-
Contracting Officer or his designee. Meetings
tional Inventory of Dams.
will be held on a regular basis in the District 5. Scope. The computer printer overlay
office, during which the progress of inspec- maps produced by the procedure described in
tions will be discussed and questions relating reference 3b will be used by district and/or
to inspection reports previously received by state or contractor personnel as a tool to as-
the Contracting Officer will be addressed. sist in verification and updating of the Na-
Reports will be revised as necessary when re- tional Inventory of Dams.
quired by the Contracting Officer.
5. Coordination. During the progress of * NOTE: Write in the designated State Au-
work, the AE shall maintain liaison with thority.
294
6. Exceptions. a. If a Division/District at- scales as required by Divisions and/or Dis-
tempts the use of the procedure for a given tricts.
region within their area of responsibility and (5) Instructing District, State, or con-
finds the overlay maps cannot be used to as- tractor personnel in the assembly and use of
sist in verification and updating the Na- map overlays.
tional Inventory of Dams, they may request c. Divisions/Districts are responsible for:
an exception for a selected region. A selected (1) Designating one person from each Divi-
region may include areas where conditions sion and District as the point of contact with
can reasonably be assumed to be the same as the Regional Center and provide this per-
the region where the procedure was tried. son’s name and phone number to the Re-
b. Request for exceptions should be docu- gional Center.
mented to include firm boundary definitions (2) Providing the Regional Center with
and appropriate justification to demonstrate map coverage of their area of responsibility.
why the procedure cannot be used. This re- This will include state indexes and 71⁄2
quest should be submitted to WRSC WASH minute quadrangle sheets (scale 1:24,000)
DC 20314, through the normal engineering where available.
chain of command. (3) Coordinating with the Regional Center
c. Map overlays will be produced for all in selecting LANDSAT data tapes.
areas of the Continental United States even (4) Providing information to Regional Cen-
if they are not used in a few selected regions. ter on scale and priorities of desired com-
This processing is required for a future Com- puter produced map overlays.
puter Water Body Change Detection system. (5) Assembling computer print-outs into
7. Procedures. Acquisition of LANDSAT overlay maps, and using as appropriate to as-
data, registration of satellite coordinates to sist in verification and updating the Na-
earth latitude and longitude and computer tional Inventory of Dams.
processing to produce overlay maps will be 9. Points of Contact. The points of contact
accomplished by two Regional Centers. in the Regional Centers for this program are
Nashville District and Seattle District have as follows:
been designated as the Regional Centers,
with each responsible for processing maps by Name, Office Symbol, and Telephone
state based on Divisional assignments in Ap-
pendix A. Regional Centers will support divi- Jim Cook—DAEN-ORNED, (615) 251–7366;
sions as follows: FTS 852–7366.
Jack Erlandson—DAEN-NPSEN, (206) 764–
Regional Center Division 3535; FTS 399–3535.
Nashville District New England [44 FR 55336, Sept. 26, 1979, as amended at 45
North Atlantic FR 18925, Mar. 24, 1980. Redesignated at 60 FR
South Atlantic 19851, Apr. 21, 1995]
Ohio River
Lower Mississippi Valley
North Central PART 223—BOARDS,
Seattle District Southwestern COMMISSIONS, AND COMMITTEES
Missouri River
North Pacific
South Pacific
§ 223.1 Mississippi River Water Con-
trol Management Board.
8. Responsibilities. a. The Water Resources (a) Purpose. This regulation estab-
Support Center at Fort Belvoir has overall lishes and prescribes the objectives,
responsibility for coordination and moni- composition, responsibilities and au-
toring of this activity between NASA, Divi-
thority of the Mississippi River Water
sion Offices, and Regional Centers, and for
providing Regional Center funding. Control Management Board.
b. Regional Centers are responsible for: (b) Applicability. This regulation is
(1) Acquiring proper LANDSAT data tape applicable to the Board members and
from EROS Data Center (Sioux Falls, South to all field operating agencies con-
Dakota). Actual data scene selection will be cerned with water control management
coordinated with Division and/or District to within the Mississippi River Basin.
insure proper consideration is given to local (c) Objectives. The objectives of the
priorities and seasonal coverage. Board are:
(2) Arranging computer processing support
using NASA’s DAM package.
(1) To provide oversight and guidance
(3) Establishing proper control between during the development of basin-wide
satellite scanner-oriented coordinates and management plans for Mississippi
River Basin projects for which the U.S.
earth latitude/longitude.
(4) Producing total coverage of map over- Army Corps of Engineers has oper-
lays at a scale of 1:24,000 and/or smaller ation/regulation responsibilities.
295
(2) To serve as a forum for resolution (g) Board authority. The Mississippi
of water control problems among U.S. River Water Control Management
Army Corps of Engineers Divisions Board is delegated authority to estab-
within the Mississippi River Basin lish continuing or ad hoc inter-divi-
when agreement is otherwise sional operating or study committees
unobtainable. comprised of U.S. Army Corps of Engi-
(d) Composition. The Mississippi River neers personnel to facilitate the work
Water Control Management Board is a of the Board.
continuing board consisting of the Di- (h) Funding. Routine activities of the
rector of Civil Works and Division En- Mississippi River Water Control Man-
gineers serving in LMVD, MRD, ORD, agement Board and its committees,
NCD and SWD. The Director of Civil such as travel and meeting expenses,
Works serves as permanent chair- will be funded by the separate mem-
person. bers’ offices using General Expense
(e) Responsibilities. The Board func- funds otherwise available. Major ex-
tions under the general direction of the penses connected with special studies
Chief of Engineers and is responsible or activities will be funded through the
for: normal budgetary process. Budget re-
(1) Oversight of procedures for main- quests will be supported by appropriate
taining and improving inter-divisional justification material.
coordination of water control manage- (Act of Congress approved 1 March 1917, (33
ment activities within the Mississippi U.S.C. 701) and sec. 2 of the Act of Congress
River Basin. approved 28 June 1938 as amended (33 U.S.C.
(2) Oversight of the development and 701c–1))
use of facilities (physical and computer [43 FR 52236, Nov. 9, 1978]
models, Automatic Data Processing
Equipment, and communications and PART 230—PROCEDURES FOR
information dissemination networks) IMPLEMENTING NEPA
needed to provide the best obtainable
water control system for the entire Sec.
Mississippi River Basin, utilizing the 230.1 Purpose.
coordinated capabilities of projects 230.2 Applicability.
now in operation and scheduled to be 230.3 References.
placed in operation in the reasonably 230.4 Definitions.
near future. 230.5 Responsible officials.
(3) Oversight of basin-wide operating/ 230.6 Actions normally requiring an EIS.
regulation plans for U.S. Army Corps 230.7 Actions normally requiring an Envi-
of Engineers projects in the Mississippi ronmental Assessment (EA) but not nec-
essarily an EIS.
River Basin. 230.8 Emergency actions.
(4) Periodic reports to the Chief of 230.9 Categorical exclusions.
Engineers regarding the Board’s activi- 230.10 Environmental Assessments (EA).
ties and its plans. 230.11 Finding of No Significant Impact
(f) Procedures. The procedures used by (FONSI).
the board to carry out its responsibil- 230.12 Notice of intent and scoping.
ities are as follows: 230.13 Environmental Impact Statement
(EIS).
(1) The Board meets periodically to 230.14 Record of decision and implementa-
review past activities and project oper- tion.
ations, and to discuss new or revised 230.15 Mitigation and monitoring.
basin-wide operating/regulation plans. 230.16 Lead and cooperating agencies.
(2) The Board acts on all proposals 230.17 Filing requirements.
for (temporary or permanent) deviation 230.18 Availability.
from approved basin-wide operating 230.19 Comments.
plans. 230.20 Integration with State and local pro-
cedures.
(3) The Board provides instructions 230.21 Adoption.
to committees under its jurisdiction 230.22 Limitations on actions during the
and reviews their recommendations for
NEPA process.
improvements in basin-wide water con- 230.23 Predecision referrals.
trol management. 230.24 Agency decision points.
296
230.25 Environmental review and consulta- (b) Executive Order 12114, Environ-
tion requirements. mental Effects Abroad of Major Fed-
230.26 General considerations in preparing eral Actions, January 4, 1979 (44 FR
Corps EISs. 1957, January 9, 1979).
APPENDIX A TO PART 230—PROCESSING CORPS (c) Clean Water Act (formerly known
NEPA DOCUMENTS as the Federal Water Pollution Control
APPENDIX B TO PART 230 [RESERVED] Act) 33 U.S.C. 1344 (hereinafter referred
APPENDIX C TO PART 230—NOTICE OF INTENT
to as section 404).
TO PREPARE A DRAFT EIS
(d) Endangered Species Act of 1973, as
AUTHORITY: National Environmental Pol- amended, 16 U.S.C. 1531 et seq.
icy Act (NEPA) (42 U.S.C. 4321 et seq.); E.O. (e) Environmental Effects Abroad of
11514, Protection and Enhancement of Envi- Major Department of Defense Actions;
ronmental Quality, March 5, 1970, as amend-
ed by E.O. 11991, May 24, 1977; and CEQ Regu-
Policies and Procedures 32 CFR part
lations Implementing the Procedural Provi- 197 (44 FR 21786–92, April 12, 1979).
sions of NEPA (40 CFR 1507.3). (f) Fish and Wildlife Coordination
Act, 16 U.S.C. 661 et seq.
SOURCE: 53 FR 3127, Feb. 3, 1988, unless oth- (g) National Environmental Policy
erwise noted.
Act of 1969, as amended, 42 U.S.C. 4321
§ 230.1 Purpose. et seq.
(h) National Historic Preservation
This regulation provides guidance for Act of 1966, as amended, 16 U.S.C. 470 et
implementation of the procedural pro- seq.
visions of the National Environmental (i) ‘‘Regulations for Implementing
Policy Act (NEPA) for the Civil Works the Procedural Provisions of the Na-
Program of the U.S. Army Corps of En- tional Environmental Policy Act of
gineers. It supplements Council on En- 1969,’’ (40 CFR parts 1500 through 1508,
vironmental Quality (CEQ) regulations November 29, 1978), Council on Environ-
40 CFR parts 1500 through 1508, Novem- mental Quality.
ber 29, 1978, in accordance with 40 CFR (j) Economic and Environmental
1507.3, and is intended to be used only Principles and Guidelines for Water
in conjunction with the CEQ regula- and Related Land Resource Implemen-
tions. Whenever the guidance in this tation Studies (48 CFR parts 10249
regulation is unclear or not specific the through 10258, March 10, 1983).
reader is referred to the CEQ regula- (k) Regulatory Programs of the Corps
tions. Appendix A provides guidance on of Engineers 33 CFR parts 320 through
processing NEPA documents except for 330, and 334.
those concerning regulatory actions. (l) CEQ Information Memorandum to
Appendix C (formally ER 200–2–1) has Agencies Containing Answers to 40
been added to provide guidance on pre- Most Asked Questions on NEPA Regu-
paring and processing a notice of in- lations (46 FR 34263–68, July 28, 1983).
tent to prepare an EIS for publication (m) ER 310–1–5. Federal Register Act
in the FEDERAL REGISTER for all types Requisitioning.
of Corps actions. 33 CFR part 325, Ap- (n) ER 1105–2–10 thru 60. Planning
pendix B provides procedural guidance Regulations.
for preparing and processing NEPA
documents for regulatory actions. § 230.4 Definitions.
Refer to 40 CFR part 1508; other defi-
§ 230.2 Applicability.
nitions may be found in the references
This regulation is applicable to all given above.
HQUSACE elements and all Field Oper-
ating Activities (FOAs) having respon- § 230.5 Responsible officials.
sibility for preparing and processing The district commander is the Corps
environmental documents in support of NEPA official responsible for compli-
Civil Works functions. ance with NEPA for actions within dis-
trict boundaries. The district com-
§ 230.3 References. mander also provides agency views on
(a) Executive Order 12291, Federal other agencies’ environmental impact
Regulation, February 17, 1981 (46 FR statements (EIS). The Office of Envi-
13193, February 19, 1981). ronmental Policy HQUSACE (CECW-
297
§ 230.6 33 CFR Ch. II (7–1–20 Edition)
RE) WASH DC 20314–1000 (phone num- (3) Section 107, Small Navigation
ber 202–272–0166) is the point of contact Project Authority;
for information on Corps NEPA docu- (4) Section 103, Small Beach Erosion
ments, NEPA oversight activities, re- Control Project Authority; and
view of other agencies’ EISs and NEPA (5) Section 111, Mitigation of Shore
documents about legislation, regula- Damages Attributable to Navigation
tions, national program proposals or Projects.
other major policy issues. The Assist- (d) Construction and Operations and
ant Chief Counsel for Environmental Maintenance. Changes in environmental
Law and Regulatory Programs, impacts which were not considered in
HQUSACE (CECC-E) WASH DC 20314– the project EIS or EA. Examples are
1000, is the point of contact for legal changes in pool level operations, use of
questions involving environmental new disposal areas, location of bank
matters. Requests for information on protection works, etc.
regulatory permit actions should be di- (e) Real Estate Management and Dis-
rected to HQUSACE (CECW-OR) WASH posal Actions. (1) Disposal of a Civil
DC 20314–1000. Works project or portions of project
properties not reported as excess to the
§ 230.6 Actions normally requiring an General Services Administration.
EIS. (2) Disposal of real property for pub-
Actions normally requiring an EIS lic port and industrial purposes.
are: (3) Grants of leases or easements for
(a) Feasibility reports for authoriza- other than minor oil and gas trans-
tion and construction of major mission lines, electric power trans-
projects; mission lines, road and highway rights-
(b) Proposed changes in projects of-way, and sewage or water treatment
which increase size substantially or facilities and land fills.
add additional purposes; and
(c) Proposed major changes in the op- § 230.8 Emergency actions.
eration and/or maintenance of com- In responding to emergency situa-
pleted projects. tions to prevent or reduce imminent
District commanders may consider risk of life, health, property, or severe
the use of an environmental assess- economic losses, district commanders
ment (EA) on these types of actions if may proceed without the specific docu-
early studies and coordination show mentation and procedural require-
that a particular action is not likely to ments of other sections of this regula-
have a significant impact on the qual- tion. District commanders shall con-
ity of the human environment. sider the probable environmental con-
sequences in determining appropriate
§ 230.7 Actions normally requiring an emergency actions and when request-
Environmental Assessment (EA) but ing approval to proceed on emergency
not necessarily an EIS. actions, will describe proposed NEPA
Actions normally requiring an EA, documentation or reasons for exclusion
but not an EIS, are listed below: from documentation. NEPA docu-
(a) Regulatory Actions. Most permits mentation should be accomplished
will normally require only an EA. prior to initiation of emergency work
(b) Authorized Projects and Projects if time constraints render this prac-
Under Construction. Changes which may ticable. Such documentation may also
be approved under the discretionary be accomplished after the completion
authority of the Secretary of the of emergency work, if appropriate.
Army. Emergency actions include Flood Con-
(c) Continuing Authorities Program. trol and Coastal Emergencies Activi-
Projects recommended for approval of ties pursuant to Pub. L. 84–99, as
the Chief of Engineers under the fol- amended, and projects constructed
lowing authorities: under sections 3 of the River and Har-
(1) Section 205, Small Flood Control bor Act of 1945 or 14 of the Flood Con-
Authority; trol Act of 1946 of the Continuing Au-
(2) Section 208, Snagging and Clear- thorities Program. When possible,
ing for Flood Control Authority; emergency actions considered major in
298
scope with potentially significant envi- ings, roads, levees, groins and utilities,
ronmental impacts shall be referred and installation of new buildings utili-
through the division commanders to ties, or roadways in developed areas.
HQUSACE (CECW-RE) for consultation (c) Minor maintenance dredging
with CEQ about NEPA arrangements. using existing disposal sites.
(d) Planning and technical studies
§ 230.9 Categorical exclusions. which do not contain recommendations
Actions listed below when considered for authorization or funding for con-
individually and cumulatively do not struction, but may recommend further
have significant effects on the quality study. This does not exclude consider-
of the human environment and are cat- ation of environmental matters in the
egorically excluded from NEPA docu- studies.
mentation. However, district com- (e) All Operations and Maintenance
manders should be alert for extraor- grants, general plans, agreements, etc.,
dinary circumstances which may dic- necessary to carry out land use, devel-
tate the need to prepare an EA or an opment and other measures proposed in
EIS. Even though an EA or EIS is not project authorization documents,
indicated for a Federal action because project design memoranda, master
of a ‘‘categorical exclusion’’, that fact plans, or reflected in the project NEPA
does not exempt the action from com- documents.
pliance with any other Federal law. (f) Real estate grants for use of ex-
For example, compliance with the En- cess or surplus real property.
dangered Species Act, the Fish and (g) Real estate grants for Govern-
Wildlife Coordination Act, the Na- ment-owned housing.
tional Historic Preservation Act, the (h) Exchanges of excess real property
Clean Water Act, etc., is always man- and interests therein for property re-
datory, even for actions not requiring quired for project purposes.
an EA or EIS. (i) Real estate grants for rights-of-
(a) For a period of one year from the way which involve only minor disturb-
effective date of these regulations, dis- ances to earth, air, or water:
trict commanders should maintain an
(1) Minor access roads, streets and
information list on the type and num-
boat ramps.
ber of categorical exclusion actions
(2) Minor utility distribution and col-
which due to extraordinary cir-
lection lines, including irrigation.
cumstances triggered the need for an
EA and finding of no significant impact (3) Removal of sand, gravel, rock, and
(FONSI) or an EIS. If a district com- other material from existing borrow
mander determines that a categorical areas.
exclusion should be modified, the infor- (4) Oil and gas seismic and gravity
mation will be furnished to the division meter survey for exploration purposes.
commander, who will review and ana- (j) Real estate grants of consent to
lyze the actions and circumstances to use Government-owned easement
determine if there is a basis for recom- areas.
mending a modification to the list of (k) Real estate grants for archeo-
categorical exclusions. HQUSACE logical and historical investigations
(CECW-RE) will review recommended compatible with the Corps Historic
changes for Corps-wide consistency and Preservation Act responsibilities.
revise the list accordingly. See 33 CFR (l) Renewal and minor amendments
part 325, appendix B for categorical ex- of existing real estate grants evidenc-
clusions for regulatory actions. ing authority to use Government-
(b) Activities at completed Corps owned real property.
projects which carry out the author- (m) Reporting excess real property to
ized project purposes. Examples in- the General Services Administration
clude routine operation and mainte- for disposal.
nance actions, general administration, (n) Boundary line agreements and
equipment purchases, custodial ac- disposal of lands or release of deed re-
tions, erosion control, painting, repair, strictions to cure encroachments.
rehabilitation, replacement of existing (o) Disposal of excess easement inter-

structures and facilities such as build- est to the underlying fee owner.
299
§ 230.10 33 CFR Ch. II (7–1–20 Edition)
(p) Disposal of existing buildings and should be included within the draft re-
improvements for off-site removal. port and circulated for a minimum 30-
(q) Sale of existing cottage site areas. day review to concerned agencies, orga-
(r) Return of public domain lands to nizations and the interested public (40
the Department of the Interior. CFR 1501.4(e)(2)). In the case of oper-
(s) Transfer and grants of lands to ation and maintenance activities in-
other Federal agencies. volving the discharge of dredged or fill
material requiring a public notice, the
§ 230.10 Environmental Assessments notice will indicate the availability of
(EA). the EA/FONSI. For all other Corps
(a) Purpose. An EA is a brief docu- project actions a notice of availability
ment which provides sufficient infor- of the FONSI will be sent to concerned
mation to the district commander on agencies, organizations and the inter-
potential environmental effects of the ested public (40 CFR 1501.4(e)(1)).
proposed action and, if appropriate, its
alternatives, for determining whether § 230.12 Notice of intent and scoping.
to prepare an EIS or a FONSI (40 CFR As soon as practicable after a deci-
1508.9). The district commander is re- sion is made to prepare an EIS or sup-
sponsible for making this determina-
plement, the scoping process for the
tion and for keeping the public in-
draft EIS or supplement will be an-
formed of the availability of the EA
nounced in a notice of intent. Guidance
and FONSI.
on preparing a notice of intent to pre-
(b) Format. While no special format is
pare an EIS for publication in the FED-
required, the EA should include a brief
ERAL REGISTER is discussed in Appen-
discussion of the need for the proposed
dix C. Also, a public notice will be
action, or appropriate alternatives if
widely distributed inviting public par-
there are unresolved conflicts con-
ticipation in the scoping process. As
cerning alternative uses of available
described in 40 CFR 1501.7 and reference
resources, of the environmental im-
pacts of the proposed action and alter- 3(m), this process is the key to pre-
natives and a list of the agencies, in- paring a concise EIS and clarifying the
terested groups and the public con- significant issues to be analyzed in
sulted. The document is to be concise depth. Public concerns on issues, stud-
for meaningful review and decision. ies needed, alternatives to be exam-
(c) Integration with Corps Reports. In ined, procedures and other related mat-
the case of planning and/or engineering ters will be addressed during scoping.
reports not requiring an EIS, the EA
§ 230.13 Environmental Impact State-
may be combined with or integrated ment (EIS).
into the report. The same guidance on
combining or integrating an EIS with- An EIS for feasibility or continuing
in the report shall apply equally to an authority reports and certain planning/
EA. Where the EA is combined with a engineering reports may be combined
Corps report or prepared as a separate with or integrated into the report in
document in the case of construction, accordance with 40 CFR 1500.4(o) and
operating projects and real estate ac- 1506.4. An EIS combined with the re-
tions requiring an EA, the EA nor- port shall follow the format in 40 CFR
mally should not exceed 15 pages. 1502.10, follow the main report, use col-
ored paper and not be an attachment or
§ 230.11 Finding of No Significant Im- appendix. An EIS integrated within the
pact (FONSI). report may follow the instructions in
A FONSI shall be prepared for a pro- the last paragraph of 40 CFR 1502.10.
posed action, not categorically ex- Additional guidance on combining and
cluded, for which an EIS will not be integrating EISs is located in ER 1105–
prepared. The FONSI will be a brief 2–60. Where the EIS is not combined
summary document as noted in 40 CFR with or integrated into the project doc-
1508.13. In the case of feasibility, con- ument, the EIS shall be a separate doc-
tinuing authority, or special planning ument and follow the format in 40 CFR
reports and certain planning/engineer- 1502.10. CEQ regulations suggest max-

ing reports, the draft FONSI and EA imum lengths for the text of an EIS at
300
40 CFR 1502.07. An effort should be ex- of the previous EIS being supplemented
erted to cover the substantive topics and how copies can be obtained. The
simply and concisely to the extent decision may be made on the proposed
practicable, and consistent with pro- action by the appropriate Corps official
ducing a legally and technically ade- no sooner than 30 days after the final
quate EIS. Normally, the CEQ page supplement has been on file. A record
limits should be met. of decision will be signed when the de-
(a) Draft and final EISs. Guidance on cision is made.
EISs prepared for planning and certain (c) Tiering. Tiering is discussed in 40
planning/engineering studies is con- CFR 1502.20 and 1508.28 and should be
tained in ER 1105–2–10 thru 60. 33 CFR used in appropriate cases. The initial
part 325, appendix B contains guidance broad or programmatic EIS must
for regulatory actions. For final EISs present sufficient information regard-
which are not combined with or inte- ing overall impacts of the proposed ac-
grated into the report, the final EIS tion so that the decision-makers can
may take the form of an ‘‘abbreviated’’ make a reasoned judgment on the mer-
document described in 40 CFR 1503.4(c). its of the action at the present stage of
An abbreviated final EIS should consist planning or development and exclude
of a new title page, summary, errata or from consideration issues already de-
correction sheet(s) and comments and cided or not ready for decision. The ini-
responses. In filing the abbreviated tial broad EIS should also identify data
final EIS with EPA (Washington Of- gaps and discuss future plans to supple-
fice), five copies of the draft EIS shall ment the data and prepare and cir-
be included in the transmittal. District culate site specific EISs or EAs as ap-
commanders shall be responsible for propriate.
determining the type of final EIS to (d) Other reports. District com-
prepare. manders may also publish periodic fact
(b) Supplements. A supplement to the sheets and/or other supplemental infor-
draft or final EIS should be prepared mation documents on long-term or
whenever required as discussed in 40 complex EISs to keep the public in-
CFR 1502.09(c). A supplement to a draft formed on the status of the proposed
EIS should be prepared and filed in the action. These documents will not be
same manner as a draft EIS and should filed officially with EPA.
be titled ‘‘Supplement I’’, ‘‘Supplement
II’’, etc. The final EIS should address § 230.14 Record of decision and imple-
the changes noted in the supplement mentation.
and substantive comments received as A record of decision shall be prepared
a result of circulation of the document. by the district commander, in accord-
A supplement to a final EIS should be ance with 40 CFR 1505.2, for the signa-
prepared and filed first as a draft sup- ture of the final decisionmaker as pre-
plement and then as a final supple- scribed by applicable Corps regula-
ment. Supplements will be filed and tions. Procedures implementing the de-
circulated in the same manner as a cision are discussed in 40 CFR 1505.3.
draft and final EIS (including the ab- Incoming letters of comment on the
breviated procedure discussed in 13a. final EIS will be furnished for review
above). Supplements to a draft or final by the decisionmaker who signs the
EIS filed before 30 July 1979 may follow record of decision. For example, the
the format of the previously filed EIS. record of decision for feasibility re-
Supplements to a draft EIS filed after ports will be signed by the ASA(CW) at
this date will follow the format out- the time the report is transmitted to
lined in 40 CFR 1502.10. References to Congress for authorization.
the draft or final EIS being supple-
mented should be used to eliminate re- § 230.15 Mitigation and monitoring.
petitive discussions in order to focus See 40 CFR 1505.2(c) and 1505.3. Dis-
on the important issues and impacts. trict commanders shall, upon request
The transmittal letter to EPA as well from interested agencies or the public,
as the cover sheet should clearly iden- provide reports on the progress and
tify the title and purpose of the docu- status of required mitigation and other
ment as well as the title and filing date provisions of their decisions on Corps
301
§ 230.16 33 CFR Ch. II (7–1–20 Edition)
projects. The term monitoring will be culate the final EIS or final supple-
interpreted as that oversight activity ment and will file the final document
necessary to ensure that the decision, with EPA after notified that distribu-
including required mitigation meas- tion of the document has been accom-
ures, is implemented. plished.
(a) Timing requirements. Specific tim-
§ 230.16 Lead and cooperating agen- ing requirements regarding the filing
cies. of EISs with EPA are discussed in 40
Lead agency, joint lead agency, and CFR 1506.10. District commanders will
cooperating agency designation and re- forward any expedited filing requests
sponsibilities are covered in 40 CFR with appropriate supporting informa-
1501.5 and 1501.6. The district com- tion through channels to CECW-RE.
mander is authorized to enter into Once a decision is reached to prepare
agreements with regional offices of an EIS or supplement, district com-
other agencies as required by 40 CFR manders will establish a time schedule
1501.5(c). District or division com- for each step of the process based upon
manders will consult with HQUSACE considerations listed in 40 CFR 1501.8
(CECW-RE), WASH DC 20314–1000 prior and upon other management consider-
to requesting resolution by CEQ as out- ations. The time required from the de-
lined by 40 CFR 1501.5 (e) and (f). cision to prepare an EIS to filing the
(a) Lead Agency. The Corps will nor- final EIS normally should not exceed
mally be lead agency for Corps civil one year (46 FR 18037, March 23, 1981).
works projects and will normally avoid For feasibility, continuing authority,
joint lead agency arrangements. Lead or reevaluation studies, where the
agency status for regulatory actions project’s study time is expected to ex-
will be determined on the basis of 40 ceed 12 months, the timing of the EIS
CFR 1501.5(c). should be commensurate with the
(b) Corps as a Cooperating Agency. For study time. In appropriate cir-
cooperating agency designation the cumstances where the costs of com-
Corps area of expertise or jurisdiction pleting studies or acquiring informa-
by law is generally flood control, navi- tion for an EIS (i.e., cost in terms of
gation, hydropower and Corps regu- money, time, or other resources) would
latory responsibilities. See Appendix II be exorbitant, the district commander
of CEQ regulations (49 FR 49750, De- should consider using the mechanism
cember 21, 1984). described in 40 CFR 1502.22, as amend-
ed. In all cases, however, it is the dis-
§ 230.17 Filing requirements. trict commander’s responsibility to as-
Five copies of draft, final and supple- sure that the time-limit established for
ment EISs should be sent to: Director, the preparation of an EIS or supple-
Office of Federal Activities (A–104), En- ment is consistent with the purposes of
vironmental Protection Agency, 401 M NEPA.
Street SW., Washington, DC 20460. Dis- (b) Timing requirements on supple-
trict commanders should file draft ments. Minimum review periods will be
EISs and draft supplements directly observed for draft and final supple-
with EPA. Final EISs and final supplements covering actions not having a
ments should be filed by appropriate bearing on the overall project for
elements within HQUSACE for feasi- which a final EIS has been filed. Such
bility and reevaluation reports requir- supplements should not curtail other
ing Congressional authorization. Divi- ongoing or scheduled actions on the
sion commanders should file final EISs overall project which have already
and final supplements for all other complied with the procedural require-
Corps actions except for final EISs or ments of NEPA.
final supplements for permit actions
which should be filed by the district § 230.18 Availability.
commander after appropriate reviews Draft and final EISs and supplements
by division and the incorporation of di- will be available to the public as pro-
vision’s comments in the EIS. vided in 40 CFR 1502.19 and 1506.6. A
HQUSACE and/or division will notify summary may be circulated in lieu of

field office counterparts when to cir- the EIS, as provided in 40 CFR 1502.19,
302
if the statement is unusually long. incoming comments received in

These documents will normally be HQUSACE to the district commander
made available without charge except for use in preparing the draft record of
that, in unusual circumstances, repro- decision. For all other Corps actions
duction costs may be recovered in ac- except regulatory actions (See 33 CFR
cordance with 40 CFR 1506.6(f) from re- part 325, appendix B), two copies of all
cipients other than those required by incoming comment letters (even if the
CEQ to receive the complete EIS. letters do not require an agency re-
sponse) together with the district com-
§ 230.19 Comments. mander’s responses (if appropriate) and
District commanders shall request the draft record of decision will be sub-
comments as set forth in 40 CFR 1503 mitted through channels to the appro-
and 1506.6. A lack of response may be priate decision authority. In the case
presumed to indicate that the party of a letter recommending a referral
has no comment to make. under 40 FR part 1504, reporting offi-
(a) Time extensions. District com- cers will notify CECW-RE and request
manders will consider and act on re- further guidance. The record of deci-
quests for time extensions to review sion will not be signed nor any action
and comment on an EIS based on time- taken on the proposal until the referral
liness of distribution of the document, case is resolved.
prior agency involvement in the pro- (e) Commenting on other agencies’ EISs.
posed action, and the action’s scope See 40 CFR 1503.2 and 1503.3. District
and complexity. commanders will provide comments di-
(b) Public meetings and hearings. See rectly to the requesting agency. CECW-
40 CFR 1506.6(c). Refer to paragraph 12, RE will provide comments about legis-
33 CFR part 325, appendix B for regulation, national program proposals,
latory actions. regulations or other major policy
(c) Comments received on the draft EIS. issues to the requesting agency. See
See 40 CFR 1503.4. District commanders appendix III of CEQ regulations. When
will pay particular attention to the the Corps is a cooperating agency, the
display in the final EIS of comments Corps will provide comments on an-
received on the draft EIS. In the case other Federal agency’s draft EIS even
of abbreviated final EISs, follow 40 if the response is no comment. Com-
CFR 1503.4(c). For all other final EISs, ments should be specific and restricted
comments and agency responses there- to areas of Corps jurisdiction by law
to will be placed in an appendix in a and special expertise as defined in 40
format most efficient for users of the CFR 1508.15 and 1508.26, generally in-
final EIS to understand the nature of cluding flood control, navigation, hy-
public input and the district com- dropower, and regulatory responsibil-
mander’s consideration thereof. Dis- ities. See appendix II of CEQ regula-
trict commanders will avoid lengthy or tions.
repetitive verbatim reporting of com-
ments and will keep responses clear § 230.20 Integration with State and
and concise. local procedures.
(d) Comments received on the final EIS. See 40 CFR 1506.2.
Responses to comments received on the
final EIS are required only when sub- § 230.21 Adoption.
stantive issues are raised which have See 40 CFR 1506.3. A district com-
not been addressed in the EIS. In the mander will normally adopt another
case of feasibility reports where the Federal agency’s EIS and consider it to
final report and EIS, Board of Engi- be adequate unless the district com-
neers for Rivers and Harbors (CEBRH) mander finds substantial doubt as to
or Mississippi River Commission technical or procedural adequacy or
(CEMRC) report, and the proposed omission of factors important to the
Chief’s report are circulated for review, Corps decision. In such cases, the dis-
incoming comment letters will nor- trict commander will prepare a draft
mally be answered, if appropriate, by and final supplement noting in the
CECW-P. After the review period is draft supplement why the EIS was con-
over, CECW-P will provide copies of all sidered inadequate. In all cases, except
303
§ 230.22 33 CFR Ch. II (7–1–20 Edition)
where the document is not recirculated tion, the filing of the final EIS need
as provided in 40 CFR 1506.3 (b) or (c), not be delayed.
the adopted EIS with the supplement, (b) Executive Order 12114, Environ-
if any, will be processed in accordance mental Effects Abroad of Major Federal
with this regulation. A district com- Actions, 4 January 1979. For general pol-
mander may also adopt another agen- icy guidance, see FEDERAL REGISTER of
cy’s EA/FONSI. April 12, 1979, 32 CFR part 197. Proce-
dural requirements for Civil Works
§ 230.22 Limitations on actions during
the NEPA process. studies and projects are discussed
below.
See 40 CFR 1506.1.
(1) The district commander through
§ 230.23 Predecision referrals. the division commander will notify
CECW-PE, PN, PS or PW as appro-
See 40 CFR part 1504. If the district
priate, of an impending action which
commander determines that a
predecision referral is appropriate, the may impact on another country and for
case will be sent through division to which environmental studies may be
reach CECW-RE not later than 15 days necessary to determine the extent and
after the final EIS was filed with EPA. significance of the impact. The district
Corps actions referred to CEQ by an- commander will inform CECW-P
other Federal agency shall be trans- whether entry into the country is nec-
mitted to CECW-RE for further guid- essary to study the base condition.
ance. See paragraph 19, 33 CFR part 325, (2) CECW-P will notify the State De-
appendix B, for guidance on predecision partment, Office of Environment and
referrals affecting regulatory permit Health (OES/ENH) of the district com-
actions. mander’s concern, and whether a need
exists at this point to notify officially
§ 230.24 Agency decision points. the foreign nation of our intent to
The timing and processing of NEPA study potential impacts. Depending on
documents in relation to major deci- expected extent and severity of im-
sion points are addressed in paragraphs pacts, or if entry is deemed necessary,
11 and 14 and appendix A for studies the matter will be referred to the ap-
and projects and 33 CFR part 320 propriate foreign desk for action.
through 330 for regulatory actions. (3) As soon as it becomes evident that
the impacts of the proposed actions are
§ 230.25 Environmental review and
consultation requirements. considered significant, CECW-P will
notify the State Department. The
See 40 CFR 1502.25. State Department will determine
(a) For Federal projects, NEPA docu-
whether the foreign embassy needs to
ments shall be prepared concurrently
be notified, and will do so if deemed ap-
with and utilize data from analyses re-
propriate, requesting formal discus-
quired by other environmental laws
and executive orders. A listing of envi- sions on the matter. When the Inter-
ronmental laws and orders is contained national Joint Commission (IJC) or the
in table 3.4.3 of Economic and Environ- International Boundary and Water
mental Principles and Guidelines for Commission, United States and Mexico
Water and Related Land Resources Im- (IBWC) is involved in a study, the
plementation Studies. Reviews and State Department should be consulted
consultation requirements, analyses, to determine the foreign policy impli-
and status of coordination associated cations of any action and the proper
with applicable laws, executive orders course of action for formal consulta-
and memoranda will be summarized in tions.
the draft document. The results of the (4) Prior to public dissemination,
coordination completed or underway press releases or reports dealing with
pursuant to these authorities will be impact assessments in foreign nations
summarized in the final document. should be made available to the appro-
Where the results of the ongoing stud- priate foreign desk at the State De-
ies are not expected to materially af- partment for clearance and coordina-
fect the decision on the proposed action with the foreign embassy.
304
§ 230.26 General considerations in pre- or a separate NEPA document and circulate

paring Corps EISs. it to agencies, organizations and members of
the public known to have an interest in the
(a) Interdisciplinary preparation. See study. Five copies of the draft EIS and re-
(40 CFR 1502.6). port will be mailed to Director, Office of
(b) Incorporation by reference. To the Federal Activities (A–104), Environmental
maximum extent practicable, the EIS Protection Agency, 401 M Street SW., Wash-
should incorporate material by ref- ington, DC 20460 for filing after distribution
erence in accordance with 40 CFR has been accomplished. After receipt and
1502.21. Footnotes should be used only evaluation of comments received, the dis-
where their use greatly aids the read- trict commander will prepare the final re-
er’s understanding of the point dis- port and EIS or EA and FONSI and submit it
cussed. Citation in the EIS of material to the division commander for review.
incorporated by reference should be b. Division Review. After review, the divi-
sion commander will issue a public notice of
made by indicating an author’s last
report issuance and transmit the report to
name and date of the reference in pa- the CEBRH. On Mississippi River and Tribu-
rentheses at the appropriate location taries projects, the district commander will
in the EIS. The list of references will issue a public notice and submit the report
be placed at the end of the EIS. Only to the CEMRC. For the purpose of this regu-
information sources actually cited in lation, only the acronym CEBRH will be
the text should appear in the reference used since the review functions of CEMRC
list. The reference list should include and CEBRH are similar. The notice will pro-
the author’s name, the date and title of vide a 30-day period for comments to be sub-
the publication, personal communica- mitted to CEBRH on the report and EIS. Al-
tions and type of communication (e.g., though the EIS in the report is identified as
‘‘final’’ at this stage of processing, it should
letter, telephone, interview, etc.).
be made clear to all those requesting a copy
that it is an ‘‘Interim Document under Agen-
APPENDIX A TO PART 230—PROCESSING
cy Review—Subject to Revision’’ and will be-
CORPS NEPA DOCUMENTS come the agency’s final EIS when it is filed
NEFA documents for Civil Works activi- after CEBRH review.
ties other than permits will be processed in c. CEBRH Review. CEBRH will review the
accordance with the instructions contained EIS at the same time it reviews the final fea-
in this appendix and applicable paragraphs in sibility report. The report and EIS should be
the regulation. compatible. If the CEBRH review requires
minor revisions (with insignificant impacts)
TABLE OF CONTENTS to the plan as recommended by the division
Title and district commanders, these changes and
1. Feasibility Studies impacts shall be noted in the CEBRH report.
2. Continuing Authorities Program Studies If the CEBRH action results in major revi-
3. Projects in Preconstruction Engineering, sions to the recommended plan and revisions
and Design, Construction, and Completed are variants of the plan or are within the
Projects in an Operations and Mainte- range of alternatives considered and dis-
nance Category cussed in the draft EIS, an addendum to the
4. Other Corps Projects final EIS will be prepared by CEBRH (with
assistance from the district commander, as
1. Feasibility Studies required). This addendum ‘‘package’’ will be
a. Preparation and Draft Review. During the identified as an ‘‘Addendum to the Final
reconnaissance phase, the district com- EIS—Environmental Consequences of the
mander should undertake environmental Modifications Recommended by the Board of
studies along with engineering, economic Engineers for Rivers and Harbors—project
and other technical studies to determine the name.’’ The format shall include an abstract
probable environmental effects of alter- on the cover page; recommended changes to
natives and the appropriate NEPA document the division/district commander’s proposed
to accompany the feasibility report. This en- plan; rationale for the recommended
vironmental evaluation should be continued changes; environmental consequences of the
in the feasibility phase, and if the need for recommended changes; and the name, exper-
an EIS develops the district commander will tise/discipline, experience, and role of the
issue a notice of intent as early in the feasi- principal preparer(s) of the addendum. Let-
bility phase as possible. Following the guid- ters received during CEBRH review which
ance in ER 1105–2–10 through 60, the district provide new pertinent information having a
commander will prepare a draft feasibility bearing on the modifications recommended

report combining or integrating the draft by CEBRH will be attached to the addendum.
EIS or EA and draft FONSI (as appropriate), If CEBRH proposes to recommend a major
305
revision or a new alternative to the plan rec- 2. Continuing Authorities Program Studies
ommended by the division and district com-
a. Preparation and Draft Review. During the
manders with significant impacts which were
reconnaissance phase, the district com-
not discussed in the draft EIS, a supplement mander should undertake environmental
to the draft EIS will be required. After con- studies along with engineering, economic
sultation with CEBRH and the division com- and other technical studies to determine the
mander, the district commander will prepare probable environmental effects of alter-
and circulate the supplement to the draft natives and the appropriate NEPA document
EIS in accordance with paragraph 13(b). The to accompany the detailed project report
supplement together with incoming letters (DPR). If the results of the reconnaissance
of comment and Corps responses to sub- phase warrant preparation of an EIS, the dis-
stantive issues shall be incorporated into the trict commander will issue a notice of intent
existing final report and EIS with a min- early in the ensuing feasibility study. Fol-
imum of page changes or revisions to reflect lowing the guidance in ER 1105–2–10 through
the modified or new proposed plan. CEBRH 60 the district commander will prepare the
will review its proposed action in light of the draft DPR incorporating the EA and draft
comments received prior to taking final ac- FONSI or draft EIS (as appropriate), and cir-
tion on the report and EIS. culate it to agencies, organizations and
d. Departmental Review. The report and members of the public known to have an in-
final EIS, together with the proposed report terest in the study. If an EIS is prepared,
of the Chief of Engineers and the CEBRH re- five copies of the draft EIS and report will be
port, will be filed with EPA at about the mailed to Director, Office of Federal Activi-
same time as it is circulated for the 90-day ties (A–104), Environmental Protection Agen-
departmental review by Federal agencies at cy, 401 M Street SW, Washington, DC 20460
the Washington level and the concerned for filing after distribution has been accom-
state(s). District commanders will circulate plished.
the proposed Chief’s report, CEBRH report, b. Agency Review. After receipt and evalua-
and the report and final EIS to parties on tion of comments the district commander
the project mailing list not contacted by will prepare the final DPR and EA/FONSI or
HQUSACE (groups and individuals known to final EIS and submit eight (8) copies to the
have an interest in the study or who pro- division commander for review and approval.
vided comments on the draft EIS) allowing After review, the division commander will
the normal 30-day period of review. file five (5) copies of the final DPR and EIS
HQUSACE will provide a standard letter for with the Washington office of EPA. The divi-
the district to use to transmit these docu- sion commander will not file the final EIS
ments which explains the current status of until notified by the district commander
the report and EIS and directs all comments that distribution has been accomplished.
to be sent to HQUSACE (CECW-P). Copies of c. Final Review. Letters of comment on the
the report appendices circulated with the final DPR including the final EIS will be an-
draft need not be circulated with the report swered by the district commander on an in-
and final EIS. All letters of comment re- dividual basis if appropriate. Two (2) copies
ceived on the report and final EIS together of all incoming letters and the district com-
with HQUSACE responses and the draft mander’s reply together with five copies of
record of decision (to be provided by the dis- the final DPR and EIS and a draft of the
trict commander) will be included with other record of decision will be submitted through
papers furnished at the time the final Chief’s division to the appropriate element within
report is transmitted to ASA(CW) for further CECW-P. After review of the DPR and NEPA
review and processing. documents, the Director of Civil Works or
e. Executive Reviews. After completion of Chief, Planning Division will approve the
review, the Chief of Engineers will sign his project and sign the record of decision if an
final report and transmit the report and ac- EIS was prepared for the DPR.
companying documents to ASA(CW). After
3. Projects in Preconstruction Engineering and
review ASA(CW) will transmit the report to
Design, Construction, and Completed Projects
OMB requesting its views in relation to the
in an Operations and Maintenance Category
programs of the President. After OMB pro-
vides its views, ASA(CW) will sign the record a. General. District commanders will re-
of decision (ROD) and transmit the report to view the existing NEPA document(s) to de-
Congress. In situations where Congress has termine if there are new circumstances or
acted to authorize construction of a project significant impacts which warrant the prepa-
prior to receiving ASA(CW) recommenda- ration of a draft and final supplement to the
tions, the Director of Civil Works is the des- EIS. If the proposed changes and new im-
ignated official to sign the ROD. In this case pacts are not significant an EA and FONSI
the ROD should only address the project as may be used.
authorized by the Congress and not attempt b. Preparation and Draft Review. As soon as
to provide any additional justification of the practicable after the district commander
Congressional action. makes a determination to prepare an EIS or
306
Corps of Engineers, Dept. of the Army, DoD Pt. 230, App. C
supplement for the proposed project, a notice ies. Guidance on the format and content of
of intent will be issued. The district com- the notice in the form of a sample notice of
mander will, in accordance with 40 CFR intent is contained in paragraph 4 of this ap-
1506.6, prepare and circulate the draft EIS or pendix. District commanders shall also fol-
supplement for review and comment to agen- low this guidance when publishing a notice
cies, groups and individuals known who may of intent to withdraw a notice of intent when
be interested or affected. Five (5) copies will a decision has been made to terminate the
be sent to Director, Office of Federal activi- EIS process.
ties (A–104), Environmental Protection Agen- 3. Publishing Documents in the Federal Reg-
cy, 401 M Street SW., Washington, DC 20460 ister. The following information is furnished
for filing after distribution has been accom- for preparation and publication of notices of
plished. intent in the FEDERAL REGISTER:
c. Agency Review. The district commander a. A brief transmittal letter inclosing
will prepare the final EIS or supplement three (3) signed copies of the notice of intent
after receipt and evaluation of comments. should be processed through local Chief, In-
Eight (8) copies will be transmitted to the di- formation Management channels to: HQDA,
vision commander for review. After review SFIS-APP, ATTN: Department of the Army
the division commander will file five (5) cop- Liaison Officer with the Office of the Federal
ies with the Washington office of EPA. A Register, Alexandria, VA 22331–0302. This of-
copy of the final EIS or supplement and fice will review and correct (if needed) all
transmittal letter to EPA will be provided to documents prior to publication in the FED-
the appropriate counterpart office within ERAL REGISTER.
HQUSACE. The division commander will file b. The notice must be signed by the official
the final EIS when the district commander issuing the document along with the signer’s
has made distribution. typed name, rank and position title for mili-
d. Final Review. Letters of comment on the tary officials or name and position title for
final EIS or supplement will be answered by civilian officials. A signer cannot sign ‘‘as
the district commander on an individual acting’’ or ‘‘for’’ if another name is shown in
basis as appropriate. Two (2) copies of the in- the signature block. All three copies sent
coming letters and the district commander’s forward must be signed in ink. A xerox copy
reply together with two copies of the final of the signature is not allowed.
EIS or supplement and a draft of the record c. A six-digit billing code number must be
of decision will be submitted to the appro- typed or handwritten in ink at the top of the
priate Corps official having approval author- first page on all three copies of a notice. This
ity. After review of the NEPA documents billing code number can be found on GPO
and letters, the appropriate approving offi- bills, GPO Form 400, in the upper left corner
cial will sign the record of decision. opposite the address. The billing code num-
4. Other Corps Projects. Draft and final EISs ber will be indicated as 3710–XX. FOAs must
for other Civil Works projects or activities submit an open-end printing and binding req-
having significant environmental impacts uisition, Standard Form 1, each fiscal year
which may be authorized by Congress with- to cover FEDERAL REGISTER printing costs
out an EIS having been previously filed and (reference 3(n)). Completed requisitions (SF–
for certain real estate management and dis- 1) must be forwarded to reach HQUSACE
posal actions which may require an EIS (CEIM-SP) WASH DC 20314–1000 by 1 June of
should be processed in a manner similar to each year. Consult the local chief, Informa-
that discussed in paragraph 3 of this appen- tion Management for Assistance.
dix except that CERE-MC will be the coordi- 4. Sample Notice of Intent. The following is
nating office within HQUSACE for real es- a sample notice of intent to be used by dis-
tate actions. trict commanders:
APPENDIX B TO PART 230 [RESERVED] Department of Defense
Corps of Engineer, Department of the
APPENDIX C TO PART 230—NOTICE OF Army, 3710–XX (Use Local Billing Code
Number)
INTENT TO PREPARE A DRAFT EIS
Intent To Prepare A Draft Environment
1. Purpose. This appendix provides guidance Impact Statement (DEIS) For a Proposed
on the preparation and processing of a notice (Name and location of project, permit or activ-
of intent to prepare a draft EIS for publica- ity).
tion in the FEDERAL REGISTER. A notice of Agency: U.S. Army Corps of Engineers,
intent to prepare a draft EIS or a draft sup- DoD.
plement is discussed in 40 CFR 1508.22. Action: Notice of Intent.
2. Procedure. District commanders shall Summary: The summary should briefly
publish a notice of intent in the FEDERAL state in simple language what action is being
REGISTER as soon as practicable after a deci- taken, why the action is necessary, and the
sion is made to prepare a draft EIS or draft intended effect of the action. Extensive dis-
supplement. See 40 CFR 1507.3(e) for timing cussion belongs under the Supplementary In-
of notice of intent for Corps feasibility stud- formation caption.
307
For Further Information Contact: Ques- 236.2 Applicability.
tions about the proposed action and DEIS 236.3 References.
can be answered by: (Provide name, tele- 236.4 Background.
phone number, and address of the person in 236.5 Policy and procedure.
the district or division who can answer ques- 236.6 Other agencies EQ measures.
tions about the proposed action and the
DEIS). AUTHORITY: Pub. L. 738, 74th Cong.; Pub. L.
Supplementary Information: The Supple- 89–72; Pub. L. 91–190.
mentary Information should contain the re- SOURCE: 45 FR 28714, Apr. 30, 1980, unless
mainder of the necessary information of the otherwise noted.
document. It should contain any authority
citation, FEDERAL REGISTER citation to a
previously published document, or CFR cita-
§ 236.1 Purpose.
tion when appropriate and include a discus- This regulation provides guidance for
sion of the following topics: including Environmental Quality (EQ)
1. Briefly describe the proposed action. measures in Corps of Engineers water
2. Briefly describe reasonable alternatives.
3. Briefly describe the Corps’ scoping proc-
resource development plans.
ess which is reasonably foreseeable for the
DEIS under consideration. The description: § 236.2 Applicability.
a. Shall discuss the proposed public in- This regulation is applicable to all
volvement program and invite the participa- OCE elements and field operating ac-
tion of affected Federal, state and local
tivities having Civil Works responsibil-
agencies, affected Indian tribes, and other in-
terested private organizations and parties. ities.
b. Shall identify significant issues to be
analyzed in depth in the DEIS. § 236.3 References.
c. May discuss possible assignments for (a) PL 89–72
input into the EIS under consideration (b) ER 1105–2–10
among the lead and cooperating agencies.
d. Shall identify other environmental re- (c) ER 1105–2–200
view and consultation requirements.
4. Indicate whether or not a scoping meet- § 236.4 Background.
ing will be held. Indicate time, date and lo- (a) The role of the Corps of Engineers
cation if a meeting is scheduled. in the development of water and re-
5. Provide an estimated date when the
lated land resources has gradually
DEIS will be made available to the public.
broadened over the past century. Start-
(Provide date)
ing with the development of navigation
llllllllllllllllllllllll on the Mississippi River in 1824, the
(Signature) Corps role has grown to encompass,
llllllllllllllllllllllll among others, flood control, beach ero-
See par. 3.b. for instructions on signature sion control and hurricane protection,
hydroelectric power, recreation, water
NOTE
supply, water quality, fish and wildlife
• Text to be double-spaced. Use block for- and low-flow augmentation. Laws, ex-
mat. ecutive orders, and national policies
• Place local billing code number at the
top of the first page on all three copies.
promulgated in the past decade require
• Margins—one inch on top, bottom and that the quality of the environment be
right side; and one and one-half inches on protected and, where possible, en-
the left side. hanced as the nation grows. As a re-
• Pages must be numbered consecutively. sult, the Federal role in EQ, including
• Text should be typed on one side only. the Corps, has continued to broaden.
• Use 81⁄2 by 11 inch bond paper or photo- Balancing economic and environmental
copy paper.
interests is a major requirement to be
considered in the planning of all Corps
PART 236—WATER RESOURCE POLI- projects.
CIES AND AUTHORITIES: CORPS (b) Enhancement of the environment
OF ENGINEERS PARTICIPATION is an objective of Federal water re-
IN IMPROVEMENTS FOR ENVI- source programs to be considered in
RONMENTAL QUALITY the planning, design, construction, and
operation and maintenance of projects.
Sec. Opportunities for enhancement of the

236.1 Purpose. environment are sought through each
308
of the above phases of project develop- ated as a result of meeting study au-
ment. Specific considerations may in- thority purposes should be pursued
clude, but are not limited to, actions to and, as appropriate, included in plans
preserve or enhance critical habitat for for Corps implementation. In addition,
fish and wildlife; maintain or enhance the recommended plan may also in-
water quality; improve streamflow; clude separable EQ measures to meet
preservation and restoration of certain established planning objectives. Such
cultural resources, and the preserva- separable EQ measures for Corps imple-
tion or creation of wetlands. mentation must be related to, or take
(c) The 1105–2–200 series of Engineer advantage of, opportunities created by
Regulations describe the procedures to a water resource development to be
be followed in developing water re- recommended for implementation by
source plans. These procedures require the Corps of Engineers.
the establishment of planning objec- (3) Justification. Recommended plans
tives (generally encompassing a com- must be justified on the basis that
bination of National Economic Devel- combined beneficial NED and EQ ef-
opment (NED) and EQ outputs), and fects outweigh combined adverse NED
evaluation of alternative plans to meet and EQ effects.
those objectives to differing degrees. (4) Cost sharing. Some features of
With respect to the recommendation of plans required to foster EQ objectives
measures for Corps implementation, in the Corps of Engineers program have
ER 1105–2–200 states that, ‘‘If the se- well-defined laws or policies which es-
lected plan or a portion thereof is not tablish cost sharing requirements. For
within existing Corps implementation instance, Pub. L. 89–72, as amended, de-
authority, but is responsive to the fines cost sharing requirements for fish
planning objectives established for the and wildlife enhancement. However,
study, the reporting officer may rec- there are other features which may not
ommend Federal (Corps) participa- be defined by law or policy. In those in-
tion.’’ The ER further states that the stances, cost sharing will be based on
basis for and extent of such participa- an analogy with established cost shar-
tion is to be specified, including the ing policies or other similar Federal
precedent setting aspects of the rec- programs as described in the Catalog of
ommendation, and further, that such Federal Domestic Assistance. Cost
recommendations are to be coordinated sharing for EQ measures for which the
through DAEN-CWP before commit- Corps has no standard policy will be
ments are made to states or local in- approved by HQDA (DAEN-CWP-E, C or
terests. This regulation expands upon W), WASH DC 20314, prior to proposing
that policy and provides operational cost sharing to local interests.
policies and criteria which will allow (b) Procedures for approval—(1) With-
the field to recommend authorization out advance OCE approval. The report-
for implementation of certain EQ ing officer may recommend separable
measures. EQ measures that satisfy any one of
the following criteria:
§ 236.5 Policy and procedure. (i) Implemented on lands required for
The following policies and procedures the water resource development;
set forth criteria to be applied in deter- (ii) Required to complete or more
mining when EQ measures may be rec- fully develop proposed EQ measures
ommended for implementation by the partly on lands, including mitigation
Corps. lands, required for the water resource
(a) Policy—(1) Achievement of specified, development;
study authority planning objectives. Rec- (iii) More cost effective to implement
ommended plans must include meas- or manage when directly integrated
ures for accomplishment of the pri- with the implementation or manage-
mary purposes authorized by Congress. ment of the water resource develop-
(2) Relationship of EQ measures to a ment.
Corps water resource development. Meas- (2) With advance approval. Other sepa-
ures proposed for EQ must enhance, rable EQ measures may be rec-
preserve or restore the environment of ommended with advance approval of

the study area. EQ opportunities cre- the Director of Civil Works through
309
§ 236.6 33 CFR Ch. II (7–1–20 Edition)
the intensive management program SOURCE: 45 FR 71801, Oct. 30, 1980, unless
(ER 1105–2–10). The appropriateness for otherwise noted.
including such measures will be based
§ 238.1 Purpose.
upon a consideration of factors which
may include, but are not limited to: This regulation provides policies and
(i) Level of significance of the EQ re- guidance for Corps of Engineers par-
source. ticipation in urban flood damage re-
(ii) Proximity to the proposed water duction projects and establishes cri-
resource development. teria to distinguish between improve-
(iii) Acceptability and support for ments to be accomplished by the Corps
Corps implementation. under its flood control authorities and
(iv) Certainty of the pending loss or storm sewer systems to be accom-
significant degradation of the EQ re- plished by local interests.
source in the absence of implementing
the proposed EQ measure.
(v) Relationship of the EQ measures This regulation is applicable to all
to implementing the proposed water re- OCE elements and all field operating
sources development. acitivities having Civil Works respon-
(vi) Relationship of the EQ measures sibilities.
to assigned missions of other agencies
§ 238.3 References.
and the capability for timely imple-
mentation by these agencies. (a) Executive Order 11988—Floodplain
(vii) Cost effectiveness. Management, dated 24 May 1977.
(b) U.S. Water Resources Council,
§ 236.6 Other agencies EQ measures. Floodplain Management Guidelines, (43
The selected plan may include EQ FR 6030), to February 1978.
measures not proposed for Corps imple- (c) ER 1105–2–811.
mentation, but to be accomplished (d) ER 1140–2–302.
through other Federal programs or by (e) ER 1140–2–303.
local interests. Planning reports in- (f) EP 1165–2–2.
cluding such measures will discuss how § 238.4 Definitions.
they would impact on the rec-
ommended plan, and how they may be For purposes of this regulation the
implemented by the appropriate Fed- following definitions apply:
eral agency or the local interests. How- (a) Urban areas are cities, towns, or
ever, implementation of such measures other incorporated or unincorporated
will not be required as local coopera- political subdivisions of States that:
tion for the works proposed for Corps (1) Provide general local government
implementation. for specific population concentrations,
and,
(2) Occupy an essentially continuous
PART 238—WATER RESOURCES area of developed land, containing such
POLICIES AND AUTHORITIES: structures as residences, public and
FLOOD DAMAGE REDUCTION commercial buildings, and industrial
MEASURES IN URBAN AREAS sites.
(b) Flood damage reduction works in
Sec. urban areas are the adjustments in land
238.1 Purpose. use and the facilities (structural and
238.2 Applicability. non-structural) designed to reduce
238.3 References.
flood damages in urban areas from
238.4 Definitions.
238.5 Comprehensive planning. overflow or backwater due to major
238.6 General policy. storms and snowmelt. They include
238.7 Decision criteria for participation. structural and other engineering modi-
238.8 Other participation. fications to natural streams or to pre-
238.9 Local cooperation. viously modified natural waterways.
238.10 Coordination with other Federal Flood damage reduction works are de-
agencies. signed to modify flood behavior typi-
AUTHORITY: Pub. L. 738, 74th Congress, 33 fied by temporary conditions of inun-

U.S.C. 701a. dation of normally dry land from the
310
overflow of rivers and streams or from flood control agencies. In urban or ur-
abnormally high coastal waters due to banizing areas, provision of a basic
sever storms. drainage system to collect and convey
(c) Storm sewer systems are the facili- the local runoff to a stream is a non-
ties in urban areas designed to collect Federal responsibility. This regulation
and convey runoff from rainfall or should not be interpreted to extend the
snowmelt in the urban area to natural flood damage reduction program into a
water courses or to previously modified system of pipes traditionally recog-
natural waterways. They include storm nized as a storm drainage system.
drains, inlets, manholes, pipes, cul- Flood damage reduction works gen-
verts, conduits, sewers and sewer ap- erally address discharges that rep-
purtenances, on-site storage and deten- resent a serious threat to life and prop-
tion basins, curbs and gutters, and erty. The decision criteria outlined
other small drainageways that remove below therefore exclude from consider-
or help to manage runoff in urban ation under flood control authorities
areas. Storm sewer systems are de- small streams and ditches with car-
signed to solve storm drainage prob- rying capacities typical of storm sewer
lems, which are typified by excessive pipes. Location of political boundaries
accumulation of runoff in depressions; will not be used as a basis for speci-
overland sheet flow resulting from fying project responsibility. Project re-
rapid snowmelt or rainfall; and exces- sponsibilities can be specified as fol-
sive accumulation of water at the fa- lows:
cilities listed in this paragraph because (1) Flood damage reduction works, as
of their limited capacity. defined in this regulation, may be ac-
complished by the Corps of Engineers.
§ 238.5 Comprehensive planning. (2) Construction of storm sewer sys-
Coordinated comprehensive planning tems and components thereof will be a
at the regional or river basin level, or non-Federal responsibility. Non-Fed-
for an urban or metropolitan area, can eral interests have a responsibility to
help to achieve solutions to flood prob- design storm sewer systems so that re-
lems that adequately reflect future sidual damages are reduced to an ac-
changes in watershed conditions, and ceptable level.
help to avoid short-sighted plans serv- (b) Consideration will be given to the
ing only localized situations. This objectives and requirements of Execu-
planning is particularly important in tive Order 11988 (reference § 238.3(a))
areas where significant portions of a and the general guidelines therefor by
watershed are expected to be urbanized the U.S. Water Resources Council (ref-
in the future. Changes in land use may erence § 238.3(b)).
result in major alterations of the run-
off characteristics of the watershed. § 238.7 Decision criteria for participa-
Hydrologic changes must be projected tion.
for the period of analysis. In this ef- (a) Urban flood control. (1) Urban
fort, responsible local planning organi- water damage problems associated
zations should provide information and with a natural stream or modified nat-
assist the Corps in development of pro- ural waterway may be addressed under
jected land uses and expected practices the flood control authorities down-
for collection and conveyance of runoff stream from the point where the flood
over the period of analysis. Conversely, discharge of such a stream or waterway
the Corps may be able to provide non- within an urban area is greater than
Federal interests with valuable infor- 800 cubic feet per second for the 10-per-
mation about water related con- cent flood (one chance in ten of being
sequences of alternative land uses and equalled or exceeded in any given year)
drainage practices. under conditions expected to prevail
during the period of analysis. Those
§ 238.6 General policy. drainage areas which lie entirely with-
(a) Satisfactory resolution of water in the urban area (as established on the
damage problems in urban areas often basis of future projections, in accord-
involves cooperation between local ance with § 238.5 of this part), and
non-Federal interests and the Federal which are less than 1.5 square miles in
311
§ 238.7 33 CFR Ch. II (7–1–20 Edition)
area, shall be assumed to lack adequate (b) Storm sewer system. Water damage
discharge to meet the above hydrologic problems in urban areas not consistent
criteria. Those urban streams and wa- with the above criteria for flood con-
terways which receive runoff from land trol will be considered to be a part of
outside the urban area shall not be local storm drainage to be addressed as
evaluated using this 1.5 square mile part of the consideration of an ade-
drainage area criterion. quate storm sewer system. The purpose
(2) A number of conditions within a of this system is to collect and convey
drainage area may limit discharges for to a natural stream or modified nat-
the 10-percent flood, without propor- ural waterway the runoff from rainfall
tionately reducing discharges for larg- or snowmelt in the urbanized area.
er floods, such as the one-percent flood. (c) Man-made conveyance structures.
Examples include the presence of ex- (1) Man-made conveyance structures
tremely pervious soils, natural storage will be assumed to be a part of storm
(wetlands) or detention basins or diver- sewer systems except when: (i) A nat-
sions with limited capacity. Other con- ural stream has been or is to be con-
ditions could result in a hydrological veyed in the man-made structure; or
disparity between the 10- and one-per- (ii) The man-made structure is a cost-
cent flood events. effective alternative to improvement of
(3) Division Engineers, except for a natural stream for flood damage re-
NED and POD, are authorized to grant duction purposes or is an environ-
exceptions to the 800 cfs, 10-percent mentally preferable and economically
flood discharge criterion specified in justified alternative. Water damage as-
this § 238.7(a)(1) whenever both of the sociated with inadequate carrying ca-
following criteria are met: pacity of man-made structures should
(i) The discharge for the one-percent be designated as a flood problem or a
flood exceeds 1800 cfs; and local drainage problem in a manner
(ii) The reason that the 10-percent consistent with the structure’s classi-
flood discharge is less than 800 cfs is at- fication as flood damage reduction
tributable to a hydrologic disparity works or a part of a storm sewer sys-
similar to those described in tem.
§ 238.7(a)(2). (2) Man-made structures that convey
Requests for exceptions to the hydro- sanitary sewage or storm runoff, or a
logic criterion contained in § 238.7(a)(1) combination of sanitary and storm
from NED and POD should be sub- sewage, to a treatment facility will not
mitted to HQDA (DAEN-CWP) WASH be classified as flood damage reduction
DC 20314. works. Flows discharged into a natural
(4) Flood damage reduction works or previously modified natural water-
must conform to the definition in way for the purpose of conveying the
§ 238.4(b) and must be justified based on water away from the urbanized area
Corps of Engineers evaluation proce- will be assumed to be a part of the flow
dures in use at the time the evaluation thereof regardless of quality character-
is made. Flood reduction measures, istics.
such as dams or diversions, may be lo- (d) Joint projects. Certain conditions
cated upstream of the particular point may exist whereby the Corps of Engi-
where the hydrologic criteria (and area neers and the Department of Housing
criterion, if appropriate) are met, if and Urban Development (HUD), or an-
economically justified by benefits de- other Federal agency, could jointly un-
rived within the stream reach which dertake a project that would be im-
does qualify for flood control improve- practical if one agency were to under-
ment. Similarly, the need to terminate take it alone. The Corps may, for ex-
flood control improvements in a safe ample, under provisions of Section 219
and economical manner may justify of the Flood Control Act of 1965, design
the extension of some portions of the or construct a project that is part of a
improvements, such as levee tiebacks, larger HUD plan for an urban area (see
into areas upstream of the precise ER 1140–2–302). Such efforts should be
point where Federal flood control au- undertaken only when requirements
thorities become applicable. cannot be handled better by one agency
312
acting alone. If a joint effort is pref- ment, Farmers Home Administration

erable, then the Corps may participate and the Department of Commerce, in
as required. order to coordinate flood control im-
(e) Disagreements. If a disagreement provements with storm sewer system
arises between the Corps and another improvements and to avoid program
Federal agency that cannot be resolved overlap. Coordination of planning ac-
at the field level, the matter will be tivities with A–95 clearinghouses will
forwarded to HQDA (DAEN-CWR) help to achieve this objective (see ER
WASH DC 20314 for guidance. 1105–2–811).
§ 238.8 Other participation.
PART 239—WATER RESOURCES
In addition to providing flood damage POLICIES AND AUTHORITIES: FED-
reduction works in urban areas, the ERAL PARTICIPATION IN COV-
Corps may provide related services to
State and local governments on a reim-
ERED FLOOD CONTROL CHAN-
bursable basis. Under Title III of the NELS
Inter-governmental Cooperation Act of
1968, specialized or technical services Sec.
239.1 Purpose.
for which the Corps has specific exper- 239.2 Applicability.
tise may be furnished only when such 239.3 References.
services cannot be procured reasonably 239.4 Policy.
and expeditiously from private firms 239.5 Engineering considerations.
(see ER 1140–2–303). 239.6 Level of protection.
239.7 Separation of flood control works from
§ 238.9 Local cooperation. urban drainage.
239.8 Cost sharing.
(a) Cost sharing and other provisions 239.9 Effective date.
of local cooperation shall be in con-
AUTHORITY: Pub. L. 738, 74th Congress 33
formity with applicable regulations for
U.S.C. 701a.
structural and non-structural flood
damage reduction measures. SOURCE: 43 FR 47470, Oct. 13, 1978; 44 FR
(b) Responsible non-Federal entities 36175, June 21, 1979, unless otherwise noted.
will be required to provide satisfactory § 239.1 Purpose.
assurances that they will adopt, en-
force, and adhere to a sound, com- This regulation establishes policy for
prehensive plan for flood plain manage- determining the extent of Federal par-
ment for overflow areas of commu- ticipation in covered flood control
nities involved. To this end, District channels.
Engineers will inform HUD, and other
concerned Federal and non-Federal
planning and governing agencies, of This regulation applies to all OCE
flood plain management services avail- elements and all field operating agen-
able under Section 206 of the Flood cies having civil works responsibilities.
Control Act of 1960, as amended (33
U.S.C. 709a). § 239.3 References.
(a) Executive Order 11988, Floodplain
§ 238.10 Coordination with other Fed- Management, 24 May 1977.
eral agencies. (b) ER 1105–2–200.
In conducting flood damage reduc- (c) ER 1165–2–21.
tion studies, reporting officers shall
comply with the 1965 Agreement be- § 239.4 Policy.
tween the Soil Conservation Service Projects will be formulated and eval-
and the Corps (contained in EP 1165–2– uated in accordance with the policies
2) in determining the responsible Fed- and procedures described in ER 1105–2–
eral agency. Corps personnel should 200. If, during the planning process, it
also keep abreast of the public works appears that covered flood control
programs administered by other Fed- channels are desirable, reporting offi-
eral agencies, such as the Environ- cers may evaluate them and include
mental Protection Agency, the Depart- them when they best serve the public
ment of Housing and Urban Develop- interest. Selection of the plan which
313
§ 239.5 33 CFR Ch. II (7–1–20 Edition)
best serves the public interest is based ered channels shall not be rec-
upon the ability of the plan to meet ommended.
planning objectives, the contributions
which the plan makes to the National § 239.7 Separation of flood control
Economic Development (NED), Envi- works from urban drainage.
ronmental Quality (EQ), Regional De- Covered channels are likely to be
velopment (RD) and Social Well Being considered in boundary areas
(SWB) accounts, and the public re- demarking urban drainage and flood
sponse to alternative plans. Thus, cov- control. Reporting officers shall apply
ered flood control channels may be pro- the policies given in ER 1165–2–21 to
posed if they are desired by the public separate flood control facilities from
and (a) increase net EQ and/or NED urban drainage facilities.
benefits; or, (b) reduce adverse effects
on RD or SWB without incurring an § 239.8 Cost sharing.
unjustified loss in net NED or EQ bene-
fits. At local protection projects local in-
terests are required to provide all
§ 239.5 Engineering considerations. lands, easements, rights-of-way and all
alterations and relocations of utilities,
Reports on proposals to provide cov- streets, bridges, buildings, storm
ered channels shall include a discussion drains and other structures and im-
of the following matters. provements; hold and save the United
(a) Impacts of sudden reduction in States free from damages due to the
discharge and increased upstream construction works except damages
channel stages when the channel en- due to the fault or negligence of the
trance is submerged. This discussion United States or its contractor; and as-
shall include the effects resulting from sume operation and maintenance of the
the SPF. works after completion. In addition,
(b) Dangers of rupture resulting from local interests are required to provide
pressurization. additional cost sharing to reflect spe-
(c) Features provided to prevent cial local benefits or betterments. Such
human ingress and their impact on additional special cost sharing will not
project functions. be required for covered channels when
(d) Effect of the cover on inspection the addition of the cover increases net
and maintenance costs. NED flood control benefits when com-
(e) Features provided for pressure re- pared to the open channel or when they
lease and air venting. are provided for safety in schoolyards,
(f) Need for a storm warning system. playgrounds, or other known play
(g) Facilities provided to divert flows areas for juveniles. However, the sepa-
exceeding the design flow. rable cost of providing covers for miti-
gating SWB or RD impacts or to pro-
§ 239.6 Level of protection. vide areas for public or private uses
Evaluation of the above items may such as parking, or the provision of
indicate that submergence of entrances areas for recreation development, etc.,
to covered channels may have signifi- will be assigned to local interests. The
cant impacts on the level of flooding. separable cost of recreational facilities
The requirements of EO 11988 and the to be constructed on or adjacent to the
significance of the resulting flood dam- cover, i.e., picnic facilities, etc., are eli-
age may require that the covered por- gible for Federal participation in ac-
tion of the channel be enlarged to pro- cordance with cost-sharing policies for
vide capacity to pass the SPF. If inclu- recreation facilities at local protection
sion of SPF capacity on the covered projects. Cost-sharing policies for
portions of the project cannot be justi- project features which are included to
fied, the added capacity may be re- make positive contributions to the EQ
duced to the extent that the project account are being developed. Until
will not increase upstream stages re- such policies are developed, proposals
sulting from the SPF when compared to cover channels on this basis will be
to the without-project condition. If coordinated with HQDA (DAEN-CWP),

this capacity is still not feasible, cov- Washington, D.C. 20314.
314
§ 239.9 Effective date. than 31 March 1987. Local work to be

carried out after 17 November 1986
These regulations are applicable to
must receive Army approval prior to
all projects not approved by OCE prior
construction to be eligible for credit,
to the date of this regulation.
taking into account the economic and
environmental feasibility of the
PART 240—GENERAL CREDIT FOR project. (Such approval can only be
FLOOD CONTROL given on the basis of the guidelines re-
quired to be issued pursuant to section
Sec. 104(a); hence, the law is silent with re-
240.1 Purpose. spect to work performed between 17
240.2 Applicability.
November 1986 and the effective date of
240.3 Reference.
240.4 Legislative provisions. the guidelines.) The credit will not re-
240.5 Discussion. lieve the non-Federal sponsor of the re-
240.6 General policy. quirement to pay 5 percent of the
240.7 Credit criteria for projects authorized project costs in cash during construc-
on or before 17 November 1986. tion of the remainder of the project.
240.8 Credit criteria for projects authorized This legislative authority also provides
after 17 November 1986. that benefits and costs of compatible
240.9 Procedures.
work will be considered in the eco-
APPENDIX A TO PART 240 [RESERVED]
nomic evaluation of the Federal
APPENDIX B TO PART 240—FORMULAS FOR DE-
TERMINING AMOUNT OF ALLOWABLE CREDIT
project. This includes the costs and
benefits of compatible local work
AUTHORITY: Section 104, Water Resources which was carried out after 17 Novem-
Development Act of 1986 (Pub. L. 99–662); 33
ber 1981 or within the 5 years prior to
U.S.C. 2214.
the initial obligation of reconnaissance
SOURCE: 52 FR 44113, Nov. 18, 1987, unless study funds if that should establish a
otherwise noted. later date.
§ 240.1 Purpose. § 240.5 Discussion.
This establishes guidelines and proce- Discussion of this legislation is con-
dures for Department of the Army ap- tained in the Conference Report, H.R.
plication of the provisions of section Rpt. No. 99–1013, which accompanies
104 of Pub. L. 99–662. H.R. 6. The House passed version of the
bill contained a number of project-spe-
cific provisions that authorized credit
Policies and procedures contained against the non-Federal share for com-
herein apply to all HQUSACE elements patible work completed by local inter-
and field operating agencies of the ests. The Senate passed version author-
Corps of Engineers having Civil Works ized crediting of compatible flood con-
responsibilities. trol works for projects under study.
Both general provisions would enable
§ 240.3 Reference. local interests to proceed with compat-
Section 104 of Pub. L. 99–662. ible work on the understanding that
the local improvements would be con-
§ 240.4 Legislative provisions. sidered a part of the Federal project for
Section 104 authorizes and directs the the purpose of benefit-to-cost analysis,
development of guidelines which in- as well as subsequent cost sharing. The
clude criteria for determining whether Conference Committee deleted vir-
work carried out by local interests is tually all of the crediting provisions
compatible with a project for flood applicable to individual projects and
control. Compatible work which was expanded the general provision allow-
carried out prior to project authoriza- ing the Secretary to credit the cost of
tion, before 17 November 1986 but after certain work undertaken by local in-
17 November 1981, may be considered terests prior to project authorization
part of the project and credited against against the non-Federal share of
the non-Federal share of the cost of project costs and to consider the bene-
project, if the local sponsor applied for fits and costs in the economic evalua-
consideration of such work not later tion of a more comprehensive project.
315
§ 240.6 33 CFR Ch. II (7–1–20 Edition)
This authority provides a basis for non- against land erosion, and which, in
Federal interests to undertake local conjunction with the project, do not
work to alleviate flood damages in the produce appreciable and dependable ef-
period preceding authorization of a fects in preventing damage by irregular
Federal project with assurance that and unusual rises in water levels, are
they will not adversely affect the not classed as flood control works and
project’s economic feasibility. It pro- are ineligible for credit.
vides local sponsors more flexibility in (c) Future work proposed for cred-
meeting their flood problems. iting should be separately useful for
flood control or other purposes even if
§ 240.6 General policy. the Federal Government does not con-
(a) Section 104 is applicable only to struct the contemplated project, and
projects specificially authorized by the must not create a potential hazard.
Congress (not to projects authorized by (d) For local work initiated before 17
the Chief of Engineers under con- November 1986, but after 17 November
tinuing authorities), and only to ‘‘flood 1981, the local sponsoring agency must
control’’ projects except in instances have requested consideration by letter
where the Congress may provide, by dated on or before 31 March 1987. For
specific language in the authorization, new local work commenced after 17 No-
that a project of other characterization vember 1986, only work for which the
is eligible for section 104 credit consid- sponsor receives notification of com-
eration. patibility and extent of potential cred-
(1) Section 104 provisions will be ap- it pursuant to § 240.9(c) of this regula-
plied only at locations where Federal tion shall be eligible for credit.
construction of a congressionally au- (e) The maximum amount creditable
thorized project, or separable element shall equal the actual expenditures
thereof, is initiated after April 30, 1986; made by non-Federal entities (not lim-
a congressionally authorized study is ited solely to the project sponsor’s spe-
underway; or where the feasibility re- cific efforts and expenditures) for work
port has been forwarded for Executive that meets the criteria set forth above
Branch review or for consideration by and in § 240.7 or § 240.8. Expenditures el-
Congress. igible for inclusion in the amount cred-
(2) The crediting provisions of section itable include the costs of all efforts
104 are applicable only to non-Federal actually required for the non-Federal
work started after the reconnaissance implementation of the compatible
phase of Corps preauthorization studies flood control works including, but not
but prior to project authorization. No necessarily limited to, costs for per-
credit is available under section 104 for mits, environmental, cultural or ar-
non-Federal work started after project cheological investigations, engineering
authorization. and design, land acquisition expense,
(3) A credit recommendation will be other LERRD, and construction of the
in response to a specific request from a flood control works including any re-
State, city, municipality or public quired mitigation measure. For con-
agency that is the prospective local struction efforts accomplished by non-
sponsoring agency for the con- Federal interests using their own
templated Federal plan. forces and other resources, for which
(b) Work eligible for crediting shall ‘‘costs’’ may not be recorded, consider-
be limited to that part of the local im- ation will be given to inclusion of a
provement directly related to a flood reasonable estimate of the value there-
control purpose. (These guidelines, al- of (as if accomplished by contract). Re-
though they generally make reference gardless of the total amount creditable
to flood control ‘‘projects,’’ should be on this basis, however, the amount ac-
understood to have equivalent applica- tually credited will not exceed the
tion to allocated flood control costs in amount that is a reasonable estimate
a multiple purpose project.) Measures of the reduction in Federal project ex-
(structural or nonstructural) under- penditures resulting from substitution
taken for channel alignment, naviga- of the local work for authorized project
tion, recreation, fish and wildlife, land elements or, in the case of compatible
reclamation, drainage, or to protect work outside the scope of the project
316
as originally authorized, a reasonable (i) Non-Federal costs in connection

estimate of what Federal expenditures with LERRD required for the Federal
would have been if that work had been project, regardless of when incurred,
Federally constructed. Costs of subse- will be recognized in computation of
quent maintenance of the creditable the LERRD component of project costs
non-Federal flood control work will not (the credit provisions of section 104,
be credited. In the event that the local Pub. L. 99–662, have no direct bearing
construction work is financed by a on this).
Federal non-reimbursable grant or (j) Non-Federal construction and
other Federal funds, the amount cred- LERRD costs in connection with com-
itable against future local cooperation patible work for which credit can be
requirements shall be reduced by a given will, when those costs are incor-
commensurate amount, unless the law porated in project costs, be included in
governing the grant permits grant their related categories, and total
funds to be used to meet the non-Fed- project cost sharing responsibilities
eral share of Corps of Engineers cost will be adjusted accordingly.
sharing requirements. However, there
will be no corresponding reduction in § 240.7 Credit criteria for projects au-
the costs or benefits considered in the thorized on or before 17 November
project’s economic evaluation. 1986.
(f) Regardless of the total amount (a) For work accomplished prior to
creditable for compatible work at the project authorization, the following
time of construction, the local sponsor local improvements can be construed
will be required to contribute 5 percent as compatible and considered for cred-
of the total project cost in cash during it:
construction of the project by the (1) Work that would constitute an in-
Corps. The credit can only be applied tegral part of the Federal project as
toward the value of needed lands, ease- authorized (integral work);
ments, rights-of-way, relocations, and (2) Work that would have been in-
disposal areas (LERRD) the sponsor cluded in the Federal project if it had
would otherwise have to provide plus not been assumed to be part of the
any additional required cash contribu- without project condition (external
tion needed to make the total sponsor work); and
contribution equal at least 25 percent (3) Work that reduces the construc-
of total project costs. As a consequence tion cost of the Federal plan (sub-
of crediting non-Federal construction stitute work).
costs against LERRD requirements (b) For local work accomplished sub-
some costs for LERRD may become a sequent to project authorization, only
Federal responsibility. work started prior to authorization,
(g) Reimbursement to non-Federal and for which credit consideration was
interests will not be made for any ex- requested by letter dated on or before
cess of costs for compatible works be- 31 March 1987, is eligible for credit
yond that which can be credited in ac- under the provisions of section 104.
cordance with § 240.6(f). In this regard, New non-Federal work initiated after
reimbursements pursuant to section project authorization, provided it is on
103(a)(3) of Pub. L. 99–662 will not be an element of the authorized project, is
made should the non-Federal share of subject to limited credit under a sepa-
project-related costs exceed 50 percent rate authority. Such work, if the spon-
of total project-related costs by virtue sor desires related credit, should be un-
of such excess of costs for compatible dertaken under formal agreement pur-
work. suant to section 215 of the Flood Con-
(h) Local interests are responsible for trol Act of 1968 Pub. L. 90–483, approved
developing all necessary engineering August 13, 1968, as amended.
plans and specifications for the work (c) All creditable non-Federal costs
they propose to undertake. However, for compatible work, and related bene-
those costs, including engineering and fits, may be considered in the project
overhead, directly attributable to the economic evaluation and, to the extent
creditable part of local work may be the related benefits are required for
included in the amount credited. economic justification, creditable costs
317
§ 240.8 33 CFR Ch. II (7–1–20 Edition)
shall be included in total project first after-the-fact application pursuant to

costs. In any event, costs for compat- the § 240.9 procedures will be accepted.
ible work shall be included in total (c) Reports recommending Federal
project first costs to at least the extent participation in a plan should include
that credit is actually given, including the following, ‘‘Future non-Federal ex-
LERRD. penditures for improvements that,
(d) Flood control projects authorized prior to their construction, are found
in Pub. L. 99–662 subject to sections 903 to be compatible with the plan rec-
(a) and (b) or similar provisions 401(b) ommended herein, as it may be subse-
and 601(b)) of that act fall, with respect quently modified, will entitle the
to crediting non-Federal costs, under (sponsor’s name) to consideration for
this paragraph. (However, pending credit in accordance with the guide-
completion of the relevant procedural lines established under section 104,
requirements for such projects, as set Pub. L. 99–662.’’
forth in those provisions of the act, (d) All costs for non-Federal work in-
section 215 agreements covering pro- corporated in the recommended plan in
posed non-Federal accomplishment of accordance with this paragraph shall
compatible work on the project will be included in total project first costs
not be executed.) Works eligible for and will therefore be subject to cost
credit will be explicitly addressed in sharing. Related benefits will be in-
new project reports submitted to the cluded in the project’s economic eval-
Secretary of the Army pursuant to sec- uation.
tions 903 (a) and (b) or similar provi-
sions. § 240.9 Procedures.
(e) Formulas for determining the
amount of allowable credit in accord- (a) For non-Federal works under-
ance with these guidelines are provided taken prior to 17 November 1986, credit
in appendix B. determinations (deferred until these
guidelines became effective) will be
§ 240.8 Credit criteria for projects au- made by the Secretary in response to
thorized after 17 November 1986. the applications received prior to 31
(a) In general, for projects authorized March 1987. Future non-Federal works
after 17 November 1986, work eligible for which credit may be allowed under
for credit will be explicitly addressed the provisions of section 104 of Pub. L.
in recommendations to Congress. If a 99–662 are limited, basically, to local
report has been submitted to Congress, works undertaken while Federal
work on an element of the rec- preauthorizations studies of a Federal
ommended Federal project or work project for the locality are in progress.
that reduces its construction cost can Credit consideration for such works
be considered for credit. will be governed by the procedures set
(b) Local work initiated after 17 No- forth here. Non-Federal entities desir-
vember 1981 or within 5 years before ing credit should confer with the Dis-
the first obligation of funds for the re- trict Engineer and submit a written ap-
connaissance study began, whichever is plication to him. The application will
later, can be incorporated into the rec- include a full description of planned
ommended plan for the purpose of eco- work, plans, sketches, and similar en-
nomic evaluation. However, credit can gineering data and information suffi-
be considered only for local work un- cient to permit analysis of the local
dertaken after the end of the recon- proposal.
naissance study and for which a credit (b) The District Engineer shall re-
application has been acted upon prior view the engineering adequacy of the
to construction pursuant to § 240.9 pro- local proposal and its relation to the
cedures. (For any portion of such work Federal Plan and determine what part
undertaken prior to 17 November 1986, of the proposed local improvement
credit may be granted only if a letter would be eligible for credit. The Dis-
application was received prior to 31 trict Engineer will forward his rec-
March 1987.) If such work was under- ommendations through the Division
taken between 17 November 1986 and Engineer and the Chief of Engineers to
the effective date of this regulation, an the Assistant Secretary of the Army
318
(Civil Works) and provide information certain and confirm those costs prop-
on: erly creditable and shall inform the
(1) Basis for concluding the local plan non-Federal entity of the audit results.
is appropriate in relation to the pro- (e) During further Corps studies, the
spective Federal plan. local work actually accomplished that
(2) Total estimated cost and benefits would constitute a legitimate part of
of creditable work. the overall recommended Federal
(3) Environmental effects of the local project may be incorporated within
work, including a brief statement of any plan later recommended for imple-
both beneficial and detrimental effects mentation.
to significant resources. (f) The District Engineer shall sub-
(4) The urgency for proceeding with mit a copy of his letter and notifica-
the local plan. tion of creditable costs of completed
(c) Upon being informed of the Sec- work to the Secretary through the Di-
retary’s decision, the District Engineer vision Engineer and the Chief of Engi-
shall reply by letter stating to the neers.
local applicant what local work and (g) All justification sheets supporting
costs can reasonably be expected to be new start recommendations for
recommended for credit under the pro- Preconstruction Engineering and De-
visions of section 104 (assuming that sign or Construction of projects will in-
the final plan for a Federal project, clude information on credits in the
when it is ultimately recommended, re- paragraph on local cooperation. The in-
mains such as to preserve the local formation should include but not be
work as a relevant element). If the im- limited to date of the District Engi-
provement proposed by the non-Federal neer’s letter to the sponsor pursuant to
entity includes work that will not be- § 240.9(c) of this regulation, status of
come a part of the Federal project, the the creditable work, estimated or ac-
means of determining the part eligible tual cost of the work and the estimated
for credit shall be fully defined. This amount of credit.
letter shall include the following con-
ditions: APPENDIX A TO PART 240 [RESERVED]
(1) This shall not be interpreted as a APPENDIX B TO PART 240—FORMULAS
Federal assurance regarding later ap- FOR DETERMINING AMOUNT OF AL-
proval of any project nor shall it com- LOWABLE CREDIT
mit the United States to any type of
reimbursement if a Federal project is 1. General. The amount of credit that non-
not undertaken. Federal interests may receive under the pro-
(2) This does not eliminate the need visions of section 104 of the Water Resources
Development Act of 1986 depends first on the
for compliance with other Federal,
value of the compatible work they have ac-
State, and local requirements, includ- complished and then on the value of the
ing any requirements for permits, En- local cooperation against which they may re-
vironmental Impact Statements, etc. ceive credit. If the compatible work is for
(3) Upon authorization of the Federal construction which was outside the scope of
project, approval shall be subject to re- the project as authorized, the costs for the
scission if the non-Federal work has compatible work for which credit is desired
not commenced and, as a consequence, are additive to the original estimate of total
project cost. This increases the estimated
Corps planning for orderly implemen-
cost of basic local cooperation requirements,
tation of the project is being adversely thus enlarging the target against which
affected. credit may be given.
(d) The non-Federal entity will notify 2. The ‘‘formulas’’ for determining the
the District engineer when work com- amount of credit that may be allowed in the
mences. The District Engineer will various cases are provided in the following
conduct periodic and final inspections. paragraphs. TPC means the total estimate of
Upon completion of local work, local project costs for the project as it was author-
ized. LERRD means the costs for lands, ease-
interests shall provide the District En-
ments, rights-of-way, relocations and dis-
gineer details of the work accom- posal areas as included in that estimate.
plished and the actual costs directly
3. Calculations for several hypothetical ex-

associated therewith. The District En- amples are provided to illustrate how cred-
gineer shall audit claimed costs to as- iting determinations would impact on
319
project costs and on cost sharing. For each Credit = Value of compatible work up to
of these examples it is assumed that the esti- 25% TPC
mated total project cost (TPC) of the project b. LERRD ≥25% TPC
as authorized is $100.0 million. All of the ele- Credit = Value of compatible work up to
ments of cost are given in millions of dollars. LERRD
4. Integral Work. For compatible work that
is integral with the project as authorized Crediting non-Federal interests for com-
(240.7(a)(1)) or compatible work that con- patible work which was not part of the
stitutes an advantageous substitution for project as authorized (external work) will re-
work integral with the authorized project sult in an increase in project costs and an in-
(i.e., substitute work, 240.7(a)(3)): crease in the net Federal costs. The costs for
a. LERRD ≤20% TPC compatible external work for which non-Fed-
Credit = Value of compatible work up to eral interests desire credit must be incor-
20% TPC porated into the estimate of total project
b. LERRD ≥20% TPC costs (but only to the extent that credit can
Credit = Value of compatible work up to actually be given). Assigned Federal and
LERRD non-Federal project costs then making up
Crediting non-Federal interests for con- the adjusted total project costs will both be
structing an integral part of the project or greater than for the basic project. However,
substitute work will not result in any in- the net effect will be a savings to non-Fed-
crease in project costs. Ordinarily, the result eral interests in the further costs they will
will simply be a transfer of equivalent re- have for fulfilling local cooperation require-
sponsibilities between the Corps and non- ments. The maximum amount that can be
Federal interests. If non-Federal interests credited for compatible external work (and
should accomplish compatible integral or thus added to project costs), where LERRD
substitute work exceeding the possible cred- ≤25% TPC, follows from Credit, C = 20% (TPC
it, the Corps will be relieved of the expense + C) which reduces to C = 0.2TPC + 0.2C, then
of constructing an increment of the project. to 0.8C = 0.2TPC, and finally C = (0.2/0.8)TPC
An example is provided below. In this exam- or 0.25TPC as indicated in a, above. An exam-
ple, non-Federal interests have accomplished ple of crediting in a case involving external
integral project work amounting to 30.0 mil- work is provided below. In this example, as
lion. LERRD are less than 20% of TPC so in example 1, non-Federal interests have ac-
that the maximum value of local coopera- complished work amounting to $30.0 million.
tion against which they may receive credit is This work, however, was not intergral with
$20.0 million. Since the $10.0 for which credit
the project as authorized (it has been deter-
cannot be given nonetheless represents use-
mined to be compatible external work), so
ful project work, in this example the Corps
would be relieved of the costs for accom- that any part of it for which credit is given
plishing that much construction. must be added to TPC. Since, in this case
LERRD are less than 25% of TPC, the max-
Credit Ex- imum amount that can be credited is 25% of
Case: LERRD ≤20% TPC Basic ample 1: TPC, or $25.0 million. Adjusting TPC by this
project Compatible
work, 30.0 amount results in an added Federal cost of
$18.75 million (75% of the $25.0 million in-
Non-Federal: crease).
5% Cash ................................... 5.0 5.0
LERRD ..................................... 14.0 0.0 Credit Ex-
Extra cash (toward constr.) ...... 6.0 0.0 Basic ample 2,
Construction (actual) ................ .............. 30.0 Case: LERRD ≤25% TPC project Compatible
work, 30.0
Subtotal ...................... 25.0 35.0
Non-Federal:
Federal: 5% Cash ................................... 5.0 6.25
Construction ............................. 75.0 51.0 LERRD ..................................... 14.0 0.0
LERRD ..................................... .............. 14.0 Extra cash (toward constr.) ...... 6.0 0.0
Construction (actual) ................ .............. 25.0
Subtotal ...................... 75.0 65.0
Subtotal ...................... 25.0 31.25
TPC ............................ 100.0 100.0
Reduction in Federal costs ............. .............. 1 10.0
Federal:
1 The amount by which the integral or substitute work actu-
Construction ............................. 75.0 79.75
ally accomplished by non-Federal interests exceeds the re-
quirements of local cooperation against which credit may be LERRD ..................................... .............. 14.0
given.
Subtotal ...................... 75.0 93.75
5. External Work. For compatible work out- TPC ................................................. 100.0 ....................
side the scope of the project as authorized Adjusted TPC .................................. .............. 125.0
(i.e., external work, 240.7(a)(2)): Excess of Compatible Work ............ .............. 1 5.0
a. LERRD ≤25% TPC
320
Credit Ex- b. LERRD ≥20% (TPC + C2)

Basic ample 2, C2 = Value of compatible work up to re-
Case: LERRD ≤25% TPC project Compatible
work, 30.0 maining LERRD
Note that total credit, C = C1 + C2. For-
Increase in Federal Costs ............... .............. 2 18.75
mula 6.a. is derived from C = C1 + C2 = 20%
1 This portion of the compatible external work is not incor- (TPC + C2). An example of crediting in a case
porated in the project costs because it would be a disadvan- involving both kinds of compatible works is
tage to the project sponsor to do so (if included, the sponsor
would become obligated for an additional 5% up-front cash provided below. In this example non-Federal
contribution but without any savings in other local cooperation interests have accomplished $25.0 million in
because there would be nothing left to give credit against). compatible work, $5.0 of which was integral
2 This is also the measure of the net savings to non-Federal
interests by virtue of crediting. with the project as authorized and $20.0 of
which was external. The integral work is
6. Combined integral and external works. For credited in the first step against the extra
cases where non-Federal interests have ac- cash component of the original local co-
complished compatible work, some of which operation requirements. TPC is unaffected;
is integral with the project as authorized and however, the target against which credit for
some of which is outside the original scope the external work might be credited has been
(external), determination of the allowable partially used up. The second step shows
credit is a two step process. Work that is in- only the incremental effects of crediting ex-
tegral to the project is credited first. This, ternal work. Using 6.a. the maximum credit
C1, is accomplished in accordance with para- that can be given for this work is $18.75 mil-
graph 4 above. If, after this step, there re- lion. Although other non-Federal require-
main local cooperation requirements against ments are extinguished as a result of the
which credit may be given, credit for com- credit for the external work, the non-Federal
patible external work, C2, is determinable on 5% cash contribution increases by $0.9375
the following basis. million, say $0.94 (5% of $18.75). In the final
a. LERRD ≤20% (TPC + C2) step, the incremental effects of crediting the
C2 = Value of compatible work up to 25% external work are added in with the values
TPC–1.25C1 obtained in step 1.
Credit Example 3: Compatible work, 1 25.0

Basic
Case: LERRD ≤20% (TPC + C2) project Step 1 Step 2 Final
Non-Federal:
5% Cash ............................................................................. 5.0 5.0 0.94 5.94
LERRD ................................................................................ 14.0 14.0 0.0 0.0
Extra cash (toward constr.) ................................................ 6.0 1.0 0.0 0.0
Construction (actual) ........................................................... .................... 5.0 18.75 23.75
Subtotal ........................................................................ 25.0 25.0 ...................... 29.69
Federal:
Construction ............................................................................... 75.0 75.0 0.06 75.06
LERRD ....................................................................................... .................... .................... 14.0 14.0
Subtotal ........................................................................ 75.0 75.0 ...................... 89.06

TPC ................................................................................................... 100.0 100.0 ...................... ......................
Adjusted TPC .................................................................................... .................... .................... ...................... 118.75
Excess of Compatible Worth ............................................................ .................... .................... 1.25 1.25
Increase in Federal Costs ................................................................. .................... .................... ...................... 14.06
1 Compatible work consisting of 5.0 integral work credited in first step of calculations plus 20.0 external work credited, to the
extent possible, in second step.
PART 241—FLOOD CONTROL 241.6 Deferred payments for certain quali-

fying projects.
COST-SHARING REQUIREMENTS 241.7 Application of test.
UNDER THE ABILITY TO PAY PRO-
VISION AUTHORITY: Sec. 103(m), Pub. L. 99–662, 100
Stat. 4082 (33 U.S.C. 2201 et seq.), as amended
by Sec. 201, Pub. L. 102–580, 106 Stat. 4797 (33
Sec. U.S.C. 2201 et seq.)
241.1 Purpose.
241.2 Applicability. SOURCE: 54 FR 40581, Oct. 2, 1989, unless
241.3 References. otherwise noted.
241.4 General policy.

241.5 Procedures for estimating the alter-
native cost-share.
321
§ 241.1 33 CFR Ch. II (7–1–20 Edition)
§ 241.1 Purpose. § 241.4 General policy.

This rule gives general instructions (a) Procedures described herein es-
on the implementation of section tablish an ‘‘ability to pay’’ test which
103(m) of the Water Resources Develop- will be applied to all flood control
ment Act of 1986, Public Law 99–662, as projects. As a result of the application
amended by section 201 of the Water of the test, some projects will be cost-
Resources Development Act of 1992, shared by the non-Federal interest at a
Public Law 102–588, for application to lower level than the standard non-Fed-
flood control projects. eral share that would be required under
the provisions of section 103 of Pub. L.
[60 FR 5133, Jan. 26, 1995] 99–662, 33 U.S.C. 2213. The ‘‘standard
share’’, as used herein, refers to the
§ 241.2 Applicability. non-Federal share that would apply to
This rule applies to all U.S. Army the project before any ability to pay
Corps of Engineers Headquarters consideration.
(HQUSACE), elements and Major Sub- (b) Section 103(m) requires that all
ordinate Commands and District Com- cost-sharing agreements for flood con-
mands of the Corps of Engineers having trol covered by the terms of section
Civil Works Responsibilities. 103(a) or 103(b) be subject to the ability
to pay test. The test must therefore be
[60 FR 5133, Jan. 26, 1995]
applied not only to projects specifi-
§ 241.3 References. cally authorized by Congress, but to
the continuing authority projects con-
References cited in paragraphs (f) structed under section 14 of the 1946
thru (i) may be obtained from USACE Flood Control Act (33 U.S.C. 701r), sec-
Pub. Depot, CEIM-SP-D, 2803, 52d Ave- tion 205 of the 1948 Flood Control Act
nue, Hyattsville, MD 20781–1102. Ref- (33 U.S.C. 701s), and section 208 of the
erences cited in paragraphs (d) and (e) 1954 Flood Control Act (33 U.S.C. 701g),
may be obtained from the National In- all as amended.
formation Services, 5285 Port Royal (c) The ability to pay test shall be
Road, Springfield, VA 22161. References conducted independently of any anal-
(a), (b) and (c) may be reviewed in your ysis of a project sponsor’s ability to fi-
local library or by writing your local nance its ultimate share of proposed
Congressperson. project costs. The ability to finance is
(a) Water Resources Development addressed in a statement of financial
Act, 1986, Public Law 99–662, 100 Stat. capability which considers current bor-
4082, 33 U.S.C. 2201 et seq. rowing constraints, alternative sources
(b) Water Resources Development of liquidity, etc. It is therefore much
Act 1992, Public Law 102–580, 106 Stat. more narrowly defined than the ability
4797, 33 U.S.C. 2201 et seq. to pay test, which considers the under-
(c) U.S. Water Resources Council, lying resource base of the community
Economic and Environmental Prin- as a whole. The ability to pay test
ciples and Guidelines for Water and Re- shall not be used to affect project
lated Land Resources Implementation scope, or to change budgetary prior-
Studies, March 10, 1983. ities among projects competing for
(d) Office of Personnel Management, scarce Federal funds.
FPM Bulletin 591–30. (d) Any reductions in the level of
(e) Office of Personnel Management, non-Federal cost-sharing as a result of
FPM 591–32. the application of this test will be ap-
(f) U.S. Army Corps of Engineers, En- plied to construction costs only. Oper-
gineer Regulation 1165–2–29. ations, maintenance and rehabilitation
(g) U.S. Army Corps of Engineers, responsibilities are unaffected by the
Engineer Regulation 1165–2–121. ability to pay test.
(e) When projects are eligible for
(h) U.S. Army Corps of Engineers,
credits as outlined in ER 1165–2–29, ref-
Engineer Regulation 1165–2–131.
erence § 241.3(e), the ability to pay test
(i) U.S. Army Corps of Engineers, En-
will be applied before any adjustments
gineer Regulation 405–1–12.

are made for credits. If the ability to
[60 FR 5133, Jan. 26, 1995] pay test results in a lower non-Federal
322
share, the allowable amount of credits (1) Calculate the ratio of flood con-
will be limited by the lower share. trol benefits (developed using the
(f) The test is based on the following Water Resources Council’s Principles
principles: and Guidelines—ref. § 241.3(b)) to flood
(1) Since the standard non-Federal control costs for the project based on
cost-share is substantilly less than full the discount rate which the Corps is
costs in every case, the ability to pay currently using to evaluate projects.
test should be structured so that reduc- Costs include operations and mainte-
tions in the level of cost-sharing will nance as well as first costs. Divide the
be granted in only a limited number of result by four. For example, if the
cases of severe economic hardship. project’s (or separable element’s) ben-
(2) The test should depend not only efit-cost ratio is 1.2:1, the factor for
on the economic circumstances within this project equals 0.3. If a project has
a project area, but also on the condi- been authorized for construction with-
tions of the state(s) in which the out a benefit-cost ratio calculated in
project area is located. Although accordance with the Principles and
states’ policies with respect to sup- Guidelines, determination of the ratio
porting local interests on flood control is a prerequisite for consideration
projects are not uniform, the state rep- under the ability to pay provision.
resents a potential source of financial (2) If the factor determined in
assistance which should be considered § 241.5(a)(1), when expressed as a per-
in the analysis. centage, is greater than the standard
(3) The alternative level of cost-shar- level of cost-sharing, the standard level
ing determined under the ability to pay will apply.
principle should be governed in part by (3) If the factor determined in
project benefits. If, as a result of the § 241.5(a)(1), when expressed as a per-
project, local beneficiaries receive centage, is less than the standard level
more income, or are required to use of cost-sharing, projects may be eligi-
fewer resources on flood damage repair ble for either a reduction in the non-
or replacement, or on flood insurance, Federal share to this ‘‘benefits based
a portion of these resources should be floor’’ (BBF), or for a partial reduction
available to pay for the non-Federal to a share between the standard level
share, even in those cases where an and the BBF, as determined by the pro-
analysis of current economic condi- cedures in step two, § 243.5. In no case
tions indicates that there are rel- however, will the non-Federal cost-
atively limited resources in the project share be less than five percent.
area and its state. (b) Step two, the income test. Projects
(4) Since project benefits represent may qualify for the full amount of the
availability of resources in the future, reduction in cost-sharing calculated in
but not the present, project sponsors Step one, or for some fraction of the re-
should be permitted to defer a certain duction in cost-sharing, depending on a
percentage of the non-Federal share measure of the current economic re-
whenever current economic cir- sources of the project area and of the
cumstances suggest that non-Federal state or states in which the project is
resources may be limited. located.
(g) The Non-Federal interest may, at (1) To assure consistency, the cal-
its discretion, waive the application of culations in § 241.5(b) (2) and (3) will be
the ability to pay test. In this case, the performed by HQUSACE and distrib-
Non-Federal interest shall be consid- uted to all FOA’s via Engineering Cir-
ered to have the ability to pay the culars. The information will be updated
standard cost-share and no further eco- and distributed to HQUSACE and to
nomic inquiry will be required. the field as soon as new data are avail-
able. The procedures may be verified
§ 241.5 Procedures for estimating the for any single county or state using the
alternative cost-share. sources cited.
(a) Step one, the benefits test. Deter- (2) For each of the three latest cal-
mine the maximum possible reduction endar years for which information is
in the level of non-Federal cost-sharing available, determine the level of per

for any project. capita personal income in the state in
323
§ 241.5 33 CFR Ch. II (7–1–20 Edition)
which the project beneficiaries are lo- (5) Calculate an ‘‘Eligibility Factor’’
cated, and compare this to the national for the project according to the fol-
average of per capita personal income. lowing formula:
Source: Dept. of Commerce, Bureau of EF = a ¥ b1 × (state factor) ¥ b2 × (area
Economic Analysis, as published yearly factor).
in the April Survey of Current Business.
(If the project beneficiaries are located If EF is one or more, the project is eli-
in Alaska or Hawaii, divide the per cap- gible for the full reduction in cost-
ita personal income figure by one plus share to the benefits based floor. If EF
the percentage used in the Federal is zero or less, the project is not eligi-
Government’s cost of living pay dif- ble for a reduction. If EF is between
ferential for Federal workers who pur- zero and one, the non-Federal cost-
chase local retail and who use private share will be reduced proportionately
housing, employed in Anchorage, AK or to an amount which is greater than the
Oahu, HI as contained in References BBF but less than the standard non-
§ 241.3(c) and (d).) Determine the state’s Federal cost-share in accordance with
per capita personal income as an index the procedures described in paragraph
number in comparision to the national § 241.5(c) of this part. The values of a, b1
average (U.S. = 100), and calculate the and b2 will be determined by
three year average of the state’s index HQUSACE. The parameter values will
number. be based on the latest available data
and set so that 20 percent of counties
(3) For each of the three latest cal-
have an EF of 1.0 or more, while 66.7
endar years for which information is
percent have an EF of 0 or less. These
available, determine the level of per
values will be adjusted periodically as
capita personal income in the county
new information becomes available.
where the project beneficiaries are lo-
Changes will be published in Engineer-
cated (the ‘‘project area’’), and com-
ing Circulars. The values will be set so
pare this to the national average of per
that b2 = 2 × b1, giving local income
capita personal income. Source: Dept.
twice the weight of state income.
of Commerce, Bureau of Economic (6) Since estimates (available from
Analysis, as published yearly in the the Bureau of Economic Analysis) of
April Survey of Current Business. (If the per capita personal income for Puerto
project beneficiaries are located in Rico, Guam and other U.S. territories
Alaska or Hawaii, divide the county’s are well below the national average,
per capita personal income figure by the eligibility factor for projects in
one plus the percentage used in the these areas is administratively estab-
Federal Government’s cost of living lished to be equal to 1.
pay differential for Federal workers (7) For flood control projects spon-
who purchase local retail and who use sored by Native American tribes or vil-
private housing, employed in Anchor- lages, the EF shall be calculated using
age, AK or Oahu, HI.) Calculate the information on tribe or village income
index for the county’s per capita per- as a replacement factor for both the
sonal income to the national average area and state factor (that is multiply
(U.S. = 100), and calculate the three the replacement income factor by both
year average of the county’s index b1 and b2 and subtract each from a in
number. the equation in § 241.5(b)(5)). The re-
(4) When the project area, as deter- placement factor will be tribe or vil-
mined by the location of the project’s lage income as a percentage of the na-
beneficiaries, includes more than one tional average for the equivalent defi-
county, calculate a composite project nition of income (for example a Tribe’s
area index by taking a weighted aver- median family income as a percentage
age of the county index numbers, the of the median family income for all
weights being equal to the relative lev- U.S. families). The data should be the
els of benefits received in each county. latest available information. It is ac-
When the project area includes more ceptable, but not required that the
than one state, the state index for the data be obtained from the Bureau of
project should be calculated using the the Census, American Indians, Eskimos
same weighting technique. and Aleuts on Identified Reservations and
324
in Historic Areas of Oklahoma (Excluding terms in the equations above are also
Urbanized Areas), part 1, Table 10, or expressed as percentages.
General Social and Economic Characteris- (d) Additional consideration for high
tics—United States Summary (1980), cost projects. For any project where
Table 252. Since both sources contain the normal non-Federal share exceeds
information for Native Americans liv- 35 percent, and the per capita non-Fed-
ing on reservations, rather than all eral cost (i.e., normal non-Federal
Tribe or Village members, the sources share of total construction costs di-
should be used only when appropriate, vided by the population in the spon-
or when no better information is avail- sor’s geographic jurisdiction) exceeds
able. $300, the non-Federal share under the
(c) Application of the Ability to Pay ability to pay provision will be either
Formula to the Basic Cost-sharing Provi- LERRD’s (i.e., no cash requirement) or
sions of Section 103. If a flood control 35 percent, whichever is greater. If
project has a BBF which is less than
LERRD’s exceed 50 percent, the non-
the standard cost-share and an EF
Federal share remains at 50 percent.
which is greater than zero, the non-
Projects which qualify under the bene-
Federal cost-share will be reduced. The
fits and income tests will receive the
alternative non-Federal share will be
reduction under the high cost criteria
calculated and reported to the nearest
one tenth of one percent. The actual only if the high cost criteria results in
reduction is determined by applying a greater reduction in the non-Federal
the ability to pay formula to the basic cost share.
flood control cost-sharing provisions of [54 FR 40581, Oct. 2, 1989, as amended at 60 FR
section 103 of Pub. L. 99–662, 33 U.S.C. 5134, Jan. 26, 1995]
2213, as follows:
(1) When EF ≥1, non-Federal cost- § 241.6 Deferred payments for certain
share = BBF qualifying projects.
(2) For structural projects covered by (a) Whenever a project’s Eligibility
section 103(a), when 0 <EF <1: Factor exceeds zero, the project spon-
(i) If LERRD equals or exceeds 45 per- sor will be permitted to defer a portion
cent: of its share of flood control costs. The
non-Federal cost-share = 50 ¥ EF × (50 maximum allowable amount deferred
¥ BBF) equals the total non-Federal share less
(for structural projects) five percent of
(ii) If LERRD exceeds 20 percent but total project costs and less (for all
is less than 45 percent: projects) any amounts for LERRD paid
non-Federal cost-share = (LERRD + 5) for or acquired by the sponsor prior to
¥ ER × [(LERRD + 5) ¥ BBF] the time the PCA is signed. If for ex-
ample, the non-Federal share of a
(iii) If LERRD is less than 20 percent:
structural project = 35.0 percent (after
non-Federal cost-share = 25 ¥ EF × (25 the ability to pay adjustment, if any)
¥ BBF) of which 10 percent is LERRD already
(3) For non-structural projects cov- paid for by the local sponsor, the max-
ered by section 103(b), when 0 <EF <1: imum allowable amount to be deferred
= 20 percent of project flood control
non-Federal cost-share = 25 ¥ EF × (25 costs (35 less the 5 percent cash re-
¥ BBF) quirements, less the 10 percent LERRD
(4) In no case however, can the non- already acquired). Deferred payments
Federal share be less than five percent, at the option of the sponsor will be al-
even if the calculation made in lowed regardless of the outcome of the
§ 241.5(c) (1), (2), or (3) results in a benefits test described in § 241.5(a)
smaller number. whenever the Eligibility Factor ex-
(5) NOTE: LERRD equals the costs of ceeds zero.
lands, easements, rights-of-way, reloca- (b) When EF ≥1, the project sponsor
tions, and dredged material disposal may defer as much as the maximum al-
areas expressed as a percentage of total lowable amount as described in

project costs. The BBF and numerical § 241.6(a).
325
§ 241.7 33 CFR Ch. II (7–1–20 Edition)
(c) When 0 <EF <1, the sponsor may (2) An exhibit attached to the Project
defer a fraction of the maximum allow- Cooperation Agreement (PCA) will in-
able amount described in § 241.6(a), clude the Benefits Based Floor (BBF)
where the fraction equals the Eligi- determined in § 241.5(a): the Eligibility
bility Factor expressed to three dec- Factor (EF) determined in § 241.5(b): If
imal places. Continuing the example the Eligibility Factor is greater than
described in § 241.6(a), if EF = .712, total zero but less than one, the estimated
allowed deferral equals .712 × 20 percent standard non-Federal share; the for-
= 14.2 percent of total project costs. mula used in determining the ability to
(d) The deferred payment can be pay share as described in § 241.5(c)(1)
made in equal installments over any through (c)(4); and a display of the non-
period of time selected by the non-Fed- Federal cost share under the high cost
eral sponsor, provided that all repay- criteria described in § 241.5(d).
ments are made between the end of (d) If at the time of project comple-
construction and thirty years there- tion, the standard non-Federal share
after. The amount repaid shall include based on actual costs is less than the
interest during the repayment period ability to pay share specified in the
as well as interest for the appropriate PCA, the standard share will apply.
portion of the construction period for (e) For structural projects. (1) If the
any amounts deferred prior to the end standard LERRD plus cash require-
of construction. The rate of interest ment exceeds the ability to pay cost-
shall be determined in accordance with share, the Federal Government will
the provisions of section 106 of Pub. L. make any necessary adjustments in ex-
99–662, 33 U.S.C. 2216. penditures in the following order:
[54 FR 40581, Oct. 2, 1989, as amended at 60 FR First, paying any cash requirement in
5134, Jan. 26, 1995] excess of five percent of total project
costs (if any) that would, under stand-
§ 241.7 Application of test. ard cost-sharing, have been the respon-
(a) A preliminary ability to pay test sibility of the non-Federal sponsor; sec-
will be applied during the study phase ond, making payments for LERRD; and
of any proposed project. If the ability third, providing for reimbursement at
to pay cost-share is lower than the the end of construction. Federal pay-
standard share, the revised estimated ments for LERRD will be made only
cost-share will be used for budgetary after the non-Federal payment for
and other planning purposes. LERRD reaches a percentage of total
(b) The official application of the project costs equal to the ability to
ability to pay test will be made at the pay non-Federal cost-share less the five
time the Project Cooperation Agree- percent cash requirement. If such ar-
ment (PCA) between the Corps of Engi- rangements are necessary, the PCA
neers and the Non-Federal sponsor is should be prepared to reflect agree-
signed. For structural flood control ment on the best manner available for
projects, the standard level of cost- acquisition of those LERRD over the
sharing will not be known until the end limiting percentage, or for reimbursing
of the project (since the standard level the sponsor upon completion of con-
as specified in section 103(a), 33 U.S.C. struction.
2213, includes LERRD). In this case, if (2) The non-Federal sponsor will be
the Eligibility Factor is greater than required to provide a cash payment
zero but less than one, the ability to equal to the minimum of five percent
pay non-Federal share will be deter- of estimated project costs, regardless
mined using estimated costs. of the outcome of the ability to pay
(c) The PCA for all projects subject test, unless any or all of the five per-
to the ability to pay test will include a cent cash requirement is waived by ap-
‘‘whereas’’ clause indicating the results plication of the high cost criteria de-
of the test. If the project is eligible for scribed in § 241.5(d). The project sponsor
a lower non-Federal share: shall make cash payments during con-
(1) The revised share will be specified struction at a rate such that the
in the PCA (there will be no recalcula- amount of non-Federal payments in
tion of this share once the PCA is each year, as a percentage of total non-
signed). Federal cash payments, equals the
326
amount of Federal expenditures (in- mands, and District Commands of the

cluding sunk pre-construction engi- Corps of Engineers having Civil Works
neering and design costs as a first year responsibilities.
Federal construction expenditure) as a
percentage of total Federal expendi- § 242.3 References.
tures. Total Federal expenditures in- The references in paragraphs (b) and
clude cash payments for construction (c) of this section may be obtained
and if necessary (due to ability to pay from USACE Pub. Depot, CEIM-SP-D,
considerations), for LERRD, and for re- 2803 52d Avenue, Hyattsville, MD 20781–
imbursement to the non-Federal spon- 1102.
sor. Total Federal expenditures for the (a) Section 321, Public Law 101–640, 74
purpose of this calculation, do not in- Stat. 500 (33 U.S.C. 709a).
clude expenditures which allow the (b) Corps of Engineers Engineering
non-Federal sponsor to defer payment Regulation 1105–2–100, Planning Guid-
of the non-Federal share under the pro- ance Notebook.
visions of this rule. (c) Corps of Engineers Engineering
(f) For non-structural projects, re- Pamphlet 37–1–4, Cost of Doing Busi-
ductions in the non-Federal cost-share ness.
as a result of the ability to pay test
will not affect the procedures for deter- § 242.4 Definitions.
mining the non-Federal and Federal As used in this part:
payment schedules. For non-structural Private persons means all entities in
projects, no specific cash payments the private sector, including but not
during construction are required by limited to individuals, private institu-
law. tions, sole proprietorships, partner-
ships, and corporations.
[54 FR 40581, Oct. 2, 1989, as amended at 60 FR
Total cost means total labor charges
5134, Jan. 26, 1995]
which include adjustments for benefits,
administrative overhead, and technical
PART 242—FLOOD PLAIN MAN- indirect costs. These terms are de-
AGEMENT SERVICES PROGRAM scribed in the reference in § 242.3 (c).
ESTABLISHMENT OF FEES FOR
COST RECOVERY § 242.5 General.
(a) The Corps of Engineers Flood
Sec. Plain Management Services Program
242.1 Purpose. provides a wide range of flood plain and
242.2 Applicability. related assistance upon request. De-
242.3 References. pending on the complexity of the re-
242.4 Definitions.
quest, either a nonnegotiated Fee
242.5 General.
242.6 Fee schedule. Schedule or a negotiated agreement
will be used to recover the cost of serv-
AUTHORITY: Section 321 of Pub. L. 101–640, ices provided to Federal agencies and
74 Stat. 500 (33 U.S.C. 709a).
private persons. This part involves
SOURCE: 56 FR 54712, Oct. 22, 1991, unless only the nonnegotiated Fee Schedule.
otherwise noted. (b) State, regional, or local govern-
ments or other non-Federal public
§ 242.1 Purpose. agencies will be provided Flood Plain
This part gives general instructions Management Services without charge.
on the implementation of section 321 of
Public Law 101–640, 74 Stat. 500 (33 § 242.6 Fee schedule.
U.S.C. 709a) as it applies to the use of (a) General. The Fee Schedule de-
a Fee Schedule for recovering the cost scribed in this section will be used to
of providing Flood Plain Management recover the cost for Flood Plain Man-
Services to Federal agencies and pri- agement Services requiring more than
vate persons. ten minutes and up to one work day to
provide. The Fee Schedule has been de-
§ 242.2 Applicability. signed to minimize administrative
This part applies to all HQUSACE costs and to allow the flexibility need-
elements, Major Subordinate Com- ed to recover the approximate total
327
costs for services provided to Federal essary, the Fee Schedule will be re-
agencies and private persons. vised after public notice and comment.
(b) Level of effort. For establishing
charges, services covered by the Fee TABLE 1 TO § 242.6—FEE SCHEDULE; STAND-
Schedule have been divided into five ARD CORPS-WIDE CHARGES FOR FPMS
levels as follows: TASKS REQUIRING MORE THAN TEN MINUTES
AND UP TO ONE DAY
(1) Level 1 includes the provision of
basic information from readily avail- Level Description of work Fee
able data that does not require tech-
1 ........... Basic information from readily available $25
nical evaluation or documentation and
data that does not require technical eval-
is transmitted by form letter to the uation or documentation and is trans-
customer. mitted by form letter.
(2) Level 2 includes the provision of 2 ........... Information from readily available data that 55
requires minimal technical evaluation
information from readily available which is transmitted by form letter.
data that requires minimal technical 3 ........... Information that requires some file search, 105
evaluation and is transmitted by form brief technical evaluation, and docu-
mentation of re-sults by a form letter or
letter to the customer. by a brief composed letter.
(3) Level 3 includes the provision of 4 ........... Information and assistance that requires 165
information that requires some file moderate file search, brief technical
search, a brief technical evaluation, evaluation, and documentation of results
in a composed letter.
and documentation of results by a form 5 ........... Information and assistance that requires 325
letter or brief composed letter to the significant file search or retrieval of
customer. archived data, moderate technical eval-
uation, and documentation of results in a
(4) Level 4 includes the provision of brief letter report.
information and assistance that re-
quires moderate file search, a brief
technical evaluation, and documenta- PART 245—REMOVAL OF WRECKS
tion of results in a composed letter to AND OTHER OBSTRUCTIONS
the customer.
(5) Level 5 includes the provision of Sec.
information and assistance that re- 245.1 Purpose.
quires significant file search or re- 245.3 Applicability.
trieval of archived data, a moderate 245.5 Definitions.
technical evaluation, and documenta- 245.10 General policy.
245.15 Delegation.
tion of results in a brief letter report
245.20 Determination of hazard to naviga-
to the customer. tion.
(c) Charge determination. The Fee 245.25 Determination of remedial action.
Schedule will be used Corps-wide. As 245.30 Identification of responsible parties.
requests are received, the responding 245.35 Judgments to require removal.
office will select the appropriate level 245.40 Removal by responsible party.
on the Fee Schedule to determine the 245.45 Abandonment.
charge for providing the service. 245.50 Removal by Corps of Engineers.
245.55 Permit requirements.
(d) Provision of services. The services
245.60 Reimbursement for removal costs.
will be provided on a first-come, first-
served basis after payment has been re- AUTHORITY: 5 U.S.C. 301; 33 U.S.C. 1, 409,
ceived. 411–415; 10 U.S.C. 3012.
(e) Fees. The Fee Schedule, including SOURCE: 53 FR 27513, July 21, 1988, unless
a brief description of the services in otherwise noted.
each of the five levels and the related
charges, is shown in Table 1 to this sec- § 245.1 Purpose.
tion. The fee for each level is based on This part describes administrative
a Corps-wide average of estimated cur- procedures and policy used by the
rent costs for providing that level of Corps of Engineers in exercising its au-
service. thority for wreck removal. Procedures
(f) Review and revision of fees. The fees are intended to insure that the impacts
shown in the Fee Schedule will be re- of obstructions are minimized, while
viewed each fiscal year using the most recognizing certain rights of owners,
current cost data available. If nec- operators and lessees.
328
§ 245.3 Applicability. gineers) to the Director of Civil Works,

(a) These procedures apply to the re- who retains the final authority to
moval of wrecks or other obstructions make independent determinations
within the navigable waters of the where Corps responsibilities and activi-
United States, as defined in part 329 of ties are affected.
this chapter. (b) Owner responsibility. Primary re-
(b) This part does not apply to the sponsibility for removal of wrecks or
summary removal or destruction of a other obstructions lies with the owner,
vessel by the Coast Guard under au- lessee, or operator. Where an obstruc-
thority of the Clean Water Act (33 tion presents a hazard to navigation
U.S.C. 1321), or to any removal actions which warrants removal, the District
involving obstructive bridges which are Engineer will attempt to identify the
subject to separate regulation under owner or other responsible party and
part 114 of this title. vigorously pursue removal by that
(c) For vessels which were sunk or party before undertaking Corps re-
wrecked prior to November 17, 1986, the moval.
statutory obligation to remove belongs (c) Emergency authority. Obstructions
solely to the owner (not the operator which impede or stop navigation; or
or lessee), and the owner’s obligation pose an immediate and significant
to reimburse the U.S. Treasury for fed- threat to life, property, or a structure
eral removal is limited to cases of vol- that facilitates navigation; may be re-
untary or careless sinking. moved by the Corps of Engineers under
the emergency authority of section 20
§ 245.5 Definitions. of the Rivers and Harbors Act of 1899,
Abandonment means the surrendering as amended.
of all rights to a vessel (or other ob- (d) Non-emergency situations. In other
struction) and its cargo by the owner, than emergency situations, all re-
or owners if vessel and cargo are sepa- ported obstructions will be evaluated
rately owned. jointly by the District Engineer and
Hazard to navigation is an obstruc- the Coast Guard district for impact on
tion, usually sunken, that presents suf- safe navigation and for determination
ficient danger to navigation so as to re- of a course of action, which may in-
quire expeditious, affirmative action clude the need for removal. Obstruc-
such as marking, removal, or redefini- tions which are not a hazard to general
tion of a designated waterway to pro- navigation will not be removed by the
vide for navigational safety. Corps of Engineers.
Obstruction is anything that restricts, (e) Corps removal. Where removal is
endangers or interferes with naviga- warranted and the responsible party
tion. cannot be identified or does not pursue
Responsible party means the owner of removal diligently, the District Engi-
a vessel and/or cargo, or an operator or neer may pursue removal by the Corps
lessee where the operator or lessee has of Engineers under section 19 of the
substantial control of the vessel’s oper- Rivers and Harbors Act of 1899, as
ation. amended, following procedures out-
Vessel as used in this part includes lined in this CFR part.
any ship, boat, barge, raft, or other
water craft. § 245.15 Delegation.
District Engineers may undertake re-
§ 245.10 General policy. moval without prior approval of the
(a) Coordination with Coast Guard. The Chief of Engineers provided the cost
Corps of Engineers coordinates its does not exceed $100,000. Removals esti-
wreck removal program with the Coast mated to cost above $100,000 require ad-
Guard through interagency agreement, vance approval of the Director of Civil
to insure a coordinated approach to the Works.
protection of federal interests in navi-
gation and safety. Disagreements at § 245.20 Determination of hazard to
the field level are resolved by referral navigation.
to higher authority within each agen- (a) Upon receiving a report of a

cy, ultimately (within the Corps of En- wreck or other obstruction, District
329
§ 245.25 33 CFR Ch. II (7–1–20 Edition)
Engineers will consult with the Coast priate remedial action and no emer-
Guard district to jointly determine gency situation exists, the District En-
whether the obstruction poses a hazard gineer will investigate to determine
to navigation. the owner or, if the owner cannot be
(b) Factors to be considered, as a determined, the lessee or operator. If
minimum, include: cargo is involved, ownership will be
(1) Location of the obstruction in re- separately determined.
lation to the navigable channel and (b) Notification. If the owner or other
other navigational traffic patterns. responsible party can be determined,
(2) Navigational difficulty in the vi- the District Engineer and/or the Coast
cinity of the obstruction. Guard will send a notice, via certified
(3) Clearance or depth of water over mail, advising them of their legal obli-
the obstruction, fluctuation of water gation to mark (referencing Coast
level, and other hydraulic characteris- Guard requirements) and to remove the
tics in the vicinity. obstruction, and of the legal con-
(4) Type and density of commercial sequences for failure to do so, with a
and recreational vessel traffic, or other request for prompt reply of intent.
marine activity, in the vicinity of the (c) Public notice. If the owner or re-
obstruction. sponsible party cannot be determined
(5) Physical characteristics of the ob- from investigation, the District Engi-
struction, including cargo, if any. neer will publish a legal advertisement
(6) Possible movement of the obstruc- in a newspaper nearest the location of
tion. the obstruction and in a newspaper of
(7) Location of the obstruction in re- at least 25,000 circulation, addressed
lation to existing aids to navigation. ‘‘To Whom It May Concern,’’ requiring
(8) Prevailing and historical weather removal by the owner, lessee or oper-
conditions. ator. The advertisement will be pub-
(9) Length of time the obstruction lished at least once a week for 30 days.
has been in existence.
(10) History of vessel accidents in- § 245.35 Judgments to require re-
volving the obstruction. moval.
When the owner or responsible party
§ 245.25 Determination of remedial ac-
tion. has been identified, and refuses or fails
to take prompt action toward removal,
(a) Consultation with Coast Guard. the District Engineer may seek a judg-
After a determination has been made ment by the district court requiring re-
that an obstruction presents a hazard moval.
to navigation, District Engineers will
consult with the Coast Guard district § 245.40 Removal by responsible party.
to determine appropriate remedial ac-
tion for the specific situation. (a) Corps monitoring. If the owner, les-
(b) Options. The following options, or see or operator agrees to remove a haz-
some combination of these options, ard to navigation, the District Engi-
may be considered: neer should ascertain that:
(1) No action. (1) Marking is accomplished prompt-
(2) Charting. ly and is maintained,
(3) Broadcast notice to mariners and (2) The plan for removal and disposal
publication of navigational safety in- is reasonable and acceptable to the Dis-
formation. trict Engineer,
(4) Marking. (3) Removal operations do not unrea-
(5) Redefinition of navigational area sonably interfere with navigation,
(e.g., channel, fairway, anchorage, (4) All conditions of the Corps of En-
etc.). gineers permit are met, and
(6) Removal. (5) Removal operations are pursued
diligently.
§ 245.30 Identification of responsible (b) Deficiencies. If the removal actions
parties. are not proceeding satisfactorily, the
(a) Investigation. When marking or re- District Engineer will notify the re-
moval are determined to be appro- sponsible party of the deficiencies and
330
provide a reasonable time for correc- liability for the cost of removal and
tion. If not corrected promptly, the disposal if removal is undertaken by
District Engineer may declare the the Corps of Engineers, except in cases
wreck ‘‘abandoned’’ and proceed with of nonnegligent sinking which occurred
actions toward Corps removal. prior to November 17, 1986.
§ 245.45 Abandonment. § 245.50 Removal by Corps of Engi-
(a) Establishing abandonment. Aban- neers.
donment is the surrendering of all (a) Non-emergency situations. In non-
rights to a vessel (or similar obstruc- emergency situations, the District En-
tion) and its cargo by the owner, or gineer may undertake removal action
owners if vessel and cargo are sepa- (within the limits of delegation) after
rately owned. In all cases other than all of the following conditions have
emergency, abandonment will be estab- been met:
lished as a precondition to Corps re- (1) A determination has been made,
moval, to avoid a ‘‘taking’’ of private in consultation with the Coast Guard,
property for public purposes. Abandon- that the obstruction is a hazard to
ment is established by either: navigation,
(1) Affirmative action on the part of (2) The District Engineer and the
the owner declaring intention to aban- Coast Guard agree on a course of ac-
don, or tion which includes the need for re-
(2) Failure to commence immediate moval (or, if a conflict exists, the need
removal of the obstruction and pros- for removal has been resolved at higher
ecute such removal diligently. level),
(b) Owner declaration. The Corps of (3) The District Engineer has made a
Engineers will not ‘‘accept’’ a notice of reasonable attempt to identify the
abandonment. Any notice of abandon- owner, operator, or lessee, and
ment received by the Corps of Engi- (4) Abandonment of the wreck or ob-
neers will be acknowledged only, and struction has been established.
will stand by itself as a declaration. (b) Emergency actions. In emergency
Abandonment by the operator or lessee situations, the District Engineer may
alone does not constitute abandon- bypass (within the limits of delegation)
ment. any or all of the four conditions in the
(c) Non-diligence. The determination preceding paragraph if, in his judg-
of whether removal is commenced im- ment, circumstances require more im-
mediately and prosecuted diligently mediate action, and if either one of the
will be made by the District Engineer following conditions are met:
based on the degree of hazard to navi- (1) The obstruction impedes or stops
gation, the difficulty and complexity of navigation, or
the removal operation, and the appro- (2) The obstruction poses an imme-
priateness of the removal effort. When diate threat to life, property, or a
no removal actions are being under- structure that facilitates navigation.
taken and the District Engineer is un-
able to identify the owner through in- § 245.55 Permit requirements.
vestigation or 30 days of public notice, (a) Permits for removal. Marking and
abandonment is presumed. removal operations by the owner, oper-
(d) Cargo. If vessel and cargo are sep- ator or lessee are normally permitted
arately owned, or ownership of cargo is under nationwide permits for such ac-
uncertain, abandonment of vessel and tivities as outlined in part 330 of this
cargo will be established separately. chapter. The activities must meet cer-
(e) Later claims. After abandonment is tain conditions as stated in those regu-
established, the owner may no longer lations, and additional permits may
undertake removal or make any claim still be required from state or local
upon the vessel (or other obstruction) agencies.
or its cargo, unless expressly permitted (b) Special conditions. The Corps of
by the District Engineer. Engineers may add individual or re-
(f) Continuing owner liability. The gional conditions to the nationwide
abandonment of a wreck or other ob- permit, or require an individual permit

struction does not remove the owner’s on a case-by-case basis.
331
§ 245.60 33 CFR Ch. II (7–1–20 Edition)
§ 245.60 Reimbursement for removal Subpart A—General

costs.
The Corps of Engineers will seek re- § 263.10 Purpose.
imbursement from the owner, operator, This regulation provides policies and
or lessee, if identified, for all removal procedures for seven legislative au-
and disposal costs in excess of the thorities under which the Secretary of
value of the recovered vessel (or other the Army, acting through the Chief of
obstruction) and cargo. Engineers, is authorized to plan, design
and construct certain types of water
resource improvements without spe-
PART 263—CONTINUING cific Congressional authorization.
AUTHORITIES PROGRAMS
§ 263.11 Applicability and effective
Subpart A—General date.
Sec. This regulation is applicable to all
263.10 Purpose. OCE elements and all field operating
263.11 Applicability and effective date. agencies having Civil Works respon-
263.12 References. sibilities. This regulation is effective
263.13 Program scope. December 1, 1975, as published in the
263.14 Program eligibility requirements. FEDERAL REGISTER on November 3, 1975
263.15 Program policies. and codified as 33 CFR part 263. The
263.16 Program management responsibil- provisions of this regulation are fully
ities. applicable to studies commenced and
263.17 Planning, design and construction projects initiated after the effective
procedures. date. For studies underway on the ef-
263.18 Program completion-time objectives.
fective date, reporting and approving
263.19 Detailed project reports.
officers shall fully consider the re-
263.20 Program funding.
quirements of this regulation and shall
Subpart B—Navigation Policy take those actions as necessary to in-
sure that projects are approved on the
263.21 Small navigation project authority. basis of criteria established by this reg-
263.22 Authority for snagging and clearing ulation.
for navigation (Section 3).
Subpart C—Flood Control Policy
(a) ER 11–2–201, Civil Works Activi-
263.23 Small flood control project authority ties, Funding, Work Allowances and
(Section 205). Transfers.
263.24 Authority for snagging and clearing (b) ER 405–2–680 Local Cooperation
for flood control (Section 208). Projects.
263.25 Authority for emergency streambank (c) ER 1105–2–10 Intensive Manage-
and shoreline protection of public works ment.
and nonprofit public services (Section (d) ER 1105–2–402 Organization and
14).
General Content of Feasibility Reports.
Subpart D—Shore Protection Policy (e) ER 1105–2–403 Format and Appear-
ance of Feasibility Reports.
263.26 Small beach erosion control project (f) ER 1105–2–502 Public Meetings (33
authority (Section 103). CFR 209.405).
263.27 Authority for mitigation of shore (g) ER 1105–2–507 Preparation and Co-
damage attributable to navigation works ordination of Environmental State-
(Section 111). ments (33 CFR 209.410).
APPENDIX A TO PART 263—HISTORY OF PRO- (h) ER 1105–2–800 Public Involvement:
GRAM AND PROJECT LIMITATIONS CON- General Policies (33 CFR 380).
TINUING AUTHORITIES PROGRAM
(i) ER 1105–2–811 A–95 Clearinghouse
APPENDIX B TO PART 263—APPLICATION OF
MULTIOBJECTIVE PLANNING FRAMEWORK
Coordination (33 CFR 384).
TO CONTINUING AUTHORITIES PROGRAM
(j) ER 1110–2–1150 Post-Authorization
Studies.
AUTHORITY: See § 263.13. (k) ER 1165–2–18 Reimbursement for
SOURCE: 40 FR 51134, Nov. 3, 1975, unless Advance Non-Federal Participation in

otherwise noted. Civil Works Projects.
332
§ 263.13 Program scope. ization, this Program could be utilized

The Continuing Authorities Program to provide for a new, complete-in-itself
(hereafter referred to as the ‘‘Pro- improvement which will not impair or
gram’’), consists of the following legis- substantially change the purposes of
lative authorities, which are repro- the specifically authorized project.
duced and accompanied by policy inter- (b) Existing non-Federal responsibility.
pretation in subparts B, C and D of this This Program may not be utilized for a
part. project that would in effect nullify or
(a) Small Flood Control Project Author- change an existing condition of non-
ity. Section 205, Flood Control Act of Federal responsibility required for a
1948, as amended (33 U.S.C 701s). project specifically authorized by Con-
(b) Authority for snagging and clearing gress, whether constructed or not.
for flood control. Section 208, Flood Con- Such changes would require Congres-
trol Act of 1954, as amended (33 U.S.C. sional action.
701g). (c) Operation and maintenance of non-
(c) Authority for emergency streambank Federal projects. This Program may not
and shoreline protection of Public Works be used for adoption of a non-Federal
and nonprofit public services. Section 14, project for future maintenance at Fed-
Flood Control Act of 1946, as amended eral expense.
(33 U.S.C 701r).
§ 263.15 Program policies.
(d) Small navigation project authority.
Section 107, River and Harbor Act of (a) Designation of authority. One of
1960, as amended (33 U.S.C 577). the referenced legislative authorities
(e) Authority for snagging and clearing must be designated as the primary pur-
for navigation. Section 3, River and pose of the project for allocation of
Harbor Act of 1945 (33 U.S.C 603a). Program funds and for determining leg-
(f) Small beach erosion control project islative funding limitations. However,
authority. Section 103, River and Har- other authorized project purposes are
bor Act of 1962, as amended (33 U.S.C. not precluded to meet related needs as
426g). determined appropriate by the Chief of
(g) Authority for mitigation of shore Engineers. The cost limitation of Corps
damages attributable to navigation participation for the designated au-
projects. Section 111, River and Harbor thority will prevail regardless of the
Act of 1968 (33 U.S.C. 426i). number of project purposes served.
Normally, only one authority will be
§ 263.14 Program eligibility require- used for each study accomplished and
ments. each project recommended. Certain au-
Work funded under this Program thorizations specify individual project
must meet the requirements of Federal allotment ceilings ‘‘from the appro-
interest and Corps responsibility set priations for any one fiscal year.’’ It is
forth in one of the legislative authori- the intent of Congress that such speci-
ties referenced in § 263.13. Any project fied amount be the maximum limit for
recommended must be justified under Corps of Engineers expenditures at
established Federal planning criteria, each location or individual project un-
must be complete in itself and must dertaken, without regard to time.
not obligate the Federal government to (b) Applicability of costs to Federal and
future work except for those cases in non-Federal shares. Unless otherwise
which maintenance by the Federal gov- specified in a legislative authority
ernment is provided by applicable pro- (§ 263.13), cost sharing policies applica-
visions of general law. Eligibility is not ble to Congressionally authorized
permitted for the following: projects are applicable to projects rec-
(a) Projects specifically authorized by ommended under this Program. Any
Congress. The Program will not be used legislative limitation on Corps partici-
to implement any portion of a project pation in project costs, however, takes
specifically authorized by Congress, in- precedence over the apportionment of
cluding postauthorization changes to costs resulting from established cost
such projects. However, once a project sharing policies.
has been completed to the full extent (1) Project first costs. Project first
permitted by its Congressional author- costs include all Corps of Engineers
333
§ 263.15 33 CFR Ch. II (7–1–20 Edition)
costs for investigations, design, and ments will not be reduced, offset, or
construction (including costs of super- otherwise credited for local expendi-
vision and administration) incurred tures prior to the approval of a project
subsequent to the Division Engineer’s by the Chief of Engineers. The scope of
transmittal of a Detailed Project Re- the project may be increased, including
port or Recon Report to OCE for ap- the addition of project purposes, if
proval. These costs are normally those local interests are willing to pay the
related to preparation of plans and additional costs.
specifications and project construc- (c) The planning process. Planning
tion. will be conducted generally in accord-
(2) Federal cost limitation. All Corps of ance with the 1105–2–200 series of plan-
Engineers costs of investigations, planning regulations, adapted to this Pro-
ning, design and construction, to in- gram, as discussed in paragraphs (c)(1)
clude those incurred prior to trans- through (c)(3) of this section and in Ap-
mittal of the DPR or Recon Report to pendix B.
OCE for approval are to be included (1) Stage 1—Reconnaissance. The re-
within the cost limitation established porting officer is delegated the author-
by Congress for a particular Program ity to conduct a Reconnaissance
authority. Expenditures of other Fed- (Recon) upon the request of a non-Fed-
eral agencies under their own authori- eral governmental entity or official, to
ties are not to be included within this determine if a detailed feasibility
cost limitation. study is warranted. Charges not to ex-
(3) Costs for economic analysis. Costs ceed $5,000 may be made against the
to be considered as a part of the eco- District revolving fund. The results of
nomic analysis (i.e., determination of a the Recon will be reported to the Divi-
benefit-cost ratio), are the same as sion Engineer in a brief letter report;
those considered in feasibility reports the Division Engineer will require of a
transmitted to Congress for authoriza-
reporting officer only information con-
tion. In this regard, all costs incurred
sidered essential for approval of pro-
prior to the Division Engineer’s trans-
ceeding with the feasibility study, as
mittal of the Detailed Project or Recon
provided in paragraph (e)(2) of this sec-
Report to OCE for approval are consid-
tion.
ered ‘‘preauthorization study costs’’
and are excluded from the economic (2) Stage 2—Feasibility study (Plan for-
analysis. mulation). The Division Engineer is del-
(4) Use of Federal funds to satisfy local egated the authority to authorize the
cooperation requirements. Where the law reporting officer to conduct a feasi-
requires that lands, easements and bility study, subject to availability of
rights-of-way be furnished by local in- funds from OCE.
terests ‘‘without cost to the United (i) The criteria for Division Engineer
States’’, direct contributions of other approval for initiating a feasibility
Federal agencies may not be accepted study are: there is a Federal interest in
by local interests to satisfy such local the problem identified in the Recon,
cooperation requirements once local there exists solutions for which Fed-
interests have furnished a letter of in- eral participation may be justified
tent (see § 263.17(e)(5)) to the reporting under one of the Program authorities,
officer. there are existing non-Federal entities
(5) Non-Federal costs. Local interests which are legally and financially capa-
must agree to assume responsibility for ble of satisfying the typical local co-
designated items of local cooperation operation requirements for such solu-
and for all project costs in excess of the tions, and a feasibility study can be ac-
specified Corps cost limitation, or as complished at a reasonable cost com-
otherwise apportioned, to insure that pared to the prospective benefits from
expenditure of Corps funds will result solving the problems identified in the
in a project that is integrally complete Recon.
and fully effective. If the project cost (ii) Where a significant question
exceeds the Corps cost limit, the dif- arises concerning the Federal interest
ference is provided by local cash con- in a problem, the applicability of one

tributions. Local participation require- of the Program authorities, or other
334
policy matters, the case should be re- cifically authorized by Congress, plan-
ferred to DAEN-CWP or DAEN-CWO ners should be able to more readily
prior to authorization of a feasibility identify the affected and interested
study. public early in the planning process
(iii) The feasibility study should and initiate a public involvement pro-
complete the plan formulation process, gram that can be continued through
including the selection of a plan. The plan implementation.
study should be terminated if any of (f) State and agency coordination. Re-
the above criteria are not satisfied, if porting officers should generally follow
there is a lack of public support, or in the same procedures for agency coordi-
the case of obtaining local assurances, nation as in the case of a Congression-
that a reasonable length of time (as de- ally authorized study. Coordination
termined by the reporting officer) has with A–95 clearinghouses is discussed
passed without satisfactory assurances in ER 1105–2–811.
from local interests. (See also (1) Section 205, 107, 103, 111 and 208 Au-
(§ 263.17(e)(5)). thorities. The views of Governors of af-
(3) Stage 3—Development of Rec- fected States, or their designated rep-
ommended Plan. This stage corresponds resentatives, and regional offices of ap-
to Phase II AE&D for projects specifi- propriate Federal agencies must ac-
cally authorized by Congress. Author- company the DPR when submitted to
ity to continue the planning process OCE for approval. Division Engineers
from plan formulation to development shall insure that coordination letters
of a recommended plan is delegated to are current and have been adequately
the reporting officer, unless otherwise considered in the plan formulation and
provided by implementing instructions review process. Letters obtained by re-
issued by the Division Engineer, in ac- porting officers from the coordination
cordance with Division responsibilities of draft or final reports are to be con-
for intensive management of the pro- sidered current only if the dates on
gram (§ 263.16(b)). such letters are no more than 360 days
(d) Review of planning reports. The pri- prior to the date of submittal of the
mary responsibility for review of all as- DPR to OCE, and if no significant
pects of Recon reports and DPR’s rests changes have been made to the DPR
with the Division Engineer. Division which should be reviewed by the origi-
Engineers (with the exception of New nators of such letters. Reporting offi-
England and Pacific Ocean) are dele- cers will normally accomplish any re-
gated the authority to approve the quired recoordination of reports to
plan formulation aspects of the study meet the above criteria. Division Engi-
and the engineering design of rec- neers may elect, however, to obtain the
ommended plans, in order that the reviews of States or Federal agencies, as
porting officer may proceed with work deemed appropriate. The Chief of Engi-
on plans and specifications pending for- neers will not normally coordinate
mal approval of the project by the DPRs with Governors or Federal De-
Chief of Engineers. Review of DPRs and partment heads.
Recon reports by OCE will be limited (2) Section 14 and 3 Authorities. The
to conformance of recommended plans provisions of paragraph (f)(1) of this
to existing policy. section shall apply to the extent deter-
(e) Public involvement. General policy mined feasible by the Division Engi-
and guidance on public involvement is neer. To be responsive to emergency
contained in ER 1105–2–800. Require- conditions and to avoid undue delays,
ments for public meetings are dis- Division Engineers may permit coordi-
cussed further in § 263.17(e)(1). There is nation with States and regional offices
essentially no difference in the Corps’ of Federal agencies to be effected con-
objectives for involving and informing currently with the review of the DPR
the public for studies and projects in or Recon report by OCE.
this Program than for projects planned (g) Project approval. With the excep-
and constructed under specific Con- tion of projects requiring the personal
gressional authority. Since plans for- attention of the Chief of Engineers, the
mulated under this Program are usu- Director of Civil Works is authorized to
ally smaller in scope than those spe- approve or disapprove projects under
335
§ 263.16 33 CFR Ch. II (7–1–20 Edition)
this Program, for the Chief of Engi- approval shall be based on the fol-
neers. Projects will be approved on the lowing criteria:
basis of a Detailed Project Report (i) Local interests are unwilling or
(DPR), except in the case of emer- unable to provide the necessary local
gencies under Section 14 or 3 Authori- cooperation,
ties, for which a Recon report (devel- (ii) The project is no longer consid-
oped for the recommended work) may ered the best solution to the problems
be utilized, (see § 263.17(b)(3)). Prior to of the area, considering economic, so-
approving a project for construction, cial, and environmental factors, or
requirements for filing an EIS with (iii) The project is no longer justified
CEQ must be satisfied, if an EIS has under applicable Federal planning cri-
been prepared (ER 1105–2–507), a letter teria.
of intent for local cooperation must be (2) Findings which indicate that the
obtained from non-Federal interests in project should remain in the backlog
accordance with § 263.17(e)(5), and views shall not be reported to OCE. Rec-
received from affected States and re- ommendations for withdrawal of
gional offices of Federal agencies must project approval shall be transmitted
be considered. to DAEN-CWP-E, C, or W, or DAEN-
(h) Project construction. Division Engi- CWO, depending on the project author-
neers may authorize District Engineers ity.
to commence work on plans and speci- (i) Recommendations shall be coordi-
fications pending project approval; nated with local, State and Federal in-
however, contracts for construction terests consistent with Corps public in-
shall not be entered into, nor shall volvement objectives, prior to trans-
funds be allocated for construction, mittal to OCE.
until the Chief of Engineers has ap- (ii) Recommendations shall be ac-
proved the project. Procedures for con- companied by a brief Project Informa-
structing approved projects, including tion Sheet, as required under proce-
the preparation of plans and specifica- dures for recommending project de-
authorization under section 12, Pub. L.
tions are generally the same as em-
93–251.
ployed for Congressionally authorized
(3) Reporting officers shall notify ap-
projects.
propriate local, State and Congres-
(i) Hold and save provision. As pro- sional interests of any final action
vided by sec. 9, Pub. L. 93–251 (88 Stat. taken by OCE on recommendations for
16), ‘‘The requirement * * * that non- withdrawal of project approval.
Federal interests hold and save the (4) As in the case of project approval,
United States free from damages due to withdrawal of approval may be accom-
construction, operation, and mainte- plished by the Director of Civil Works,
nance of the project, does not include for the Chief of Engineers.
damages due to the fault or negligence
of the United States or its contrac- § 263.16 Program management respon-
tors.’’ This provision will be reflected sibilities.
in all ‘‘hold and save’’ requirements of (a) Office, Chief of Engineers. Two OCE
local cooperation. elements will have primary responsi-
(j) Withdrawal of project approval. The bility for program management:
Chief of Engineers may withdraw ap- DAEN-CWP (Sections 205, 208, 14, 107
proval of a project under the Con- and 103 Authorities) and DAEN-CWO
tinuing Authorities Program at any (Section 3 and 111 Authorities). These
time prior to the signing of a written elements are responsible for the staff-
agreement under section 221, Pub. L. ing of all actions required of OCE by
91–611 (§ 263.17(k)). this regulation, maintaining a list of
(1) Reporting officers shall at least Division and District Program coordi-
annually review approved projects on nators (as required by paragraphs (b)
which construction has not been initi- and (c) of this section), and evaluating
ated and shall determine if such the performance of the Program.
projects should remain on the backlog (b) Division Engineers. Divisions are
awaiting construction funds. A rec- responsible for intensive management

ommendation for withdrawal of project of the Program in accordance with ER
336
1105–2–10, and are delegated certain ap- such exceptions shall be justified by
proval authorities by the Chief of Engi- the reporting officer. The suggested
neers, as given in §§ 263.15 and 263.17 of scope of a Recon is more fully dis-
this part. Division Engineers are re- cussed in Appendix B. (See also ER
sponsible for insuring, through inten- 1105–2–811 for A–95 clearinghouse co-
sive management, that studies are ini- ordination requirements.)
tiated and terminated at the appro- (b) Approval for initiation of feasibility
priate time, and funded at the appro- study. The Division Engineer is the ap-
priate level, for efficient use of Pro- proving authority for initiation of a
gram funds. Division Engineers are to feasibility study, and as such, will pro-
specifically designate an individual, or vide reporting offices with appropriate
individuals, within the Division office, guidance on submission of a Recon let-
to manage and coordinate activities ter report in accordance with the gen-
under the Continuing Authorities Pro- eral policy stated in § 263.15(c).
gram. (1) Once the Recon is completed, no
(c) District Engineers/Operating Divi- further work may be accomplished
sion Engineers. Reporting officers are to without a work allowance and allot-
specifically designate individuals to co- ment from OCE.
ordinate and manage activities under (2) The recommendations from a
the Continuing Authorities Program. Recon may be released by reporting of-
Reporting officers are responsible for ficers to interested parties after action
insuring that the Reconnaissance in- has been taken by the Division Engi-
vestigations are conducted only to the neer on the Recon report.
extent required to achieve the objec- (3) In the case of emergencies under
tive established by this regulation. Section 14 or 3 Authorities, the Divi-
sion Engineer may approve a Recon Re-
§ 263.17 Planning, design and con- port for immediate transmittal to OCE
struction procedures. (in five copies) for approval and fund-
This paragraph prescribes procedures ing of recommended work. In such
to be followed from the initiation of a cases, the Chief of Engineers may ap-
Recon to completion of construction of prove exceptions to the requirements
a project. Division Engineers are to es- stated in paragraphs (e)(2) through
tablish milestones as deemed appro- (e)(5) of this section, as deemed advis-
priate, in accordance with ER 1105–2–10. able in the public interest.
Unless otherwise stated, all cor- (4) Except as provided in paragraph
respondence with OCE relating to the (b)(3) of this section, or when the Divi-
procedures in this paragraph will be ad- sion Engineer desires OCE views, Recon
dressed to HQDA (DAEN-CWP-E, C or reports will be transmitted to OCE for
W) WASH DC 20314 or HQDA (DAEN- information only (in two copies).
CWO) WASH DC 20314, depending on (c) Request for funding of feasibility
the study authority, as provided for in study. Reporting officers will request
§ 263.16(a). funding of an approved feasibility
(a) Initiation of Reconnaissance. As study, through Division Engineers, to
outlined in § 263.15(c) Recon stage is de- DAEN-CWP-E, C or W or from DAEN-
signed to provide the Division Engineer CWO in accordance with § 263.16(a). Re-
with sufficient justification for author- quests will include the total estimated
izing a feasibility study. Reporting of- funding requirement by fiscal year for
ficers are to notify the Division Engi- the feasibility study (including expend-
neer and either DAEN-CWP-A or itures previously incurred in the
DAEN-CWO by letter when com- Reconstage), consistent with the capa-
mencing a Recon. Such letter or tele- bility of the District to conduct the
type should give the date the Recon study. Requests for reimbursement for
began and an identifying name. Recon expenditures when a feasibility
Charges may be made against the Dis- study has not been approved will be
trict revolving fund in amounts not to made in a similar manner.
exceed $5,000. Exceptions to this limita- (d) Issuance of work allowance. Work
tion will require prior approval from allowances will be issued by DAEN-
DAEN-CWP or DAEN-CWO, depending CWP or DAEN-CWO, as appropriate,

on the study authority. Requests for based on available funds. Work on a
337
§ 263.17 33 CFR Ch. II (7–1–20 Edition)
feasibility study will not proceed until (5) Assurances of local cooperation. In
such work allowance has been issued. addition to involvement of local inter-
(See also part 384 of this chapter for A– ests throughout the planning process, a
95 clearinghouse coordination require- letter of intent shall be requested for
ments.) specific items of local cooperation near
(e) Completion of feasibility study. the completion of Stage 2 planning
Studies will be conducted in accord- (§ 263.15(c)(2)). The letter of intent must
ance with the policies given in § 263.15 be received from the non-Federal enti-
and the planning process discussed in ties which will be ultimately signing a
Appendix B. Division Engineers may Section 221 agreement (paragraph (k)
request guidance from OCE, or sched- of this section), and will be trans-
ule a Plan Formulation Review Con- mitted with the DPR, or Recon report
ference with OCE, as they deem appro- in the case of emergencies under Sec-
priate. tion 14 or 3 Authorities, together with
(1) Public meetings. Public meetings an analysis of the reporting officer to
are not to be considered the only tech- demonstrate that such non-Federal en-
nique for informing the public of the tities are legally constituted, and have
results of feasibility studies or for so- sufficient financial capabilities to sat-
liciting input from the public. How- isfy all requirements of local coopera-
ever, as a matter of policy, at least one tion.
public meeting is to be held during the (i) The reporting officer shall review
feasibility study, as discussed in draft local cooperation and repayment
§ 209.405 of this chapter. In certain in- agreements with affected non-Federal
stances, the reporting officer may feel interests, advising them of currently
that the Corps’ objectives on public in- estimated costs, anticipated timing of
volvement have been achieved without costs, all typical provisions of the
holding a public meeting. Omission of agreement or contract, and the timing
the minimum requirement of one pub- of process of entering into a final,
lic meeting is to be an exception to signed agreement or contract.
policy and will require prior approval
(ii) The letter of intent shall include
from the Division Engineer.
verbatim all local cooperation require-
(2) Application of Federal planning cri-
ments set forth in the Detailed Project
teria. In general, all Federal planning
Report, or the Recon report, if utilized
criteria applicable to studies specifi-
for project approval; shall state that a
cally authorized by Congress are also
review has been made of draft agree-
applicable to studies conducted under
ments or contracts; shall indicate an
this Program. Particular attention
understanding of when final project
shall be given to the consideration of
nonstructural solutions, consideration costs are to be determined by the re-
of a ‘‘no development’’ plan, and the porting officer; and shall include the
assessment of impacts of alternative following statement:
plans. Plans are to be formulated to In carrying out the specified non-Fed-
provide the same independent and com- eral responsibilities for the
plete-within-itself project as rec- (identification of work or project),
ommended under regular authorization (appropriate entity) agrees to comply
procedures. with the provisions of the ‘‘Uniform
(3) Environmental Impact Statement Relocation Assistance and Real Prop-
(EIS) requirements. Requirements for erty Acquisitions Policies Act of 1970’’,
preparation, coordination and sub- Pub. L. 91–646, approved 2 January 1971;
mittal of the EIS are contained in ER and Section 221, Pub. L. 91–611, ap-
1105–2–507. Studies conducted under proved 31 December 1970, as amended.
Section 14 and 3 Authorities may not (iii) The letter of intent shall be
require an EIS, as provided in signed or cosigned by the chief legal of-
§ 209.410(h) of this chapter. ficer of the political subdivision fur-
(4) Cultural resources survey. A cul- nishing the letter to the reporting offi-
tural resources survey shall be accom- cer. When a State or a department
plished for the consideration of historic thereof is to be the sponsor, the Attor-
and cultural resources as part of the ney General of that State is the ap-
preparation of the DPR. proving authority.
338
(f) Submittal of Termination Letters or fications pending approval of a project

DPR to OCE. (1) If a feasibility study is by the Chief of Engineers, provided a
terminated prior to the completion of a satisfactory letter of intent
DPR, the Division Engineer will notify (§ 263.17(e)(5)) has been received from
by letter DAEN-CWP-E, C or W or local interests. Such work may be
DAEN-CWO-M, depending on the study stopped, however, if review of the DPR
authority; such notification is to in- by OCE reveals a policy problem affect-
clude reasons for termination, an ac- ing the project or the report rec-
counting of expenditure of study funds, ommendations. Work on plans and
and the amount of funds to be returned specifications should utilize all re-
to OCE. Release of unobligated funds maining funds from allocations for the
will be effected as soon as possible. feasibility study. Additional funds may
Revocation of funds by OCE officially be requested by separate letter, or in-
terminates the study. The reporting of- cluded with the Division Engineer’s fa-
ficer shall notify Congressional delega-
vorable indorsement of a DPR.
tions and local interests when the
(h) OCE review and approval of DPR or
study has been officially terminated.
(2) If the feasibility study results in a Recon Report. As indicated in paragraph
DPR, ten (10) copies of the report, and 7a, designated OCE elements are re-
related documentation required by sponsible for review, staffing and co-
§ 263.15(e), will be transmitted with rec- ordination of the DPR, or Recon report
ommendations of the Division, Engi- when transmitted to OCE for approval.
neer to DAEN-CWP or DAEN-CWO, de- Maximum reliance will be placed on
pending on the study authority (ref- the review conducted by the Division
erence § 263.16(a)). Exceptions to the re- Engineer. Comments will be solicited
quirements of paragraph (e) of this sec- from DAEN-CWP, DAEN-CWR, and
tion should be noted in the letter of DAEN-GCC, only as required for ap-
transmittal. In the review of a DPR, proval of the recommended project. In
Division Engineers may refer any all cases, a copy of the DPR will be for-
major disagreements with reporting of- warded to DAEN-CWE-B for informa-
ficers on planning matters to DAEN- tion, and to DAEN-REA-P for review of
CWP-E, C or W, or on technical engi- local cooperation requirements, upon
neering matters to DAEN-CWE-B, for receipt from the Division Engineer. Re-
resolution prior to release of public no- view of DPR’s by the BERH staff may
tice and submittal of the final report be requested at the discretion of
to OCE. DAEN-CWP. In such instances, the
(3) Upon submittal of a Detailed Resident Member, BERH, will be re-
Project Report to OCE, the District quested to submit comments on the
Engineer shall release a public notice DPR to DAEN-CWP. Project approval
informing the public of the proposed normally will be accomplished by the
action. This requirement may be ac- Director of Civil Works, for the Chief
complished by the Division Engineer, of Engineers, in accordance with
at his discretion. The notice need not § 263.15(g).
invite comments but will include the
(i) Notification of interested parties of
address of the District and Division En-
action by the Chief of Engineers. Report-
gineer in the event that interested par-
ties desire to request further informa- ing officers are responsible for notifica-
tion or comment on the recommendation of all interested parties, including
tions. Public notices are not required Congressional Delegations, States and
when a feasibility study is terminated local interests, of action taken by the
without submittal of a DPR (paragraph Chief of Engineers on DPR’s. Division
(f)(1) of this section), or when a Recon Engineers may prescribe procedures for
report is submitted to OCE for project such notification as deemed necessary.
approval (paragraph (b)(3) of this sec- (j) Request for construction funds. Fol-
tion). lowing receipt of DPR approval from
(g) Work on plans and specifications. OCE, reporting officers may submit a
Division Engineers are delegated the request for construction funds to
authority to allow District Engineers DAEN-CWP or DAEN-CWO, depending

to commence work on plans and speci- on the Program authority, including
339
§ 263.18 33 CFR Ch. II (7–1–20 Edition)
an updated schedule of funding require- gram. At the completion of project

ments by fiscal year based on an esti- construction, reporting officers shall:
mated date by which plans and speci- (1) Notify DAEN-CWO and DAEN-
fications for the first construction con- CWP-A by letter, including a brief de-
tract will be completed. (See also scription of the completed project, the
§ 263.20(a) concerning inclusion of these estimated requirements for operation
requests in budget submissions.) and maintenance (Federal and non-
(k) Approval of Local Cooperation Federal), the final Federal and non-
Agreement. Prior to issuance of a work Federal project costs, and the date on
allowance by OCE for construction which the project was considered oper-
funds, a signed written agreement for ational.
local cooperation must be obtained and (2) Notify local interests that project
approved by the Secretary of the construction has been completed and
Army, or his designated representative, inform them of their operation and
in accordance with ER 405–2–680. The maintenance responsibilities and the
signed agreement shall be transmitted operational characteristics of the
to DAEN-REA-P together with a copy project.
of the DPR or Recon report which ap-
proved the project or work. [40 FR 51134, Nov. 3, 1975, as amended at 41
(1) As required by ER 405–2–680, re- FR 56943, Dec. 30, 1976]
quirements of local cooperation are to
§ 263.18 Program completion-time ob-
be stated in the agreement verbatim jectives.
from the approved project document.
Any deviation shall be submitted to To provide a Program responsive to
DAEN-CWP for approval by the Direc- local needs, the following target (max-
tor of Civil Works, for the Chief of En- imum) completion time objectives are
gineers, prior to the reporting officer established and should be used to the
obtaining signatures on the agreement. extent feasible, in scheduling work and
(2) After OCE approval of the agree- programming funds. Shortening of
ment, a work allowance will be issued these objectives is encouraged for spe-
by DAEN-CWP or DAEN-CWO depend- cific studies and projects when appro-
ing on the Program authority, based on priate. However, high standards of
availability of funds. planning, design and construction are
(l) Completion of Project Construction not to be sacrificed. Attainment of
(RCS DAEN-CWB–16). Policies and pro- completion-time objectives through in-
cedures for projects constructed under tensive management is to be a major
specific Congressional authority, with concern for those elements and individ-
the exception of budgetary submissions uals given Program management re-
and funding matters, are applicable to sponsibilities in § 263.16 of this regula-
projects constructed under this Pro- tion.
PROGRAM AUTHORITIES, COMPLETION TIMES IN MONTHS
205, 107, 208 and Emergency
103, and 14 14 and 3 1
111
(a) Completion of recon and submission of funding request or negative report to OCE ... 2 1 2
(b) Completion of feasibility study by reporting officer and preparation of DPR ................ 16 9 (2 )
(c) Review of DPR or recon report by division engineer, (including provisions of
§ 263.15(f)) ....................................................................................................................... 2 1 .5
(d) Review of DPR or recon report by OCE ....................................................................... 2 1 .5
(e) Completion of project construction (including plans and specifications), after project
approval ........................................................................................................................... 18 12 3
(f) Total completion-time objective ............................................................................ 40 24 6

1 The
decision to utilize a recon report or DPR for recommending a project under sec. 14 authority is delegated to the division
engineer (§ 263.17(b)(3)).
2 Not applicable.
340
§ 263.19 Detailed project reports. the first Program budget submission

(a) The Detailed Project Report following completion of Stage 2 plan-
serves a dual purpose: the report serves ning (§ 263.15(c)(2)). OCE elements des-
both as basis for approval of a project ignated in § 263.16(a) are responsible for
for construction by the Chief of Engi- issuing Program budget guidance to
neers and it serves as a basis for prepa- field operating agencies, formulating
ration of plans and specifications. (See appropriate program budgets from field
exception for emergencies, submissions, and submitting such
§ 263.17(b)(3)). The main report should budgets to DAEN-CWB.
reflect the plan formulation, generally To expedite budget preparation, field
in accordance with ER 1105–2–402 and operating agencies should insure that
ER 1105–2–403. A Design Appendix will budgetary data on the Continuing Au-
be provided as appropriate, for more thorities Program are sent directly to
detailed information on the develop- DAEN-CWP-A or DAEN-CWO, depend-
ment of the plan, or elements of the se- ing on the authority.
lected plan, recommended for imple- (b) Use of Program funds. Funds ap-
mentation as a Federal project by the propriated by Congress under the legis-
Corps of Engineers. The Design Appen- lative authorities of this Program will
dix of the report will generally meet be utilized by the Corps of Engineers in
the requirements of ER 1110–2–1150, as conducting studies approved by Divi-
it pertains to Phase II AE&D studies sion Engineers, and in constructing
for projects specifically authorized by projects approved by the Chief of Engi-
Congress, except that it need not dupli- neers. This does not preclude the use of
cate material on plan formulation cov- private architect-engineer firms or
ered in the main report. Other appen- other consultant services in Program
dixes should be included as required. implementation. No grants of Program
(b) It is anticipated that DPR’s sub- funds will be made to local interests
mitted for projects under Section 208 for conducting studies or constructing
Authority will be less extensive than projects, nor shall contributions be
reports submitted under Sections 205, made for features or benefits of
107, 103 and 111 Authorities, and that projects constructed by another agency
DPR’s submitted for projects under or by local interests. Reimbursement
Section 14 Authority will be further ab- to local interests for work undertaken
breviated due to simplicity of the by them on an approved project nor-
project. The important point is that mally will not be authorized; however,
the planning process should be gen- if the situation warrants consideration
erally considered the same for studies of such a provision, the procedures con-
conducted under all Program authori- tained in ER 1165–2–18 may be followed
ties; the plan formulation portion of to request OCE approval in advance of
the DPR should reflect this process and such action by local interests.
the rationale for arriving at the se- (c) Requests for funds. Procedures for
lected plan and recommendations for requesting Program funds are con-
Federal participation. tained in § 263.17. Generally, requests
(c) The level of detail and extent of will be made in four instances: After
engineering work reflected in the De- approval by Division Engineer to pro-
sign Appendix must be sufficient to ceed with a feasibility study, after sub-
proceed directly to plans and specifica- mission of a DPR to OCE and approval
tions. In the event that the need of the Division Engineer to proceed
arrises for feature design memoranda with plans and specifications, after
on selected aspects of the project, such OCE approval of a DPR for proceeding
requirements should be identified in with project construction, and in other
the letter of transmittal accompanying cases as required to revise the pre-
the DPR when submitted to OCE. ceding requests. In the case of request-
ing funds for plans and specifications
§ 263.20 Program funding. and project construction, deviations
(a) Program budget. Initial consider- from amounts estimated in previous
ation of estimated project construction budget submissions, or contained in
requirements (including funds for plans current approved Program budgets,

and specifications), should be given in will be briefly explained.
341
§ 263.21 33 CFR Ch. II (7–1–20 Edition)
(d) Retention, revocation and transfer and may be required to provide such addi-
of funds. Unobligated funds will be re- tional local cooperation as the Chief of Engi-
ported to DAEN-CWP-A or DAEN-CWO, neers deems appropriate. A State, county,
municipality or other responsible local enti-
depending on the study authority
ty shall give assurance satisfactory to the
under which the funds were allotted, as Chief of Engineers that such conditions of
soon as final costs for studies or con- cooperation as are required will be accom-
struction are determined. When work plished.
on a study, plans and specifications, or (d) Non-Federal interests may be required
project construction must be suspended to share in the cost of the project to the ex-
for an unknown period of time, or sus- tent that the Chief of Engineers deems that
pended for an extended period, the such cost should not be borne by the Federal
Government in view of the recreational or
above OCE elements are to be notified
otherwise special or local nature of the
immediately by letter with the Divi- project benefits.
sion Engineer’s recommendation re- (e) Each project for which money is allot-
garding retention or revocation of un- ted under this section shall be complete in
obligated funds held in that particular itself and not commit the United States to
account. The authority for transfers any additional improvement to insure its
and reporting requirements are con- successful operation other than routine
tained in ER 11–2–201. maintenance, and except as may result from
the normal procedure apply to projects au-
[40 FR 51134, Nov. 3, 1975, as amended at 41 thorized after submission of survey reports
FR 56943, Dec. 30, 1976] and projects constructed under the authority
of this section shall be considered as author-
Subpart B—Navigation Policy ized projects.
(f) This section shall apply to, but not be
§ 263.21 Small navigation project au- limited to, the provision of low water access
thority. navigation channels from the existing chan-
nel of the Mississippi River to harbor areas
(a) Legislative authority. Section 107 of heretofore or now established and located
the River and Harbor Act of 1960, as along the Mississippi River.
amended by Section 310 of the River
(b) Operation and maintenance respon-
and Harbor Act of 1965, section 112 of
sibility. Projects for navigation con-
the River and Harbor Act of 1970, and
structed under the authority of Section
section 133(a) of the Water Resources
107 will be considered the same as au-
Development Act, approved 22 October
thorized projects and are operated and
1976, states:
maintained by the Corps of Engineers
(a) The Secretary of the Army is author- at Federal cost under the same proce-
ized to allot from any appropriations here- dures and policies as applied to
after made for rivers and harbors not to ex- projects specifically authorized by Con-
ceed $25,000,000 for any one fiscal year for the
gress. (Reference section 6, Pub. L. 93–
construction of small river and harbor im-
provement projects not specifically author- 251).
ized by Congress which will result in sub- (c) Aids to navigation. Planning and
stantial benefits to navigation and which design of channel and other navigation
can be operated consistently with appro- improvements should give full consid-
priate and economic use of the waters of the eration to the feasibility and costs of
Nation for other purposes, when in the opin- establishment by the Coast Guard of
ion of the Chief of Engineers such work is ad- suitable aids to navigation. The costs
visable, if benefits are in excess of the costs.
for navigation aids to be provided by
(b) Not more than $2,000,000 shall be allot-
ted for the construction of a project under the Corps of Engineers, Coast Guard,
this section at any single locality and the State, and local interests, and similar
amount allotted shall be sufficient to com- project-associated costs, will be in-
plete the Federal participation in the project cluded in the economic analysis.
under this section. Project associated expenditures by the
(c) Local interests shall provide without Corps of Engineers for aids to naviga-
cost to the United States all necessary lands, tion are included within the cost limi-
easements and rights-of-way for all projects
tation under the Section 107 authority,
to be constructed under the authority of this
section. In addition, local interests may be but expenditures by the U.S. Coast
Guard are not. The report appendix
required to hold and save the United States

free from damages that may result from the should reproduce the letter from the
construction and maintenance of the project, Coast Guard stating the estimated
342
number, type and cost of navigation (ii) Work within the limits of authorized
aids and their maintenance cost. projects. This restriction applies where
(d) Local cooperation. Local coopera- authorized new work remains to be ac-
tion requirements for projects under complished unless an emergency re-
the Sec. 107 authority are those nor- sults from aggravated conditions aris-
mally recommended for similar work ing subsequent to the authorization of
authorized by Congress. the project. In that event, corrective
measures will be limited to restoration
[40 FR 51134, Nov. 3, 1975, as amended at 41
FR 56943, Dec. 30, 1976]
of conditions existing at the time of
such authorization.
§ 263.22 Authority for snagging and (iii) General widening or deepening. No
clearing for navigation (Section 3). general widening or deepening will be
accomplished to meet the desires of
(a) Legislative authority. Section 3 of
navigation interests to use larger ves-
the River and Harbor Act approved 2
sels.
March 1945, states:
(c) Local cooperation. Local coopera-
The Secretary of the Army is hereby au- tion requirements for projects under
thorized to allot not to exceed $300,000 from the Section 3 authority are those nor-
any appropriations made prior to or after mally recommended for similar work
March 2, 1945, for any one fiscal year for im- authorized by Congress.
provement of rivers and harbors, for remov-
ing accumulated snags and other debris, and
for protection, clearing and straightening Subpart C—Flood Control Policy
channels in navigable harbors and navigable
streams and tributaries thereof, when in the § 263.23 Small flood control project au-
opinion of the Chief of Engineers such work thority (Section 205).
is advisable in the interest of navigation or (a) Legislative authority. Section 205 of
flood control. the Flood Control Act approved 30 June
(b) Policy—(1) Eligible work. It is the 1948, as amended by section 205 of the
policy of the Chief of Engineers to uti- Flood Control Act approved 23 October
lize this authority primarily for emer- 1962, section 61 of the Water Resources
gency work to benefit navigation. Development Act approved 7 March
Work pursuant to this authority is un- 1974, and section 133(b) of the Water Re-
dertaken as an emergency measure to sources Development Act approved 22
clear or remove unreasonable obstruc- October 1976, states:
tions to navigation in navigable por- The Secretary of the Army is authorized to
tions of rivers, harbors and other wa- allot from any appropriations heretofore or
terways of the United States, or tribu- hereafter made for flood control, not to ex-
taries thereof, in order to provide exceed $30,000,000 for any one fiscal year, for
isting traffic with immediate and sig- the construction of small projects for flood
nificant benefit. When recurring main- control and related purposes not specifically
authorized by Congress, which come within
tenance work will be required to secure the provisions of Section 1 of the Flood Con-
enduring benefits from the initial trol Act of June 22, 1936, when in the opinion
work, local interests should be in- of the Chief of Engineers such work is advis-
formed that they will have to bear the able. The amount allotted for a project shall
costs of such recurring maintenance be sufficient to complete Federal participa-
until such time as maintenance at that tion in the project. Not more than $2,000,000
location may become part of a project shall be allotted under this section for a
project at any single locality, except that
specifically authorized by Congress and not more than $3,000,000 shall be allotted
subsequently funded. under this section for a project at a single lo-
(2) Ineligible work. In addition to the cality if such project protects an area which
ineligible work listed in para 5 of the has been declared to be a major disaster area
basic regulation, the following work is pursuant to the Disaster Relief Act of 1966 or
also ineligible under this authority: the Disaster Relief Act of 1970 in the five-
(i) Normal shoaling process. When the year period immediately preceding the date
the Chief of Engineers deems such work ad-
condition for which the remedial work
visable. The provisions of local cooperation
is requested resulted from the normal specified in Section 3 of the Flood Control
shoaling process associated with that
Act of June 22, 1936, as amended, shall apply.

particular reach of waterway and not The work shall be complete in itself and not
from a sudden occurrence. commit the United States to any additional
343
§ 263.24 33 CFR Ch. II (7–1–20 Edition)
improvement to insure its successful oper- and clearing and straightening of the chan-
ation, except as may result from the normal nels in navigable streams and tributaries
procedure applying to projects authorized thereof, when in the opinion of the Chief of
after submission of preliminary examination Engineers such work is advisable in the in-
and survey reports. terest of flood control: Provided, That not
(b) Non-Federal responsibilities for dam more than $250,000 shall be expended for this
purpose for any single tributary from the ap-
and reservoir project. All new projects
propriations for any one fiscal year.
under this authority, including dams
and reservoirs, are considered local (b) Policy. Work under this authority
protection projects. Non-Federal re- is limited to clearing and snagging or
sponsibilities for such dams and res- channel excavation and improvement
ervoirs will thus include the usual with limited embankment construction
lands, easements, right-of-way, and by use of materials from the channel
other requirements of local protection excavation. If investigation indicates
projects. Similarly, non-Federal inter- that placement of revetment is needed
ests must operate the flood control fea- to provide a complete and fully effec-
tures of any dam or reservoir in active project, the local interests should
cordance with regulations prescribed provide for the item of construction ei-
under the authority contained in sec- ther by work or by cash contribution.
tion 7 of the Flood Control Act of De-
(c) Local cooperation. The provisions
cember 1944.
of § 263.23(d) are applicable.
(c) Major disaster area. Determination
of a ‘‘major disaster area’’ can be made § 263.25 Authority for emergency
only by the President, pursuant to the streambank and shoreline protec-
Disaster Relief Acts cited above. tion of public works and nonprofit
(d) Local cooperation. As stated in public services (Section 14).
para 1a of this part, the provisions of
section 3, Flood Control Act of 1936, as (a) Legislative authority. Section 14 of
amended (33 U.S.C. 701c), are applica- the Flood Control Act approved July
ble. Other requirements shall be rec- 24, 1946, as amended by section 27 of the
ommended by reporting officers to in- Water Resources Development Act ap-
sure the long-term viability of the plan proved March 7, 1974, states:
and the attainment of benefits from The Secretary of the Army is authorized to
the plan. Consideration of land en- allot from any appropriations heretofore or
hancement shall be in accordance with hereinafter made for flood control, not to ex-
EM 1120–2–109. ceed $10,000,000 per year, for the construc-
(e) Limitation on erosion protection. tion, repair, restoration, and modification of
This authority shall not be used for emergency streambank and shoreline protec-
protecting against bank erosion. How- tion works to prevent damage to highways,
ever, bank stabilization may be in- bridge approaches, public works, churches,
cluded as an integral part of a plan for hospitals, schools, and other nonprofit public
services, when in the opinion of the Chief of
preventing flood damage.
Engineers such work is advisable: Provided,
[40 FR 51134, Nov. 3, 1975, as amended at 41 That not more than $250,000 shall be allotted
FR 56943, Dec. 30, 1976] for this purpose at any single locality from
the appropriations for any one fiscal year.
§ 263.24 Authority for snagging and
clearing for flood control (Section (b) Policy. Work under the Section 14
208). authority shall serve to prevent flood
(a) Legislative authority. Section 208 of or erosion damages to endangered high-
the Flood Control Act approved 3 Sep- ways, highway bridge approaches, pub-
tember 1954 and as further amended by lic works, and nonprofit public facili-
Section 26 of the Water Resources De- ties by the construction or repair of
velopment Act approved March 7, 1974 emergency streambank and shoreline
states: protection works. Eligible highways
consist of major highway systems of
The Secretary of the Army is authorized to
allot not to exceed $5,000,000 from any appro-
national importance, and principal
highways, streets, and roads of impor-
priations heretofore or hereafter made for

any one fiscal year for flood control, for re- tance to the local community, such as
moving accumulated snags and other debris, arterial streets, important access
344
routes to other communities and adja- beach restoration and protection projects
cent settlements, and roads designated not specifically authorized by Congress,
as primary farm-to-market roads. which otherwise comply with Section 1 of
this Act, when he finds that such work is ad-
(1) Work under this authority is not
visable, and he is further authorized to allot
limited in engineering scope but the from any appropriations hereafter made for
design must be an integrally complete civil works, not to exceed $25,000,000 for any
within itself project that does not re- one fiscal year for the Federal share of the
quire additional work for effective and costs of construction of such projects: Pro-
successful operation. The cost limita- vided, That not more than $1,000,000 shall be
tion on Federal participation may re- allotted for this purpose for any single
quire that local interests supplement project and the total amount allotted shall
be sufficient to complete the Federal partici-
the Federal funds, so that combined pation in the project under this section in-
Federal and local efforts will produce a cluding periodic nourishment as provided for
complete, useful improvement. under section 1(c) of this Act: Provided fur-
(2) Reporting officers must be satis- ther, That the work shall be complete in
fied that the protection of eligible pub- itself and shall not commit the United
lic works and non-profit public services States to any additional improvements to in-
are justified on the basis of the Na- sure its successful operation, except for par-
tional Economic Development and En- ticipation in periodic beach nourishment in
accordance with section 1(c) of this Act, and,
vironmental Quality objectives. as may result from the normal procedure ap-
(c) Legislative interpretations. (1) plying to projects authorized after submis-
‘‘Public Works’’ are considered to be sion of survey reports.
those important and essential public
facilities which serve the general pub- (b) Periodic nourishment. When it can
lic and are owned and operated by the be demonstrated as being part of the
Federal, State, or local governments, best plan to meet project objectives
such as municipal water supply sys- and a more economical remedial meas-
tems and sewage disposal plants. ure than others, provision for periodic
(2) ‘‘Churches, hospitals, schools’’ in- nourishment may be recommended.
cludes churches, and public and private The recommended Federal participa-
non-profit hospitals and schools. tion in periodic nourishment will be
(3) ‘‘Non-profit public services’’ are limited to a specific period of time.
considered to be facilities or structures The total project costs shall include
which serve the general public and are both initial construction and periodic
not intended to earn a profit. Although nourishment.
they may be publicly used, privately (c) Local cooperation. The provisions
owned, profit-making facilities located of ER 1120–2–110 and ER 1165–2–19 are
along streambanks or shore lines are applicable.
not eligible for protection.
(4) ‘‘Shoreline’’ includes, but is not § 263.27 Authority for mitigation of
shore damage attributable to navi-
limited to, oceans, gulfs, and the Great gation works (Section 111).
Lakes.
(d) Local cooperation. The provisions (a) Legislative authority. Section 111 of
of § 263.23(d) are applicable. the River and Harbor Act of 1968 (Pub.
L. 90–483, approved August 13, 1968)
states:
Subpart D—Shore Protection
Policy The Secretary of the Army, acting through
the Chief of Engineers is authorized to inves-
§ 263.26 Small beach erosion control tigate, study, and construct projects for the
project authority (Section 103). prevention or mitigation of shore damages
attributable to Federal navigation works.
(a) Legislative authority. Section The cost of installing, operation and main-
103(a) of the River and Harbor Act of taining shall be borne entirely by the United
1962, as amended by section 310 of the States. No such projects shall be constructed
River and Harbor Act of 1965 and by without specific authorization by Congress if
section 112 of the River and Harbor Act the estimated first cost exceeds $1,000,000.
of 1970, amends section 3 of Pub. L. 826, (b) Definitions—(1) Federal navigation
84th Congress to read as follows: works is defined as a project or feature
The Secretary of the Army is authorized to thereof that has been specifically au-
undertake construction of small shore and thorized by the Congress in a River and
345
§ 263.27 33 CFR Ch. II (7–1–20 Edition)
Harbor Act or authorized under the for prevention or mitigation of shore

continuing authorities granted by sec- damages.
tion 201 or the Flood Control Act of (iii) For prevention or mitigation of
1965, or by section 107 of the River and shore damages caused by non-Federal
Harbor Act of 1960, as amended. These navigation projects.
shall include projects or project fea- (iv) To construct, maintain, modify
tures built by others but which have or change the cost sharing of author-
been adopted as a Federal Navigation ized beach erosion or combined beach
project. erosion and hurricane protection
(2) Beach erosion control project is de- projects, or portions thereof, located
fined as a project that has been specifi- adjacent to Federal navigation
cally authorized by the Congress in a projects. Except, when it is determined
River and Harbor Act or authorized that shore damage to a portion of an
under the continuing authorities authorized beach erosion project is at-
granted by section 201 of the Flood tributable to the navigation project,
Control Act of 1965 or by section 103 of mitigation measures may be accom-
the River and Harbor Act of 1962. This plished under this authority, only to
is considered to include the beach ero- the extent of damages that can be di-
sion control portion of combined beach rectly identified and attributed to the
erosion and hurricane protection navigation project.
projects. (2) Where the erosion attributable to
(3) Mitigation of shore damages is de- the Federal navigation project consists
fined as the construction of works or of only a portion of the total erosion
procedures to reduce erosion-type dam- problem in a specific area and cannot
ages by shoreline stabilization. The de- be considered as a separable reach for
gree of mitigation is the reduction of effective mitigation measures then a
erosion or accretion to the level which section 111 project cannot be consid-
ered for authorization unless,
would be obtained without the influ-
(i) There is an authorized beach ero-
ence of navigation works at the time
sion control or combined beach and
navigation works were accepted as a
hurricane protection project for the
Federal responsibility. It is not in-
area with which the section 111 mitiga-
tended that shorelines be restored to
tion measures could be combined to be-
historic dimensions, but only to lessen
come effective, or
the damages by an action that can be
(ii) A general study of the entire
justified, the entire costs of which are
problem area is made and leads to the
Federal regardless of shore ownership.
development of an authorized beach
(c) General policies. (1) This Act au- erosion control project, (specific au-
thorizes the study, construction and thority must be obtained to conduct a
maintenance of work for prevention or general study of the entire problem
mitigation of damages to both public area) or
and privately owned shores to the ex- (iii) Local interests indicate a will-
tent of the damages that can be di- ingness to have the erosion problem
rectly identified and attributed to Fed- outside the scope of section 111 rem-
eral navigation work located along the edied at local cost.
coastal and Great Lakes shorelines of (d) Cost limitations. Section 111 pro-
the United States. This authority will vides that the Chief of Engineers has
not be used: authority to authorize projects for
(i) For construction of works for pre- which the estimated first costs will not
vention or mitigation of shore damages exceed $1,000,000. The first costs will be
such as those caused by river bank ero- the cost of the initial preventive or
sion or vessel generated wave wash. mitigative measures only. The limita-
(ii) To modify navigation projects au- tion on costs does not include the cost
thorized, but not constructed, that of project maintenance. The project
contain features for prevention or miti- must be planned as a complete unit and
gation of shore damages or to change not broken into reaches or stages for
the responsibility for maintenance or cost limitation purposes.
to modify portions of constructed navi- (e) Reports. The Recon Report re-
gation projects that contain features quired by § 263.15(c)(1) will:
346
(1) Determine whether or not Federal demonstrates the feasibility of the pro-
navigation works are responsible for posed work.
causing or contributing to the erosion (h) Cost sharing—(1) Construction. (i)
problem. If the work recommended in the report
(2) Determine the extent of the area is confined to mitigation work only
affected by the navigation works. under section 111, i.e., erosion totally
(3) Determine total area experiencing attributable to the navigation works,
significant erosion. costs will be 100 percent Federal.
(4) Determine the approximate per- (ii) If the work recommended is a
centage of the total erosion problem in combination of mitigation under sec-
a specific area that is attributable to tion 111 and restoration of beaches
the navigation works. eroded due to other causes and there is
no authorized beach erosion project,
(5) Recommend whether further
mitigation work under section 111 will
study of the specific area affected by
be 100 percent Federal and the remain-
the Federal navigation works is justi-
ing work will be 100 percent local.
fied and whether study of the entire
(iii) If the work recommended in the
area is desirable.
report is a combination of mitigation
(f) Evaluation of mitigation measures. under section 111 and the restoration of
The objective of section 111 is to pro- beaches under an authorized beach ero-
vide mitigation measures for shore sion project or combination beach ero-
damages attributable to Federal navi- sion-hurricane protection project, the
gation projects, when equitable and in mitigation work under section 111 will
the public interest. All practicable al- be 100 percent Federal and the remain-
ternatives, structural and non-struc- der in accordance with the cost sharing
tural should be identified and consid- procedures as specified in project au-
ered. Work recommended for construc- thorization documents.
tion should provide the most prac- (2) Maintenance. (i) If the initial work
ticable and economical means of miti- is confined to mitigation under section
gating existing damages or the preven- 111, all maintenance costs are 100 per-
tion of subsequent damages. Justifica- cent Federal.
tion of mitigation measures should be (ii) If the work is a combination of
made by comparing their costs with mitigation under section 111 and res-
the values represented by the damages toration of beaches eroded due to other
preventable. Any intangible values causes, and there is no authorized
should be described and given due beach erosion project, maintenance
weight along with the tangible values costs will be shared in the same propor-
in this justification. Exercise of the au- tion as recommended for initial con-
thority of section 111 to provide miti- struction, i.e., the section 111 portion
gation measures at Federal expense is will be 100 percent Federal and remain-
not mandatory. A finding for or ing work 100 percent local.
against its use should fully consider (iii) If the work is a combination of
the pre-project conditions and the jus- mitigation under section 111 and an au-
tification of incurring mitigation thorized beach erosion control project
costs. or combination beach erosion-hurri-
(g) Criteria for a Favorable Rec- cane protection project, the Federal
ommendation. A recommendation favor- maintenance cost for the mitigation
able to adoption and construction of work under section 111 will be in the
work to prevent or mitigate shore dam- same proportion as the damage attrib-
age attributable to a Federal naviga- uted to the Federal navigation work is
tion project under the authority of sec- to the total damage. For the remaining
tion 111 of the River and Harbor Act of work the cost sharing procedures of the
1968 may be considered warranted when authorized beach erosion or combined
both of the following conditions exist: beach erosion-hurricane protection
(1) The navigation project has been project will apply.
determined to be the cause of the dam- (i) Local cooperation. (1) The law as
age. written provided that the cost of in-
(2) Analysis based on sound engineer- stalling, operating and maintaining

ing and economic principles clearly projects under this authority shall be
347
borne entirely by the United States; those required for regularly authorized
therefore there are no requirements for projects for their assigned portion of
local cooperation. The cost of any the work.
lands, easements or rights-of-way re- (3) Where section 111 projects are to
quired for construction or subsequent be accomplished in conjunction with
maintenance will be borne entirely by authorized projects, the requirements
the United States. of local cooperation specified in the au-
(2) Where section 111 projects are to thorizing document or report will
be accomplished in conjunction with
apply.
other works (§ 263.15(a)(2)) local inter-
ests will be required to furnish assur-
ance of local cooperation similar to
APPENDIX A TO PART 263—HISTORY OF PROGRAM AND PROJECT LIMITATIONS

CONTINUING AUTHORITIES PROGRAM
Federal cost
Public law Annual pro-
Section/law Date limitation per
No. gram limit
project
(1) Small Flood Control Project Authority (Sec. 205)
Sec. 205 of 1948 FCA ........................................................... June 30, 1948 ......... 80–858 $100,000 $2,000,000
Sec. 212 of 1950 FCA ........................................................... May 17, 1950 .......... 81–516 150,000 3,000,000
Public Law 685/84th Congress, 2d Sess .............................. July 11, 1956 .......... 84–685 400,000 10,000,000
Sec. 205 of 1962 FCA ........................................................... Oct. 23, 1962 .......... 87–874 1,000,000 25,000,000
Sec. 61 of WRDA of 1974 ..................................................... Mar. 7, 1974 ............ 93–251 1 1,000,000 30,000,000
3 2,000,000
Sec. 133(6) WRDA of 1976 .................................................. Oct. 22, 1976 .......... 94–587 2,000,000 30,000,000
3 3,000,000
(2) Authority for Snagging and Clearing for Flood Control (Sec.
208)
Sec. 2 of 1937 FCA ............................................................... Aug. 28, 1937 ......... 75–406 $25,000 $300,000
Sec. 13 of 1946 FCA ............................................................. July 24, 1946 .......... 79–526 50,000 1,000,000
Sec. 208 of 1954 FCA ........................................................... Sept. 3, 1954 .......... 83–780 100,000 2,000,000
Sec. 26 of WRDA of 1974 ..................................................... Mar. 7, 1974 ............ 93–251 250,000 5,000,000
(3) Authority for Emergency Streambank and Shoreline Protection

of Public Works and Nonprofit Public Services (Sec. 14)
Sec. 14 of 1946 FCA ............................................................. July 24, 1946 .......... 79–526 $50,000 $1,000,000
Sec. 27 of WRDA of 1974 ..................................................... Mar. 7, 1974 ............ 93–251 250,000 10,000,000
(4) Small Navigation Project Authority (Sec. 107)
Sec. 107 of 1960 R. & H. Act ............................................... July 14, 1960 .......... 86–645 $200,000 $2,000,000
Sec. 310 of 1965 R. & H. Act ............................................... Oct. 27, 1965 .......... 89–298 500,000 10,000,000
Sec. 112 of 1970 R. & H. Act ............................................... Dec. 31, 1970 ......... 91–611 1,000,000 25,000,000
Sec. 133(a) of WRDA of 1976 .............................................. Oct. 22, 1976 .......... 94–587 2,000,000 25,000,000
(5) Authority for Snagging and Clearing for Navigation (Sec. 3)
Sec. 3 of 1945 R. & H. Act ................................................... Mar. 2, 1945 ............ 79–14 None $300,000
(6) Small Beach Erosion Control Project Authority (Sec. 103)
Sec. 103 of 1962 R. & H. Act ............................................... Oct. 23, 1962 .......... 87–874 $400,000 $3,000,000
Sec. 310 of 1965 R. & H. Act ............................................... Oct. 27, 1965 .......... 89–298 500,000 10,000,000
Sec. 112 of 1970 R. & H. Act ............................................... Dec. 31, 1970 ......... 91–611 1,000,000 25,000,000
(7) Authority for Mitigation of Shore Damages Attributable to Navi-

gation Projects (Sec. 111)
Sec. 111 of 1968 R. & H. Act ............................................... Aug. 13, 1968 ......... 90–483 2 $1,000,000 None
1 Projectcost may go to $2,000,000 if project is located in a major disaster area designated by the President.
2 A project exceeding $1 million will be transmitted to Congress for specific authorization.
3 Federal cost may go to higher amount if project is located in a major disaster area designated by the President.
[40 FR 51134, Nov. 3, 1975, as amended at 41 FR 56943, Dec. 30, 1976]
348
APPENDIX B TO PART 263—APPLICATION provides for a three-stage development of

OF MULTIOBJECTIVE PLANNING plans, studies under Continuing Authorities
FRAMEWORK TO CONTINUING AU- may consolidate these two final stages (in-
termediate and detailed), into a single stage,
THORITIES PROGRAM
if appropriate. This consolidation does not
1. General. The planning process described eliminate any of the planning tasks, as dis-
in the ER 1105–2–200 series of regulations in- cussed in para 3 below, nor does it diminish
cluding the implementation of Federal plan- the concept of screening a full array of alter-
ning and evaluation criteria, are generally natives including nonstructural measures,
applicable to studies conducted under the with increasing levels of detail in the assess-
Continuing Authorities Program. However, ment of impacts and evaluation as planning
due to the limited scope of many of the plans progresses to plan selection. The primary
and projects considered under this program, emphasis in making the consolidation of
these two stages is that the plan selection is
modification of the process is appropriate.
normally made on the basis of more limited
Specific modification of the requirements of
data and analyses than appropriate for stud-
the planning criteria is not appropriate since
ies conducted under the Level C Survey Pro-
the legislative and executive authorities set-
gram or the Phase I AE&D Program.
ting forth these criteria do not differentiate
c. Stage 3—Development of Recommended
between various types of level C implemen-
Plan. The feasibility study under the Con-
tation studies. Discretion must be employed
tinuing Authorities Program will include the
by reporting officers and reviewers of De-
design of a recommended plan to the extent
tailed Project Reports to insure that necessary to proceed directly from the De-
projects recommended for implementation tailed Project Report to preparation of plans
by the Corps have been selected on the basis and specifications. While studies under the
of information and analyses consistent with Level C Survey Program would complete
the WRC Principles and Standards, while at plan formulation prior to accomplishing de-
the same time keeping the requirements for tailed project design, the nature of this Pro-
information and analyses consistent with gram necessitates a flexible design phase,
the scope of the study, solutions rec- wherein changes in scope of the selected
ommended, and the Program completion- plan, with accompanying changes in project
time objectives outlined in § 263.18 of this impacts and evaluation, are to be expected
regulation. and handled by planning personnel in order
2. Plan Formulation Stages. that the DPR will reflect a selected plan con-
a. Stage 1—Reconnaissance Study (Recon). As sistent with completed detailed design and a
presented in para. 6c, a Reconnaissance will plan justified under the current Federal
replace the Development of a Plan of Study evaluation criteria for recommending Fed-
as the primary element of Stage 1 planning. eral participation.
As a general rule, a Recon should be con- 3. Planning Tasks.
ducted by a study team consisting of an en- a. Problem Identification. While planning
gineer, an economist, and an environ- under Continuing Authorities is to be on a
mentalist. A one-to-two day field reconnais- multi-objective basis, the range of problems
sance should be sufficient to analyze the that can be addressed under a particular Pro-
need for a project, to develop sketch plans, gram authority is more limited than nor-
discuss views and capabilities of local inter- mally considered in the conduct of studies
ests, and identify the economy of the poten- specifically authorized by Congress. A good
tial project area and possible environmental effort to focus the study on relevant prob-
issues that would need to be addressed if a lems should be made in the Recon phase of
feasibility study were to be conducted. Addi- the study, while more intense efforts at data
tional effort should pinpoint all data defi- collection and definition of the problems and
ciencies, types of investigations required for associated needs should be accomplished dur-
the feasibility study, and the estimated cost ing Stage 2 planning.
of the study. The latter identification proc- b. Formulation of Alternatives. There are no
ess can be developed as a Plan of Study for fundamental differences in the process of for-
the feasibility study, if approved and funded. mulating alternatives under these Program
To accomplish the intended purpose of the authorities than in Level C Survey studies,
Recon, within the time and cost objectives with the exception that the array of alter-
given in this regulation, reporting officers natives will normally be more limited based
are not required to develop a specific project on the discussion in para 3a above. The level
(except for emergency situations under Sec- of detail to which the alternatives are for-
tion 14 or 3 Authorities), but should only pro- mulated, with associated assessments of im-
vide the information required to make a de- pacts and evaluation of beneficial and ad-
cision as to whether there is a Federal inter- verse contributions, will vary greatly de-
est in conducting a feasibility study. Mature, pending on the study authority. In some
seasoned judgment is a prime requisite. cases, alternatives will be screened and

b. Stage 2—Development of Alternative Plans. eliminated for various reasons without full
While the ER 1105–2–200 series of regulations development of a tentative plan which can be
349
assessed and evaluated. Such screening is § 273.10 Purpose.
consistent with the nature of this Program;
however, good judgment and interdiscipli- This regulation prescribes policies,
nary participation should be emphasized in procedures and guidelines for research,
such preliminary screenings. The guidance in planning and operations for the Aquat-
the ER 1105–2–200 series of regulations with ic Plant Control Program under au-
regard to consideration of non-structural thority of section 302 of the Rivers and
measures and formulation of NED and EQ
Harbors Act of 1965.
plans, is fully applicable to studies con-
ducted under this Program.
c. Impact Assessment. There is no difference
in the requirements for the assessment of This regulation is applicable to all
impacts for studies conducted under Con- OCE elements and all field operating
tinuing Authorities and those under the agencies having civil works respon-
Level C Survey Program. As in all studies,
sibilities.
the extent to which information is obtained
to adequately assess impacts of alternative
plans is a matter of discretion of the report-
ing officer, bearing in mind the requirements (a) Section 302, Pub. L. 89–298, (79
of the National Environmental Policy Act of Stat. 1092), Rivers and Harbors Act of
1969 (NEPA) and Section 122, Public Law 91– 1965, (Appendix A).
611.
d. Evaluation. The processes, analyses and
(b) Pub. L. 92–516, Federal Insecti-
displays for evaluation of alternative plans cide, Fungicide and Rodenticide Act of
as prescribed in the ER 1105–2–200 series of 1972, (86 Stat. 973), 21 October 1972.
regulations are generally applicable to stud- (c) 40 CFR 180, Tolerances and exemp-
ies conducted under Continuing Authorities. tions from tolerances for pesticide
Again, the level of detail, and not the proc- chemicals, 2,4-D, subpart C (F) 16 De-
ess itself, is to be consistent with the study cember 1975.
authority and the needs of the decision-mak-
ing process. (d) Pub. L. 91–596, Occupational Safe-
ty and Health Act of 1970, (84 Stat. 1609,
29 U.S.C. 668), 29 December 1970.
PART 273—AQUATIC PLANT (e) 29 CFR 1960, Safety and Health
CONTROL Provisions for Federal Employees, FED-
ERAL REGISTER, Vol. 39, No. 9, 9 October
Sec. 1974.
273.10 Purpose.
(f) ER 11–2–240, ‘‘Civil Works Activi-
273.12 References. ties, Construction and Design.’’
273.13 Program policy. (g) ER 70–2–3, ‘‘Civil Works Research
273.14 Planning procedures. and Development Management Sys-
273.15 Work Progress Report. tem.’’
273.16 Operations. (h) ER 1105–2–507, ‘‘Preparation and
273.17 Annual budget request. Coordination of Environmental State-
273.18 Clearinghouse coordination.
ments.’’ (33 CFR 209.410) 1
APPENDIX A TO PART 273—AQUATIC PLANT
(i) ER 1105–2–811.
CONTROL PROGRAM LEGISLATIVE AUTHOR-
ITY
APPENDIX B TO PART 273—INFORMATION RE-
§ 273.13 Program policy.
QUIREMENTS FOR AQUATIC PLANT CONTROL (a) Program orientation. The Aquatic
PROGRAM REPORTS Plant Control Program is designed to
APPENDIX C TO PART 273—INFORMATION RE- deal primarily with weed infestations
QUIREMENTS FOR AQUATIC PLANT CONTROL
of major economic significance includ-
PROGRAM ENVIRONMENTAL IMPACT STATE-
MENTS
ing those that have reached that stage
APPENDIX D TO PART 273—WORK PROGRESS (such as water-hyacinth) and those
REPORT that have that potential (such as
APPENDIX E TO PART 273—PREVENTIVE SAFE- alligatorweed and Eurasian
TY MEASURES IN HANDLING OF HERBICIDES watermilfoil) in navigable waters, trib-
AUTHORITY: Sec. 302, Title III, Pub. L. 89– utaries, streams, connecting channels
298, River and Harbor Act of 1965 (33 U.S.C. and allied waters. This does not imply
610), October 27, 1965.
SOURCE: 41 FR 22346, June 3, 1976, unless 1 33 CFR 209.410 was removed at 45 FR 56761,
otherwise noted. Aug. 25, 1980.
350
that the infestation must have coun- (d) Planning. Planning will be an all
trywide distribution. However, the in- Federal cost item, will be developed by
festation should constitute a known reporting officers in accordance with
problem of economic importance in the their needs and will be fully justified
area involved. Initial planning should for funds requested. Normally, the pro-
constitute investigation of a specific gram will be initiated with a recon-
problem weed or weed complex, not naissance report (§ 273.14(a)) and will be
generalized surveys of aquatic vegeta- accomplished under a State design
tion. The common submersed aquatics memorandum (§ 273.14(b)). Supplement
and floating or emergent, wetland, design memorandums will be used to
marsh, and swamp vegetation do not implement changes in the program.
generally meet those criteria for spe-
These memorandums will establish a
cial problems merely because they may
continuing program and will be used to
qualify as ‘‘obnoxious aquatic plants’’
under the language of the legislation enable the Chief of Engineers to allot
authorizing the program except as indi- available funds on a priority basis in
cated in § 273.13(b). accordance with the urgency of the
(b) Work not eligible under this pro- needs of each area.
gram. Weed control for operation and (e) Criteria for recommending a Federal
maintenance of reservoirs, channels, project. (1) A recommendation favorable
harbors, or other water areas of au- to adoption of the project under the au-
thorized projects under jurisdiction of thority provided by section 302, as
the Corps of Engineers or other Federal amended, will be warranted when the
agencies will not be undertaken as a following conditions exist:
part of the Aquatic Plant Control Pro- (i) The problem and practical meas-
gram, except as such areas may be used ures of improvement are of such nature
for experimental purposes in research that there is a clear and definite Fed-
performed for the program. Aquatic eral interest warranting Federal par-
plant control work for the operation ticipation under the purview of this
and maintenance of Federal projects special authority.
are eligible to be included under this (ii) The proposed work will result in
authority for the purpose of cost-shar-
an independent and complete-within-
ing with participating State or local
itself project.
agencies, but are not eligible for budg-
eting or funding under the Aquatic (iii) Analysis based on sound eco-
Plant Control Program. nomic principles clearly demonstrates
(c) Applied research. Applied research that the project will provide informa-
developed by OCE with the assistance tion and/or control of aquatic plants.
of the Interagency Aquatic Plant Con- (iv) Each separable element of the
trol Research Advisory Committee and project, as well as the entire project, is
the appropriate Division Engineer will economically justified.
be an all Federal cost. This research (v) Local interests are legally and fi-
will be accomplished through contracts nancially able and willing to meet
with Federal, State and private re- fully all requirements of local coopera-
search institutions. A research plan- tion.
ning meeting will be held the last quar- (2) Recommendations for preparation
ter of each calendar year to provide of a detailed planning report for new
professional presentation of current re- work on a new problem in a District or
search projects, review of current oper- Division where control of other aquatic
ation activities, and review new re- plant problems is currently underway
search proposals. Requested programs, should consider whether such new work
estimated cost, and other information
represents an equal or higher priority
will be developed in the field and sub-
of need for allocation of funds in the
mitted to HQDA (DAEN-CWD-R) Wash-
ington, DC 20314, for approval and fi- same State. Projects will not be rec-
nancing as prescribed by ER 70–2–3. At- ommended which produce undesirable
tendance of the Technical Advisory short-term or long-term damage to the
Committee meetings by Corps per- human or natural environment.

sonnel has been authorized.
351
§ 273.14 33 CFR Ch. II (7–1–20 Edition)
§ 273.14 Planning procedures. detail to assure a complete and fully

Investigation of new problems and/or operable aquatic plant control oper-
additional control operations not cov- ation. The report will be in the form of
ered by previously approved plans will a State design memorandum (SDM).
begin with preparation of a prelimi- The SDM will be prepared by the Dis-
nary report based on reconnaissance- trict, reviewed by the Division, then
type investigations. If it is determined forwarded to DAEN-CWO-R for review
that further planning of a more de- and approval. The data presented will
tailed nature is warranted, approval of be used to set priorities and request
a reconnaissance report by HQDA funds to finance activities on various
(DAEN-CWO-R) Washington, D.C. 20314 projects. Fund requirements are di-
will be followed by further investiga- vided into four categories: applied re-
tions. Normally, a detailed State de- search; planning; control operations;
sign memorandum encompassing all and development.
aspects of the problem and a proposed (c) Review of the proposed design
plan of action for dealing with it will Memoranda. Review of State design
be prepared. memoranda should insure that:
(a) Reconnaissance reports. Investiga- (1) The work involved is not the type
tions for reconnaissance reports will be normally provided by local entities or
limited to readily available data and private interests as a local responsi-
information. Field surveys and office bility.
studies should be limited to minimum (2) The cost of control operation will
essentials for further detailed plan- be shared between the Federal Govern-
ning. The reconnaissance report will be ment (70 percent) and the State receiv-
used for the overall program planning ing the benefit (30 percent).
and should contain adequate informa- (3) The actual control operation can
tion for these purposes. be done by Federal, State, and/or pri-
(1) Authorization. Preparation of a re- vate company facilities, under agree-
connaissance report will be authorized ments specifying the details and stand-
by OCE granting of work allocations ards of work to be performed.
and allotment of funds based on re- (4) Consideration will be given in the
quests submitted by reporting officers. planning procedure to include physical,
Funds for such reports may be re- chemical and biological methods of
quested in annual submissions of budg- control. Priority will be given to bio-
et requests and subsequently to DAEN- logical systems where feasible.
CWO-R as required to meet unantici- (d) Environmental impact statement re-
pated needs. Since the program is pro- quirements. Prior to funding of a plant
ceeding under a limited budget, costs control project programs which involve
should be limited to minimum require- pest control operations, such as aquat-
ments. Only in exceptional cases will ic plant control, and affect either
more than $3,000 be made available for man’s health or his environment (soil,
a reconnaissance report on a problem flora, fauna, aesthetics, water re-
in any one district. sources), are candidates for review and
(2) Content of reports. Where findings possible preparation of an environ-
and conclusions are unfavorable to un- mental impact statement (EIS) under
dertaking further detailed planning, a the National Environmental Policy
brief letter report summarizing the Act. (The information outlined in ap-
problem and findings should be sub- pendix C should be included in the
mitted to OCE to provide a basis for analysis section of an EIS in addition
answering outstanding inquiries. to the treatment prescribed by 33 CFR
Where findings and conclusions are fa- 209.410.) 2
vorable, a more detailed report should
include, but not be limited to, the in- § 273.15 Work Progress Report.
formation contained in appendix B. Reporting officers will prepare and
(b) State design memorandum. When submit to DAEN-CWO-R a detailed de-
authorized to prepare a detailed plan- scription of anticipated Aquatic Plant
ning report, the reporting officer will
proceed with necessary investigations 2 33 CFR 209.410 was removed at 45 FR 56761,
and develop plans and data in sufficient Aug. 25, 1980.
352
Control projects for the next calendar § 273.18 Clearinghouse coordination.

year. Submissions must reach OCE by Procedures prescribed under § 384.15
15 December of the preceding calendar of Chapter II will be observed.
year, in the format prescribed by ap-
pendix D. APPENDIX A TO PART 273—AQUATIC
PLANT CONTROL PROGRAM LEGISLA-
§ 273.16 Operations. TIVE AUTHORITY
Operational activities will be con- Section 104 of the Rivers and Harbors Act,
ducted by reporting officers in accord- approved 3 July 1958 (72 Stat. 297, 300), as
ance with approved annual work plans amended by section 104 of the Rivers and
and State design memoranda. Ques- Harbors Act of 1962 (76 Stat. 1173, 1180), and
as amended by section 302 of the Rivers and
tions should be referred to HQDA Harbors Act, approved 27 October 1965 (79
(DAEN-CWO-R) WASH DC 20314. Stat. 1092) states as follows:
(a) Certification of pesticide applicators. SEC. 302. (a) There is hereby authorized a
Activities will be subject to the provi- comprehensive program to provide for con-
sions of the Federal Insecticide, Fun- trol and progressive eradication of
gicide and Rodenticide Act of 1972, (ref- waterhyacinth, alligatorweed, Eurasian
watermilfoil, and other obnoxious aquatic
erence § 273.12(b) and (c)), regarding the
plant growths, from the navigable waters,
training and certification of pesticide tributary streams, connecting channels, and
supervisors and/or applicators. other allied waters of the United States, in
(b) Safety in use of herbicides. Use of the combined interest of navigation, flood
herbicides will be in accordance with control, drainage, agriculture, fish and wild-
life conservation, public health, and related
the Occupational Safety and Health
purposes, including continued research for
Act of 1970, reference § 273.12 (d) and (e). development of the most effective and eco-
Some herbicides are toxic chemicals nomic control measures, to be administered
and must be used with utmost care. Op- by the Chief of Engineers, under the direc-
erators and applicators are required to tion of the Secretary of the Army, in co-
use respiratory protective devices to operation with other Federal and State agen-
cies. Local interests shall agree to hold and
prevent inhalation of toxic dusts, va- save the United States free from claims that
pors, or gases; protective clothing to may occur from control operations and to
protect the skin; and eye protection. participate to the extent of 30 per centum of
Some of the primary precautions which the cost of such operations. Costs for re-
must be observed in handling herbi- search and planning undertaken pursuant to
the authorities of this section shall be borne
cides are listed in appendix E. Ques- fully by the Federal Government.
tions concerning safety should be re- (b) There are authorized to be appropriated
ferred to HQDA (DAEN-SO) Wash- such amounts not in excess of $5,000,000 an-
ington, D.C. 20314. nually, as may be necessary to carry out the
provisions of this section. Any such funds
§ 273.17 Annual budget request. employed for control operations shall be al-
located by the Chief of Engineers on a pri-
The Aquatic Plant Control Program ority basis, based upon the urgency and need
is a continuing activity funded under of each area, and the availability of local
Construction, General, subject to mon- funds.
etary limitations of $5,000,000 on an-
APPENDIX B TO PART 273—INFORMATION
nual appropriations authorized for the REQUIREMENTS FOR AQUATIC PLANT
program. Recommendations and sup- CONTROL PROGRAM REPORTS
porting data will be submitted in ac-
cordance with ER 11–2–240. The 1. Location and brief description of prob-
amounts requested should be the min- lem area if necessary for understanding envi-
ronmental factors, including a suitable map
imum requirements for the purpose of (appendix).
the authorized program to meet essen- 2. Statement of problem with brief descrip-
tial needs and should be within the Di- tion of physical factors pertaining thereto,
vision’s capability to utilize within the including identification by common and sci-
budget year taking into account the entific name of the plant or plants con-
cerned, origin of infestation and likely
foreseeable availability of local funds
source of reinfestation; extent of infestation

to meet cost-sharing requirements for including estimated surface area, depth or
control operations. density; nature of physical and economic
353
Pt. 273, App. C 33 CFR Ch. II (7–1–20 Edition)
damages occasioned by presence of the infes- a. Name. Use common or coined names,
tation; and other information clarifying the and/or chemical name.
nature and magnitude of the problem. Expla- b. Active ingredient. Give name and percent-
nation should be given of how and why the age.
infestation meets the principal criteria gov- c. Status of Federal registration. Give reg-
erning the program. istration number.
3. Preliminary plan of procedure, if any, 4. Application:
for control operations or engineering works, a. Form applied. Dust, granule, emulsion,
including control methods, materials, equip- bait solution, gas, etc.
ment and procedures that may be employed. b. Choice of equipment and techniques. Dis-
If sufficient information is not available to cuss general details of method of applica-
outline a preliminary plan for operation con- tion.
trol, the report should include a brief state- c. Use strength. Give concentration of the
ment of the special problems in control active ingredient as applied.
methods that need to be resolved before de- d. Rate. Give rate of application in pounds
tailed planning can be undertaken. per acre or other rate.
4. Preliminary project cost estimates bro- e. Frequency. Discuss probable frequency of
ken down into planning and operation costs application.
for Federal and non-Federal budgeting. The f. Acreage or other descriptive unit. Discuss
report should present sufficient data con- area of proposed control.
cerning cost estimates for review by item g. Site description. Lake, river, drainage
and unit price. canal, irrigation canal, etc.
5. Preliminary economic evaluation with h. Sensitive areas. Discuss areas of potential
approximation of benefits and brief summary contamination.
of supporting data classified as general or i. Container disposal. Discuss disposal re-
local. quirements.
6. Discussion of availability of authority j. Safety precautions. Discuss hazards of ex-
for State participation in the program, the posure.
interest of State agencies in such participa- 5. Alternative measures: Discuss details of
tion, and the likelihood of State funds being alternative methods of control.
available for cost-sharing required for any
control operations. APPENDIX D TO PART 273—WORK
7. Cost estimate for subsequent prepara- PROGRESS REPORT
tion of a detailed planning report, and esti-
mated length of time to complete after re- Aquatic Plant Control Program
ceipt of funds, and schedule of funding by fis-
cal years. (Example)
District: Vicksburg. Year Ending: 1 Decem-
APPENDIX C TO PART 273—INFORMATION ber 1974.
REQUIREMENTS FOR AQUATIC PLANT Division: Lower Mississippi Valley. Date
CONTROL PROGRAM ENVIRONMENTAL Submitted: 15 December 1974.
IMPACT STATEMENTS 1. Status of contracts scheduled for award in
current fiscal year.
1. Description of the problem.
a. Pests. Identify the pest to be controlled Contract Scheduled Actual award
by common name. Be as specific as possible. award date date
b. Location and size of infestation. Describe Plant control operations ... July 1973 ........ July 31, 1973.
the target area as specifically as possible.
c. Severity of infestation. Discuss the degree
2. Comparison of scheduled and actual cur-
and importance of the pest problem.
rent FY obligations and expenditures to date.
d. History of infestation. Discuss obvious de-
velopment as established. Ap-
e. Criteria for identification of the treatment proved Actual Dif-
areas. Include technical details as estab- Mar. 28, ference
1974
lished.
f. Possible cumulative effects of the pro- Obligations ........................... $4.7 $3.2 ¥$1.5
posed action in relation to other Federal or Expenditures ........................ 4.1 2.9 ¥1.2
non-Federal pesticides application in the
treatment area. 3. Explanation of difference. Not applicable.
g. Relationship to environmental situation. 4. Outlook for meeting programmed objectives.
Non-target organisms and integrated pest a. Programmed objectives. Full utilization of
management programs. work allowance.
2. Program accomplishments: b. Outlook. We expect to meet our pro-
a. Goals. Discuss practical control levels. grammed objectives.

b. Monitoring accomplishment level. 5. Problems and corrective action taken or
3. Identification of each chemical: proposed action. Not applicable.
354
6. Status of over-all program progress. Con- covered area not accessible to authorized
tract for plant control operations was award- personnel or the public and placed under
ed in July 1973 to take advantage of last part lock and key.
of plant growing season. Plant control oper- b. Identification signs should be placed on
ations began in October 1973 and have been rooms, buildings, and fences to advise of the
completed for this fiscal year. Surplus funds contents and warn of their hazardous nature.
in the amount of $21,700 will be revoked. c. Where applicable, label the outside of
each storage with the ‘‘Danger,’’ ‘‘Poison,’’
APPENDIX E TO PART 273—PREVENTIVE and ‘‘Pesticide Storage’’ signs.
SAFETY MEASURES IN HANDLING OF d. Fire extinguishers must be installed
HERBICIDES near door of material storage room. Diluted
oil based herbicides are flammable and must
1. Follow the label on each container be- be stored separate from other materials.
fore using the contents. The manufacturers e. All herbicide storage, mixing and formu-
are required by law to list recommendations lation areas must have adequate ventilation
and precautions. in order to reduce inhalation of toxic vapors.
2. Weather conditions are important. Sparkproof lighting fixtures should be in-
Winds could carry toxic sprays and dusts to stalled in closed storage areas to eliminate
areas not under your control, causing acci-
ignition hazards.
dental poisoning to the public or domestic
11. Empty herbicide containers must be
animals.
disposed of properly. Do not burn them.
3. Smoking is not permitted while herbi-
When herbicides or defoliants volatize, the
cides are being handled.
4. All herbicides must be handled in well resulting vapors may be poisonous to hu-
ventilated areas to minimize inhalation of mans, and they may damage nearby plants,
toxic vapors. crops or shrubbery; also, herbicides or defo-
5. Shower and washing facilities must be liants containing chlorates may be a serious
near herbicides mixing areas. fire hazard when heated.
6. Any contamination of the skin, particu- 12. Glass herbicide containers should be
larly with liquid concentrations or solutions, disposed of by breaking. Chop holes in top,
must be immediately washed off with deter- bottom, and sides of metal containers or
gent and water. crush them so they cannot collect water or
7. Protective clothing is used in conjunc- be reused. After breaking or puncturing
tion with respiratory protective devices to them, bury the containers at least 18 inches
prevent skin contact and inhalation of herbi- deep in an isolated area provided for this
cides. Recommended articles of protective purpose, away from water supplies or high
clothing are rubber aprons, coveralls, chem- water tables. Records to locate such buried
ical splash goggles, safety shoes and hard herbicides within the landfill site should be
hats. A lightweight water and chemical re- maintained. Post warning signs.
sistant throw away type protective clothing 13. Safety programs developed for the safe
that is impervious to herbicides is now avail- handling and mixing of toxic chemicals
able. In warm geographical areas this type of should be coordinated with the Safety Office
lightweight protective clothing would be prior to implementation.
beneficial in reducing physical stress to ap-
plicators. Additional protection is afforded PART 274—PEST CONTROL PRO-
by protective skin cream.
8. Clothing contaminated by spillage must GRAM FOR CIVIL WORKS
be removed immediately and thoroughly PROJECTS
laundered before wearing. Special care is re-
quired to prevent contamination of the in- PROJECT OPERATION
side of gloves.
9. Approved respirators must be worn while Sec.
herbicides are being mixed, and when dusts 274.1 Purpose.
or liquids are being handled or sprayed. Care 274.2 Applicability.
should be exercised when selecting the res- 274.3 References.
pirator type to insure that it is designated 274.4 Pesticide management.
specifically for the substance to be used. 274.5 Certification.
Each canister must be labeled and approved 274.6 Division/district pest control pro-
by the Bureau of Mines or HEW (NIOSH). grams.
Filters or canisters must be changed after 8 274.7 Authorization of pesticide use.
hours use and more often if odor of the herbi- APPENDIX A TO PART 274—PREVENTIVE SAFE-
cide is detected. (Always have extra car- TY MEASURES IN HANDLING OF PESTICIDES
tridges available when needed.)
10. Herbicide storage, mixing and formula- AUTHORITY: Pub. L. 92–516, Federal Insecti-
tion facilities. cide, Fungicide and Rodenticide Act of 1972

a. All herbicides must be stored in a dry, (86 Stat. 973, 21 Oct 72, 40 CFR part 171, Fed-
well ventilated, separate room, building or eral Certification of Pesticide Applicators.
355
§ 274.1 33 CFR Ch. II (7–1–20 Edition)
SOURCE: 42 FR 41118, Aug. 15, 1977, unless scriptions whether they constitute a
otherwise noted. major duty or not. Such job descrip-
tions will also note the employees re-
PROJECT OPERATION sponsibility for using personal protec-
§ 274.1 Purpose. tive equipment and clothing provided
and for following established health
The purpose of this regulation is to and safety practices and procedures.
assign responsibilities and prescribe Standard Form 78 medical examination
procedures concerning the use of will be augmented by the specific diag-
chemicals in the Corps pest control nostic tests for the occupations identi-
program at all civil works projects. It fied in § 274.4(c). Prescribed
also presents guidance for the prepara- preplacement medical examinations
tion and submission of an annual pest will be provided as part of the per-
control summary report. sonnel action process before anyone is
permitted to perform pesticide duties.
(c) Medical surveillance.
This regulation is applicable to all Preplacement, periodic and
OCE elements and all field operating pretermination medical examinations
agencies having Civil Works respon- of the type and extent set forth in Sec-
sibilities. tion III, U.S. Army Environmental Hy-
giene Agency (USAEHA) ‘‘Guide for the
§ 274.3 References. Medical Surveillance of Pest Control-
(a) Pub. L. 92–516, Federal Insecti- lers’’ will be provided for personnel in-
cide, Fungicide and Rodenticide Act of volved in pesticide operations. Addi-
1972 (86 Stat. 973), 21 October 1972. tional information is contained in
(b) Pub. L. 91–596, Occupational Safe- USAEHA ‘‘Medical Surveillance Guide
ty and Health Act of 1970 (84 Stat. 1609, (Guide for Job-Related Examina-
29 U.S.C. 668) 29 December 1970. tions).’’ Appropriate medical records
(c) Medical Surveillance Guide, U.S. will be maintained in official personal
Army Environmental Hygiene Agency, folders.
January 1975. (d) Personnel training. All personnel
(d) Guide for the Medical Surveil- directly involved in pest control must
lance of Pest Controllers, U.S. Army be properly trained in the safe applica-
Environmental Hygiene Agency, March tion of herbicides, insecticides,
1976, as amended. rodenticides, fumigants and fungicides.
(e) Pesticide Applicator Training The current plan for training and cer-
Manual, Cornell University, Ithaca, tification of pest control personnel re-
New York, September 1974. quires that all pest control applicators
(f) Plan for Certification of Pesticide and/or supervisors satisfactorily com-
Applicators, DOD, June 1976. plete (1) the correspondence course,
‘‘Basic Pest Control Technology’’
§ 274.4 Pesticide management. NTTC 150, available from NAVFAC
(a) Administration. The Division Engi- Technical Training Command, Norfolk,
neer is responsible for implementation Virginia 23511 and a three day (20 hr)
of the program, and providing for the conference training course conducted
training of pest control personnel, safe by the Army Health Services Command
use of highly toxic materials and the (AHSC) at Fort Sam Houston, Texas
proper application of restricted-use 78234, for Civil Works personnel, or a
pesticides. District programs will be three day (20 hr) special training
reviewed by the Division Engineer for course conducted by the Division Engi-
the selection of suitable pest control neer, to include information presented
agents, up-to-date and economical in the ‘‘Pesticide Applicator Training
methods of control, and the proper use Manual’’, § 274.3(e) or (2) a B.S. degree
and maintenance of pest control equip- in agronomy, entomology, forestry or
ment. Field Operating Agencies (FOA) horticulture from an accredited college
will designate a single point of contact or university.
for pesticide matters. (e) Restricted-use pesticide training.
(b) Personnel actions. Pesticide duties For agency certification § 274.3(f) Civil
will be identified in applicable job de- Works supervisors and applicators
356
using the higher toxicity Restricted- dertaken pursuant to a single GAP.

Use pesticides are required to complete The Department of Defense has devel-
Resticted-Use Pesticide training as oped an Agency Plan for certification
given at Navy facilities at Jackson- of its pesticide applicators which has
ville, Florida, or Alameda, California, been approved in principle and concept.
Wichita Falls Air Base, or the Army It has been determined that the DOD
Health Services Command, Fort Sam Agency Plan satisfies the training re-
Houston, Texas. College and university quirements for certification of Civil
programs which are acceptable for Works personnel. Pending final ap-
State certification of restricted-use proval of the DOD Agency Plan, all
pesticide applicators may be used in Corps of Engineers pesticide applica-
lieu of the above. tors will be certified in accordance
(f) Coordination with EPA. The Envi- with the criteria described in this regu-
ronmental Protection Agency is ex- lation by issue of a certificate of train-
pected to publish regulations listing ing and competency (DA Form 87, 1 Sep
pesticides classified for restricted-use 54), signed by the Training Officer and
by October 1977. The Division Engineer the Division Engineer.
will be responsible for close coordina-
tion with EPA Regional Offices in § 274.6 Division/district pest control
order to comply with the regulatory re- programs.
quirements for restricted-use pes- (a) Guides. Referenced technical
ticides. manuals, and Engineer Circulars issued
(g) Exposure to and protection from pes- from time to time, will be used as
ticide hazards. Basic health and safety guides in selecting the type of chemi-
practices and procedures including per- cals and the method of application in
sonal protective equipment and cloth- the control of vegetation and pests at
ing, work area layouts, storage and ap- civil works projects.
plication considerations are identified (b) Responsibilities and reports (RCS
in Appendix A of this regulation. Addi- DAEN-CWO–48). Districts will prepare
tional guidance is contained in Section and submit to the Divisions detailed
II and Appendix A of the USAEHA descriptions or their anticipated use of
‘‘Guide for Medical Surveillance of pesticides for review and approval by
Pest Controllers.’’ the appropriate Division.
(h) Contracting for pest control services.
All contracts for pest control services § 274.7 Authorization of pesticide use.
must receive Technical review and ap- (a) Programs approved in § 274.6(b)
proval from professional pest control must be those as described on the pes-
management personnel prior to adver- ticide label. Pesticide uses which are
tisement of the contract and procure- different from the registered use, re-
ment of services. The contractor will quire amendment of the label, ap-
be required to submit proof that his su- proved by the Environmental Protec-
pervisory personnel to be employed on tion Agency. Data requirements for
the contract are certified in the spe- this use must be supplied before an
cific categories for operations being amendment will be made by the Agen-
conducted in accordance with an ap- cy. Substantial time and effort are re-
proved state plan in effect in the area quired for such action.
concerned. (b) If an unexpected outbreak of a
pest requires control measures which
§ 274.5 Certification. are not according to the registered use,
Under the provisions of Section 4, such control effort is viewed as an
Pub. L. 92–516, the Environmental Pro- emergency measure and may be under-
tection Agency is responsible for Fed- taken at the discretion of the Division
eral certification of pesticide applica- Engineer. An emergency will be
tors through its development of a sin- deemed to exist when:
gle Government Agency Plan (GAP). (1) A pest outbreak has or is about to
By letter dated December 30, 1976, the occur and no pesticide registered for
Administrator of the Environmental the particular use, or alternative meth-
Protection Agency has stated that Fed- od of control, is available to eradicate

eral certification will no longer be un- or control the pest.
357
(2) Significant economic or health has been prepared by an agency, in ac-

problems will occur without the use of cordance with that agency’s regula-
the pesticide. tions implementing the National Envi-
(3) The time available from discovery ronmental Policy Act of 1969, and is
or prediction of the pest outbreak is in- relevant to the above, it shall be sub-
sufficient for a pesticide to be reg- mitted with the application.
istered for the particular use. In deter- (viii) Such exemptions, if granted,
mining whether an emergency condi- are valid only for the specific situation
tion exists, the Administrator will also involved and are subject to such re-
give consideration to such additional strictions as the Administrator may
facts requiring the use of Section 18 prescribe in granting the exemption.
§ 274.3(a) as are presented by the appli- Such restrictions may include, among
cant. others, limitations on the quantity of
(c) Emergency operations should be the pesticide to be used, the conditions
documented by a request for a specific under which the pesticide may be ap-
exemption, prepared by the District plied, restrictions as to the person who
and forwarded through channels to may apply the pesticide and the type of
HQDA (DAEN-CWO-R) WASH DC 20314 monitoring activities which should be
for transmittal to EPA. conducted. Within one year of the
(1) Each specific exemption must be granting of the exemption, a summary
requested in writing, by the head of the report on what action was taken to
Federal agency or the Governor of the meet the emergency and on the out-
State involved, or other official des- come of such action, must be forwarded
ignee, addressed to the Administator, to HQDA (DAEN-CWO-R) WASH DC
setting forth the following informa- 20314, for forwarding to EPA.
tion: (2) [Reserved]
(i) The nature, scope and frequency of
the emergency. APPENDIX A TO PART 274—PREVENTIVE
(ii) A description of the pest known SAFETY MEASURES IN HANDLING OF
to occur, the places or times it may be PESTICIDES
likely to occur and the estimated time
when treatment must be commenced to 1. Follow the label on each container be-
be effective. fore using the contents. The manufacturers
are required by law to list recommendations
(iii) Whether a pesticide registered
and precautions.
for the particular use, or other method
2. Weather conditions are important.
of eradicating or controlling the pest, Winds could carry toxic sprays and dusts to
is available to meet the emergency, areas not under your control, causing acci-
and the basis for such determination. dental poisoning to the public or domestic
(iv) A listing of the pesticide or pes- animals.
ticides the agency proposes to use in 3. Smoking is not permitted while pes-
the event of an outbreak. ticides are being handled.
(v) Description of the nature of the 4. All pesticides must be handled in well-
program for eradication or control. vetilated areas to minimize inhalation of
Such description should include: toxic vapors.
5. Shower and washing facilities must be
(A) Quantity of the pesticide ex-
near pesticide mixing areas.
pected to be applied;
6. Any contamination of skin, particularly
(B) Specific Area or place of applica- with liquid concentrations or solutions,
tion; must be immediately washed off with deter-
(C) Method of application; gent and water.
(D) Duration of application; 7. Protective clothing is used in conjunc-
(E) Qualifications of personnel in- tion with respiratory protective devised to
volved in such application. prevent skin contact and inhalation of pes-
(vi) Statement of economic benefits ticides. Recommended articles of protective
and losses anticipated with and with- clothing are rubber aprons, coveralls, chem-
ical splash goggles, safety shoes, and hard
out the exemption and under reason-
hats. A lightweight water and chemical re-
able alternatives. sistant throw away type protective clothing
(vii) Analysis of possible adverse ef-
that is impervious to herbicides is now avail-

fects on man and the environment. If able. In warm geographical areas this type of
an Environmental Impact Statement lightweight protective clothing would be
358
beneficial in reducing physical stress to ap- should be coordinated with the Safety Office
plicators. Additional protection is afforded prior to implementation.
by protective skin cream.
8. Clothing contaminated by spillage must
be removed immediately and thoroughly PART 276—WATER RESOURCES
laundered before wearing. Special care is re- POLICIES AND AUTHORITIES: AP-
quired to prevent contamination of the in- PLICATION OF SECTION 134a OF
side of gloves. PUBLIC LAW 94–587
9. Approved respirators must be worn while
pesticides are being mixed, and when dusts
or liquids are being handled or sprayed. Care Sec.
should be exercised when selecting the res- 276.1 Purpose.
pirator type to insure that it is designated 276.2 Applicability.
specifically for the substance to be used. 276.3 [Reserved]
Each respirator must be labeled and ap- 276.4 Legislative provisions.
proved by the U.S. Department of Agri- 276.5 Legislative history.
culture or NIOSH. Filters or canisters must 276.6 General policy.
be changed after 8 hours use and more often 276.7 Procedures.
if odor of the pesticide is detected. (Always 276.8 Cessation.
have extra cartridges available when need-
ed). AUTHORITY: Sec. 134a, Pub. L. 94–587, 90
10. Pesticide storage, mixing, and formula- Stat. 2928.
tion facilities:
(a) All pesticides must be stored in a dry, SOURCE: 42 FR 9175, Feb. 15, 1977, unless
well ventilated, separate room, building, or otherwise noted.
covered area not accessible to unauthorized
personnel or the public and placed under § 276.1 Purpose.
lock and key. This establishes policy guidelines and
(b) Identification signs should be placed on procedures for Corps of Engineers ap-
rooms, buildings, and fences to advise of the
contents and warn of their hazardous nature.
plication of the provisions of section
(c) Where applicable, the outside of each 134a of Pub. L. 94–587.
storage area should be labeled with ‘‘Dan-
ger,’’ ‘‘Poison,’’ and ‘‘Pesticide Storage’’ § 276.2 Applicability.
signs. Policies and procedures contained
(d) Fire extinguishers must be installed
herein apply to all elements and field
near the door of materiel storage rooms. Di-
luted oil based pesticides are flammable and operating agencies of the Corps of En-
must be stored separate from other mate- gineers having Civil Works responsibil-
rials. ities.
(e) All pesticide storage, mixing, and for-
mulation areas must have adequate ventila- § 276.3 [Reserved]
tion in order to reduce inhalation of toxic
vapors. Sparkproof lighting fixtures should § 276.4 Legislative provisions.
be installed in closed storage areas to elimi-
nate ignition hazards.
Section 134a authorizes and directs
11. Empty pesticide containers must be dis- institution of a procedure for certifi-
posed of properly. Do not burn them. When cation, at the request of local inter-
herbicides or defoliants volatilize the result- ests, that particular improvements for
ing vapors may be poisonous to humans, and flood control to be locally constructed
they may damage nearby plants, crops, or can reasonably be expected to be com-
shrubbery; also, pesticides or defoliants con- patible with a specific, potential Fed-
taining chlorates may be a serious fire haz-
eral project under study. Local inter-
ard when heated.
12. Glass pesticide containers should be dis- ests may proceed to construct such cer-
posed of by breaking. Chop holes in top, bot- tified compatible improvements at
tom, and sides of metal containers or crush local expense with the understanding
them so they cannot collect water or be re- that such improvements can be ex-
used. After breaking or puncturing them, pected to be included in the scope of
bury the containers at least 18 inches deep in the Federal project, if later authorized,
an isolated area provided for this purpose, both for the purposes of analyzing the
away from water supplies or high water ta-
costs and benefits of the project and as-
bles. Records to locate such buried pesticides
within the landfill site should be maintained. sessing the local participation in the
costs of such project. This legislative
Post warning signs.

13. Safety programs developed for the safe authority ceases to be in effect after
handling and mixing of toxic chemicals December 31, 1977.
359
§ 276.5 33 CFR Ch. II (7–1–20 Edition)
§ 276.5 Legislative history. be in response to a specific request

Discussion of this legislation is con- from a State, city, municipality or
tained in the reports by the Senate public agency that is the prospective
Committee on Public Works and the local sponsoring agency for the con-
House Committee on Public Works and templated Federal plan under study.
Transportation which accompanied S. (b) Work eligible for certification
3823, the Water Resources Development shall be limited to that part of the
Act of 1976 (Pub. L. 94–587). These re- local improvement directly related to a
ports make clear that Congress in- flood control purpose.
tended to encourage local communities (c) Only local work commenced after
to assume responsibility and accelerate certification shall be eligible for cer-
local cooperation in reducing urban tification except for local engineering
flooding dangers without committing work noted below in § 276.6(e). The
the United States to any future Fed- work proposed for certification must
eral expenditure. The Senate Com- meet the following requirements: The
mittee report noted that some commu- work will be separately useful even if
nities might be reluctant to undertake the Federal Government does not au-
compatible local flood control meas- thorize and construct the contemplated
ures for fear that the local work would project; the work to be accomplished
jeopardize the potentially favorable by the non-Federal entity will not cre-
cost-benefit ratio of a prospective Fed- ate a potential hazard; certification of
eral project. The Act authorizes estab- the proposal will be in the general pub-
lishing a procedure for certification of lic interest.
certain local improvements under- (d) Costs assigned to that part of the
taken for the purpose of flood control. local improvement that would con-
Cost assignable to that part of the stitute an integral part of the prospec-
local improvement that would con- tive recommended Federal plan can be
stitute an integral part of a prospec- included for credit toward required
tive Federal plan would be eligible to local cooperation. The amount cred-
be recommended for credit toward re- itable shall equal the expenditures
quired local cooperation. The Senate made by the non-Federal entity for
Committee report specifically stated work that would have been accom-
that: plished at Federal expense if the entire
project were carried out by the Corps
* * * This flexibility should in no way be
interpreted as a Federal assurance of late ap- of Engineers. However, credit will not
proval of any project. While it is in no way exceed the amount the District Engi-
a Federal commitment, this provision neer considers a reasonable estimate of
assures the city that the work it undertakes, the reduction in Federal expenditures
once certified, will not be removed from the resulting from the local work. Costs of
cost-benefit analysis. and it assures the city subsequent maintenance will not be
that such local work will be credited toward credited. In the event that the local
the local costs of cooperation, should the
construction work is financed by a
project be later authorized. This will not,
however, qualify the community for any Federal non-reimbursable grant or
cash refunds. If the local costs on such cer- Federal funds from other Federal
tified work exceed the local share, when sources, the amount creditable against
later computed, the local government must future local cooperation requirements
assume that extra cost. * * * shall be reduced by a commensurate
amount. However, there will be no cor-
§ 276.6 General policy. responding reduction in the benefits
(a) This provision will be applied credited for the local improvement.
only at locations where a congression- (e) Local interests are responsible for
ally authorized study is underway or developing all necessary engineering
where the study report has been for- plans and specifications for the work
warded for Executive Branch review or they propose to undertake. However,
for consideration by Congress. If a those non-Federal engineering costs
study is underway, the District Engi- and overhead costs directly attrib-
neer must have held the final public utable to the creditable part of local
meeting and filed a draft EIS with CEQ work may be included in the amount
prior to certification. Certification will credited.
360
§ 276.7 Procedures. eral project, the means of determining

(a) Non-Federal entities desiring cer- the part eligible for reimbursement
tification credit under the provisions of shall be fully defined.
section 134a of Pub. L. 94–587 should (4) Certification shall expire 3 years
confer with the District Engineer and after the date of certification if the
submit a written application to him. non-Federal entity has not commenced
The application will include full de- the work contemplated by the certifi-
scription of planned work, plans, cation.
sketches, and similar engineering data (d) The non-Federal entity will notify
and information sufficient to permit the District Engineer when work com-
analysis of the local proposal. mences. The District Engineer will
(b) The District Engineer shall re- conduct periodic and final inspections.
view the engineering adequacy of the Upon completion of local work, local
local proposal and its relation to the interests shall provide the District En-
possible selected Federal Plan and de- gineer details of the work accom-
termine what part of the proposed local plished and the actual costs directly
improvement would be eligible for cer- associated therewith. The District En-
tification. Prior to certification, the gineer shall audit claimed costs to a
District Engineer will obtain the con- certain and confirm those costs prop-
currence—through the Division Engi- erly creditable and shall inform the
neer and the Chief of Engineers—of the non-Federal entity of the audit results.
Assistant Secretary of the Army (Civil (e) During further Corps studies, the
Works) by forwarding a copy of the local work actually accomplished that
draft survey report and providing infor- would constitute a legitimate part of
mation on: the overall recommended Federal
(1) Coordination with local interests project may be incorporated within
including results of public meetings any plan later recommended for au-
and circulation of the draft EIS. thorization. It shall be permissible to
(2) Basis for concluding the local plan include the accepted costs of such cer-
is appropriate in relation to the pro- tified local improvement and the flood
spective Federal plan. control benefits properly attributable
(3) Total estimated cost of creditable thereto in the benefit-cost computa-
work. tions for the recommended plan.
(4) The urgency for proceeding with (f) If the Corps report recommends
the local plan. Federal authorization of a plan that in-
(c) The District Engineer shall reply corporates credit for local work cer-
by letter stating to the local applicant tified under section 134a, the report
what local work and costs can reason- shall include a specific recommenda-
ably be expected to be creditable under tion to cover this credit and shall pro-
the provisions of section 134a. This let- vide full identification and description
ter shall be the certification con- of the local work for which such credit
templated under section 134a. The cer- is recommended.
tification shall include the following (g) The District Engineer shall sub-
conditions: mit a copy of his certification letter
(1) Issuance of certification shall not and notification of creditable costs of
be interpreted as a Federal assurance completed work to the Assistant Sec-
regarding later approval of any project retary of the Army (Civil Works)
nor shall it commit the United States through the Division Engineer and the
to any type of reimbursement if a Fed- Chief of Engineers.
eral project is not undertaken. (h) All justification sheets supporting
(2) Issuance of the certification does new start recommendations for Ad-
not eliminate the need for compliance vance Engineering and Design or Con-
with other Federal, State, and local re- struction projects will include informa-
quirements, including any require- tion on certification activities in the
ments for permits, Environmental Im- paragraph on local cooperation. The in-
pact Statements, etc. formation should include but not be
(3) If the improvement proposed by limited to date of certification, work
the non-Federal entity includes work completion, description and cost of

that will not become a part of the Fed- credit work.
361
§ 276.8 33 CFR Ch. II (7–1–20 Edition)
§ 276.8 Cessation. § 277.3 References.

The legislation specifies that this au- (a) Section 6, Pub. L. 647, 67th Con-
thority shall cease to be in effect after gress, 21 June 1940, as amended (33
December 31, 1977. No requests for cer- U.S.C. 516). (Appendix A).
tification will be processed after that (b) Section 6, Pub. L. 89–670, Depart-
date. To be eligible for credit, pro- ment of Transportation Act, 15 October
posals for local work must have been 1966 (49 U.S.C. 1655).
certified by the District Engineer no (c) Coast Guard reference: COMDT
later than December 31, 1977. There is (G-OPT-3), Exemplification-Principles
no requirement that the local improve-
of Apportionment of Cost for Alter-
ment be initiated or accomplished by
ation of Obstructive Bridges under the
that date.
Provisions of Act of Congress June 21,
1940 (as amended); File No. 16592.
PART 277—WATER RESOURCES (d) ER 1105–2–100.
POLICIES AND AUTHORITIES: (e) EP 1165–2–2 Appendix C.
NAVIGATION POLICY: COST AP-
PORTIONMENT OF BRIDGE ALTER- [44 FR 31129, May 30, 1979, as amended at 69
FR 54216, Sept. 8, 2004]
ATIONS
§ 277.4 Definitions.
Sec.
277.1 Purpose. The following definitions are applica-
277.2 Applicability. ble to this regulation:
277.3 References. (a) Bridge. The term bridge means a
277.4 Definitions.
lawful bridge over navigable waters of
277.5 General.
277.6 Basic policies. the United States, including ap-
277.7 Coordination with the U.S. Coast proaches, fenders, and appurtenances
Guard. thereto, which is used and operated for
277.8 Procedures for apportionment of costs. the purpose of carrying railroad traffic,
APPENDIX A TO PART 277—SEC. 6, PUB. L. 647, or both railroad and highway traffic, or
AS AMENDED (33 U.S.C. 516) if a State, county, municipality, or
APPENDIX B TO PART 277—HYPOTHETICAL EX- other political subdivision is the owner
AMPLE OF COST APPORTIONMENT
or joint owner thereof, which is used
AUTHORITY: Sec. 2, River and Harbor Act of and operated for the purpose of car-
1920, 41 Stat. 1009, June 5, 1920; 33 U.S.C. 547. rying highway traffic.
SOURCE: 44 FR 31129, May 30, 1979, unless (b) Bridge owner. Bridge owner means
otherwise noted. any State, county, municipality, or
other political subdivision, or any cor-
§ 277.1 Purpose. poration, association, partnership, or
This regulation provides policies and individual owning, or jointly owning,
guidelines for the apportionment of any bridge, and, when any bridge shall
bridge alteration costs required in con- be in the possession or under the con-
nection with navigation improvements trol of any trustee, receiver, trustee in
recommended in reports transmitted to bankruptcy, or lessee, such term shall
the Chief of Engineers for approval or include both the owner of the legal
submitted to Congress for authoriza- title and the person or the entity in
tion. possession or control of such bridge.
(c) Navigable waters. Navigable waters
of the United States means those
This regulation applies to all waterbodies, except the territorial
HQUSACE elements and all USACE seas, which are subject to the ebb and
Commands having Civil Works respon- flow of the tide, or are presently, or
sibilities. For bridges altered under have been in the past, or may be in the
U.S. Coast Guard authority pursuant future susceptible for use for purposes
to the Truman-Hobbs Act (33 U.S.C. of interstate or foreign commerce.
511–524), the U.S. Coast Guard regula- (d) Alteration. The term alteration in-
tions codified at 33 CFR part 116 apply. cludes changes of any kind, reconstruc-
[69 FR 54216, Sept. 8, 2004] tion, or removal in whole or in part.
362
§ 277.5 General. reasons other than that required by the

Pub. L. 647 as amended, (33 U.S.C. navigation improvement project, the
511–523) commonly referred to as the reporting officer may recommend such
‘‘Truman-Hobbs Act’’ provides for the improvements if such local interests
alteration of railroad and highway provide necessary assurances to pay
bridges when found unreasonably ob- the costs apportioned to them.
structive to navigation. Section 6 of (e) In the case of small boat harbors
that Act establishes policies for the ap- and channels, the costs of bridge alter-
portionment of such bridge alteration ations, strictly for recreation naviga-
costs. Public Law 89–670, transferred to tion shall be apportioned in accordance
the Secretary of Transportation from with the procedures provided in this
the Secretary of the Army the respon- regulation. Bridge alteration costs as-
sibility for administration of the Act. sociated with small boat harbors and
Pursuant to this responsibility, the channels and not apportioned to the
Secretary of Transportation has estab- bridge owner by the procedures in this
lished implementing procedures based regulation, shall be cost shared on the
on those previously adopted and uti- basis of 50 percent Federal and 50 per-
lized by the Chief of Engineers prior to cent non-Federal, the same as the costs
15 October 1966. This regulation adapts of other general navigation facilities.
these cost apportionment procedures, (f) Reporting officers shall obtain let-
found in reference § 277.3(c), to Corps of ters of intent from local interests for
Engineers planning. non-Federal costs apportioned under
§ 277.6 Basic policies. the provisions of this regulation, in ac-
cordance with established procedures
(a) The cost apportionment principles for preauthorization feasibility studies.
of 33 U.S.C. 516 are applicable to the If such letters cannot be obtained from
costs of bridge alterations rec- the bridge owner, the reporting officers
ommended by reporting officers in the shall then include in their report a
interest of navigation during statement that the cost of such alter-
preauthorization planning, including ations shall be borne by the bridge
studies conducted under the Con- owner or, in the alternative, be appor-
tinuing Authorities Program.
tioned between the bridge owner and
(b) The bridge owner shall bear such
the Government as provided under the
part of the cost as is attributable to
principles of Section 6 of the Truman-
the direct and special benefits which
Hobbs Act (33 USC 516).
will accrue to the bridge owner as a re-
sult of the alteration, including the ex- [44 FR 31129, May 30, 1979, as amended at 69
pectable savings in repair or mainte- FR 54216, Sept. 8, 2004]
nance costs. That part of the cost at-
tributable to the requirements of rail- § 277.7 Coordination with the U.S.
road or highway traffic shall also be Coast Guard.
borne by the bridge owner, to include In accordance with an agreement
any expenditure for increased carrying signed by the Chief of Engineers on 18
capacity of the bridge, and such pro- April 1973 (EP 1165–2–2), reporting offi-
portion of the actual capital cost of the cers shall consult with the Coast Guard
old bridge as the used service life bears on contemplated and recommended
to the total estimated service life. navigation improvements which in-
(c) In general, the Federal govern- volve the consideration of bridge alter-
ment’s participation in the cost of a ations. Determination of navigational
bridge alteration shall be limited to requirements for horizontal and
providing a functional facility equal in vertical clearances of bridges across
every respect, as near as possible, to navigable waters is a responsibility of
the existing facility, while also pro- the Coast Guard. The Chief of Engi-
viding navigational clearances required neers shall coordinate preauthorization
to meet the anticipated and reasonable feasibility reports, which include rec-
needs of navigation. ommended bridge alterations, with the
(d) If the bridge owner or other local
Commandant, U.S. Coast Guard.

interests desire improvements or modi-
fications in the new bridge design for [69 FR 54216, Sept. 8, 2004]
363
§ 277.8 33 CFR Ch. II (7–1–20 Edition)
§ 277.8 Procedures for apportionment might benefit from some reasonable

of costs. modification beyond the needs of navi-
This paragraph provides the proce- gation and the needs and desires of the
dures for apportionment of costs of bridge owner, that party would be re-
bridge alterations, as established by sponsible for the incremental costs of
the U.S. Coast Guard (reference such further modification, and such
§ 277.3(c)) and adapted for use in Corps costs would not enter into the appor-
planning and construction programs. A tionment between the bridge owner and
sample apportionment of the cost of a the Federal Government.
hypothetical bridge alteration is pro- (4) Betterments. Items desired by the
vided in appendix B. bridge owner, but which have no coun-
(a) Calculate the total estimated cost of terpart in the old bridge or are of high-
bridge alteration. The total estimated er quality than similar items in the old
cost, to be apportioned by these proce- bridge, will be included under this
dures, includes the cost of all necessary heading. Items considered to fall with-
appurtenances required to complete in this category are listed below. It is
the alteration for use by both highway intended this list serve as a guide to in-
and railway traffic, including engineer- dicate the types of items that may be
ing, design and inspection. considered betterments. The cost of
(b) Determine the salvage value of such items will be borne by the bridge
bridge to be altered. The salvage value owner.
represents the worth of the materials (i) Access roads.
in the old bridge which may be used for (ii) Concrete or stone finish of em-
scrap or for other purposes. The value bankment slopes instead of seeding.
will vary depending on the intended
(iii) Water proofing and skid-resist-
use of the materials.
ant epoxy finish of masonry surfaces.
(c) Determine direct and special bene-
fits—(1) Removing old bridge. The bridge (iv) Steel or concrete spans instead of
owner shall pay a share of the removal timber trestle.
cost computed as that part of the re- (v) Ballasted deck instead of open
moval cost that the used service life deck.
bears to the total estimated service (vi) Trainman’s walkways and side-
life. The share of the bridge owner, walks.
thus computed, represents an obliga- (vii) Elevators costing more than
tion incurred by the owner now by rea- stairways.
son of the needs of navigation which (viii) Materials of greater thickness
otherwise would not have to be met or heavier weight than supported by
until the bridge had reached the end of design requirements.
its useful life. Accordingly, the present (ix) Exotic materials for machinery
worth of the amount is computed de- and operator’s house, including tinted
ferred over the unexpired life. The dis- and insulated windows.
count rate to be used in the present (x) Heaters and insulation in the ma-
worth computation is that established chinery house.
by the Water Resources Council, cur- (xi) Operator’s house furnishings, air-
rent at the time of the study. conditioners, water coolers, and medi-
(2) Fixed charges. A fixed charge such cine cabinets.
as engineering, design, and inspection
(xii) Hydraulic jacks for counter-
costs, realtor and counsel fees, and the
weight support.
bridge owner’s administrative expenses
is an undistributed cost, shared in the (xiii) Fourth coat of paint, and exotic
ratio that each party shares in the cost paint systems.
of construction less fixed charges. In (xiv) Brass pipe and high alloy steel
computing the bridge owner’s share of conduits.
the fixed charges, all other financial li- (xv) Floodlights and metallic vapor
abilities assigned to the bridge owner arc lights.
shall be included in the computation. (xvi) Spare parts.
(3) Contribution. If a third party (xvii) Lubricants and lubrication
should be involved in a bridge alter- equipment, and tools in excess of min-

ation project, such as a party which imum requirements.
364
(d) Determine expectable savings in re- (f) Estimate expenditure for increased
pair or maintenance costs. (1) The provi- carrying capacity. The bridge owner is
sions of any features that would reduce required to pay the difference in cost
annual maintenance costs of the al- between a bridge meeting the naviga-
tered bridge, such as a wider navigation clearance requirements with the
tion span eliminating the requirement same live loading capacity as the old
for protection works, reducing the bridge and new or altered bridge having
overall length of the bridge by fill in any increased live loading capacity de-
lieu of a trestle, or replacing two sired. The cost of increased live loading
bridges with one bridge, will be in- capacity will be based on the estimated
cluded under this heading. The bridge cost of the new or altered bridge with
owner should bear the increased annual unit prices applied to the quantity of
maintenance cost that will accrue as a materials estimated for a hypothetical
result of providing any increased load- bridge with the same live loading as
ing and width desired by the bridge the old bridge, but with the increased
owner or attributable to the require- clearances required by the navigation
ments of railway or highway traffic. improvement. The live loading of the
Since 33 U.S.C. 516 does not mention new or altered bridge should be com-
bridge operating costs, any increase or pared with the live loading of the old
decrease in such costs shall not be in- bridge, based on normal working
cluded in the cost of alteration to be stresses without overstress, overload,
apportioned. The bridge owner’s obliga- or reduction of safety factor.
tion is computed by capitalizing the es- (g) Determine value of expired service
timated annual savings at the same life of old bridge. (1) Section 6 of the Act
rate of interest used in § 277.8(e)(1). provides, among other things, that the
(2) Expectable savings in repair costs bridge owner shall bear such propor-
is that amount which the bridge owner tion of the actual capital cost of the
will not have to pay to restore his old bridge or such part of the old bridge
bridge, which may be in a damaged as may be altered or rebuilt, as the
condition or may be dilapidated, since used service life of the whole or a part
the bridge is being altered or removed bears to the total estimated service life
as a part of the contemplated naviga- of the whole or such part. Guide service
tion improvement. life figures have been obtained from re-
(e) Estimate costs attributable to retirement curves based on mortality
quirements of railway and highway traf- statistics, which represent an attempt
fic. Items desired by the bridge owner to consider economic causes of retire-
to meet the requirements of railway ment in addition to physical causes.
and highway traffic, but which have no (2) For railroad bridges service life,
counterpart in the old bridge, will be figures of 100 years for substructure, 70
included under this heading. Items con- years for superstructure, 37 years for
sidered to fall within this category are treated timber, 35 years for automatic
listed below. This list does not contain signals, 20 years for main rail, 30 years
all such items, but it is intended to for siding rail, and 20 years for cross-
serve as a guide in determining which ties and bridge ties are considered to be
items might fall within this category. reasonable and will be used in com-
(1) Increased navigational clearances puting the bridge owner’s liability. The
for the benefit of land traffic. service life of the operator’s house and
(2) Wider roadbed. machinery house, including machinery,
is considered to expire with the re-
(3) Additional traffic lanes or track.
moval of the superstructure. For tim-
(4) Medians and wider traffic lanes. ber structures which have been in ex-
(5) Increased train clearances and istence for more than 50 percent of
spacing of tracks. their estimated service life, the expired
(6) Larger cross and bridge ties. service life is held usually at 50 percent
(7) New and heavier rail and expan- providing the structure has been ade-
sion joint devices. quately maintained and is in a good
(8) Additional signaling and commu- state of repair.
nications systems. (3) The service life of highway

(9) Additional right-of-way. bridges, except for certain long span
365
bridges, is usually limited by obsoles- the bridge owner proceeds with the alter-
cence as well as structural deficiency ation on a successive partial bid basis the
and deterioration. Obsolescence may be Secretary is authorized to issue an order of
apportionment of cost for the entire alter-
due to insufficent capacity for heavier ation based on the accepted bid for the first
loads and greater volume of traffic part of the alteration and an estimate of cost
than the bridge was originally designed for the remainder of the work. The Secretary
for, safety requirements, and location. is authorized to revise the order of appor-
Superstructures and pile bents are con- tionment of cost, to the extent he deems rea-
sidered to have a service life of 50 sonable and proper to meet any changed con-
years. Masonry substructure which ditions.
could be reused in the renovation of a (June 21, 1940, ch. 409, Section 6, 54 Stat. 499;
bridge is considered to have a service July 16, 1952, ch. 889, Section 2, 66 Stat. 733;
life of 100 years. Aug. 14, 1958, Public Law 85–640, Section 1(c),
(4) The foregoing service life figures 72 Stat. 595.)
are not to be used arbitrarily, but as a
APPENDIX B TO PART 277—HYPO-
basis for a fair judgment of the service
THETICAL EXAMPLE OF COST APPOR-
life considering all other factors that
TIONMENT
pertain in any particular case.
Following is the interpretation of the prin-
APPENDIX A TO PART 277—SEC. 6, PUB. ciples as applied to the alteration of a hypo-
L. 647, AS AMENDED (33 U.S.C. 516) thetical highway—railroad bridge across
Blank River between City A and City B.
At the time the Secretary* shall authorize
the bridge owner to proceed with the project, Ref-
as provided in Section 515 of this title, and erence
table
after an opportunity to the bridge owner to
be heard thereon, the Secretary shall deter- 1. Total estimated cost of alter- $10,917,300 A
mine and issue an order specifying the pro- ation project.
portionate shares of the total cost of the The existing double deck swing span will
project to be borne by the United States and be replaced with a new double deck lift span
by the bridge owner. Such apportionment affording a horizontal navigation opening of
shall be made on the following basis: The 250 feet clear width between piers normal to
bridge owner shall bear such part of the cost the navigation channel and a vertical clear-
as is attributable to the direct and special ance of 125 feet above mean high water in the
benefits which will accrue to the bridge raised position.
owner as a result of the alteration, including 2. Salvage ..................................... $77,300
the expectable savings in repair or mainte-
nance costs; and that part of the cost attrib- This value is deducted from the original
utable to the requirements of traffic by rail- cost to determine the actual capital cost
road or highway, or both, including any ex- (Table VII). It is also deducted from the
penditure for increased carrying capacity of Total Estimated Cost of Alteration Project
the bridge, and including such proportion of to determine the cost to be apportioned.
the actual capital cost of the old bridge or of 3. Direct and special benefits:
such part of the old bridge as may be altered a. Removing old bridge (own- $165,489 I
or changed or rebuilt, as the used service life er’s share).
b. Fixed charges (owner’s 284,460 II
of the whole or a part, as the case may be, share).
bears to the total estimated service life of
the whole or such part. Provided, that in the A fixed charge such as engineering, design
event the alteration or relocation of any and inspection costs, realtor’s and counsel’s
bridge may be desirable for the reason that fees, and bridge owner’s administrative ex-
the bridge unreasonably obstructs naviga- penses is an undistributed cost shared in the
tion, but also for some other reason, the Sec- ratio that each party shares the cost of con-
retary may require equitable contribution struction less fixed charges. In computing
from any interested person, firm, associa- the bridge owner’s share of the fixed charges,
tion, corporation, municipality, county, or all other financial liabilities assigned to the
State desiring such alteration or relocation bridge owner shall be included in the com-
for such other reason, as a condition prece- putation. (Table II).
dent to the making of an order for such al- c. Contribution by third party .. $432,000
teration or relocation. The United States Section 6 of the Act provides that in the
shall bear the balance of the costs, including event the alteration or relocation of any
that part attributable to the necessities of bridge may be desirable for the reason that
navigation: and provided further, that where
the bridge unreasonably obstructs naviga-

tion, but also for some other reason, the Sec-
*Secretary of Transportation. retary may require equitable contribution
366
from any interested person, firm, associa- the new bridge will be designed for live load-
tion, corporation, municipality, county, or ing AASHO HS20–44, and the railway deck
State desiring such alteration or relocation will be designed for live loading of Cooper E
for such other reason, as a condition prece- 60. Accordingly, the bridge owner will pay
dent to the making of an order for such al- the additional cost for the increased car-
teration or relocation. In the instant case, rying capacity of the new bridge.
testimony at the hearing developed that the
7. Expired service life of old bridge $511,300 VII
bridge would require alteration because of
the navigation project but also City A de- The structure of the old bridge was com-
sires to relieve traffic on a nearby secondary pleted in 1908 and the superstructure com-
road by providing access to the new bridge. pleted in 1909. For this hypothetical example
It is considered that as an equitable con- it was assumed the bridge would be replaced
tribution, City A should contribute an in 1970.
amount equal to one half of the expectable 8. The following is an explanation of the
road user benefit accruing over the next 10
procedure for determining the tabulation of
years. Other methods for determining the
proportionate shares of costs to be borne by
third party’s contribution are acceptable de-
the United States and the bridge owner pre-
pending on the circumstances.
sented in Table B.
d. Betterments ........................ $18,360 III
4. Expectable savings in repair or ...................... IV (1) Cost of alteration to be apportioned is
maintenance costs. the total estimated cost of the project (ex-
Repair ..................................... $100,000 cluding contingencies) less salvage value
Maintenance ........................... 16,288 (§ 277.8(b)), less contribution by third party,
The new bridge is designed for increased if applicable (§ 277.8c(3)).
loading and width greater than that of the (2) Share to be borne by the bridge owner
old bridge. Therefore, the estimated annual is the sum of the direct and special benefits
maintenance cost was based on a hypo- (§ 277.8(c)) expectable savings in repair or
thetical bridge designed, but not con- maintenane costs (paragraph 8d), costs at-
structed, for the same loading and width as tributable to requirements of railway and
the old bridge but with increased clearances highway traffic (§ 277.8(e)), expenditure for
as required to meet the needs of waterborne increased carrying capacity (§ 277.8(f)) and
navigation, and not on the estimated annual expired service life of old bridge (§ 277.8(g))
maintenance cost of the new bridge. The sav- (3) Share to be borne by the United States
ings in repair costs represents a savings to
is the difference between the cost of alter-
the bridge owner who will not have to re-
ation to be apportioned and the share to be
store the bridge that was recently damaged
borne by the bridge owner.
since it is being altered as a part of a pro-
posed navigation improvement. (4) The exact amount of costs to be borne
5. Costs attributable to require- $1,534,000 V by the bridge owner will be determined upon
ments of railway and highway completion of the project.
traffic. (5) Contingencies may be included in the
The old bridge carries a highway deck on total shares to be borne by both the United
the upper level consisting of a roadway 18 States and the bridge owner.
feet wide (no sidewalks) and a railway deck
on the lower level with 110-lb. rails. The new TABLES
bridge will carry a highway deck on the A. Summary of Estimated Project Costs.
upper level consisting of one 28-foot roadway B. Tabulation of Proportionate Shares of
and two 5-foot sidewalks, and the railway Cost To Be Borne by the United States
deck will have new 130-lb. rails. In addition, and the Bridge Owner.
the railway deck will be paved to carry high-
I. Bridge Owner’s Share of Removing Old
way traffic. Thus, the bridge may be kept in
an intermediate raised position when not Bridge.
being used by railway traffic to pass small- II. Fixed Charges To Be Paid by Bridge
boat traffic without delaying highway traf- Owner.
fic. City A also desires to provide additional III. Betterments.
highway approaches and right-of-way to con- IV. Expectable Savings in Repair or Mainte-
nect a nearby secondary road with the new nance Costs.
bridge. V. Costs Attributable to Requirements of
6. Expenditure for increased car- $2,330,000 VI Railway and Highway Traffic.
rying capacity.
VI. Expenditure for Increased Carrying Ca-
The highway deck of the old bridge was de- pacity.
signed for a live loading equivalent to VII. Value of Expired Service Life of Old
AASHO H15–44 and the railway deck for live Bridge.
loading of Cooper E 45. The highway deck of
367
TABLE A—SUMMARY OF ESTIMATED PROJECT COSTS

Fixed
No. and item Cost Total
charges
1 New bridge ............................................................................................................... $8,104,052 $570,000 $8,674,052

2 Removal of old bridge ............................................................................................. 521,908 500 522,408
3 Approaches .............................................................................................................. 50,000 5,000 55,000
4 Additional highway approaches ............................................................................... 1,530,000 15,000 1,545,000
5 Railroad force account work .................................................................................... 41,800 3,500 45,300
6 Additional signaling .................................................................................................. 27,000 2,400 29,400
7 Right-of-way ............................................................................................................. 13,240 900 14,140
8 Additional right-of-way ............................................................................................. 30,900 1,100 32,000
Total .................................................................................................................... 10,318,900 598,400 10,917,300
Total estimated cost of project ........................................................................... 10,917,300
Less salvage .......................................................................................................... ¥77,300

Less contribution by third party .............................................................................. ¥432,000
Total cost of alteration to be apportioned .......................................................... 10,408,000

Less right-of-way (Items 7 and 8) ................................................................................. ¥46.140
Total Cost of construction .................................................................................. 10,361,860
TABLE B—TABULATION OF PROPORTIONATE SHARES OF COSTS TO BE BORNE BY THE UNITED

STATES AND THE BRIDGE OWNER
Total estimated cost of project (excluding contingencies) (table A) ............................................................................. $10,917,300
Less salvage .......................................................................................................................................................... 77,300
Less contribution by third party .............................................................................................................................. 432,000
Total cost of alteration to be apportioned .......................................................................................................... 10,408,000
Share to be borne by the bridge owner:

Direct and special benefits:
Removing old bridge ............................................................................................................... $165,489
Fixed charges .......................................................................................................................... 284,460
Betterments ............................................................................................................................. 18,360
Expectable savings in repair or maintenance costs:
a. Repair .................................................................................................................................. 100,000
b. Maintenance ........................................................................................................................ 16,288
Costs attributable to requirements of railway and highway traffic ................................................. 1,534,000
Expenditure for increased carrying capacity .................................................................................. 2,330,000
Expired service life of old bridge .................................................................................................... 511,300
Total .................................................................................................................................................................... 4,959,897
Share to be borne by the United States ....................................................................................................................... 5,449,103

Contingencies 15 pct .............................................................................................................................................. 817,365
Total .................................................................................................................................................................... 6,266,468
Share to be borne by the bridge owner ........................................................................................................................ 4,959,897

Contingencies 15 pct .............................................................................................................................................. 743,985
Total .................................................................................................................................................................... 5,703,882

NOTE: The exact amount to be borne by the bridge owner will be determined after completion of the project.
TABLE I—BRIDGE OWNER’S SHARE OF REMOVING OLD BRIDGE

Age at Owner’s Present Owner’s
time of Owner’s Removal share of Years re- worth present li-
Item to be removed removal share per- cost—(3) removal— maining—(5) factor— ability—
(years)— cent—(2) (4) (6) (7)
(1)
Substructure .......................................... 62 62 $241,935 $150,000 38 .1639 $24,585

Protection Works ................................... 37 67 60,000 40,200 18 .4245 17,065
Superstructure ....................................... 61 87 206,896 180,000 9 .6516 117,288
Signaling ................................................ 61 100 440 440 0 1.0 440
Ties and Timber .................................... 20 67 6,000 4,000 10 .6213 2,485
Rail and Accessories:
Rail, 110 lb ..................................... 33 100 1,000 1,000 0 1.0 1,000

Rail, 110 lb ..................................... 13 65 5,637 3,664 .................... .............. 2,626
368
TABLE I—BRIDGE OWNER’S SHARE OF REMOVING OLD BRIDGE—Continued

Age at Owner’s Present Owner’s
time of Owner’s Removal share of Years re- worth present li-
Item to be removed removal share per- cost—(3) removal— maining—(5) factor— ability—
(years)— cent—(2) (4) (6) (7)
(1)
Total ............................................ ............... ................. 521,908 368,104 .................... .............. 165,489

Present Worth Factor based on 47⁄8%, FY 1970, as established by Water Resources Council. The actual factor to be used
shall be that current at the time of alteration.
TABLE II—FIXED CHARGES TO BE PAID BY BRIDGE OWNER

Cost of construction ..................................................................................................................................................... $10,361,860
Less fixed charges ...................................................................................................................................................... 598,400
Total .................................................................................................................................................................. 9,763,460
Owner’s share less fixed charges:

Removing old bridge ............................................................................................................................................ 165,489
Betterments .......................................................................................................................................................... 18,360
Expectable savings in repair or maintenance costs:
a. Repair ....................................................................................................................................................... 100,000
b. Maintenance ............................................................................................................................................. 16,288
Costs attributable to requirements of railway and highway traffic (less right-of-way) ......................................... 1,503,100
Expenditure for increased carrying capacity ........................................................................................................ 2,330,000
Expired service life of old bridge .......................................................................................................................... 511,300
Total .................................................................................................................................................................. 4,644,537
Fixed charges by owner .............................................................................................................................................. 284,460

4,644,537 × 598,400 = 284,460
llllllllll
9,763,460
TABLE III—BETTERMENTS
New furniture and water cooler in control house .......................................................................................................... $1,050
Increased cost of elevators over stairways ................................................................................................................... 13,360
Increased cost of galvanized steel grating walkways over timber walkways ............................................................... 3,950
Total .................................................................................................................................................................... 18,360
TABLE IV—EXPECTABLE SAVINGS IN REPAIR OR MAINTENANCE COSTS

Repair Cost
Cost in 1970 to repair damaged bridge ........................................................................................................................ $100,000
Savings in repair costs .................................................................................................................................................. 100,000
Maintenance Cost
Average annual maintenance cost for old bridge ......................................................................................................... 16,875
Estimated annual maintenance cost for new bridge ..................................................................................................... 16,000
Total decrease in annual maintenance costs ..................................................................................................... 875
Annual savings capitalized (50 years) @ 47⁄8%:875 ÷ 0.05372 ................................................................................... 16,288

Present worth factor based on 47⁄8 pct., F.Y. 1970, as established by Water Resources Council. The actual factor to be used
shall be that current at the time of the study.
TABLE V—COSTS ATTRIBUTABLE TO REQUIREMENTS OF RAILWAY AND HIGHWAY TRAFFIC

Heavier running rail (130 lb in lieu of 110 lb) ............................................................................................................... $11,200
Paving, lower deck ........................................................................................................................................................ 34,900
Additional signaling ........................................................................................................................................................ 27,000
Additional highway approaches ..................................................................................................................................... 1,430,000
Subtotal ............................................................................................................................................................... 1,503,100

Additional right-of-way ................................................................................................................................................... 30,900
Total .................................................................................................................................................................... 1,534,000
TABLE VI—EXPENDITURE FOR INCREASED CARRYING CAPACITY

Cost of new bridge designed for Cooper E 60 and AASHO HS20–44 loading 1 ......................................................... $8,609,592
Cost of replacement-in-kind (hypothetical) bridge designed for Cooper E 45 and AASHO H15–44 loading 1 ............ 6,279,592
369
TABLE VI—EXPENDITURE FOR INCREASED CARRYING CAPACITY—Continued

Total .................................................................................................................................................................... 2,330,000
1 Excludes all items in Table III and first two items in Table V.
TABLE VII—VALUE OF EXPIRED SERVICE LIFE OF OLD BRIDGE

[Replacement year—1970]
Expired service life Value of

Actual Esti-
Year Original Salvage expired
capital mated Percent
Item to be removed built— cost— value— Years service
cost (2)– service of total
(1) (2) (3) 1970– life (4) ×
(3)—(4) life—(5) (6)
(1)—(6) (7)—(8)
(5)—(7)
Substructure:
Pivot Pier ....................................... 1908 $34,500 $0 $34,500 100 62 62 $21,390
Right End Pier ............................... 1908 18,580 0 18,580 100 62 62 11,520
Left End Pier .................................. 1908 21,410 0 21,410 100 62 62 13,274
Right Abutment .............................. 1908 8,600 0 8,600 100 62 62 5,332
Left Abutment ................................ 1908 11,410 0 11,410 100 62 62 7,074
Protection Works:
Pivot Pier ....................................... 1909 5,800 0 5,800 37 61 1 50 2,900
Right End Pier ............................... 1942 3,200 0 3,200 37 28 1 50 1,600
Superstructure:
Swing Span .................................... 1909 168,920 19,400 149,520 70 61 87 130,082
Electrification .................................. 1957 5,000 500 4,500 22 13 59 2,655
Left Approach Spans ..................... 1909 142,017 16,300 125,717 70 61 87 109,374
Right Approach Spans ................... 1909 156,692 19,300 137,392 70 61 87 119,531
Signaling ............................................... 1909 15,000 1,000 14,000 35 61 100 14,000
Ties and Timber ............................. 1909 8,120 0 8,120 20 61 1 50 4,060
Rail and Accessories:
Rail, 110 lb ..................................... 1937 6,600 2,200 4,400 20 33 100 4,400
Rail, 110 lb ..................................... 1957 43,679 18,600 25,079 20 13 65 16,301
Roadway Approaches: 2
Pavement ....................................... 1908 17,841 0 17,841 20 62 1 50 8,921
New Lane ....................................... 1961 43,609 0 43,609 20 9 45 19,624
Subtotal ...................................... .............. .............. 77,300 633,678 .............. .............. .............. 492,038
Engineering ........................................... .............. 24,695 0 24,695 .............. .............. 3 78 19,262
Total ........................................... .............. .............. 77,300 .............. .............. .............. .............. 511.300
1 Heldat 50% if maintained in good condition.
2 Roadway approaches to be abandoned.
3 Weighted average 100 × 492, 038/633, 678 = 78%.
Explanation of Columns for Table VII:

Column (1): Year Built is the original date that an item to be removed became a part of the bridge or the last known date
that it was replaced. The items to be removed should be broken down to show as much detail as possible, particularly where
there is a variation in the year built and/or the estimated service life.
Column (2): Original cost shall be supported by records furnished by bridge owner. Engineering cost should be estimated if
unknown.
Column (3): Salvage—refer to § 277.8(b).
Column (4): Actual capital cost is the original cost of the item to be removed minus the salvage value.
Column (5): Estimated Service Life—refer to § 277.8(g).
Column (6) & (7): Expired Service Life—refer to § 277.8(g).
Column (8): Value of expired service life is the actual capital cost of the item to be removed multiplied by the percent of ex-
pired service life.
PART 279—RESOURCE USE: 279.11 Responsibilities.

ESTABLISHMENT OF OBJECTIVES APPENDIX A TO PART 279—SAMPLE RESOURCE
USE OBJECTIVES
Sec. AUTHORITY: Pub. L. 89–72, Federal Water
279.1 Purpose. Project Recreation Act, 79 Stat. 213 et seq.
279.3 References. SOURCE: 43 FR 14014, April 4, 1978, unless
279.4 Definitions. otherwise noted.
279.5 Policy.
279.6 Overview of objective setting process. § 279.1 Purpose.
279.7 Information collection and prelimi-
nary analysis.
This regulation provides policy and
guidance for establishing resource use
279.8 Synthesis and analysis.

279.9 Objective rationale. objectives for all Civil Works water re-
279.10 Implementation. source projects during Phase I/Phase II
370
post-authorization studies and reevalu- tablished a set of resource use objec-

ation of completed projects. tives. These objectives will be based
upon the expressed preferences of the
§ 279.2 Applicability. residents of the region served (social
This regulation is applicable to all option) and will be in keeping with the
OCE elements and all field operating capabilities of the natural and man-
agencies having Civil Works respon- made resources of the specific project
sibilities. (resource option). A regional analysis
is required to tailor each project to
§ 279.3 References. serve expressed preferences within its
(a) Pub. L. 89–72, ‘‘Federal Water resource capabilities and consistent
Project Recreation Act,’’ July 9, 1965 with Federal laws and administrative
(79 Stat. 213 et seq.). cost-sharing policy. Preparation of re-
(b) ER 1105–2–200, Multiobjective gional studies and establishment of
Planning Framework (33 CFR part 290). these objectives will utilize an inter-
disciplinary team with leadership by
§ 279.4 Definitions. planning, and participation from engi-
For the purposes of this regulation: neering, design, real estate, and oper-
(a) Resource use objectives are clearly ations elements. Each project will em-
written statements, specific to a given phasize those specific resource use ob-
project, which specify the attainable jectives determined, through public
options for resource use as determined participation, to achieve the greatest
from study and analysis of resource ca- overall public benefit. Subsequent as-
pabilities and public needs (opportuni- pects of planning, development, and
ties and problems). management for the specific project
(b) Natural resources are those ele- will be directed to achieving the ap-
ments, features, conditions, etc., of proved resource use objectives.
land and water that can be character- (b) The implementation of this policy
ized as physiographic, biological and/or requires that the public be fully in-
aesthetic. volved in the regional studies and de-
(c) Public benefits are the tangible and velopment of resource use objectives
intangible gains to society directly at- and management plans for each spe-
tributable to a water resource project cific water resource project, including
that satisfy the expressed or observed at least one public meeting. The estab-
needs of the public (i.e., individuals, lishment of resource use objective may
groups, organizations and local, coun- be addressed at a general public meet-
ty, state and federal governmental ing held for the project if adequate dis-
agencies). cussion can be achieved. If not, the dis-
(d) Boundary plans are Division/Dis- trict engineer should conduct a sepa-
trict wide maps clearly delineating the rate meeting for this purpose.
limits of each regional recreation mar-
ket area for one or more Civil Works § 279.6 Overview of objective setting
water resource projects. process.
The process of determining resource
§ 279.5 Policy. use objectives flows through three
(a) It is the policy of the Chief of En- overlapping steps and considers three
gineers that all water resource projects main sets of data. Figure 1 presents an
administered by the Corps will have es- overview of this process.
371
§ 279.7 33 CFR Ch. II (7–1–20 Edition)
§ 279.7 Information collection and pre- techniques, and ecosystem inter-

liminary analysis. actions.
(a) Data search. This effort consists of (c) Social needs and benefits. The prob-
lems, opportunities, and desires of the
collecting existing data and accom-
people of the region to be served by the
plishing the minimum additional stud-
project must be identified in order to
ies necessary to obtain the information
determine options that are in the best
required to generate and analyze the
overall public interest. The basic ap-
likely options. State and local agency proach for determining public needs
input should be sought during this and benefits is through a market anal-
phase. The initial work will be to de- ysis and a public involvement program.
termine separately the options for re- In considering options, the analysis as
source use and public needs. A prelimi- a minimum should include the
nary analysis comparing the two parts indentification of the various publics
and their relationship to authorized served, views of other agencies and or-
project purposes and administrative ganizations, existing and planned rec-
constraints should be conducted prior reational facilities in the market area
to further public and agency input. of the consumer, the population base
(b) Project resources. The natural and and distribution, institutional analysis
man-made resources of the project area of potential cost-sharing partners, con-
are to be identified and the inter-rela- straints, the transportation network,
tionships analyzed to generate the op- the needs identified by local, State and
tions that are most viable to the over- Federal agencies, and the State Com-
all region. The environmental informa- prehensive Outdoor Recreation Plan
tion and analysis, among other things, (SCORP).
should define and describe the physical
limitations of the project, aquatic and § 279.8 Synthesis and analysis.
terrestrial vegetation, game and non- (a) Option, synthesis and analysis. The
game wildlife species and distribution, project resources and market area in-
fisheries, terrain, soils, minerals, cli- formation should be aggregated and
mate, capacity and sensitivity of these analyzed to determine what trade-offs
resources to public use, archaeological can be made among the possible op-
and historical resources, management tions to establish objectives that can
372
EC31OC91.024</GPH>
meet the highest and best use of the § 279.9 Objective rationale.
natural and man-made resources, effi-
(a) Statement of objectives. The last
ciently meet the needs of the public to
step in this process is the summari-
be served, and be of lasting value to the
zation of the preceding work by clearly
region and the nation as a whole. The
options determined in the first step stating the objective(s) and providing
should be synthesized to combine the the rationale, impact, and basic man-
separate elements. Compatible options agement measures for their accom-
in the two parts would result in ration- plishment. The logic, trade-offs, and
al resource use objectives. Conflicting judgments made in the process should
options require trade-off analysis to de- be presented in a concise and readable
termine to what extent compromise manner. The impacts, both beneficial
can be made, or if any compromise is and adverse, that will result from at-
possible to achieve acceptable objec- taining objectives selected must be
tives. In both cases the impacts, bene- presented. General implementation
ficial and adverse, of implementing the measures (e.g., campground develop-
compatible or compromise objective(s) ment, use of fish attractors, limiting
should be stated. For example, the use in environmentally sensitive areas,
preservation of wildlife habitat could lake fluctuation control, etc.) should
limit the development of high inten- be stated as a guide for the preparation
sity recreational facilities in a phys- of detailed development plans and
ically suitable area, resulting in a management actions to achieve the ob-
lower attainment of tangible recre- jectives.
ation benefits. However, preservation (b) Purpose of objectives. The resource
of the existing habitat would produce use objectives for each project will
intangible benefits to society by en- guide the design, development and
hancing a species otherwise likely to management of the resource base to
be lost to the area. obtain the greatest possible benefit
(b) Diversity of opportunities. In re- through meeting the needs of the pub-
gions where there are a number of lic and to protect and enhance environ-
Corps projects, this analysis must con- mental quality. The resource use objec-
sider the larger regional context of tives should be reflected in reports and
interrelationships which will result in plans relating to a study or restudy of
a diversity of opportunities available water resource projects. Management
and emphasize the particular qualities actions on existing projects, including
of each project. For example, one leasing and licensing, will also be di-
project may emphasize swimming, an- rected towards the attainment of the
other project weekend camping and approved resource use objectives.
power boating, while still another
project may provide fishing and passive § 279.10 Implementation.
recreation use such as hiking trails,
nature, and ecological study areas. (a) Resource use objectives through
(c) Constraints. In addition to con- development and management pro-
straints imposed by the authorizing grams will be incorporated into Phase
legislation, other project purposes and I, and Phase II General Design Memo-
resource capabilities, the resource use randa and Master Plans for authorized
objectives must be consistent and com- and completed water resource projects
patible with State and Regional plan- (report requirements depend on AE&D
ning activities and programs. As an ex- status of project). The establishment of
ample, Corps management actions to resource use objectives for projects for-
achieve resource use objectives must mulated under the part 290 of this
be compatible with the State approved chapter planning process should not re-
Best Management Practices (BMP) for quire a great deal of additional effort
waste treatment (and non-point to bring them in compliance with this
sources of pollution) as prescribed by regulation. However, more effort may
section 208, Federal Water Pollution be required for completed projects with
Control Act Amendments of 1972 (Pub. existing use patterns and constructed
L. 92–500), as amended. facilities.
373
§ 279.11 33 CFR Ch. II (7–1–20 Edition)
(b) Regional studies are prerequisite management programs can be imple-

to effective project planning for estab- mented as soon as possible.
lishment of resource use objectives. Di-
vision engineers are responsible for § 279.11 Responsibilities.
issuing criteria and instructions, for Division engineers will review the
use by district engineers, on estab- Districts Master Plan priority schedule
lishing regional boundaries, conduct of and monitor regional studies and Mas-
regional studies and content and for- ter Plan preparation to insure timely
mat of report requirements. As a min- compliance on development of resource
imum, one criteria to consider is that a use objectives. Future budget submis-
regional boundary could be formed by sions and expenditures of construction
double the estimated distance from the and operation and maintenance funds
centroids of population located within will be reviewed by division engineers
the market area of any operating as to their relationship to the approved
project. Regional boundaries need not resource use objectives and manage-
be restricted either to States or to Dis- ment implementation. Questions and
trict hydrologic boundaries. In those requests for technical assistance con-
cases where a region may cross District cerning implementation of the concept
boundaries, division engineers will es- and guidance set forth in this regula-
tablish administrative responsibility. tion may be directed to HQDA (DAEN-
District engineers are responsible for CWP-P) WASH DC 20314 or DAEN-CWO-
preparation of districtwide regional R.
boundary plans, scheduling of study ef-
forts, and report preparation. Bound- APPENDIX A TO PART 279—SAMPLE
ary plans, study schedules and reports RESOURCE USE OBJECTIVES
shall be submitted for approval in ac-
cordance with instructions issued by This appendix presents some example re-
source use objectives that might be derived
the division engineer. Four copies of
for a water resource project. They are pre-
the approved regional boundary plan sented for illustrative purposes only and are
and regional study report will be fur- not intended to represent any specific
nished to HQDA (DAEN-CWP-P), project or the full range of objectives that
WASH DC 20314 for comment, in ac- could be developed.
cordance with procedures given in ER The following sample resource use objec-
1110–2–1150. Investigations and report tives reflect what could result from a de-
preparation for regional studies may be tailed analysis and evaluation of the re-
accomplished with funds from Oper- sources on the project, the resources and op-
portunity in the general region, and the
ation and Maintenance General appro-
needs of the public. Each objective has a
priations programmed for preparation brief discussion on why that particular ob-
of individual project Master Plans. jective would be selected.
Through implementation of the re- Resource use objective: To provide high qual-
gional analysis approach, it is expected ity swimming opportunity with a variety of
that an overall savings in individual high density day-use which include pic-
Master Plan preparation can be real- nicking, beaches, play fields, tot lots, open
ized. In any event, it is not expected space, walks, and non-power boating.
that the overall program cost will in- (Discussion) The analysis of regional and
site specific factors indicates that this
crease.
project with its small water surface and ex-
(c) District engineers will incor- cellent water quality is not suitable for
porate the establishment of resource power boating; is in a suburban area with
use objectives into the on-going Master housing developments already adjacent to
Plan preparation process. Those Master the project boundaries or presently planned;
Plans currently being prepared or up- the natural resources have already been ex-
dated and not substantially completed tensively disturbed; the soil conditions
should be modified to reflect this pol- would be susceptive to extensive landscaping
and could withstand high levels of public
icy. Those projects with high quality use; the water quality and waterland form
resources and/or conflicts between use characteristics are ideal for swimming and
and current resource management
wading; there is currently a deficiency in

should be given a high priority so that available lake swimming, open space and day
redirection of facility development and use activity facilities in the going market
374
area; and there exists a non-Federal govern- its outstanding scenic qualities and its loca-
ment agency to assist in carrying out this tion, is suitable for destination or vacation
objective. type recreation activities. Private interest
Resource use objective: To establish and have expressed desires to provide sophisti-
maintain a high quality warm water fishery cated lodging and camping facilities to-
which would support an initial use of 70,000 gether with other recreation development to
fishermen recreation days. provide for a diversity of recreation activi-
(Discussion) The analysis of pertinent fac- ties.
tors indicates that there exists a high de- Resource use objective: To establish a cul-
mand for warm water fishing; that the water tural interpretive area for the protection,
quality and other necessary environmental study and viewing of its unique archeological
factors are present which would support a (historical) resource.
warm water fishery; that modified reservoir (Discussion) The analysis of pertinent fac-
clearing, water level management and provi- tors indicates that high intensity recreation
sion for fish shelters would provide necessary use demand can be satisfied at other areas on
inputs for improved fish production; that the project. The archeological (historical)
some zoning on boat usage in certain site is one of the few sites that has not been
embayments will decrease the conflicts be- destroyed over the years. The local archeo-
tween fishing and boating; and that current logical (historical) society has expressed an
state fishery programs will provide assist- interest during public meeting in preserving
ance and the necessary technical advice. and interpreting the site as part of their so-
Resource use objective: To establish an eco- ciety program.
logical study area at Wakulla Wash for the
protection and study of its unique vegetative
associations. PART 320—GENERAL REGULATORY
(Discussion) The analysis of pertinent fac- POLICIES
tors indicates that high intensity recreation
use demand can be satisfied at other areas on Sec.
the project; the soil in the wash would be
320.1 Purpose and scope.
highly susceptible to erosion if the vegeta-
320.2 Authorities to issue permits.
tion were removed; soil compaction would
320.3 Related laws.
cause loss of ground cover; trails can be de-
320.4 General policies for evaluating permit
signed to avoid drainage and erosion prob-
applications.
lems; unique associations of vegetation exist
in the wash; the nearest vehicle access point AUTHORITY: 33 U.S.C. 401 et seq.; 33 U.S.C.
is one mile from the site; during public 1344; 33 U.S.C. 1413.
meetings local environmental groups have
expressed an interest to preserve the area for SOURCE: 51 FR 41220, Nov. 13, 1986, unless
educational purposes; there is a large popu- otherwise noted.
lation base within two hours drive of the
project; two local universities have volun- § 320.1 Purpose and scope.
teered to administer the area in conjunction (a) Regulatory approach of the Corps of
with their environmental course work and Engineers. (1) The U.S. Army Corps of
related work; and the County is zoning the Engineers has been involved in regu-
adjacent land to protect the watershed of the
Wash.
lating certain activities in the nation’s
Resource use objective: To provide overnight waters since 1890. Until 1968, the pri-
use to accommodate transient cross-county mary thrust of the Corps’ regulatory
travelers. program was the protection of naviga-
(Discussion) The analysis of regional and tion. As a result of several new laws
site factors indicate that this project with and judicial decisions, the program has
its small water surface and lack of scenic evolved to one involving the consider-
qualities does not experience much local use.
ation of the full public interest by bal-
A heavily traveled Interstate Highway with
an interchange is within a quarter mile of ancing the favorable impacts against
the project boundary. The location of this the detrimental impacts. This is known
project is such that it is within a days travel as the ‘‘public interest review.’’ The
from major recreation areas; the soil condi- program is one which reflects the na-
tions are suitable for high density public use tional concerns for both the protection
and there is a deficiency of transient camp- and utilization of important resources.
ing along this portion of the Interstate. (2) The Corps is a highly decentral-
Resource use objective: To provide a high
ized organization. Most of the author-
quality diversified recreation opportunity
that would satisfy requirements for destina- ity for administering the regulatory
program has been delegated to the thir-
tion or vacation type activities.

(Discussion) The analysis of regional and ty-six district engineers and eleven di-
site factors indicate that this project with vision engineers. A district engineer’s
375
§ 320.1 33 CFR Ch. II (7–1–20 Edition)
decision on an approved jurisdictional agency action. Nothing contained in

determination, a permit denial, or a this section is intended to affect any
declined individual permit is subject to authority EPA has under the Clean
an administrative appeal by the af- Water Act.
fected party in accordance with the (b) Types of activities regulated. This
procedures and authorities contained part and the parts that follow (33 CFR
in 33 CFR part 331. Such administrative parts 321 through 330) prescribe the
appeal must meet the criteria in 33 statutory authorities, and general and
CFR 331.5; otherwise, no administrative special policies and procedures applica-
appeal of that decision is allowed. The ble to the review of applications for De-
terms ‘‘approved jurisdictional deter- partment of the Army (DA) permits for
mination,’’ ‘‘permit denial,’’ and ‘‘de- controlling certain activities in waters
clined permit’’ are defined at 33 CFR
of the United States or the oceans.
331.2. There shall be no administrative
This part identifies the various federal
appeal of any issued individual permit
statutes which require that DA permits
that an applicant has accepted, unless
be issued before these activities can be
the authorized work has not started in
waters of the United States, and that lawfully undertaken; and related Fed-
issued permit is subsequently modified eral laws and the general policies ap-
by the district engineer pursuant to 33 plicable to the review of those activi-
CFR 325.7 (see 33 CFR 331.5(b)(1)). An ties. Parts 321 through 324 and 330 ad-
affected party must exhaust any address special policies and procedures
ministrative appeal available pursuant applicable to the following specific
to 33 CFR part 331 and receive a final classes of activities:
Corps decision on the appealed action (1) Dams or dikes in navigable waters
prior to filing a lawsuit in the Federal of the United States (part 321);
courts (see 33 CFR 331.12). (2) Other structures or work includ-
(3) The Corps seeks to avoid unneces- ing excavation, dredging, and/or dis-
sary regulatory controls. The general posal activities, in navigable waters of
permit program described in 33 CFR the United States (part 322);
parts 325 and 330 is the primary method (3) Activities that alter or modify the
of eliminating unnecessary federal con- course, condition, location, or capacity
trol over activities which do not justify of a navigable water of the United
individual control or which are ade- States (part 322);
quately regulated by another agency. (4) Construction of artificial islands,
(4) The Corps is neither a proponent installations, and other devices on the
nor opponent of any permit proposal. outer continental shelf (part 322);
However, the Corps believes that appli- (5) Discharges of dredged or fill mate-
cants are due a timely decision. Reduc- rial into waters of the United States
ing unnecessary paperwork and delays (part 323);
is a continuing Corps goal.
(6) Activities involving the transpor-
(5) The Corps believes that state and
tation of dredged material for the pur-
federal regulatory programs should
pose of disposal in ocean waters (part
complement rather than duplicate one
324); and
another. The Corps uses general per-
mits, joint processing procedures, (7) Nationwide general permits for
interagency review, coordination, and certain categories of activities (part
authority transfers (where authorized 330).
by law) to reduce duplication. (c) Forms of authorization. DA permits
(6) The Corps has authorized its dis- for the above described activities are
trict engineers to issue formal deter- issued under various forms of author-
minations concerning the applicability ization. These include individual per-
of the Clean Water Act or the Rivers mits that are issued following a review
and Harbors Act of 1899 to activities or of individual applications and general
tracts of land and the applicability of permits that authorize a category or
general permits or statutory exemp- categories of activities in specific geo-
tions to proposed activities. A deter- graphical regions or nationwide. The
mination pursuant to this authoriza- term ‘‘general permit’’ as used in these

tion shall constitute a Corps final regulations (33 CFR parts 320 through
376
330) refers to both those regional per- gineers and the Secretary of the Army.
mits issued by district or division engi- Where the navigable portions of the
neers on a regional basis and to nation- waterbody lie wholly within the limits
wide permits which are issued by the of a single state, the structure may be
Chief of Engineers through publication built under authority of the legislature
in the FEDERAL REGISTER and are ap- of that state if the location and plans
plicable throughout the nation. The or any modification thereof are ap-
nationwide permits are found in 33 CFR proved by the Chief of Engineers and
part 330. If an activity is covered by a by the Secretary of the Army. The in-
general permit, an application for a DA strument of authorization is des-
permit does not have to be made. In ignated a permit (See 33 CFR part 321.)
such cases, a person must only comply Section 9 also pertains to bridges and
with the conditions contained in the causeways but the authority of the
general permit to satisfy requirements Secretary of the Army and Chief of En-
of law for a DA permit. In certain cases gineers with respect to bridges and
pre-notification may be required before causeways was transferred to the Sec-
initiating construction. (See 33 CFR retary of Transportation under the De-
330.7) partment of Transportation Act of Oc-
(d) General instructions. General poli- tober 15, 1966 (49 U.S.C. 1155g(6)(A)). A
cies for evaluating permit applications DA permit pursuant to section 404 of
are found in this part. Special policies the Clean Water Act is required for the
that relate to particular activities are discharge of dredged or fill material
found in parts 321 through 324. The pro- into waters of the United States associ-
cedures for processing individual per- ated with bridges and causeways. (See
mits and general permits are contained 33 CFR part 323.)
in 33 CFR part 325. The terms ‘‘navi- (b) Section 10 of the Rivers and Har-
gable waters of the United States’’ and bors Act approved March 3, 1899, (33
‘‘waters of the United States’’ are used U.S.C. 403) (hereinafter referred to as
frequently throughout these regula- section 10), prohibits the unauthorized
tions, and it is important from the out- obstruction or alteration of any navi-
set that the reader understand the dif- gable water of the United States. The
ference between the two. ‘‘Navigable construction of any structure in or
waters of the United States’’ are de- over any navigable water of the United
fined in 33 CFR part 329. These are wa- States, the excavating from or depos-
ters that are navigable in the tradi- iting of material in such waters, or the
tional sense where permits are required accomplishment of any other work af-
for certain work or structures pursuant fecting the course, location, condition,
to Sections 9 and 10 of the Rivers and or capacity of such waters is unlawful
Harbors Act of 1899. ‘‘Waters of the unless the work has been recommended
United States’’ are defined in 33 CFR by the Chief of Engineers and author-
part 328. These waters include more ized by the Secretary of the Army. The
than navigable waters of the United instrument of authorization is des-
States and are the waters where per- ignated a permit. The authority of the
mits are required for the discharge of Secretary of the Army to prevent ob-
dredged or fill material pursuant to structions to navigation in navigable
section 404 of the Clean Water Act. waters of the United States was ex-
[51 FR 41220, Nov. 13, 1986, as amended at 64 tended to artificial islands, installa-
FR 11714, Mar. 9, 1999; 65 FR 16492, Mar. 28, tions, and other devices located on the
2000] seabed, to the seaward limit of the
outer continental shelf, by section 4(f)
§ 320.2 Authorities to issue permits. of the Outer Continental Shelf Lands
(a) Section 9 of the Rivers and Har- Act of 1953 as amended (43 U.S.C.
bors Act, approved March 3, 1899 (33 1333(e)). (See 33 CFR part 322.)
U.S.C. 401) (hereinafter referred to as (c) Section 11 of the Rivers and Har-
section 9), prohibits the construction of bors Act approved March 3, 1899, (33
any dam or dike across any navigable U.S.C. 404), authorizes the Secretary of
water of the United States in the ab- the Army to establish harbor lines
sence of Congressional consent and ap- channelward of which no piers,

proval of the plans by the Chief of En- wharves, bulkheads, or other works
377
§ 320.3 33 CFR Ch. II (7–1–20 Edition)
may be extended or deposits made pact on navigation and anchorage of

without approval of the Secretary of such a prohibition in reaching his deci-
the Army. Effective May 27, 1970, per- sion. Furthermore, the Administrator
mits for work shoreward of those lines can deny, prohibit, restrict or with-
must be obtained in accordance with draw the use of any defined area as a
section 10 and, if applicable, section 404 disposal site whenever he determines,
of the Clean Water Act (see § 320.4(o) of after notice and opportunity for public
this part). hearing and after consultation with the
(d) Section 13 of the Rivers and Har- Secretary of the Army, that the dis-
bors Act approved March 3, 1899, (33 charge of such materials into such
U.S.C. 407), provides that the Secretary areas will have an unacceptable ad-
of the Army, whenever the Chief of En- verse effect on municipal water sup-
gineers determines that anchorage and plies, shellfish beds and fishery areas,
navigation will not be injured thereby, wildlife, or recreational areas. (See 40
may permit the discharge of refuse into CFR part 230).
navigable waters. In the absence of a (g) Section 103 of the Marine Protec-
permit, such discharge of refuse is pro- tion, Research and Sanctuaries Act of
hibited. While the prohibition of this 1972, as amended (33 U.S.C. 1413) (here-
section, known as the Refuse Act, is inafter referred to as section 103), au-
still in effect, the permit authority of thorizes the Secretary of the Army,
the Secretary of the Army has been su- acting through the Chief of Engineers,
perseded by the permit authority pro- to issue permits, after notice and op-
vided the Administrator, Environ- portunity for public hearing, for the
mental Protection Agency (EPA), and transportation of dredged material for
the states under sections 402 and 405 of the purpose of disposal in the ocean
the Clean Water Act, (33 U.S.C. 1342 where it is determined that the dis-
and 1345). (See 40 CFR parts 124 and posal will not unreasonably degrade or
125.) endanger human health, welfare, or
(e) Section 14 of the Rivers and Har- amenities, or the marine environment,
bors Act approved March 3, 1899, (33 ecological systems, or economic
U.S.C. 408), provides that the Secretary potentialities. The selection of disposal
of the Army, on the recommendation of sites will be in accordance with cri-
the Chief of Engineers, may grant per- teria developed by the Administrator
mission for the temporary occupation of the EPA in consultation with the
or use of any sea wall, bulkhead, jetty, Secretary of the Army and published in
dike, levee, wharf, pier, or other work 40 CFR parts 220 through 229. However,
built by the United States. This per- similar to the EPA Administrator’s
mission will be granted by an appro- limiting authority cited in paragraph
priate real estate instrument in ac- (f) of this section, the Administrator
cordance with existing real estate reg- can prevent the issuance of a permit
ulations. under this authority if he finds that
(f) Section 404 of the Clean Water Act the disposal of the material will result
(33 U.S.C. 1344) (hereinafter referred to in an unacceptable adverse impact on
as section 404) authorizes the Secretary municipal water supplies, shellfish
of the Army, acting through the Chief beds, wildlife, fisheries, or recreational
of Engineers, to issue permits, after no- areas. (See 33 CFR part 324).
tice and opportunity for public hear-
ing, for the discharge of dredged or fill § 320.3 Related laws.
material into the waters of the United (a) Section 401 of the Clean Water
States at specified disposal sites. (See Act (33 U.S.C. 1341) requires any appli-
33 CFR part 323.) The selection and use cant for a federal license or permit to
of disposal sites will be in accordance conduct any activity that may result
with guidelines developed by the Ad- in a discharge of a pollutant into wa-
ministrator of EPA in conjunction ters of the United States to obtain a
with the Secretary of the Army and certification from the State in which
published in 40 CFR part 230. If these the discharge originates or would origi-
guidelines prohibit the selection or use nate, or, if appropriate, from the inter-
of a disposal site, the Chief of Engi- state water pollution control agency
neers shall consider the economic im- having jurisdiction over the affected
378
waters at the point where the dis- can be carried out within the regula-
charge originates or would originate, tions for the sanctuary.
that the discharge will comply with (d) The National Environmental Pol-
the applicable effluent limitations and icy Act of 1969 (42 U.S.C. 4321–4347) de-
water quality standards. A certifi- clares the national policy to encourage
cation obtained for the construction of a productive and enjoyable harmony
any facility must also pertain to the between man and his environment.
subsequent operation of the facility. Section 102 of that Act directs that ‘‘to
(b) Section 307(c) of the Coastal Zone the fullest extent possible: (1) The poli-
Management Act of 1972, as amended cies, regulations, and public laws of the
(16 U.S.C. 1456(c)), requires federal United States shall be interpreted and
agencies conducting activities, includ- administered in accordance with the
ing development projects, directly af- policies set forth in this Act, and
fecting a state’s coastal zone, to com- (2) All agencies of the Federal Gov-
ply to the maximum extent practicable ernment shall * * * insure that pres-
with an approved state coastal zone ently unquantified environmental
management program. Indian tribes amenities and values may be given ap-
doing work on federal lands will be propriate consideration in decision-
making along with economic and tech-
treated as a federal agency for the pur-
nical considerations * * *’’. (See Appen-
pose of the Coastal Zone Management
dix B of 33 CFR part 325.)
Act. The Act also requires any non-fed-
(e) The Fish and Wildlife Act of 1956
eral applicant for a federal license or
(16 U.S.C. 742a, et seq.), the Migratory
permit to conduct an activity affecting
Marine Game-Fish Act (16 U.S.C. 760c–
land or water uses in the state’s coast-
760g), the Fish and Wildlife Coordina-
al zone to furnish a certification that
tion Act (16 U.S.C. 661–666c) and other
the proposed activity will comply with acts express the will of Congress to
the state’s coastal zone management protect the quality of the aquatic envi-
program. Generally, no permit will be ronment as it affects the conservation,
issued until the state has concurred improvement and enjoyment of fish
with the non-federal applicant’s certifi- and wildlife resources. Reorganization
cation. This provision becomes effec- Plan No. 4 of 1970 transferred certain
tive upon approval by the Secretary of functions, including certain fish and
Commerce of the state’s coastal zone wildlife-water resources coordination
management program. (See 15 CFR responsibilities, from the Secretary of
part 930.) the Interior to the Secretary of Com-
(c) Section 302 of the Marine Protec- merce. Under the Fish and Wildlife Co-
tion, Research and Sanctuaries Act of ordination Act and Reorganization
1972, as amended (16 U.S.C. 1432), au- Plan No. 4, any federal agency that
thorizes the Secretary of Commerce, proposes to control or modify any body
after consultation with other inter- of water must first consult with the
ested federal agencies and with the ap- United States Fish and Wildlife Service
proval of the President, to designate as or the National Marine Fisheries Serv-
marine sanctuaries those areas of the ice, as appropriate, and with the head
ocean waters, of the Great Lakes and of the appropriate state agency exer-
their connecting waters, or of other cising administration over the wildlife
coastal waters which he determines resources of the affected state.
necessary for the purpose of preserving (f) The Federal Power Act of 1920 (16
or restoring such areas for their con- U.S.C. 791a et seq.), as amended, author-
servation, recreational, ecological, or izes the Federal Energy Regulatory
aesthetic values. After designating Agency (FERC) to issue licenses for the
such an area, the Secretary of Com- construction and the operation and
merce shall issue regulations to con- maintenance of dams, water conduits,
trol any activities within the area. Ac- reservoirs, power houses, transmission
tivities in the sanctuary authorized lines, and other physical structures of
under other authorities are valid only a hydro-power project. However, where
if the Secretary of Commerce certifies such structures will affect the navi-
that the activities are consistent with gable capacity of any navigable water
the purposes of Title III of the Act and of the United States (as defined in 16
379
§ 320.3 33 CFR Ch. II (7–1–20 Edition)
U.S.C. 796), the plans for the dam or retary of Housing and Urban Develop-
other physical structures affecting ment may, by rules or regulations, re-
navigation must be approved by the quire for the protection of purchasers.
Chief of Engineers and the Secretary of In the event the lot in question is part
the Army. In such cases, the interests of a project that requires DA author-
of navigation should normally be pro- ization, the property report is required
tected by a DA recommendation to by Housing and Urban Development
FERC for the inclusion of appropriate regulation to state whether or not a
provisions in the FERC license rather permit for the development has been
than the issuance of a separate DA per- applied for, issued, or denied by the
mit under 33 U.S.C. 401 et seq. As to any Corps of Engineers under section 10 or
other activities in navigable waters not section 404. The property report is also
constituting construction and the oper- required to state whether or not any
ation and maintenance of physical
enforcement action has been taken as a
structures licensed by FERC under the
consequence of non-application for or
Federal Power Act of 1920, as amended,
denial of such permit.
the provisions of 33 U.S.C. 401 et seq. re-
main fully applicable. In all cases in- (i) The Endangered Species Act (16
volving the discharge of dredged or fill U.S.C. 1531 et seq.) declares the inten-
material into waters of the United tion of the Congress to conserve
States or the transportation of dredged threatened and endangered species and
material for the purpose of disposal in the ecosystems on which those species
ocean waters, section 404 or section 103 depend. The Act requires that federal
will be applicable. agencies, in consultation with the U.S.
(g) The National Historic Preserva- Fish and Wildlife Service and the Na-
tion Act of 1966 (16 U.S.C. 470) created tional Marine Fisheries Service, use
the Advisory Council on Historic Pres- their authorities in furtherance of its
ervation to advise the President and purposes by carrying out programs for
Congress on matters involving historic the conservation of endangered or
preservation. In performing its func- threatened species, and by taking such
tion the Council is authorized to reaction necessary to insure that any ac-
view and comment upon activities li- tion authorized, funded, or carried out
censed by the Federal Government by the Agency is not likely to jeop-
which will have an effect upon prop- ardize the continued existence of such
erties listed in the National Register of endangered or threatened species or re-
Historic Places, or eligible for such sult in the destruction or adverse
listing. The concern of Congress for the modification of habitat of such species
preservation of significant historical which is determined by the Secretary
sites is also expressed in the Preserva- of the Interior or Commerce, as appro-
tion of Historical and Archeological priate, to be critical. (See 50 CFR part
Data Act of 1974 (16 U.S.C. 469 et seq.), 17 and 50 CFR part 402.)
which amends the Act of June 27, 1960.
(j) The Deepwater Port Act of 1974 (33
By this Act, whenever a federal con-
U.S.C. 1501 et seq.) prohibits the owner-
struction project or federally licensed
ship, construction, or operation of a
project, activity, or program alters any
terrain such that significant historical deepwater port beyond the territorial
or archeological data is threatened, the seas without a license issued by the
Secretary of the Interior may take ac- Secretary of Transportation. The Sec-
tion necessary to recover and preserve retary of Transportation may issue
the data prior to the commencement of such a license to an applicant if he de-
the project. termines, among other things, that the
(h) The Interstate Land Sales Full construction and operation of the deep-
Disclosure Act (15 U.S.C. 1701 et seq.) water port is in the national interest
prohibits any developer or agent from and consistent with national security
selling or leasing any lot in a subdivi- and other national policy goals and ob-
sion (as defined in 15 U.S.C. 1701(3)) un- jectives. An application for a deep-
less the purchaser is furnished in ad- water port license constitutes an appli-
vance a printed property report con- cation for all federal authorizations re-
taining information which the Sec- quired for the ownership, construction,
380
and operation of a deepwater port, in- (n) Section 402 of the Clean Water
cluding applications for section 10, sec- Act authorizes EPA to issue permits
tion 404 and section 103 permits which under procedures established to imple-
may also be required pursuant to the ment the National Pollutant Discharge
authorities listed in § 320.2 and the poli- Elimination System (NPDES) program.
cies specified in § 320.4 of this part. The administration of this program
(k) The Marine Mammal Protection can be, and in most cases has been, del-
Act of 1972 (16 U.S.C. 1361 et seq.) ex- egated to individual states. Section
presses the intent of Congress that ma- 402(b)(6) states that no NPDES permit
rine mammals be protected and en- will be issued if the Chief of Engineers,
couraged to develop in order to main- acting for the Secretary of the Army
tain the health and stability of the ma- and after consulting with the U.S.
rine ecosystem. The Act imposes a per- Coast Guard, determines that naviga-
petual moratorium on the harassment, tion and anchorage in any navigable
hunting, capturing, or killing of ma- water will be substantially impaired as
rine mammals and on the importation a result of a proposed activity.
of marine mammals and marine mam- (o) The National Fishing Enhance-
mal products without a permit from ei- ment Act of 1984 (Pub. L. 98–623) pro-
ther the Secretary of the Interior or vides for the development of a National
the Secretary of Commerce, depending Artificial Reef Plan to promote and fa-
upon the species of marine mammal in- cilitate responsible and effective ef-
volved. Such permits may be issued forts to establish artificial reefs. The
only for purposes of scientific research Act establishes procedures to be fol-
and for public display if the purpose is lowed by the Corps in issuing DA per-
consistent with the policies of the Act. mits for artificial reefs. The Act also
The appropriate Secretary is also em- establishes the liability of the per-
powered in certain restricted cir- mittee and the United States. The Act
cumstances to waive the requirements further creates a civil penalty for vio-
of the Act. lation of any provision of a permit
(l) Section 7(a) of the Wild and Scenic issued for an artificial reef.
Rivers Act (16 U.S.C. 1278 et seq.) pro-
vides that no department or agency of § 320.4 General policies for evaluating
the United States shall assist by loan, permit applications.
grant, license, or otherwise in the con- The following policies shall be appli-
struction of any water resources cable to the review of all applications
project that would have a direct and for DA permits. Additional policies
adverse effect on the values for which specifically applicable to certain types
such river was established, as deter- of activities are identified in 33 CFR
mined by the Secretary charged with parts 321 through 324.
its administration. (a) Public interest review. (1) The deci-
(m) The Ocean Thermal Energy Con- sion whether to issue a permit will be
version Act of 1980, (42 U.S.C. section based on an evaluation of the probable
9101 et seq.) establishes a licensing re- impacts, including cumulative im-
gime administered by the Adminis- pacts, of the proposed activity and its
trator of NOAA for the ownership, con- intended use on the public interest.
struction, location, and operation of Evaluation of the probable impact
ocean thermal energy conversion which the proposed activity may have
(OTEC) facilities and plantships. An on the public interest requires a care-
application for an OTEC license filed ful weighing of all those factors which
with the Administrator constitutes an become relevant in each particular
application for all federal authoriza- case. The benefits which reasonably
tions required for ownership, construc- may be expected to accrue from the
tion, location, and operation of an proposal must be balanced against its
OTEC facility or plantship, except for reasonably foreseeable detriments. The
certain activities within the jurisdic- decision whether to authorize a pro-
tion of the Coast Guard. This includes posal, and if so, the conditions under
applications for section 10, section 404, which it will be allowed to occur, are
section 103 and other DA authoriza- therefore determined by the outcome

tions which may be required. of this general balancing process. That
381
§ 320.4 33 CFR Ch. II (7–1–20 Edition)
decision should reflect the national state, and local agencies, and other ex-
concern for both protection and utiliza- perts on matters within their exper-
tion of important resources. All factors tise.
which may be relevant to the proposal (b) Effect on wetlands. (1) Most wet-
must be considered including the cu- lands constitute a productive and valu-
mulative effects thereof: among those able public resource, the unnecessary
are conservation, economics, aes- alteration or destruction of which
thetics, general environmental con- should be discouraged as contrary to
cerns, wetlands, historic properties, the public interest. For projects to be
fish and wildlife values, flood hazards, undertaken or partially or entirely
floodplain values, land use, navigation, funded by a federal, state, or local
shore erosion and accretion, recre- agency, additional requirements on
ation, water supply and conservation, wetlands considerations are stated in
water quality, energy needs, safety, Executive Order 11990, dated 24 May
food and fiber production, mineral 1977.
needs, considerations of property own- (2) Wetlands considered to perform
ership and, in general, the needs and functions important to the public in-
welfare of the people. For activities interest include:
volving 404 discharges, a permit will be (i) Wetlands which serve significant
denied if the discharge that would be natural biological functions, including
authorized by such permit would not food chain production, general habitat
comply with the Environmental Pro- and nesting, spawning, rearing and
tection Agency’s 404(b)(1) guidelines. resting sites for aquatic or land spe-
Subject to the preceding sentence and cies;
any other applicable guidelines and cri- (ii) Wetlands set aside for study of
teria (see §§ 320.2 and 320.3), a permit the aquatic environment or as sanc-
will be granted unless the district engi- tuaries or refuges;
neer determines that it would be con- (iii) Wetlands the destruction or al-
trary to the public interest. teration of which would affect det-
(2) The following general criteria will rimentally natural drainage character-
be considered in the evaluation of istics, sedimentation patterns, salinity
every application: distribution, flushing characteristics,
(i) The relative extent of the public current patterns, or other environ-
and private need for the proposed mental characteristics;
structure or work: (iv) Wetlands which are significant in
(ii) Where there are unresolved con- shielding other areas from wave action,
flicts as to resource use, the practica- erosion, or storm damage. Such wet-
bility of using reasonable alternative lands are often associated with barrier
locations and methods to accomplish beaches, islands, reefs and bars;
the objective of the proposed structure (v) Wetlands which serve as valuable
or work; and storage areas for storm and flood wa-
(iii) The extent and permanence of ters;
the beneficial and/or detrimental ef- (vi) Wetlands which are ground water
fects which the proposed structure or discharge areas that maintain min-
work is likely to have on the public imum baseflows important to aquatic
and private uses to which the area is resources and those which are prime
suited. natural recharge areas;
(3) The specific weight of each factor (vii) Wetlands which serve significant
is determined by its importance and water purification functions; and
relevance to the particular proposal. (viii) Wetlands which are unique in
Accordingly, how important a factor is nature or scarce in quantity to the re-
and how much consideration it de- gion or local area.
serves will vary with each proposal. A (3) Although a particular alteration
specific factor may be given great of a wetland may constitute a minor
weight on one proposal, while it may change, the cumulative effect of nu-
not be present or as important on an- merous piecemeal changes can result
other. However, full consideration and in a major impairment of wetland re-
appropriate weight will be given to all sources. Thus, the particular wetland
comments, including those of federal, site for which an application is made
382
will be evaluated with the recognition (d) Water quality. Applications for
that it may be part of a complete and permits for activities which may ad-
interrelated wetland area. In addition, versely affect the quality of waters of
the district engineer may undertake, the United States will be evaluated for
where appropriate, reviews of par- compliance with applicable effluent
ticular wetland areas in consultation limitations and water quality stand-
with the Regional Director of the U. S. ards, during the construction and sub-
Fish and Wildlife Service, the Regional sequent operation of the proposed ac-
Director of the National Marine Fish- tivity. The evaluation should include
eries Service of the National Oceanic the consideration of both point and
and Atmospheric Administration, the non-point sources of pollution. It
Regional Administrator of the Envi- should be noted, however, that the
ronmental Protection Agency, the Clean Water Act assigns responsibility
local representative of the Soil Con- for control of non-point sources of pol-
servation Service of the Department of lution to the states. Certification of
Agriculture, and the head of the appro- compliance with applicable effluent
priate state agency to assess the cumu- limitations and water quality stand-
lative effect of activities in such areas. ards required under provisions of sec-
(4) No permit will be granted which tion 401 of the Clean Water Act will be
involves the alteration of wetlands considered conclusive with respect to
identified as important by paragraph water quality considerations unless the
(b)(2) of this section or because of pro- Regional Administrator, Environ-
visions of paragraph (b)(3), of this sec- mental Protection Agency (EPA), ad-
tion unless the district engineer con- vises of other water quality aspects to
cludes, on the basis of the analysis re- be taken into consideration.
quired in paragraph (a) of this section, (e) Historic, cultural, scenic, and rec-
that the benefits of the proposed alter- reational values. Applications for DA
ation outweigh the damage to the wet- permits may involve areas which pos-
lands resource. In evaluating whether a sess recognized historic, cultural, sce-
particular discharge activity should be nic, conservation, recreational or simi-
permitted, the district engineer shall lar values. Full evaluation of the gen-
apply the section 404(b)(1) guidelines eral public interest requires that due
(40 CFR part 230.10(a) (1), (2), (3)). consideration be given to the effect
(5) In addition to the policies ex- which the proposed structure or activ-
pressed in this subpart, the Congres- ity may have on values such as those
sional policy expressed in the Estuary associated with wild and scenic rivers,
Protection Act, Pub. L. 90–454, and historic properties and National Land-
state regulatory laws or programs for marks, National Rivers, National Wil-
classification and protection of wet- derness Areas, National Seashores, Na-
lands will be considered. tional Recreation Areas, National
(c) Fish and wildlife. In accordance Lakeshores, National Parks, National
with the Fish and Wildlife Coordina- Monuments, estuarine and marine
tion Act (paragraph 320.3(e) of this sec- sanctuaries, archeological resources,
tion) district engineers will consult including Indian religious or cultural
with the Regional Director, U.S. Fish sites, and such other areas as may be
and Wildlife Service, the Regional Di- established under federal or state law
rector, National Marine Fisheries Serv- for similar and related purposes. Rec-
ice, and the head of the agency respon- ognition of those values is often re-
sible for fish and wildlife for the state flected by state, regional, or local land
in which work is to be performed, with use classifications, or by similar fed-
a view to the conservation of wildlife eral controls or policies. Action on per-
resources by prevention of their direct mit applications should, insofar as pos-
and indirect loss and damage due to sible, be consistent with, and avoid sig-
the activity proposed in a permit appli- nificant adverse effects on the values
cation. The Army will give full consid- or purposes for which those classifica-
eration to the views of those agencies tions, controls, or policies were estab-
on fish and wildlife matters in deciding lished.
on the issuance, denial, or conditioning (f) Effects on limits of the territorial sea.
of individual or general permits. Structures or work affecting coastal
383
§ 320.4 33 CFR Ch. II (7–1–20 Edition)
waters may modify the coast line or pact floodplain or wetland values, or
base line from which the territorial sea otherwise appears contrary to the pub-
is measured for purposes of the Sub- lic interest, the district engineer will
merged Lands Act and international so advise the applicant and inform him
law. Generally, the coast line or base of possible alternative methods of pro-
line is the line of ordinary low water tecting his property. Such advice will
on the mainland; however, there are be given in terms of general guidance
exceptions where there are islands or only so as not to compete with private
lowtide elevations offshore (the Sub- engineering firms nor require undue
merged Lands Act, 43 U.S.C. 1301(a) and use of government resources.
United States v. California, 381 U.S.C. 139 (3) A riparian landowner’s general
(1965), 382 U.S. 448 (1966)). Applications right of access to navigable waters of
for structures or work affecting coastal the United States is subject to the
waters will therefore be reviewed spe- similar rights of access held by nearby
cifically to determine whether the riparian landowners and to the general
coast line or base line might be altered. public’s right of navigation on the
If it is determined that such a change water surface. In the case of proposals
might occur, coordination with the At- which create undue interference with
torney General and the Solicitor of the access to, or use of, navigable waters,
Department of the Interior is required the authorization will generally be de-
before final action is taken. The dis- nied.
trict engineer will submit a description (4) Where it is found that the work
of the proposed work and a copy of the for which a permit is desired is in navi-
plans to the Solicitor, Department of gable waters of the United States (see
the Interior, Washington, DC 20240, and 33 CFR part 329) and may interfere
request his comments concerning the with an authorized federal project, the
effects of the proposed work on the applicant should be apprised in writing
outer continental rights of the United of the fact and of the possibility that a
States. These comments will be in- federal project which may be con-
cluded in the administrative record of structed in the vicinity of the proposed
the application. After completion of work might necessitate its removal or
standard processing procedures, the reconstruction. The applicant should
record will be forwarded to the Chief of also be informed that the United
Engineers. The decision on the applica- States will in no case be liable for any
tion will be made by the Secretary of damage or injury to the structures or
the Army after coordination with the work authorized by Sections 9 or 10 of
Attorney General. the Rivers and Harbors Act of 1899 or
(g) Consideration of property owner- by section 404 of the Clean Water Act
ship. Authorization of work or struc- which may be caused by, or result
tures by DA does not convey a property from, future operations undertaken by
right, nor authorize any injury to prop- the Government for the conservation
erty or invasion of other rights. or improvement of navigation or for
(1) An inherent aspect of property other purposes, and no claims or right
ownership is a right to reasonable pri- to compensation will accrue from any
vate use. However, this right is subject such damage.
to the rights and interests of the public (5) Proposed activities in the area of
in the navigable and other waters of a federal project which exists or is
the United States, including the fed- under construction will be evaluated to
eral navigation servitude and federal insure that they are compatible with
regulation for environmental protec- the purposes of the project.
tion. (6) A DA permit does not convey any
(2) Because a landowner has the gen- property rights, either in real estate or
eral right to protect property from ero- material, or any exclusive privileges.
sion, applications to erect protective Furthermore, a DA permit does not au-
structures will usually receive favor- thorize any injury to property or inva-
able consideration. However, if the pro- sion of rights or any infringement of
tective structure may cause damage to Federal, state or local laws or regula-
the property of others, adversely affect tions. The applicant’s signature on an

public health and safety, adversely im- application is an affirmation that the
384
applicant possesses or will possess the (j) Other Federal, state, or local require-
requisite property interest to under- ments. (1) Processing of an application
take the activity proposed in the appli- for a DA permit normally will proceed
cation. The district engineer will not concurrently with the processing of
enter into disputes but will remind the other required Federal, state, and/or
applicant of the above. The dispute local authorizations or certifications.
over property ownership will not be a Final action on the DA permit will nor-
factor in the Corps public interest deci- mally not be delayed pending action by
sion. another Federal, state or local agency
(h) Activities affecting coastal zones. (See 33 CFR 325.2 (d)(4)). However,
Applications for DA permits for activi- where the required Federal, state and/
ties affecting the coastal zones of those or local authorization and/or certifi-
states having a coastal zone manage- cation has been denied for activities
ment program approved by the Sec- which also require a Department of the
retary of Commerce will be evaluated Army permit before final action has
with respect to compliance with that been taken on the Army permit appli-
program. No permit will be issued to a cation, the district engineer will, after
non-federal applicant until certifi- considering the likelihood of subse-
cation has been provided that the pro- quent approval of the other authoriza-
posed activity complies with the coast- tion and/or certification and the time
al zone management program and the and effort remaining to complete proc-
appropriate state agency has concurred
essing the Army permit application, ei-
with the certification or has waived its
ther immediately deny the Army per-
right to do so. However, a permit may
mit without prejudice or continue
be issued to a non-federal applicant if
processing the application to a conclu-
the Secretary of Commerce, on his own
sion. If the district engineer continues
initiative or upon appeal by the appli-
cant, finds that the proposed activity processing the application, he will con-
is consistent with the objectives of the clude by either denying the permit as
Coastal Zone Management Act of 1972 contrary to the public interest, or de-
or is otherwise necessary in the inter- nying it without prejudice indicating
est of national security. Federal agen- that except for the other Federal, state
cy and Indian tribe applicants for DA or local denial the Army permit could,
permits are responsible for complying under appropriate conditions, be
with the Coastal Zone Management issued. Denial without prejudice means
Act’s directives for assuring that their that there is no prejudice to the right
activities directly affecting the coastal of the applicant to reinstate processing
zone are consistent, to the maximum of the Army permit application if sub-
extent practicable, with approved state sequent approval is received from the
coastal zone management programs. appropriate Federal, state and/or local
(i) Activities in marine sanctuaries. Ap- agency on a previously denied author-
plications for DA authorization for ac- ization and/or certification. Even if of-
tivities in a marine sanctuary estab- ficial certification and/or authorization
lished by the Secretary of Commerce is not required by state or federal law,
under authority of section 302 of the but a state, regional, or local agency
Marine Protection, Research and Sanc- having jurisdiction or interest over the
tuaries Act of 1972, as amended, will be particular activity comments on the
evaluated for impact on the marine application, due consideration shall be
sanctuary. No permit will be issued given to those official views as a reflec-
until the applicant provides a certifi- tion of local factors of the public inter-
cation from the Secretary of Com- est.
merce that the proposed activity is (2) The primary responsibility for de-
consistent with the purposes of Title termining zoning and land use matters
III of the Marine Protection, Research rests with state, local and tribal gov-
and Sanctuaries Act of 1972, as amend- ernments. The district engineer will
ed, and can be carried out within the normally accept decisions by such gov-
regulations promulgated by the Sec- ernments on those matters unless
retary of Commerce to control activi- there are significant issues of over-

ties within the marine sanctuary. riding national importance. Such
385
§ 320.4 33 CFR Ch. II (7–1–20 Edition)
issues would include but are not nec- priate Federal or state agency. (See 33
essarily limited to national security, CFR 325.2(e).)
navigation, national economic develop- (6) The district engineer shall de-
ment, water quality, preservation of velop operating procedures for estab-
special aquatic areas, including wet- lishing official communications with
lands, with significant interstate im- Indian Tribes within the district. The
portance, and national energy needs. procedures shall provide for appoint-
Whether a factor has overriding impor- ment of a tribal representative who
tance will depend on the degree of im- will receive all pertinent public no-
pact in an individual case. tices, and respond to such notices with
(3) A proposed activity may result in the official tribal position on the pro-
conflicting comments from several posed activity. This procedure shall
agencies within the same state. Where apply only to those tribes which accept
a state has not designated a single re- this option. Any adopted operating pro-
sponsible coordinating agency, district cedures shall be distributed by public
engineers will ask the Governor to ex- notice to inform the tribes of this op-
press his views or to designate one tion.
state agency to represent the official (k) Safety of impoundment structures.
state position in the particular case. To insure that all impoundment struc-
(4) In the absence of overriding na- tures are designed for safety, non-Fed-
tional factors of the public interest eral applicants may be required to
that may be revealed during the eval- demonstrate that the structures com-
uation of the permit application, a per- ply with established state dam safety
mit will generally be issued following criteria or have been designed by quali-
receipt of a favorable state determina- fied persons and, in appropriate cases,
tion provided the concerns, policies, that the design has been independently
goals, and requirements as expressed in reviewed (and modified as the review
33 CFR parts 320–324, and the applicable would indicate) by similarly qualified
statutes have been considered and fol- persons.
lowed: e.g., the National Environ- (l) Floodplain management. (1)
mental Policy Act; the Fish and Wild- Floodplains possess significant natural
life Coordination Act; the Historical values and carry out numerous func-
and Archeological Preservation Act; tions important to the public interest.
the National Historic Preservation These include:
Act; the Endangered Species Act; the (i) Water resources values (natural
Coastal Zone Management Act; the Ma- moderation of floods, water quality
rine Protection, Research and Sanc- maintenance, and groundwater re-
tuaries Act of 1972, as amended; the charge);
Clean Water Act, the Archeological Re- (ii) Living resource values (fish, wild-
sources Act, and the American Indian life, and plant resources);
Religious Freedom Act. Similarly, a (iii) Cultural resource values (open
permit will generally be issued for Fed- space, natural beauty, scientific study,
eral and Federally-authorized activi- outdoor education, and recreation); and
ties; another federal agency’s deter- (iv) Cultivated resource values (agri-
mination to proceed is entitled to sub- culture, aquaculture, and forestry).
stantial consideration in the Corps’ (2) Although a particular alteration
public interest review. to a floodplain may constitute a minor
(5) Where general permits to avoid change, the cumulative impact of such
duplication are not practical, district changes may result in a significant
engineers shall develop joint proce- degradation of floodplain values and
dures with those local, state, and other functions and in increased potential for
Federal agencies having ongoing per- harm to upstream and downstream ac-
mit programs for activities also regu- tivities. In accordance with the re-
lated by the Department of the Army. quirements of Executive Order 11988,
In such cases, applications for DA per- district engineers, as part of their pub-
mits may be processed jointly with the lic interest review, should avoid to the
state or other federal applications to extent practicable, long and short term
an independent conclusion and decision significant adverse impacts associated

by the district engineer and the appro- with the occupancy and modification of
386
floodplains, as well as the direct and clared that permits would thereafter be
indirect support of floodplain develop- required for activities shoreward of the
ment whenever there is a practicable harbor lines. Review of applications
alternative. For those activities which would be based on a full public interest
in the public interest must occur in or evaluation and harbor lines would
impact upon floodplains, the district serve as guidance for assessing naviga-
engineer shall ensure, to the maximum tion impacts. Accordingly, activities
extent practicable, that the impacts of constructed shoreward of harbor lines
potential flooding on human health, prior to 27 May 1970 do not require spe-
safety, and welfare are minimized, the cific authorization.
risks of flood losses are minimized, (2) The policy of considering harbor
and, whenever practicable the natural lines as guidance for assessing impacts
and beneficial values served by
on navigation continues.
floodplains are restored and preserved.
(3) Protection of navigation in all
(3) In accordance with Executive
Order 11988, the district engineer navigable waters of the United States
should avoid authorizing floodplain de- continues to be a primary concern of
velopments whenever practicable alter- the federal government.
natives exist outside the floodplain. If (4) District engineers should protect
there are no such practicable alter- navigational and anchorage interests
natives, the district engineer shall con- in connection with the NPDES pro-
sider, as a means of mitigation, alter- gram by recommending to EPA or to
natives within the floodplain which the state, if the program has been dele-
will lessen any significant adverse im- gated, that a permit be denied unless
pact to the floodplain. appropriate conditions can be included
(m) Water supply and conservation. to avoid any substantial impairment of
Water is an essential resource, basic to navigation and anchorage.
human survival, economic growth, and (p) Environmental benefits. Some ac-
the natural environment. Water con- tivities that require Department of the
servation requires the efficient use of Army permits result in beneficial ef-
water resources in all actions which in- fects to the quality of the environ-
volve the significant use of water or ment. The district engineer will weigh
that significantly affect the avail- these benefits as well as environmental
ability of water for alternative uses in- detriments along with other factors of
cluding opportunities to reduce de- the public interest.
mand and improve efficiency in order (q) Economics. When private enter-
to minimize new supply requirements.
prise makes application for a permit, it
Actions affecting water quantities are
will generally be assumed that appro-
subject to Congressional policy as stat-
priate economic evaluations have been
ed in section 101(g) of the Clean Water
completed, the proposal is economi-
Act which provides that the authority
of states to allocate water quantities cally viable, and is needed in the mar-
shall not be superseded, abrogated, or ket place. However, the district engi-
otherwise impaired. neer in appropriate cases, may make
(n) Energy conservation and develop- an independent review of the need for
ment. Energy conservation and develop- the project from the perspective of the
ment are major national objectives. overall public interest. The economic
District engineers will give high pri- benefits of many projects are impor-
ority to the processing of permit ac- tant to the local community and con-
tions involving energy projects. tribute to needed improvements in the
(o) Navigation. (1) Section 11 of the local economic base, affecting such fac-
Rivers and Harbors Act of 1899 author- tors as employment, tax revenues,
ized establishment of harbor lines community cohesion, community serv-
shoreward of which no individual per- ices, and property values. Many
mits were required. Because harbor projects also contribute to the Na-
lines were established on the basis of tional Economic Development (NED),
navigation impacts only, the Corps of (i.e., the increase in the net value of
Engineers published a regulation on 27 the national output of goods and serv-

May 1970 (33 CFR 209.150) which de- ices).
387
(r) Mitigation.1 (1) Mitigation is an ments. For Section 404 applications,

important aspect of the review and bal- mitigation shall be required to ensure
ancing process on many Department of that the project complies with the
the Army permit applications. Consid- 404(b)(1) Guidelines. Some mitigation
eration of mitigation will occur measures are enumerated at 40 CFR
throughout the permit application re- 230.70 through 40 CFR 230.77 (Subpart H
view process and includes avoiding, of the 404(b)(1) Guidelines).
minimizing, rectifying, reducing, or (iii) Mitigation measures in addition
compensating for resource losses. to those under paragraphs (r)(1) (i) and
Losses will be avoided to the extent (ii) of this section may be required as a
practicable. Compensation may occur result of the public interest review
on-site or at an off-site location. Miti- process. (See 33 CFR 325.4(a).) Mitiga-
gation requirements generally fall into
tion should be developed and incor-
three categories.
porated within the public interest re-
(i) Project modifications to minimize
view process to the extent that the
adverse project impacts should be dis-
mitigation is found by the district en-
cussed with the applicant at pre-appli-
cation meetings and during application gineer to be reasonable and justified.
processing. As a result of these discus- Only those measures required to ensure
sions and as the district engineer’s that the project is not contrary to the
evaluation proceeds, the district engi- public interest may be required under
neer may require minor project modi- this subparagraph.
fications. Minor project modifications (2) All compensatory mitigation will
are those that are considered feasible be for significant resource losses which
(cost, constructability, etc.) to the ap- are specifically identifiable, reasonably
plicant and that, if adopted, will result likely to occur, and of importance to
in a project that generally meets the the human or aquatic environment.
applicant’s purpose and need. Such Also, all mitigation will be directly re-
modifications can include reductions in lated to the impacts of the proposal,
scope and size; changes in construction appropriate to the scope and degree of
methods, materials or timing; and op- those impacts, and reasonably enforce-
eration and maintenance practices or able. District engineers will require all
other similar modifications that re- forms of mitigation, including compen-
flect a sensitivity to environmental satory mitigation, only as provided in
quality within the context of the work paragraphs (r)(1) (i) through (iii) of this
proposed. For example, erosion control section. Additional mitigation may be
features could be required on a fill added at the applicants’ request.
project to reduce sedimentation im-
pacts or a pier could be reoriented to
minimize navigational problems even PART 321—PERMITS FOR DAMS
though those projects may satisfy all AND DIKES IN NAVIGABLE WA-
legal requirements (paragraph (r)(1)(ii) TERS OF THE UNITED STATES
of this section) and the public interest
review test (paragraph (r)(1)(iii) of this Sec.
section) without such modifications. 321.1 General.
(ii) Further mitigation measures may 321.2 Definitions.
be required to satisfy legal require- 321.3 Special policies and procedures.
AUTHORITY: 33 U.S.C. 401.
1 Thisis a general statement of mitigation
SOURCE: 51 FR 41227, Nov. 13, 1986, unless
policy which applies to all Corps of Engi-
otherwise noted.
neers regulatory authorities covered by
these regulations (33 CFR parts 320–330). It is
not a substitute for the mitigation require- § 321.1 General.
ments necessary to ensure that a permit ac- This regulation prescribes, in addi-
tion under section 404 of the Clean Water Act tion to the general policies of 33 CFR
complies with the section 404(b)(1) Guide-
lines. There is currently an interagency
part 320 and procedures of 33 CFR part
325, those special policies, practices,
Working Group formed to develop guidance

on implementing mitigation requirements of and procedures to be followed by the
the Guidelines. Corps of Engineers in connection with
388
the review of applications for Depart- (b) District engineers are authorized
ment of the Army (DA) permits to au- to decide whether DA authorization for
thorize the construction of a dike or a dam or dike in an intrastate navi-
dam in a navigable water of the United gable water of the United States will
States pursuant to section 9 of the Riv- be issued (see 33 CFR 325.8).
ers and Harbors Act of 1899 (33 U.S.C. (c) Processing a DA application under
401). See 33 CFR 320.2(a). Dams and section 9 will not be completed until
dikes in navigable waters of the United the approval of the United States Con-
States also require DA permits under gress has been obtained if the navi-
section 404 of the Clean Water Act, as gable water of the United States is an
amended (33 U.S.C. 1344). Applicants for interstate waterbody, or until the ap-
DA permits under this part should also proval of the appropriate state legisla-
refer to 33 CFR part 323 to satisfy the ture has been obtained if the navigable
requirements of section 404. water of the United States is an intra-
state waterbody (i.e., the navigable
§ 321.2 Definitions. portion of the navigable water of the
United States is solely within the
For the purpose of this regulation, boundaries of one state). The district
the following terms are defined: engineer, upon receipt of such an appli-
(a) The term navigable waters of the cation, will notify the applicant that
United States means those waters of the the consent of Congress or the state
United States that are subject to the legislature must be obtained before a
ebb and flow of the tide shoreward to permit can be issued.
the mean high water mark and/or are
presently used, or have been used in PART 322—PERMITS FOR STRUC-
the past, or may be susceptible to use TURES OR WORK IN OR AFFECT-
to transport interstate or foreign com-
merce. See 33 CFR part 329 for a more
ING NAVIGABLE WATERS OF THE
complete definition of this term. UNITED STATES
(b) The term dike or dam means, for
Sec.
the purposes of section 9, any impound- 322.1 General.
ment structure that completely spans 322.2 Definitions.
a navigable water of the United States 322.3 Activities requiring permits.
and that may obstruct interstate wa- 322.4 Activities not requiring permits.
terborne commerce. The term does not 322.5 Special policies.
include a weir. Weirs are regulated pur- AUTHORITY: 33 U.S.C. 403.
suant to section 10 of the Rivers and SOURCE: 51 FR 41228, Nov. 13, 1986, unless
Harbors Act of 1899. (See 33 CFR part otherwise noted.
322.)
§ 322.1 General.
§ 321.3 Special policies and proce-
dures. This regulation prescribes, in addi-
tion to the general policies of 33 CFR
The following additional special poli- part 320 and procedures of 33 CFR part
cies and procedures shall be applicable 325, those special policies, practices,
to the evaluation of permit applica- and procedures to be followed by the
tions under this regulation: Corps of Engineers in connection with
(a) The Assistant Secretary of the the review of applications for Depart-
Army (Civil Works) will decide whether ment of the Army (DA) permits to au-
DA authorization for a dam or dike in thorize certain structures or work in or
an interstate navigable water of the affecting navigable waters of the
United States will be issued, since this United States pursuant to section 10 of
authority has not been delegated to the the Rivers and Harbors Act of 1899 (33
Chief of Engineers. The conditions to U.S.C. 403) (hereinafter referred to as
be imposed in any instrument of au- section 10). See 33 CFR 320.2(b). Certain
thorization will be recommended by structures or work in or affecting navi-
the district engineer when forwarding gable waters of the United States are
the report to the Assistant Secretary also regulated under other authorities
of the Army (Civil Works), through the of the DA. These include discharges of
Chief of Engineers. dredged or fill material into waters of
389
§ 322.2 33 CFR Ch. II (7–1–20 Edition)
the United States, including the terri- specific structure or work in accord-
torial seas, pursuant to section 404 of ance with the procedures of this regu-
the Clean Water Act (33 U.S.C. 1344; see lation and 33 CFR part 325, and a deter-
33 CFR part 323) and the transportation mination that the proposed structure
of dredged material by vessel for pur- or work is in the public interest pursu-
poses of dumping in ocean waters, in- ant to 33 CFR part 320.
cluding the territorial seas, pursuant (f) The term general permit means a
to section 103 of the Marine Protection, DA authorization that is issued on a
Research and Sanctuaries Act of 1972, nationwide or regional basis for a cat-
as amended (33 U.S.C. 1413; see 33 CFR egory or categories of activities when:
part 324). A DA permit will also be re- (1) Those activities are substantially
quired under these additional authori- similar in nature and cause only mini-
ties if they are applicable to structures mal individual and cumulative envi-
or work in or affecting navigable wa- ronmental impacts; or
ters of the United States. Applicants (2) The general permit would result
for DA permits under this part should in avoiding unnecessary duplication of
refer to the other cited authorities and the regulatory control exercised by an-
implementing regulations for these ad- other Federal, state, or local agency
ditional permit requirements to deter- provided it has been determined that
mine whether they also are applicable the environmental consequences of the
to their proposed activities. action are individually and cumula-
tively minimal. (See 33 CFR 325.2(e)
§ 322.2 Definitions. and 33 CFR part 330.)
For the purpose of this regulation, (g) The term artificial reef means a
the following terms are defined: structure which is constructed or
(a) The term navigable waters of the placed in the navigable waters of the
United States and all other terms relat- United States or in the waters over-
ing to the geographic scope of jurisdic- lying the outer continental shelf for
tion are defined at 33 CFR part 329. the purpose of enhancing fishery re-
Generally, they are those waters of the sources and commercial and rec-
United States that are subject to the reational fishing opportunities. The
ebb and flow of the tide shoreward to term does not include activities or
the mean high water mark, and/or are structures such as wing deflectors,
presently used, or have been used in bank stabilization, grade stabilization
the past, or may be susceptible to use structures, or low flow key ways, all of
to transport interstate or foreign com- which may be useful to enhance fish-
merce. eries resources.
(b) The term structure shall include,
without limitation, any pier, boat § 322.3 Activities requiring permits.
dock, boat ramp, wharf, dolphin, weir, (a) General. DA permits are required
boom, breakwater, bulkhead, revet- under section 10 for structures and/or
ment, riprap, jetty, artificial island, work in or affecting navigable waters
artificial reef, permanent mooring of the United States except as other-
structure, power transmission line, wise provided in § 322.4 below. Certain
permanently moored floating vessel, activities specified in 33 CFR part 330
piling, aid to navigation, or any other are permitted by that regulation (’’na-
obstacle or obstruction. tionwide general permits’’). Other ac-
(c) The term work shall include, with- tivities may be authorized by district
out limitation, any dredging or dis- or division engineers on a regional
posal of dredged material, excavation, basis (‘‘regional general permits’’). If
filling, or other modification of a navi- an activity is not exempted by section
gable water of the United States. 322.4 of this part or authorized by a
(d) The term letter of permission general permit, an individual section 10
means a type of individual permit permit will be required for the pro-
issued in accordance with the abbre- posed activity. Structures or work are
viated procedures of 33 CFR 325.2(e). in navigable waters of the United
(e) The term individual permit means States if they are within limits defined
a DA authorization that is issued fol- in 33 CFR part 329. Structures or work

lowing a case-by-case evaluation of a outside these limits are subject to the
390
provisions of law cited in paragraph (a) sions of the Act should clearly dem-
of this section, if these structures or onstrate that Congress was approving
work affect the course, location, or the exact location and plans from
condition of the waterbody in such a which Congress could have considered
manner as to impact on its navigable the effect on navigable waters of the
capacity. For purposes of a section 10 United States or that Congress in-
permit, a tunnel or other structure or tended to exempt that agency from the
work under or over a navigable water requirements of section 10. Very often
of the United States is considered to such legislation reserves final approval
have an impact on the navigable capac- of plans or construction for the Chief of
ity of the waterbody. Engineers. In such cases evaluation
(b) Outer continental shelf. DA permits and authorization under this regula-
are required for the construction of ar- tion are limited by the intent of the
tificial islands, installations, and other statutory language involved.
devices on the seabed, to the seaward (3) The policy provisions set out in 33
limit of the outer continental shelf, CFR 320.4(j) relating to state or local
pursuant to section 4(f) of the Outer certifications and/or authorizations, do
Continental Shelf Lands Act as amend- not apply to work or structures under-
ed. (See 33 CFR 320.2(b).) taken by Federal agencies, except
(c) Activities of Federal agencies. (1) where compliance with non-Federal au-
Except as specifically provided in this thorization is required by Federal law
paragraph, activities of the type de- or Executive policy, e.g., section 313
scribed in paragraphs (a) and (b) of this and section 401 of the Clean Water Act.
section, done by or on behalf of any
Federal agency are subject to the au- § 322.4 Activities not requiring per-
thorization procedures of these regula- mits.
tions. Work or structures in or affect- (a) Activities that were commenced
ing navigable waters of the United or completed shoreward of established
States that are part of the civil works Federal harbor lines before May 27, 1970
activities of the Corps of Engineers, (see 33 CFR 320.4(o)) do not require sec-
unless covered by a nationwide or re- tion 10 permits; however, if those ac-
gional general permit issued pursuant tivities involve the discharge of
to these regulations, are subject to the dredged or fill material into waters of
procedures of separate regulations. the United States after October 18,
Agreement for construction or engi- 1972, a section 404 permit is required.
neering services performed for other (See 33 CFR part 323.)
agencies by the Corps of Engineers does (b) Pursuant to section 154 of the
not constitute authorization under this Water Resource Development Act of
regulation. Division and district engi- 1976 (Pub. L. 94–587), Department of the
neers will therefore advise Federal Army permits are not required under
agencies accordingly, and cooperate to section 10 to construct wharves and
the fullest extent in expediting the piers in any waterbody, located en-
processing of their applications. tirely within one state, that is a navi-
(2) Congress has delegated to the Sec- gable water of the United States solely
retary of the Army in section 10 the on the basis of its historical use to
duty to authorize or prohibit certain transport interstate commerce.
work or structures in navigable waters
of the United States, upon rec- § 322.5 Special policies.
ommendation of the Chief of Engi- The Secretary of the Army has dele-
neers. The general legislation by which gated to the Chief of Engineers the au-
Federal agencies are enpowered to act thority to issue or deny section 10 per-
generally is not considered to be suffi- mits. The following additional special
cient authorization by Congress to sat- policies and procedures shall also be
isfy the purposes of section 10. If an applicable to the evaluation of permit
agency asserts that it has Congres- applications under this regulation.
sional authorization meeting the test (a) General. DA permits are required
of section 10 or would otherwise be ex- for structures or work in or affecting
empt from the provisions of section 10, navigable waters of the United States.
the legislative history and/or provi- However, certain structures or work
391
§ 322.5 33 CFR Ch. II (7–1–20 Edition)
specified in 33 CFR part 330 are per- reef, he may initiate such consultation
mitted by that regulation. If a struc- with any Federal agency, state or local
ture or work is not permitted by that government, or other interested party.
regulation, an individual or regional (4) The district engineer will issue a
section 10 permit will be required. permit for the proposed artificial reef
(b) Artificial Reefs. (1) When consid- only if the applicant demonstrates, to
ering an application for an artificial the district engineer’s satisfaction,
reef, as defined in 33 CFR 322.2(g), the that the title to the artificial reef con-
district engineer will review the appli- struction material is unambiguous,
cant’s provisions for siting, con- that responsibility for maintenance of
structing, monitoring, operating, the reef is clearly established, and that
maintaining, and managing the pro- he has the financial ability to assume
posed artificial reef and shall deter- liability for all damages that may arise
mine if those provisions are consistent with respect to the proposed artificial
with the following standards: reef. A demonstration of financial re-
(i) The enhancement of fishery responsibility might include evidence of
sources to the maximum extent prac- insurance, sponsorship, or available as-
ticable; sets.
(ii) The facilitation of access and uti- (i) A person to whom a permit is
lization by United States recreational issued in accordance with these regula-
and commercial fishermen; tions and any insurer of that person
(iii) The minimization of conflicts shall not be liable for damages caused
among competing uses of the navigable by activities required to be undertaken
waters or waters overlying the outer under any terms and conditions of the
continental shelf and of the resources permit, if the permittee is in compli-
in such waters; ance with such terms and conditions.
(iv) The minimization of environ-
(ii) A person to whom a permit is
mental risks and risks to personal
issued in accordance with these regula-
health and property;
tions and any insurer of that person
(v) Generally accepted principles of
shall be liable, to the extent deter-
international law; and
(vi) the prevention of any unreason- mined under applicable law, for dam-
able obstructions to navigation. If the ages to which paragraph (i) does not
district engineer decides that the ap- apply.
plicant’s provisions are not consistent (iii) Any person who has transferred
with these standards, he shall deny the title to artificial reef construction ma-
permit. If the district engineer decides terials to a person to whom a permit is
that the provisions are consistent with issued in accordance with these regula-
these standards, and if he decides to tions shall not be liable for damages
issue the permit after the public inter- arising from the use of such materials
est review, he shall make the provi- in an artificial reef, if such materials
sions part of the permit. meet applicable requirements of the
(2) In addition, the district engineer plan published under section 204 of the
will consider the National Artificial National Artificial Reef Plan, and are
Reef Plan developed pursuant to sec- not otherwise defective at the time
tion 204 of the National Fishing En- title is transferred.
hancement Act of 1984, and if he de- (c) Non-Federal dredging for naviga-
cides to issue the permit, will notify tion. (1) The benefits which an author-
the Secretary of Commerce of any need ized Federal navigation project are in-
to deviate from that plan. tended to produce will often require
(3) The district engineer will comply similar and related operations by non-
with all coordination provisions re- Federal agencies (e.g., dredging access
quired by a written agreement between channels to docks and berthing facili-
the DOD and the Federal agencies rel- ties or deepening such channels to cor-
ative to artificial reefs. In addition, if respond to the Federal project depth).
the district engineer decides that fur- These non-Federal activities will be
ther consultation beyond the normal considered by Corps of Engineers offi-
public commenting process is required cials in planning the construction and

to evaluate fully the proposed artificial maintenance of Federal navigation
392
projects and, to the maximum prac- to prevent possible obstructions to

tical extent, will be coordinated with navigation with respect to both the
interested Federal, state, regional and public’s use of the waterway and the
local agencies and the general public neighboring proprietors’ access to the
simultaneously with the associated waterway. Obstructions can result
Federal projects. Non-Federal activi- from both the existence of the struc-
ties which are not so coordinated will ture, particularly in conjunction with
be individually evaluated in accord- other similar facilities in the imme-
ance with these regulations. In evalu- diate vicinity, and from its inability to
ating the public interest in connection withstand wave action or other forces
with applications for permits for such which can be expected. District engi-
coordinated operations, equal treat- neers will inform applicants of the haz-
ment will be accorded to the fullest ex- ards involved and encourage safety in
tent possible to both Federal and non- location, design, and operation. Dis-
Federal operations. Permits for non- trict engineers will encourage coopera-
Federal dredging operations will nor- tive or group use facilities in lieu of in-
mally contain conditions requiring the dividual proprietary use facilities.
permittee to comply with the same (2) Floating structures for small rec-
practices or requirements utilized in reational boats or other recreational
connection with related Federal dredg- purposes in lakes controlled by the
ing operations with respect to such Corps of Engineers under a resource
matters as turbidity, water quality, manager are normally subject to per-
containment of material, nature and mit authorities cited in § 322.3, of this
location of approved spoil disposal section, when those waters are re-
areas (non-Federal use of Federal con- garded as navigable waters of the
tained disposal areas will be in accord- United States. However, such struc-
ance with laws authorizing such areas tures will not be authorized under this
and regulations governing their use), regulation but will be regulated under
extent and period of dredging, and applicable regulations of the Chief of
other factors relating to protection of Engineers published in 36 CFR 327.19 if
environmental and ecological values. the land surrounding those lakes is
(2) A permit for the dredging of a under complete Federal ownership. Dis-
channel, slip, or other such project for trict engineers will delineate those
navigation may also authorize the peri- portions of the navigable waters of the
odic maintenance dredging of the United States where this provision is
project. Authorization procedures and applicable and post notices of this des-
limitations for maintenance dredging ignation in the vicinity of the lake re-
shall be as prescribed in 33 CFR source manager’s office.
325.6(e). The permit will require the (e) Aids to navigation. The placing of
permittee to give advance notice to the fixed and floating aids to navigation in
district engineer each time mainte- a navigable water of the United States
nance dredging is to be performed. is within the purview of Section 10 of
Where the maintenance dredging in- the Rivers and Harbors Act of 1899.
volves the discharge of dredged mate- Furthermore, these aids are of par-
rial into waters of the United States or ticular interest to the U.S. Coast
the transportation of dredged material Guard because of its control of mark-
for the purpose of dumping it in ocean ing, lighting and standardization of
waters, the procedures in 33 CFR parts such navigation aids. A Section 10 na-
323 and 324 respectively shall also be tionwide permit has been issued for
followed. such aids provided they are approved
(d) Structures for small boats. (1) In the by, and installed in accordance with
absence of overriding public interest, the requirements of the U.S. Coast
favorable consideration will generally Guard (33 CFR 330.5(a)(1)). Electrical
be given to applications from riparian service cables to such aids are not in-
owners for permits for piers, boat cluded in the nationwide permit (an in-
docks, moorings, platforms and similar dividual or regional Section 10 permit
structures for small boats. Particular will be required).
attention will be given to the location (f) Outer continental shelf. Artificial
and general design of such structures islands, installations, and other devices
393
§ 322.5 33 CFR Ch. II (7–1–20 Edition)
located on the seabed, to the seaward States are subject to Executive control
limit of the outer continental shelf, are and must be authorized by the Presi-
subject to the standard permit proce- dent, Secretary of State, or other dele-
dures of this regulation. Where the is- gated official.
lands, installations and other devices (2) Applications for permits for the
are to be constructed on lands which construction, operation, maintenance,
are under mineral lease from the Min- or connection at the borders of the
eral Management Service, Department United States of facilities for the
of the Interior, that agency, in co- transmission of electric energy be-
operation with other federal agencies, tween the United States and a foreign
fully evaluates the potential effect of country, or for the exportation or im-
the leasing program on the total envi- portation of natural gas to or from a
ronment. Accordingly, the decision foreign country, must be made to the
whether to issue a permit on lands Secretary of Energy. (Executive Order
which are under mineral lease from the 10485, September 3, 1953, 16 U.S.C.
Department of the Interior will be lim- 824(a)(e), 15 U.S.C. 717(b), as amended
ited to an evaluation of the impact of by Executive Order 12038, February 3,
the proposed work on navigation and 1978, and 18 CFR parts 32 and 153).
national security. The public notice (3) Applications for the landing or op-
will so identify the criteria. eration of submarine cables must be
(g) Canals and other artificial water- made to the Federal Communications
ways connected to navigable waters of the Commission. (Executive Order 10530,
United States. A canal or similar artifi-
May 10, 1954, 47 U.S.C. 34 to 39, and 47
cial waterway is subject to the regu-
CFR 1.766).
latory authorities discussed in § 322.3,
(4) The Secretary of State is to re-
of this part, if it constitutes a navi-
gable water of the United States, or if ceive applications for permits for the
it is connected to navigable waters of construction, connection, operation, or
the United States in a manner which maintenance, at the borders of the
affects their course, location, condi- United States, of pipelines, conveyor
tion, or capacity, or if at some point in belts, and similar facilities for the ex-
its construction or operation it results portation or importation of petroleum
in an effect on the course, location, products, coals, minerals, or other
condition, or capacity of navigable wa- products to or from a foreign country;
ters of the United States. In all cases facilities for the exportation or impor-
the connection to navigable waters of tation of water or sewage to or from a
the United States requires a permit. foreign country; and monorails, aerial
Where the canal itself constitutes a cable cars, aerial tramways, and simi-
navigable water of the United States, lar facilities for the transportation of
evaluation of the permit application persons and/or things, to or from a for-
and further exercise of regulatory au- eign country. (Executive Order 11423,
thority will be in accordance with the August 16, 1968).
standard procedures of these regula- (5) A DA permit under section 10 of
tions. For all other canals, the exercise the Rivers and Harbors Act of 1899 is
of regulatory authority is restricted to also required for all of the above facili-
those activities which affect the ties which affect the navigable waters
course, location, condition, or capacity of the United States, but in each case
of the navigable waters of the United in which a permit has been issued as
States. The district engineer will con- provided above, the district engineer,
sider, for applications for canal work, a in evaluating the general public inter-
proposed plan of the entire develop- est, may consider the basic existence
ment and the location and description and operation of the facility to have
of anticipated docks, piers and other been primarily examined and per-
similar structures which will be placed mitted as provided by the Executive
in the canal. Orders. Furthermore, in those cases
(h) Facilities at the borders of the where the construction, maintenance,
United States. (1) The construction, op- or operation at the above facilities in-
eration, maintenance, or connection of volves the discharge of dredged or fill

facilities at the borders of the United material in waters of the United States
394
or the transportation of dredged mate- bles, and other aerial crossings are usu-
rial for the purpose of dumping it into ally required to be a minimum of ten
ocean waters, appropriate DA author- feet above clearances required for
izations under section 404 of the Clean bridges. Greater clearances will be re-
Water Act or under section 103 of the quired if the public interest so indi-
Marine Protection, Research and Sanc- cates.
tuaries Act of 1972, as amended, are (4) Corps of Engineer regulation ER
also required. (See 33 CFR parts 323 and 1110–2–4401 prescribes minimum
324.) vertical clearances for power and com-
(i) Power transmission lines. (1) Per- munication lines over Corps lake
mits under section 10 of the Rivers and projects. In instances where both this
Harbors Act of 1899 are required for regulation and ER 1110–2–4401 apply,
power transmission lines crossing navi- the greater minimum clearance is re-
gable waters of the United States un-
quired.
less those lines are part of a water
power project subject to the regulatory (j) Seaplane operations. (1) Structures
authorities of the Department of En- in navigable waters of the United
ergy under the Federal Power Act of States associated with seaplane oper-
1920. If an application is received for a ations require DA permits, but close
permit for lines which are part of such coordination with the Federal Aviation
a water power project, the applicant Administration (FAA), Department of
will be instructed to submit the appli- Transportation, is required on such ap-
cation to the Department of Energy. If plications.
the lines are not part of such a water (2) The FAA must be notified by an
power project, the application will be applicant whenever he proposes to es-
processed in accordance with the proce- tablish or operate a seaplane base. The
dures of these regulations. FAA will study the proposal and advise
(2) The following minimum clear- the applicant, district engineer, and
ances are required for aerial electric other interested parties as to the ef-
power transmission lines crossing navi- fects of the proposal on the use of air-
gable waters of the United States. space. The district engineer will, there-
These clearances are related to the fore, refer any objections regarding the
clearances over the navigable channel effect of the proposal on the use of air-
provided by existing fixed bridges, or space to the FAA, and give due consid-
the clearances which would be required eration to its recommendations when
by the U.S. Coast Guard for new fixed evaluating the general public interest.
bridges, in the vicinity of the proposed (3) If the seaplane base would serve
power line crossing. The clearances are air carriers licensed by the Department
based on the low point of the line under of Transportation, the applicant must
conditions which produce the greatest receive an airport operating certificate
sag, taking into consideration tem-
from the FAA. That certificate reflects
perature, load, wind, length or span,
a determination and conditions relat-
and type of supports as outlined in the
ing to the installation, operation, and
National Electrical Safety Code.
maintenance of adequate air naviga-
Minimum addition facilities and safety equipment.
tional clear- Accordingly, the district engineer may,
ance (feet)
Nominal system voltage, kV in evaluating the general public inter-
above clear-
ance required
for bridges est, consider such matters to have been
primarily evaluated by the FAA.
115 and below ............................................... 20 (4) For regulations pertaining to sea-
138 ................................................................. 22
161 ................................................................. 24 plane landings at Corps of Engineers
230 ................................................................. 26 projects, see 36 CFR 327.4.
350 ................................................................. 30 (k) Foreign trade zones. The Foreign
500 ................................................................. 35
700 ................................................................. 42 Trade Zones Act (48 Stat. 998–1003, 19
750–765 ......................................................... 45 U.S.C. 81a to 81u, as anended) author-
izes the establishnent of foreign-trade
(3) Clearances for communication zones in or adjacent to United States

lines, stream gaging cables, ferry ca- ports of entry under terms of a grant
395
§ 322.5 33 CFR Ch. II (7–1–20 Edition)
and regulations prescribed by the For- chor line within a fairway will be 125
eign-Trade Zones Board. Pertinent reg- feet.
ulations are published at Title 15 of the (iv) No anchor buoys or floats or re-
Code of Federal Regulations, part 400. lated rigging will be allowed on the
The Secretary of the Army is a mem- surface of the water or to a depth of 125
ber of the Board, and construction of a feet from the surface, within the fair-
zone is under the supervision of the dis- way.
trict engineer. Laws governing the nav- (v) Drilling rigs may not be placed
igable waters of the United States re- closer than 2 nautical miles of any
main applicable to foreign-trade zones, other drilling rig situated along a fair-
including the general requirements of way boundary, and not closer than 3
these regulations. Evaluation by a dis- nautical miles to any drilling rig lo-
trict engineer of a permit application cated on the opposite side of the fair-
may give recognition to the consider- way.
ation by the Board of the general (vi) The permittee must notify the
econonic effects of the zone on local district engineer, Bureau of Land Man-
and foreign commerce, general location agement, Mineral Management Serv-
of wharves and facilities, and other fac- ice, U.S. Coast Guard, National Oce-
tors pertinent to construction, oper- anic and Atmospheric Administration
ation, and maintenance of the zone. and the U.S. Navy Hydrographic Office
(l) Shipping safety fairways and an- of the approximate dates
chorage areas. DA permits are required (commencenent and completion) the
for structures located within shipping anchors will be in place to insure max-
safety fairways and anchorage areas es- imum notification to mariners.
tablished by the U.S. Coast Guard. (vii) Navigation aids or danger mark-
(1) The Department of the Army will ings must be installed as required by
grant no permits for the erection of the U.S. Coast Guard.
(2) District engineers may grant per-
structures in areas designated as fair-
mits for the erection of structures
ways, except that district engineers
within an area designated as an an-
may permit anchors and attendant ca-
chorage area, but the number of struc-
bles or chains for floating or
tures will be limited by spacing, as fol-
semisubmersible drilling rigs to be
lows: The center of a structure to be
placed within a fairway provided the
erected shall be not less than two (2)
following conditions are met:
nautical miles from the center of any
(i) The purpose of such anchors and existing structure. In a drilling or pro-
attendant cables or chains as used in duction complex, associated structures
this section is to stabilize floating pro- shall be as close together as prac-
duction facilities or semisubmersible ticable having due consideration for
drilling rigs which are located outside the safety factors involved. A complex
the boundaries of the fairway. of associated structures, when con-
(ii) In water depths of 600 feet or less, nected by walkways, shall be consid-
the installation of anchors and attend- ered one structure for the purpose of
ant cables or chains within fairways spacing. A vessel fixed in place by
must be temporary and shall be al- moorings and used in conjunction with
lowed to remain only 120 days. This pe- the associated structures of a drilling
riod may be extended by the district or production complex, shall be consid-
engineer provided reasonable cause for ered an attendant vessel and its extent
such extension can be shown and the shall include its moorings. When a
extension is otherwise justified. In drilling or production complex includes
water depths greater than 600 feet, an attendant vessel and the complex
time restrictions on anchors and at- extends more than five hundred (500)
tendant cables or chains located within yards from the center or the complex,
a fairway, whether temporary or per- a structure to be erected shall be not
manent, shall not apply. closer than two (2) nautical miles from
(iii) Drilling rigs must be at least 500 the near outer limit of the complex. An
feet from any fairway boundary or underwater completion installation in
whatever distance necessary to insure and anchorage area shall be considered

that minimnum clearance over an an- a structure and shall be marked with a
396
lighted buoy as approved by the United are applicable to their proposed activi-
States Coast Guard. ties.
[51 FR 41228, Nov. 13, 1986, as amended at 60 § 323.2 Definitions.
FR 44761, Aug. 29, 1995]
For the purpose of this part, the fol-
lowing terms are defined:
PART 323—PERMITS FOR DIS- (a) The term waters of the United
CHARGES OF DREDGED OR FILL States and all other terms relating to
MATERIAL INTO WATERS OF THE the geographic scope of jurisdiction are
UNITED STATES defined at 33 CFR part 328.
(b) The term lake means a standing
Sec. body of open water that occurs in a
323.1 General. natural depression fed by one or more
323.2 Definitions. streams from which a stream may flow,
323.3 Discharges requiring permits.
that occurs due to the widening or nat-
323.4 Discharges not requiring permits.
323.5 Program transfer to States. ural blockage or cutoff of a river or
323.6 Special policies and procedures. stream, or that occurs in an isolated
natural depression that is not a part of
AUTHORITY: 33 U.S.C. 1344.
a surface river or stream. The term
SOURCE: 51 FR 41232, Nov. 13, 1986, unless also includes a standing body of open
otherwise noted. water created by artificially blocking
or restricting the flow of a river,
§ 323.1 General. stream, or tidal area. As used in this
This regulation prescribes, in addi- regulation, the term does not include
tion to the general policies of 33 CFR artificial lakes or ponds created by ex-
part 320 and procedures of 33 CFR part cavating and/or diking dry land to col-
325, those special policies, practices, lect and retain water for such purposes
and procedures to be followed by the as stock watering, irrigation, settling
Corps of Engineers in connection with basins, cooling, or rice growing.
the review of applications for DA per- (c) The term dredged material means
mits to authorize the discharge of material that is excavated or dredged
dredged or fill material into waters of from waters of the United States.
the United States pursuant to section (d)(1) Except as provided below in
404 of the Clean Water Act (CWA) (33 paragraph (d)(2), the term discharge of
U.S.C. 1344) (hereinafter referred to as dredged material means any addition of
section 404). (See 33 CFR 320.2(g).) Cer- dredged material into, including rede-
tain discharges of dredged or fill mate- posit of dredged material other than
rial into waters of the United States incidential fallback within, the waters
are also regulated under other authori- of the United States. The term in-
ties of the Department of the Army. cludes, but is not limited to, the fol-
These include dams and dikes in navi- lowing:
gable waters of the United States pur- (i) The addition of dredged material
suant to section 9 of the Rivers and to a specified discharge site located in
Harbors Act of 1899 (33 U.S.C. 401; see 33 waters of the United States;
CFR part 321) and certain structures or (ii) The runoff or overflow from a
work in or affecting navigable waters contained land or water disposal area;
of the United States pursuant to sec- and
tion 10 of the Rivers and Harbors Act of (iii) Any addition, including rede-
1899 (33 U.S.C. 403; see 33 CFR part 322). posit other than incidential fallback,
A DA permit will also be required of dredged material, including exca-
under these additional authorities if vated material, into waters of the
they are applicable to activities involv- United States which is incidental to
ing discharges of dredged or fill mate- any activity, including mechanized
rial into waters of the United States. landclearing, ditching, channelization,
Applicants for DA permits under this or other excavation.
part should refer to the other cited au- (2) The term discharge of dredged ma-
thorities and implementing regulations terial does not include the following:
for these additional permit require- (i) Discharges of pollutants into wa-
ments to determine whether they also ters of the United States resulting
397
§ 323.2 33 CFR Ch. II (7–1–20 Edition)
from the onshore subsequent proc- not applicable to dredging activities in

essing of dredged material that is ex- wetlands, as that term is defined at
tracted for any commercial use (other section 328.3 of this Chapter.
than fill). These discharges are subject (iii) Certain discharges, such as those
to section 402 of the Clean Water Act associated with normal farming,
even though the extraction and deposit silviculture, and ranching activities,
of such material may require a permit are not prohibited by or otherwise sub-
from the Corps or applicable State sec- ject to regulation under section 404.
tion 404 program. See 33 CFR 323.4 for discharges that do
(ii) Activities that involve only the not required permits.
cutting or removing of vegetation (4) For purposes of this section, an
above the ground (e.g., mowing, rotary activity associated with a discharge of
cutting, and chainsawing) where the dredged material destroys an area of
activity neither substantially disturbs waters of the United States if it alters
the root system nor involves mecha- the area in such a way that it would no
nized pushing, dragging, or other simi- longer be a water of the United States.
lar activities that redeposit excavated NOTE: Unauthorized discharges into waters
soil material. of the United States do not eliminate Clean
Water Act jurisdiction, even where such un-
(iii) Incidental fallback. authorized discharges have the effect of de-
(3) Section 404 authorization is not stroying waters of the United States.
required for the following: (5) For purposes of this section, an
(i) Any incidental addition, including activity associated with a discharge of
redeposit, of dredged material associ- dredged material degrades an area of
ated with any activity that does not waters of the United States if it has
have or would not have the effect of de- more than a de minimis (i.e., incon-
stroying or degrading an area of waters sequential) effect on the area by caus-
of the United States as defined in para- ing an identifiable individual or cumu-
graphs (d)(4) and (d)(5) of this section; lative adverse effect on any aquatic
however, this exception does not apply function.
to any person preparing to undertake (e)(1) Except as specified in para-
mechanized landclearing, ditching, graph (e)(3) of this section, the term
channelization and other excavation fill material means material placed in
activity in a water of the United waters of the United States where the
States, which would result in a rede- material has the effect of:
posit of dredged material, unless the (i) Replacing any portion of a water
person demonstrates to the satisfac- of the United States with dry land; or
tion of the Corps, or EPA as appro- (ii) Changing the bottom elevation of
priate, prior to commencing the activ- any portion of a water of the United
ity involving the discharge, that the States.
activity would not have the effect of (2) Examples of such fill material in-
destroying or degrading any area of clude, but are not limited to: rock,
waters of the United States, as defined sand, soil, clay, plastics, construction
in paragraphs (d)(4) and (d)(5) of this debris, wood chips, overburden from
section. The person proposing to undermining or other excavation activities,
take mechanized landclearing, ditch- and materials used to create any struc-
ing, channelization or other excavation ture or infrastructure in the waters of
activity bears the burden of dem- the United States.
onstrating that such activity would (3) The term fill material does not in-
not destroy or degrade any area of wa- clude trash or garbage.
ters of the United States. (f) The term discharge of fill material
(ii) Incidental movement of dredged means the addition of fill material into
material occurring during normal waters of the United States. The term
dredging operations, defined as dredg- generally includes, without limitation,
ing for navigation in navigable waters of the following activities: Placement of
the United States, as that term is de- fill that is necessary for the construc-
fined in part 329 of this chapter, with tion of any structure or infrastructure
proper authorization from the Congress in a water of the United States; the
and/or the Corps pursuant to part 322 of building of any structure, infrastruc-
this Chapter; however, this exception is ture, or impoundment requiring rock,
398
sand, dirt, or other material for its tively minimal. (See 33 CFR 325.2(e)
construction; site-development fills for and 33 CFR part 330.)
recreational, industrial, commercial, [51 FR 41232, Nov. 13, 1986, as amended at 58
residential, or other uses; causeways or FR 45035, Aug. 25, 1993; 58 FR 48424, Sept. 15,
road fills; dams and dikes; artificial is- 1993; 63 FR 25123, May 10, 1999; 66 FR 4574,
lands; property protection and/or rec- Jan. 17, 2001; 66 FR 10367, Feb. 15, 2001; 67 FR
lamation devices such as riprap, groins, 31142, May 9, 2002; 73 FR 79645, Dec. 30, 2008]
seawalls, breakwaters, and revetments; § 323.3 Discharges requiring permits.
beach nourishment; levees; fill for
structures such as sewage treatment (a) General. Except as provided in
facilities, intake and outfall pipes asso- § 323.4 of this part, DA permits will be
required for the discharge of dredged or
ciated with power plants and sub-
fill material into waters of the United
aqueous utility lines; placement of fill
States. Certain discharges specified in
material for construction or mainte-
33 CFR part 330 are permitted by that
nance of any liner, berm, or other in- regulation (‘‘nationwide permits’’).
frastructure associated with solid Other discharges may be authorized by
waste landfills; placement of overbur- district or division engineers on a re-
den, slurry, or tailings or similar min- gional basis (‘‘regional permits’’). If a
ing-related materials; and artificial discharge of dredged or fill material is
reefs. The term does not include plow- not exempted by § 323.4 of this part or
ing, cultivating, seeding and har- permitted by 33 CFR part 330, an indi-
vesting for the production of food, vidual or regional section 404 permit
fiber, and forest products (See § 323.4 will be required for the discharge of
for the definition of these terms). See dredged or fill material into waters of
§ 323.3(c) concerning the regulation of the United States.
the placement of pilings in waters of (b) Activities of Federal agencies. Dis-
the United States. charges of dredged or fill material into
(g) The term individual permit means waters of the United States done by or
a Department of the Army authoriza- on behalf of any Federal agency, other
tion that is issued following a case-by- than the Corps of Engineers (see 33
case evaluation of a specific project in- CFR 209.145), are subject to the author-
volving the proposed discharge(s) in ac- ization procedures of these regulations.
cordance with the procedures of this Agreement for construction or engi-
neering services performed for other
part and 33 CFR part 325 and a deter-
agencies by the Corps of Engineers does
mination that the proposed discharge
not constitute authorization under the
is in the public interest pursuant to 33 regulations. Division and district engi-
CFR part 320. neers will therefore advise Federal
(h) The term general permit means a agencies and instrumentalities accord-
Department of the Army authorization ingly and cooperate to the fullest ex-
that is issued on a nationwide or re- tent in expediting the processing of
gional basis for a category or cat- their applications.
egories of activities when: (c) Pilings. (1) Placement of pilings in
(1) Those activities are substantially waters of the United States constitutes
similar in nature and cause only mini- a discharge of fill material and re-
mal individual and cumulative envi- quires a section 404 permit when such
ronmental impacts; or placement has or would have the effect
(2) The general permit would result of a discharge of fill material. Exam-
in avoiding unnecessary duplication of ples of such activities that have the ef-
regulatory control exercised by an- fect of a discharge of fill material in-
other Federal, State, or local agency clude, but are not limited to, the fol-
provided it has been determined that lowing: Projects where the pilings are
the environmental consequences of the so closely spaced that sedimentation
rates would be increased; projects in
action are individually and cumula-
which the pilings themselves effec-
tively would replace the bottom of a
waterbody; projects involving the

placement of pilings that would reduce
399
§ 323.4 33 CFR Ch. II (7–1–20 Edition)
the reach or impair the flow or circula- part of an established operation. An op-
tion of waters of the United States; and eration ceases to be established when
projects involving the placement of pil- the area on which it was conducted has
ings which would result in the adverse been coverted to another use or has
alteration or elimination of aquatic lain idle so long that modifications to
functions. the hydrological regime are necessary
(2) Placement of pilings in waters of to resume operations. If an activity
the United States that does not have or takes place outside the waters of the
would not have the effect of a dis- United States, or if it does not involve
charge of fill material shall not require a discharge, it does not need a section
a section 404 permit. Placement of pil- 404 permit, whether or not it is part of
ings for linear projects, such as an established farming, silviculture, or
bridges, elevated walkways, and ranching operation.
powerline structures, generally does (iii)(A) Cultivating means physical
not have the effect of a discharge of fill methods of soil treatment employed
material. Furthermore, placement of within established farming, ranching
pilings in waters of the United States and silviculture lands on farm, ranch,
for piers, wharves, and an individual or forest crops to aid and improve their
house on stilts generally does not have growth, quality or yield.
the effect of a discharge of fill mate- (B) Harvesting means physical meas-
rial. All pilings, however, placed in the ures employed directly upon farm, for-
navigable waters of the United States, as est, or ranch crops within established
that term is defined in part 329 of this agricultural and silvicultural lands to
chapter, require authorization under bring about their removal from farm,
section 10 of the Rivers and Harbors forest, or ranch land, but does not in-
Act of 1899 (see part 322 of this chap- clude the construction of farm, forest,
ter). or ranch roads.
[51 FR 41232, Nov. 13, 1986, as amended at 58 (C)(1) Minor drainage means:
FR 45036, Aug. 25, 1993] (i) The discharge of dredged or fill
material incidental to connecting up-
§ 323.4 Discharges not requiring per- land drainage facilities to waters of the
mits. United States, adequate to effect the
(a) General. Except as specified in removal of excess soil moisture from
paragraphs (b) and (c) of this section, upland croplands. (Construction and
any discharge of dredged or fill mate- maintenance of upland (dryland) facili-
rial that may result from any of the ties, such as ditching and tiling,
following activities is not prohibited incidential to the planting, culti-
by or otherwise subject to regulation vating, protecting, or harvesting of
under section 404: crops, involve no discharge of dredged
(1)(i) Normal farming, silviculture or fill material into waters of the
and ranching activities such as plow- United States, and as such never re-
ing, seeding, cultivating, minor drain- quire a section 404 permit.);
age, and harvesting for the production (ii) The discharge of dredged or fill
of food, fiber, and forest products, or material for the purpose of installing
upland soil and water conservation ditching or other such water control
practices, as defined in paragraph facilities incidental to planting, culti-
(a)(1)(iii) of this section. vating, protecting, or harvesting of
(ii) To fall under this exemption, the rice, cranberries or other wetland crop
activities specified in paragraph species, where these activities and the
(a)(1)(i) of this section must be part of discharge occur in waters of the United
an established (i.e., on-going) farming, States which are in established use for
silviculture, or ranching operation and such agricultural and silvicultural wet-
must be in accordance with definitions land crop production;
in § 323.4(a)(1)(iii). Activities on areas (iii) The discharge of dredged or fill
lying fallow as part of a conventional material for the purpose of manipu-
rotational cycle are part of an estab- lating the water levels of, or regulating
lished operation. Activities which the flow or distribution of water with-
bring an area into farming, in, existing impoundments which have

silviculture, or ranching use are not been constructed in accordance with
400
applicable requirements of CWA, and (D) Plowing means all forms of pri-
which are in established use for the mary tillage, including moldboard,
production of rice, cranberries, or chisel, or wide-blade plowing, discing,
other wetland crop species. (The provi- harrowing and similar physical means
sions of paragraphs (a)(1)(iii)(C)(1) (ii) utilized on farm, forest or ranch land
and (iii) of this section apply to areas for the breaking up, cutting, turning
that are in established use exclusively over, or stirring of soil to prepare it for
for wetland crop production as well as the planting of crops. The term does
areas in established use for conven- not include the redistribution of soil,
tional wetland/non-wetland crop rota- rock, sand, or other surficial materials
tion (e.g., the rotations of rice and soy- in a manner which changes any area of
beans) where such rotation results in the waters of the United States to dry
the cyclical or intermittent temporary land. For example, the redistribution
dewatering of such areas.) of surface materials by blading, grad-
(iv) The discharges of dredged or fill ing, or other means to fill in wetland
material incidental to the emergency areas is not plowing. Rock crushing ac-
removal of sandbars, gravel bars, or tivities which result in the loss of nat-
other similar blockages which are ural drainage characteristics, the re-
formed during flood flows or other duction of water storage and recharge
events, where such blockages close or capabilities, or the overburden of nat-
constrict previously existing ural water filtration capacities do not
drainageways and, if not promptly re- constitute plowing. Plowing as de-
moved, would result in damage to or scribed above will never involve a dis-
loss of existing crops or would impair charge of dredged or fill material.
or prevent the plowing, seeding, har- (E) Seeding means the sowing of seed
vesting or cultivating of crops on land and placement of seedlings to produce
in established use for crop production. farm, ranch, or forest crops and in-
Such removal does not include enlarg- cludes the placement of soil beds for
ing or extending the dimensions of, or seeds or seedlings on established farm
changing the bottom elevations of, the and forest lands.
affected drainageway as it existed prior (2) Maintenance, including emer-
to the formation of the blockage. Re- gency reconstruction of recently dam-
moval must be accomplished within aged parts, of currently serviceable
one year of discovery of such blockages structures such as dikes, dams, levees,
in order to be eligible for exemption. groins, riprap, breakwaters, causeways,
(2) Minor drainage in waters of the bridge abutments or approaches, and
U.S. is limited to drainage within areas transportation structures. Mainte-
that are part of an established farming nance does not include any modifica-
or silviculture operation. It does not tion that changes the character, scope,
include drainage associated with the or size of the original fill design. Emer-
immediate or gradual conversion of a gency reconstruction must occur with-
wetland to a non-wetland (e.g., wetland in a reasonable period of time after
species to upland species not typically damage occurs in order to qualify for
adapted to life in saturated soil condi- this exemption.
tions), or conversion from one wetland (3) Construction or maintenance of
use to another (for example, farm or stock ponds or irrigation
silviculture to farming). In addition, ditches, or the maintenance (but not
minor drainage does not include the construction) of drainage ditches. Dis-
construction of any canal, ditch, dike charges associated with siphons,
or other waterway or structure which pumps, headgates, wingwalls, weirs, di-
drains or otherwise significantly modi- version structures, and such other fa-
fies a stream, lake, swamp, bog or any cilities as are appurtenant and func-
other wetland or aquatic area consti- tionally related to irrigation ditches
tuting waters of the United States. are included in this exemption.
Any discharge of dredged or fill mate- (4) Construction of temporary sedi-
rial into the waters of the United mentation basins on a construction
States incidental to the construction site which does not include placement
of any such structure or waterway re- of fill material into waters of the U.S.
quires a permit. The term ‘‘construction site’’ refers to
401
§ 323.4 33 CFR Ch. II (7–1–20 Edition)
any site involving the erection of (iv) The fill shall be properly sta-
buildings, roads, and other discrete bilized and maintained during and fol-
structures and the installation of sup- lowing construction to prevent erosion;
port facilities necessary for construc- (v) Discharges of dredged or fill ma-
tion and utilization of such structures. terial into waters of the United States
The term also includes any other land to construct a road fill shall be made in
areas which involve land-disturbing ex- a manner that minimizes the encroach-
cavation activities, including quar- ment of trucks, tractors, bulldozers, or
rying or other mining activities, where other heavy equipment within waters
an increase in the runoff of sediment is of the United States (including adja-
controlled through the use of tem- cent wetlands) that lie outside the lat-
porary sedimentation basins. eral boundaries of the fill itself;
(5) Any activity with respect to (vi) In designing, constructing, and
which a State has an approved program maintaining roads, vegetative disturb-
under section 208(b)(4) of the CWA ance in the waters of the U.S. shall be
which meets the requirements of sec- kept to a minimum;
tions 208(b)(4) (B) and (C). (vii) The design, construction and
(6) Construction or maintenance of maintenance of the road crossing shall
farm roads, forest roads, or temporary not disrupt the migration or other
roads for moving mining equipment, movement of those species of aquatic
where such roads are constructed and life inhabiting the water body;
maintained in accordance with best (viii) Borrow material shall be taken
management practices (BMPs) to as- from upland sources whenever feasible;
sure that flow and circulation patterns (ix) The discharge shall not take, or
and chemical and biological character- jeopardize the continued existence of, a
istics of waters of the United States threatened or endangered species as de-
are not impaired, that the reach of the fined under the Endangered Species
waters of the United States is not re- Act, or adversely modify or destroy the
duced, and that any adverse effect on critical habitat of such species;
the aquatic environment will be other- (x) Discharges into breeding and
wise minimized. These BMPs which nesting areas for migratory waterfowl,
must be applied to satisfy this provi- spawning areas, and wetlands shall be
sion shall include those detailed BMPs avoided if practical alternatives exist;
described in the State’s approved pro- (xi) The discharge shall not be lo-
gram description pursuant to the re- cated in the proximity of a public
quirements of 40 CFR 233.22(i), and water supply intake;
shall also include the following base- (xii) The discharge shall not occur in
line provisions: areas of concentrated shellfish produc-
(i) Permanent roads (for farming or tion;
forestry activities), temporary access (xiii) The discharge shall not occur in
roads (for mining, forestry, or farm a component of the National Wild and
purposes) and skid trails (for logging) Scenic River System;
in waters of the U.S. shall be held to (xiv) The discharge of material shall
the minimum feasible number, width, consist of suitable material free from
and total length consistent with the toxic pollutants in toxic amounts; and
purpose of specific farming, silvicul- (xv) All temporary fills shall be re-
tural or mining operations, and local moved in their entirety and the area
topographic and climatic conditions; restored to its original elevation.
(ii) All roads, temporary or perma- (b) If any discharge of dredged or fill
nent, shall be located sufficiently far material resulting from the activities
from streams or other water bodies (ex- listed in paragraphs (a) (1) through (6)
cept for portions of such roads which of this section contains any toxic pol-
must cross water bodies) to minimize lutant listed under section 307 of the
discharges of dredged or fill material CWA such discharge shall be subject to
into waters of the U.S.; any applicable toxic effluent standard
(iii) The road fill shall be bridged, or prohibition, and shall require a sec-
culverted, or otherwise designed to pre- tion 404 permit.
vent the restriction of expected flood (c) Any discharge of dredged or fill
flows; material into waters of the United
402
States incidental to any of the activi- 40 CFR parts 233 and 124 for procedural
ties identified in paragraphs (a) (1) regulations for transferring section 404
through (6) of this section must have a programs to States. Once a State’s 404
permit if it is part of an activity whose program is approved and in effect, the
purpose is to convert an area of the wa- Corps of Engineers will suspend proc-
ters of the United States into a use to essing of section 404 applications in the
which it was not previously subject, applicable waters and will transfer
where the flow or circulation of waters pending applications to the State agen-
of the United States nay be impaired or cy responsible for administering the
the reach of such waters reduced. program. District engineers will assist
Where the proposed discharge will re- EPA and the States in any way prac-
sult in significant discernible alter- ticable to effect transfer and will de-
ations to flow or circulation, the pre- velop appropriate procedures to ensure
sumption is that flow or circulation
orderly and expeditious transfer.
may be impaired by such alteration.
For example, a permit will be required § 323.6 Special policies and proce-
for the conversion of a cypress swamp dures.
to some other use or the conversion of
a wetland from silvicultural to agricul- (a) The Secretary of the Army has
tural use when there is a discharge of delegated to the Chief of Engineers the
dredged or fill material into waters of authority to issue or deny section 404
the United States in conjunction with permits. The district engineer will re-
construction of dikes, drainage ditches view applications for permits for the
or other works or structures used to ef- discharge of dredged or fill material
fect such conversion. A conversion of a into waters of the United States in ac-
section 404 wetland to a non-wetland is cordance with guidelines promulgated
a change in use of an area of waters of by the Administrator, EPA, under au-
the United States. A discharge which thority of section 404(b)(1) of the CWA.
elevates the bottom of waters of the (see 40 CFR part 230.) Subject to con-
United States without converting it to sideration of any economic impact on
dry land does not thereby reduce the navigation and anchorage pursuant to
reach of, but may alter the flow or cir- section 404(b)(2), a permit will be de-
culation of, waters of the United nied if the discharge that would be au-
States. thorized by such a permit would not
(d) Federal projects which qualify comply with the 404(b)(1) guidelines. If
under the criteria contained in section the district engineer determines that
404(r) of the CWA are exempt from sec- the proposed discharge would comply
tion 404 permit requirements, but may with the 404(b)(1) guidelines, he will
be subject to other State or Federal re- grant the permit unless issuance would
quirements. be contrary to the public interest.
§ 323.5 Program transfer to States. (b) The Corps will not issue a permit
where the regional administrator of
Section 404(h) of the CWA allows the
EPA has notified the district engineer
Administrator of the Environmental
and applicant in writing pursuant to 40
Protection Agency (EPA) to transfer
administration of the section 404 per- CFR 231.3(a)(1) that he intends to issue
mit program for discharges into cer- a public notice of a proposed deter-
tain waters of the United States to mination to prohibit or withdraw the
qualified States. (The program cannot specification, or to deny, restrict or
be transferred for those waters which withdraw the use for specification, of
are presently used, or are susceptible any defined area as a disposal site in
to use in their natural condition or by accordance with section 404(c) of the
reasonable improvement as a means to Clean Water Act. However the Corps
transport interstate or foreign com- will continue to complete the adminis-
merce shoreward to their ordinary high trative processing of the application
water mark, including all waters which while the section 404(c) procedures are
are subject to the ebb and flow of the underway including completion of final
tide shoreward to the high tide line, in- coordination with EPA under 33 CFR
cluding wetlands adjacent thereto). See part 325.
403
PART 324—PERMITS FOR OCEAN § 324.3 Activities requiring permits.

DUMPING OF DREDGED MATERIAL (a) General. DA permits are required
for the transportation of dredged mate-
Sec. rial for the purpose of dumping it in
324.1 General. ocean waters.
324.2 Definitions. (b) Activities of Federal agencies. (1)
324.3 Activities requiring permits.
324.4 Special procedures.
The transportation of dredged material
for the purpose of disposal in ocean wa-
AUTHORITY: 33 U.S.C. 1413. ters done by or on behalf of any Fed-
SOURCE: 51 FR 41235, Nov. 13, 1986, unless eral agency other than the activities of
otherwise noted. the Corps of Engineers is subject to the
procedures of this regulation. Agree-
§ 324.1 General. ment for construction or engineering
This regulation prescribes in addition services performed for other agencies
to the general policies of 33 CFR part by the Corps of Engineers does not con-
320 and procedures of 33 CFR part 325, stitute authorization under these regu-
those special policies, practices and lations. Division and district engineers
procedures to be followed by the Corps will therefore advise Federal agencies
of Engineers in connection with the re- accordingly and cooperate to the full-
view of applications for Department of est extent in the expeditious processing
the Army (DA) permits to authorize of their applications. The activities of
the transportation of dredged material the Corps of Engineers that involve the
by vessel or other vehicle for the pur- transportation of dredged material for
pose of dumping it in ocean waters at disposal in ocean waters are regulated
dumping sites designated under 40 CFR by 33 CFR 209.145.
part 228 pursuant to section 103 of the (2) The policy provisions set out in 33
Marine Protection, Research and Sanc- CFR 320.4(j) relating to state or local
tuaries Act of 1972, as amended (33 authorizations do not apply to work or
U.S.C. 1413) (hereinafter referred to as structures undertaken by Federal
section 103). See 33 CFR 320.2(h). Ac- agencies, except where compliance
tivities involving the transportation of with non-Federal authorization is re-
dredged material for the purpose of quired by Federal law or Executive pol-
dumping in the ocean waters also re- icy. Federal agencies are responsible
quire DA permits under Section 10 of for conformance with such laws and
the Rivers and Harbors Act of 1899 (33 policies. (See EO 12088, October 18,
U.S.C. 403) for the dredging in navi- 1978.) Federal agencies are not required
gable waters of the United States. Ap- to obtain and provide certification of
plicants for DA permits under this part compliance with effluent limitations
should also refer to 33 CFR part 322 to and water quality standards from state
satisfy the requirements of Section 10. or interstate water pollution control
agencies in connection with activities
§ 324.2 Definitions. involving the transport of dredged ma-
For the purpose of this regulation, terial for dumping into ocean waters
the following terms are defined: beyond the territorial sea.
(a) The term ocean waters means
those waters of the open seas lying sea- § 324.4 Special procedures.
ward of the base line from which the The Secretary of the Army has dele-
territorial sea is measured, as provided gated to the Chief of Engineers the au-
for in the Convention on the Terri- thority to issue or deny section 103 per-
torial Sea and the Contiguous Zone (15 mits. The following additional proce-
UST 1606: TIAS 5639). dures shall also be applicable under
(b) The term dredged material means this regulation.
any material excavated or dredged (a) Public notice. For all applications
from navigable waters of the United for section 103 permits, the district en-
States. gineer will issue a public notice which
(c) The term transport or transpor- shall contain the information specified
tation refers to the conveyance and rein 33 CFR 325.3.
lated handling of dredged material by a (b) Evaluation. Applications for per-

vessel or other vehicle. mits for the transportation of dredged
404
material for the purpose of dumping it economically feasible methods or sites

in ocean waters will be evaluated to de- available to dispose of the dredged ma-
termine whether the proposed dumping terial.
will unreasonably degrade or endanger (d) Chief of Engineers review. The
human health, welfare, amenities, or Chief of Engineers shall evaluate the
the marine environment, ecological permit application and make a decision
systems or economic potentialities. to deny the permit or recommend its
District engineers will apply the cri- issuance. If the decision of the Chief of
teria established by the Administrator Engineers is that ocean dumping at the
of EPA pursuant to section 102 of the proposed disposal site is required be-
Marine Protection, Research and Sanc- cause of the unavailability of economi-
tuaries Act of 1972 in making this eval- cally feasible alternatives, he shall so
uation. (See 40 CFR parts 220–229) certify and request that the Secretary
Where ocean dumping is determined to of the Army seek a waiver from the Ad-
be necessary, the district engineer will, ministrator, EPA, of the criteria or of
to the extent feasible, specify disposal the critical site designation in accord-
sites using the recommendations of the ance with 40 CFR 225.4.
Administrator pursuant to section
102(c) of the Act. PART 325—PROCESSING OF DE-
(c) EPA review. When the Regional PARTMENT OF THE ARMY PER-
Administrator, EPA, in accordance
with 40 CFR 225.2(b), advises the dis-
MITS
trict engineer, in writing, that the pro-
Sec.
posed dumping will comply with the
325.1 Applications for permits.
criteria, the district engineer will com- 325.2 Processing of applications.
plete his evaluation of the application 325.3 Public notice.
under this part and 33 CFR parts 320 325.4 Conditioning of permits.
and 325. If, however, the Regional Ad- 325.5 Forms of permits.
ministrator advises the district engi- 325.6 Duration of permits.
neer, in writing, that the proposed 325.7 Modification, suspension, or revoca-
dumping does not comply with the cri- tion of permits.
teria, the district engineer will proceed 325.8 Authority to issue or deny permits.
as follows: 325.9 Authority to determine jurisdiction.
(1) The district engineer will deter- 325.10 Publicity.
mine whether there is an economically APPENDIX A TO PART 325—PERMIT FORM AND
feasible alternative method or site SPECIAL CONDITIONS
available other than the proposed APPENDIX B TO PART 325—NEPA IMPLEMEN-
TATION PROCEDURES FOR THE REGULATORY
ocean disposal site. If there are other
PROGRAM
feasible alternative methods or sites APPENDIX C TO PART 325—PROCEDURES FOR
available, the district engineer will THE PROTECTION OF HISTORIC PROPERTIES
evaluate them in accordance with 33
CFR parts 320, 322, 323, and 325 and this AUTHORITY: 33 U.S.C. 401 et seq.; 33 U.S.C.
1344; 33 U.S.C. 1413.
part, as appropriate.
(2) If the district engineer determines SOURCE: 51 FR 41236, Nov. 13, 1986, unless
that there is no economically feasible otherwise noted.
alternative method or site available,
and the proposed project is otherwise § 325.1 Applications for permits.
found to be not contrary to the public (a) General. The processing proce-
interest, he will so advise the Regional dures of this part apply to any Depart-
Administrator setting forth his reasons ment of the Army (DA) permit. Special
for such determination. If the Regional procedures and additional information
Administrator has not removed his ob- are contained in 33 CFR parts 320
jection within 15 days, the district en- through 324, 327 and part 330. This part
gineer will submit a report of his deter- is arranged in the basic timing se-
mination to the Chief of Engineers for quence used by the Corps of Engineers
further coordination with the Adminis- in processing applications for DA per-
trator, EPA, and decision. The report mits.
forwarding the case will contain the (b) Pre-application consultation for
analysis of whether there are other major applications. The district staff
405
§ 325.1 33 CFR Ch. II (7–1–20 Edition)
element having responsibility for ad- with each potential applicant or his
ministering, processing, and enforcing consultants so as to assure that the po-
federal laws and regulations relating to tential applicant is fully aware of the
the Corps of Engineers regulatory pro- substance (both quantitative and quali-
gram shall be available to advise po- tative) of the data required by the dis-
tential applicants of studies or other trict engineer for use in preparing an
information foreseeably required for environmental assessment or an envi-
later federal action. The district engi- ronmental impact statement (EIS) in
neer will establish local procedures and accordance with 33 CFR part 230, Ap-
policies including appropriate publicity pendix B.
programs which will allow potential (c) Application form. Applicants for all
applicants to contact the district engi- individual DA permits must use the
neer or the regulatory staff element to standard application form (ENG Form
request pre-application consultation. 4345, OMB Approval No. OMB 49–R0420).
Upon receipt of such request, the dis- Local variations of the application
trict engineer will assure the conduct form for purposes of facilitating co-
of an orderly process which may in- ordination with federal, state and local
volve other staff elements and affected agencies may be used. The appropriate
agencies (Federal, state, or local) and form may be obtained from the district
the public. This early process should be office having jurisdiction over the wa-
brief but thorough so that the poten- ters in which the activity is proposed
tial applicant may begin to assess the to be located. Certain activities have
viability of some of the more obvious been authorized by general permits and
potential alternatives in the applica- do not require submission of an appli-
tion. The district engineer will endeav- cation form but may require a separate
or, at this stage, to provide the poten- notification.
tial applicant with all helpful informa- (d) Content of application. (1) The ap-
tion necessary in pursuing the applica- plication must include a complete de-
tion, including factors which the Corps scription of the proposed activity in-
must consider in its permit decision cluding necessary drawings, sketches,
making process. Whenever the district or plans sufficient for public notice (de-
engineer becomes aware of planning for tailed engineering plans and specifica-
work which may require a DA permit tions are not required); the location,
and which may involve the preparation purpose and need for the proposed ac-
of an environmental document, he tivity; scheduling of the activity; the
shall contact the principals involved to names and addresses of adjoining prop-
advise them of the requirement for the erty owners; the location and dimen-
permit(s) and the attendant public in- sions of adjacent structures; and a list
terest review including the develop- of authorizations required by other fed-
ment of an environmental document. eral, interstate, state, or local agencies
Whenever a potential applicant indi- for the work, including all approvals
cates the intent to submit an applica- received or denials already made. See
tion for work which may require the § 325.3 for information required to be in
preparation of an environmental docu- public notices. District and division en-
ment, a single point of contact shall be gineers are not authorized to develop
designated within the district’s regu- additional information forms but may
latory staff to effectively coordinate request specific information on a case-
the regulatory process, including the by-case basis. (See § 325.1(e)).
National Environmental Policy Act (2) All activities which the applicant
(NEPA) procedures and all attendant plans to undertake which are reason-
reviews, meetings, hearings, and other ably related to the same project and
actions, including the scoping process for which a DA permit would be re-
if appropriate, leading to a decision by quired should be included in the same
the district engineer. Effort devoted to permit application. District engineers
this process should be commensurate should reject, as incomplete, any per-
with the likelihood of a permit applica- mit application which fails to comply
tion actually being submitted to the with this requirement. For example, a
Corps. The regulatory staff coordinator permit application for a marina will in-
shall maintain an open relationship clude dredging required for access as
406
well as any fill associated with con- quired for the proposed impacts. (See
struction of the marina. § 332.4(b)(1) of this chapter.)
(3) If the activity would involve (8) Signature on application. The appli-
dredging in navigable waters of the cation must be signed by the person
United States, the application must in- who desires to undertake the proposed
clude a description of the type, com- activity (i.e., the applicant) or by a
position and quantity of the material duly authorized agent. When the appli-
to be dredged, the method of dredging, cant is represented by an agent, that
and the site and plans for disposal of information will be included in the
the dredged material. space provided on the application or by
(4) If the activity would include the a separate written statement. The sig-
discharge of dredged or fill material nature of the applicant or the agent
into the waters of the United States or will be an affirmation that the appli-
the transportation of dredged material cant possesses or will possess the req-
for the purpose of disposing of it in uisite property interest to undertake
ocean waters the application must in- the activity proposed in the applica-
clude the source of the material; the tion, except where the lands are under
purpose of the discharge, a description the control of the Corps of Engineers,
of the type, composition and quantity in which cases the district engineer
of the material; the method of trans- will coordinate the transfer of the real
portation and disposal of the material; estate and the permit action. An appli-
and the location of the disposal site. cation may include the activity of
Certification under section 401 of the more than one owner provided the
Clean Water Act is required for such character of the activity of each owner
discharges into waters of the United is similar and in the same general area
States. and each owner submits a statement
(5) If the activity would include the designating the same agent.
construction of a filled area or pile or (9) If the activity would involve the
float-supported platform the project construction or placement of an artifi-
description must include the use of, cial reef, as defined in 33 CFR 322.2(g),
and specific structures to be erected in the navigable waters of the United
on, the fill or platform. States or in the waters overlying the
(6) If the activity would involve the outer continental shelf, the application
construction of an impoundment struc- must include provisions for siting, con-
ture, the applicant may be required to structing, monitoring, and managing
demonstrate that the structure com- the artificial reef.
plies with established state dam safety (10) Complete application. An applica-
criteria or that the structure has been tion will be determined to be complete
designed by qualified persons and, in when sufficient information is received
appropriate cases, independently re- to issue a public notice (See 33 CFR
viewed (and modified as the review 325.1(d) and 325.3(a).) The issuance of a
would indicate) by similiarly qualified public notice will not be delayed to ob-
persons. No specific design criteria are tain information necessary to evaluate
to be prescribed nor is an independent an application.
detailed engineering review to be made (e) Additional information. In addition
by the district engineer. to the information indicated in para-
(7) For activities involving dis- graph (d) of this section, the applicant
charges of dredged or fill material into will be required to furnish only such
waters of the United States, the appli- additional information as the district
cation must include a statement de- engineer deems essential to make a
scribing how impacts to waters of the public interest determination includ-
United States are to be avoided and ing, where applicable, a determination
minimized. The application must also of compliance with the section 404(b)(1)
include either a statement describing guidelines or ocean dumping criteria.
how impacts to waters of the United Such additional information may in-
States are to be compensated for or a clude environmental data and informa-
statement explaining why compen- tion on alternate methods and sites as

satory mitigation should not be re- may be necessary for the preparation
407
§ 325.2 33 CFR Ch. II (7–1–20 Edition)
of the required environmental docu- (2) Within 15 days of receipt of an ap-

mentation. plication the district engineer will ei-
(f) Fees. Fees are required for permits ther determine that the application is
under section 404 of the Clean Water complete (see 33 CFR 325.1(d)(9) and
Act, section 103 of the Marine Protec- issue a public notice as described in
tion, Research and Sanctuaries Act of § 325.3 of this part, unless specifically
1972, as amended, and sections 9 and 10 exempted by other provisions of this
of the Rivers and Harbors Act of 1899. A regulation or that it is incomplete and
fee of $100.00 will be charged when the notify the applicant of the information
planned or ultimate purpose of the necessary for a complete application.
project is commercial or industrial in The district engineer will issue a sup-
nature and is in support of operations plemental, revised, or corrected public
that charge for the production, dis- notice if in his view there is a change
tribution or sale of goods or services. A in the application data that would af-
$10.00 fee will be charged for permit ap-
fect the public’s review of the proposal.
plications when the proposed work is
non-commercial in nature and would (3) The district engineer will consider
provide personal benefits that have no all comments received in response to
connection with a commercial enter- the public notice in his subsequent ac-
prise. The final decision as to the basis tions on the permit application. Re-
for a fee (commercial vs. non-commer- ceipt of the comments will be acknowl-
cial) shall be solely the responsibility edged, if appropriate, and they will be
of the district engineer. No fee will be made a part of the administrative
charged if the applicant withdraws the record of the application. Comments
application at any time prior to received as form letters or petitions
issuance of the permit or if the permit may be acknowledged as a group to the
is denied. Collection of the fee will be person or organization responsible for
deferred until the proposed activity has the form letter or petition. If com-
been determined to be not contrary to ments relate to matters within the spe-
the public interest. Multiple fees are cial expertise of another federal agen-
not to be charged if more than one law cy, the district engineer may seek the
is applicable. Any modification signifi- advice of that agency. If the district
cant enough to require publication of a engineer determines, based on com-
public notice will also require a fee. No ments received, that he must have the
fee will be assessed when a permit is views of the applicant on a particular
transferred from one property owner to issue to make a public interest deter-
another. No fees will be charged for mination, the applicant will be given
time extensions, general permits or the opportunity to furnish his views on
letters of permission. Agencies or in- such issue to the district engineer (see
strumentalities of federal, state or § 325.2(d)(5)). At the earliest practicable
local governments will not be required time other substantive comments will
to pay any fee in connection with per- be furnished to the applicant for his in-
mits. formation and any views he may wish
[51 FR 41236, Nov. 13, 1986, as amended at 73 to offer. A summary of the comments,
FR 19670, Apr. 10, 2008] the actual letters or portions thereof,
or representative comment letters may
§ 325.2 Processing of applications. be furnished to the applicant. The ap-
(a) Standard procedures. (1) When an plicant may voluntarily elect to con-
application for a permit is received the tact objectors in an attempt to resolve
district engineer shall immediately as- objections but will not be required to
sign it a number for identification, ac- do so. District engineers will ensure
knowledge receipt thereof, and advise that all parties are informed that the
the applicant of the number assigned Corps alone is responsible for reaching
to it. He shall review the application a decision on the merits of any applica-
for completeness, and if the application tion. The district engineer may also
is incomplete, request from the appli- offer Corps regulatory staff to be
cant within 15 days of receipt of the ap- present at meetings between applicants
plication any additional information and objectors, where appropriate, to

necessary for further processing. provide information on the process, to
408
mediate differences, or to gather infor- which should be incorporated into the

mation to aid in the decision process. permit. In accordance with the au-
The district engineer should not delay thorities specified in § 325.8 of this part,
processing of the application unless the the district engineer will take final ac-
applicant requests a reasonable delay, tion or forward the application with all
normally not to exceed 30 days, to pro- pertinent comments, records, and stud-
vide additional information or com- ies, including the final EIS or environ-
ments. mental assessment, through channels
(4) The district engineer will follow to the official authorized to make the
Appendix B of 33 CFR part 230 for envi- final decision. The report forwarding
ronmental procedures and documenta- the application for decision will be in a
tion required by the National Environ- format prescribed by the Chief of Engi-
mental Policy Act of 1969. A decision neers. District and division engineers
on a permit application will require ei- will notify the applicant and interested
ther an environmental assessment or federal and state agencies that the ap-
an environmental impact statement plication has been forwarded to higher
unless it is included within a categor- headquarters. The district or division
ical exclusion. engineer may, at his option, disclose
(5) The district engineer will also his recommendation to the news media
evaluate the application to determine and other interested parties, with the
the need for a public hearing pursuant caution that it is only a recommenda-
to 33 CFR part 327. tion and not a final decision. Such dis-
(6) After all above actions have been closure is encouraged in permit cases
completed, the district engineer will which have become controversial and
determine in accordance with the have been the subject of stories in the
record and applicable regulations media or have generated strong public
whether or not the permit should be interest. In those cases where the ap-
issued. He shall prepare a statement of plication is forwarded for decision in
findings (SOF) or, where an EIS has the format prescribed by the Chief of
been prepared, a record of decision Engineers, the report will serve as the
(ROD), on all permit decisions. The SOF or ROD. District engineers will
SOF or ROD shall include the district generally combine the SOF, environ-
engineer’s views on the probable effect mental assessment, and findings of no
of the proposed work on the public insignificant impact (FONSI), 404(b)(1)
terest including conformity with the guideline analysis, and/or the criteria
guidelines published for the discharge for dumping of dredged material in
of dredged or fill material into waters ocean waters into a single document.
of the United States (40 CFR part 230) (7) If the final decision is to deny the
or with the criteria for dumping of permit, the applicant will be advised in
dredged material in ocean waters (40 writing of the reason(s) for denial. If
CFR parts 220 to 229), if applicable, and the final decision is to issue the permit
the conclusions of the district engi- and a standard individual permit form
neer. The SOF or ROD shall be dated, will be used, the issuing official will
signed, and included in the record prior forward the permit to the applicant for
to final action on the application. signature accepting the conditions of
Where the district engineer has dele- the permit. The permit is not valid
gated authority to sign permits for and until signed by the issuing official.
in his behalf, he may similarly dele- Letters of permission require only the
gate the signing of the SOF or ROD. If signature of the issuing official. Final
a district engineer makes a decision on action on the permit application is the
a permit application which is contrary signature on the letter notifying the
to state or local decisions (33 CFR applicant of the denial of the permit or
320.4(j) (2) & (4)), the district engineer signature of the issuing official on the
will include in the decision document authorizing document.
the significant national issues and ex- (8) The district engineer will publish
plain how they are overriding in impor- monthly a list of permits issued or de-
tance. If a permit is warranted, the dis- nied during the previous month. The
trict engineer will determine the spe- list will identify each action by public
cial conditions, if any, and duration notice number, name of applicant, and
409
§ 325.2 33 CFR Ch. II (7–1–20 Edition)
brief description of activity involved. (i) The public notice for such activ-
It will also note that relevant environ- ity, which will contain a statement on
mental documents and the SOF’s or certification requirements (see
ROD’s are available upon written re- § 325.3(a)(8)), will serve as the notifica-
quest and, where applicable, upon the tion to the Administrator of the Envi-
payment of administrative fees. This ronmental Protection Agency (EPA)
list will be distributed to all persons pursuant to section 401(a)(2) of the
who may have an interest in any of the Clean Water Act. If EPA determines
public notices listed. that the proposed discharge may affect
(9) Copies of permits will be furnished the quality of the waters of any state
to other agencies in appropriate cases other than the state in which the dis-
as follows: charge will originate, it will so notify
(i) If the activity involves the con- such other state, the district engineer,
struction of artificial islands, installa- and the applicant. If such notice or a
tions or other devices on the outer con- request for supplemental information
tinental shelf, to the Director, Defense is not received within 30 days of
Mapping Agency, Hydrographic Center, issuance of the public notice, the dis-
Washington, DC 20390 Attention, Code trict engineer will assume EPA has
NS12, and to the National Ocean Serv- made a negative determination with
ice, Office of Coast Survey, N/CS261, respect to section 401(a)(2). If EPA de-
1315 East West Highway, Silver Spring, termines another state’s waters may be
Maryland 20910–3282. affected, such state has 60 days from
(ii) If the activity involves the con- receipt of EPA’s notice to determine if
struction of structures to enhance fish the proposed discharge will affect the
propagation (e.g., fishing reefs) along quality of its waters so as to violate
the coasts of the United States, to the any water quality requirement in such
Defense Mapping Agency, Hydro- state, to notify EPA and the district
graphic Center and National Ocean engineer in writing of its objection to
Service as in paragraph (a)(9)(i) of this permit issuance, and to request a pub-
section and to the Director, Office of lic hearing. If such occurs, the district
Marine Recreational Fisheries, Na- engineer will hold a public hearing in
tional Marine Fisheries Service, Wash- the objecting state. Except as stated
ington, DC 20235. below, the hearing will be conducted in
(iii) If the activity involves the erec- accordance with 33 CFR part 327. The
tion of an aerial transmission line, sub- issues to be considered at the public
merged cable, or submerged pipeline hearing will be limited to water qual-
across a navigable water of the United ity impacts. EPA will submit its eval-
States, to the National Ocean Service, uation and recommendations at the
Office of Coast Survey, N/CS261, 1315 hearing with respect to the state’s ob-
East West Highway, Silver Spring, jection to permit issuance. Based upon
Maryland 20910–3282. the recommendations of the objecting
(iv) If the activity is listed in para- state, EPA, and any additional evi-
graphs (a)(9) (i), (ii), or (iii) of this sec- dence presented at the hearing, the dis-
tion, or involves the transportation of trict engineer will condition the per-
dredged material for the purpose of mit, if issued, in such a manner as may
dumping it in ocean waters, to the ap- be necessary to insure compliance with
propriate District Commander, U.S. applicable water quality requirements.
Coast Guard. If the imposition of conditions cannot,
(b) Procedures for particular types of in the district engineer’s opinion, in-
permit situations—(1) Section 401 Water sure such compliance, he will deny the
Quality Certification. If the district en- permit.
gineer determines that water quality (ii) No permit will be granted until
certification for the proposed activity required certification has been ob-
is necessary under the provisions of tained or has been waived. A waiver
section 401 of the Clean Water Act, he may be explicit, or will be deemed to
shall so notify the applicant and obtain occur if the certifying agency fails or
from him or the certifying agency a refuses to act on a request for certifi-
copy of such certification. cation within sixty days after receipt
410
of such a request unless the district en- lize the procedures specified by the
gineer determines a shorter or longer CZM Act for resolving such disagree-
period is reasonable for the state to ments.
act. In determining whether or not a (ii) If the applicant is not a federal
waiver period has commenced or waiv- agency and the application involves an
er has occurred, the district engineer activity affecting the coastal zone, the
will verify that the certifying agency district engineer shall obtain from the
has received a valid request for certifi- applicant a certification that his pro-
cation. If, however, special cir- posed activity complies with and will
cumstances identified by the district be conducted in a manner that is con-
engineer require that action on an ap- sistent with the approved state CZM
plication be taken within a more lim- Program. Upon receipt of the certifi-
ited period of time, the district engi- cation, the district engineer will for-
neer shall determine a reasonable less- ward a copy of the public notice (which
er period of time, advise the certifying will include the applicant’s certifi-
agency of the need for action by a par- cation statement) to the state coastal
ticular date, and that, if certification zone agency and request its concur-
is not received by that date, it will be rence or objection. If the state agency
considered that the requirement for objects to the certification or issues a
certification has been waived. Simi- decision indicating that the proposed
larly, if it appears that circumstances activity requires further review, the
may reasonably require a period of district engineer shall not issue the
time longer than sixty days, the dis- permit until the state concurs with the
trict engineer, based on information certification statement or the Sec-
provided by the certifying agency, will retary of Commerce determines that
determine a longer reasonable period of the proposed activity is consistent
time, not to exceed one year, at which with the purposes of the CZM Act or is
time a waiver will be deemed to occur. necessary in the interest of national
(2) Coastal Zone Management consist- security. If the state agency fails to
ency. If the proposed activity is to be concur or object to a certification
undertaken in a state operating under statement within six months of the
a coastal zone management program state agency’s receipt of the certifi-
approved by the Secretary of Com- cation statement, state agency concur-
merce pursuant to the Coastal Zone rence with the certification statement
Management (CZM) Act (see 33 CFR shall be conclusively presumed. Dis-
320.3(b)), the district engineer shall trict engineers will seek agreements
proceed as follows: with state CZM agencies that the agen-
(i) If the applicant is a federal agency’s failure to provide comments dur-
cy, and the application involves a fed- ing the public notice comment period
eral activity in or affecting the coastal will be considered as a concurrence
zone, the district engineer shall for- with the certification or waiver of the
ward a copy of the public notice to the right to concur or non-concur.
agency of the state responsible for re- (iii) If the applicant is requesting a
viewing the consistency of federal ac- permit for work on Indian reservation
tivities. The federal agency applicant lands which are in the coastal zone, the
shall be responsible for complying with district engineer shall treat the appli-
the CZM Act’s directive for ensuring cation in the same manner as pre-
that federal agency activities are un- scribed for a Federal applicant in para-
dertaken in a manner which is con- graph (b)(2)(i) of this section. However,
sistent, to the maximum extent prac- if the applicant is requesting a permit
ticable, with approved CZM Programs. on non-trust Indian lands, and the
(See 15 CFR part 930.) If the state state CZM agency has decided to assert
coastal zone agency objects to the pro- jurisdiction over such lands, the dis-
posed federal activity on the basis of trict engineer shall treat the applica-
its inconsistency with the state’s ap- tion in the same manner as prescribed
proved CZM Program, the district engi- for a non-Federal applicant in para-
neer shall not make a final decision on graph (b)(2)(ii) of this section.
the application until the disagreeing (3) Historic properties. If the proposed
parties have had an opportunity to uti- activity would involve any property
411
§ 325.2 33 CFR Ch. II (7–1–20 Edition)
listed or eligible for listing in the Na- 7(c) of the Act. References, definitions,
tional Register of Historic Places, the and consultation procedures are found
district engineer will proceed in ac- in 50 CFR part 402.
cordance with Corps National Historic (c) [Reserved]
Preservation Act implementing regula- (d) Timing of processing of applications.
tions. The district engineer will be guided by
(4) Activities associated with Federal the following time limits for the indi-
projects. If the proposed activity would cated steps in the evaluation process:
consist of the dredging of an access
(1) The public notice will be issued
channel and/or berthing facility associ-
within 15 days of receipt of all informa-
ated with an authorized federal naviga-
tion project, the activity will be in- tion required to be submitted by the
cluded in the planning and coordina- applicant in accordance with paragraph
tion of the construction or mainte- 325.1.(d) of this part.
nance of the federal project to the (2) The comment period on the public
maximum extent feasible. Separate no- notice should be for a reasonable period
tice, hearing, and environmental docu- of time within which interested parties
mentation will not be required for ac- may express their views concerning the
tivities so included and coordinated, permit. The comment period should
and the public notice issued by the dis- not be more than 30 days nor less than
trict engineer for these federal and as- 15 days from the date of the notice. Be-
sociated non-federal activities will be fore designating comment periods less
the notice of intent to issue permits for than 30 days, the district engineer will
those included non-federal dredging ac- consider: (i) Whether the proposal is
tivities. The decision whether to issue routine or noncontroversial,
or deny such a permit will be con- (ii) Mail time and need for comments
sistent with the decision on the federal from remote areas,
project unless special considerations (iii) Comments from similar pro-
applicable to the proposed activity are
posals, and
identified. (See § 322.5(c).)
(5) Endangered Species. Applications (iv) The need for a site visit. After
will be reviewed for the potential im- considering the length of the original
pact on threatened or endangered spe- comment period, paragraphs (a)(2) (i)
cies pursuant to section 7 of the Endan- through (iv) of this section, and other
gered Species Act as amended. The dis- pertinent factors, the district engineer
trict engineer will include a statement may extend the comment period up to
in the public notice of his current an additional 30 days if warranted.
knowledge of endangered species based (3) District engineers will decide on
on his initial review of the application all applications not later than 60 days
(see 33 CFR 325.2(a)(2)). If the district after receipt of a complete application,
engineer determines that the proposed unless (i) precluded as a matter of law
activity would not affect listed species or procedures required by law (see
or their critical habitat, he will in- below),
clude a statement to this effect in the (ii) The case must be referred to
public notice. If he finds the proposed higher authority (see § 325.8 of this
activity may affect an endangered or part),
threatened species or their critical (iii) The comment period is extended,
habitat, he will initiate formal con-
(iv) A timely submittal of informa-
sultation procedures with the U.S. Fish
tion or comments is not received from
and Wildlife Service or National Ma-
rine Fisheries Service. Public notices the applicant,
forwarded to the U.S. Fish and Wildlife (v) The processing is suspended at the
Service or National Marine Fisheries request of the applicant, or
Service will serve as the request for in- (vi) Information needed by the dis-
formation on whether any listed or trict engineer for a decision on the ap-
proposed to be listed endangered or plication cannot reasonably be ob-
threatened species may be present in tained within the 60-day period. Once
the area which would be affected by the the cause for preventing the decision
proposed activity, pursuant to section from being made within the normal 60-
412
day period has been satisfied or elimi- formation or a justification why addi-
nated, the 60-day clock will start run- tional time is necessary, then his appli-
ning again from where it was sus- cation will be considered withdrawn or
pended. For example, if the comment a final decision will be made, which-
period is extended by 30 days, the dis- ever is appropriate. If additional time
trict engineer will, absent other re- is requested, the district engineer will
straints, decide on the application either grant the time, make a final de-
within 90 days of receipt of a complete cision, or consider the application as
application. Certain laws (e.g., the withdrawn.
Clean Water Act, the CZM Act, the Na- (6) The time requirements in these
tional Environmental Policy Act, the
regulations are in terms of calendar
National Historic Preservation Act,
days rather than in terms of working
the Preservation of Historical and Ar-
cheological Data Act, the Endangered days.
Species Act, the Wild and Scenic Riv- (e) Alternative procedures. Division
ers Act, and the Marine Protection, Re- and district engineers are authorized to
search and Sanctuaries Act) require use alternative procedures as follows:
procedures such as state or other fed- (1) Letters of permission. Letters of
eral agency certifications, public hear- permission are a type of permit issued
ings, environmental impact state- through an abbreviated processing pro-
ments, consultation, special studies, cedure which includes coordination
and testing which may prevent district with Federal and state fish and wildlife
engineers from being able to decide agencies, as required by the Fish and
certain applications within 60 days. Wildlife Coordination Act, and a public
(4) Once the district engineer has suf- interest evaluation, but without the
ficient information to make his public publishing of an individual public no-
interest determination, he should de- tice. The letter of permission will not
cide the permit application even be used to authorize the transportation
though other agencies which may have of dredged material for the purpose of
regulatory jurisdiction have not yet dumping it in ocean waters. Letters of
granted their authorizations, except permission may be used:
where such authorizations are, by fed-
(i) In those cases subject to section 10
eral law, a prerequisite to making a de-
cision on the DA permit application. of the Rivers and Harbors Act of 1899
Permits granted prior to other (non- when, in the opinion of the district en-
prerequisite) authorizations by other gineer, the proposed work would be
agencies should, where appropriate, be minor, would not have significant indi-
conditioned in such manner as to give vidual or cumulative impacts on envi-
those other authorities an opportunity ronmental values, and should encoun-
to undertake their review without the ter no appreciable opposition.
applicant biasing such review by mak- (ii) In those cases subject to section
ing substantial resource commitments 404 of the Clean Water Act after:
on the basis of the DA permit. In un- (A) The district engineer, through
usual cases the district engineer may consultation with Federal and state
decide that due to the nature or scope fish and wildlife agencies, the Regional
of a specific proposal, it would be pru- Administrator, Environmental Protec-
dent to defer taking final action until tion Agency, the state water quality
another agency has acted on its au- certifying agency, and, if appropriate,
thorization. In such cases, he may ad- the state Coastal Zone Management
vise the other agency of his position on Agency, develops a list of categories of
the DA permit while deferring his final activities proposed for authorization
decision. under LOP procedures;
(5) The applicant will be given a rea-
(B) The district engineer issues a
sonable time, not to exceed 30 days, to
respond to requests of the district engi- public notice advertising the proposed
neer. The district engineer may make list and the LOP procedures, request-
such requests by certified letter and ing comments and offering an oppor-
clearly inform the applicant that if he tunity for public hearing; and
does not respond with the requested in-
413
§ 325.3 33 CFR Ch. II (7–1–20 Edition)
(C) A 401 certification has been issued (4) Emergency procedures. Division en-
or waived and, if appropriate, CZM con- gineers are authorized to approve spe-
sistency concurrence obtained or pre- cial processing procedures in emer-
sumed either on a generic or individual gency situations. An ‘‘emergency’’ is a
basis. situation which would result in an un-
(2) Regional permits. Regional permits acceptable hazard to life, a significant
are a type of general permit as defined loss of property, or an immediate, un-
in 33 CFR 322.2(f) and 33 CFR 323.2(n). foreseen, and significant economic
They may be issued by a division or hardship if corrective action requiring
district engineer after compliance with a permit is not undertaken within a
the other procedures of this regulation. time period less than the normal time
After a regional permit has been needed to process the application under
standard procedures. In emergency sit-
issued, individual activities falling
uations, the district engineer will ex-
within those categories that are au-
plain the circumstances and rec-
thorized by such regional permits do
ommend special procedures to the divi-
not have to be further authorized by sion engineer who will instruct the dis-
the procedures of this regulation. The trict engineer as to further processing
issuing authority will determine and of the application. Even in an emer-
add appropriate conditions to protect gency situation, reasonable efforts will
the public interest. When the issuing be made to receive comments from in-
authority determines on a case-by-case terested Federal, state, and local agen-
basis that the concerns for the aquatic cies and the affected public. Also, no-
environment so indicate, he may exer- tice of any special procedures author-
cise discretionary authority to over- ized and their rationale is to be appro-
ride the regional permit and require an priately published as soon as prac-
individual application and review. A ticable.
regional permit may be revoked by the
issuing authority if it is determined
FR 26230, May 13, 1997]
that it is contrary to the public inter-
est provided the procedures of § 325.7 of § 325.3 Public notice.
this part are followed. Following rev-
(a) General. The public notice is the
ocation, applications for future activi-
primary method of advising all inter-
ties in areas covered by the regional
ested parties of the proposed activity
permit shall be processed as applica-
for which a permit is sought and of so-
tions for individual permits. No re- liciting comments and information
gional permit shall be issued for a pe- necessary to evaluate the probable im-
riod of more than five years. pact on the public interest. The notice
(3) Joint procedures. Division and dis- must, therefore, include sufficient in-
trict engineers are authorized and en- formation to give a clear under-
couraged to develop joint procedures standing of the nature and magnitude
with states and other Federal agencies of the activity to generate meaningful
with ongoing permit programs for ac- comment. The notice should include
tivities also regulated by the Depart- the following items of information:
ment of the Army. Such procedures (1) Applicable statutory authority or
may be substituted for the procedures authorities;
in paragraphs (a)(1) through (a)(5) of (2) The name and address of the ap-
this section provided that the sub- plicant;
stantive requirements of those sections (3) The name or title, address and
are maintained. Division and district telephone number of the Corps em-
engineers are also encouraged to de- ployee from whom additional informa-
velop management techniques such as tion concerning the application may be
joint agency review meetings to expe- obtained;
dite the decision-making process. How- (4) The location of the proposed ac-
ever, in doing so, the applicant’s rights tivity;
to a full public interest review and (5) A brief description of the proposed
independent decision by the district or activity, its purpose and intended use,
division engineer must be strictly ob- so as to provide sufficient information

served. concerning the nature of the activity
414
to generate meaningful comments, in- (i) The specific location of the pro-
cluding a description of the type of posed disposal site and its physical
structures, if any, to be erected on fills boundaries;
or pile or float-supported platforms, (ii) A statement as to whether the
and a description of the type, composi- proposed disposal site has been des-
tion, and quantity of materials to be ignated for use by the Administrator,
discharged or disposed of in the ocean; EPA, pursuant to section 102(c) of the
(6) A plan and elevation drawing Act;
showing the general and specific site (iii) If the proposed disposal site has
location and character of all proposed not been designated by the Adminis-
activities, including the size relation- trator, EPA, a description of the char-
ship of the proposed structures to the acteristics of the proposed disposal site
size of the impacted waterway and and an explanation as to why no pre-
depth of water in the area;
viously designated disposal site is fea-
(7) If the proposed activity would sible;
occur in the territorial seas or ocean
(iv) A brief description of known
waters, a description of the activity’s
dredged material discharges at the pro-
relationship to the baseline from which
posed disposal site;
the territorial sea is measured;
(8) A list of other government au- (v) Existence and documented effects
thorizations obtained or requested by of other authorized disposals that have
the applicant, including required cer- been made in the disposal area (e.g.,
tifications relative to water quality, heavy metal background reading and
coastal zone management, or marine organic carbon content);
sanctuaries; (vi) An estimate of the length of time
(9) If appropriate, a statement that during which disposal would continue
the activity is a categorical exclusion at the proposed site; and
for purposes of NEPA (see paragraph 7 (vii) Information on the characteris-
of Appendix B to 33 CFR part 230); tics and composition of the dredged
(10) A statement of the district engi- material.
neer’s current knowledge on historic (b) Public notice for general permits.
properties; District engineers will publish a public
(11) A statement of the district engi- notice for all proposed regional general
neer’s current knowledge on endan- permits and for significant modifica-
gered species (see § 325.2(b)(5)); tions to, or reissuance of, existing re-
(12) A statement(s) on evaluation fac- gional permits within their area of ju-
tors (see § 325.3(c)); risdiction. Public notices for statewide
(13) Any other available information regional permits may be issued jointly
which may assist interested parties in by the affected Corps districts. The no-
evaluating the likely impact of the tice will include all applicable informa-
proposed activity, if any, on factors af- tion necessary to provide a clear under-
fecting the public interest; standing of the proposal. In addition,
(14) The comment period based on the notice will state the availability of
§ 325.2(d)(2); information at the district office which
(15) A statement that any person may reveals the Corps’ provisional deter-
request, in writing, within the com- mination that the proposed activities
ment period specified in the notice, comply with the requirements for
that a public hearing be held to con- issuance of general permits. District
sider the application. Requests for pub- engineers will publish a public notice
lic hearings shall state, with particu- for nationwide permits in accordance
larity, the reasons for holding a public with 33 CFR 330.4.
hearing; (c) Evaluation factors. A paragraph de-
(16) For non-federal applications in scribing the various evaluation factors
states with an approved CZM Plan, a on which decisions are based shall be
statement on compliance with the ap- included in every public notice.
proved Plan; and (1) Except as provided in paragraph
(17) In addition, for section 103 (ocean (c)(3) of this section, the following will
dumping) activities: be included:
415
§ 325.3 33 CFR Ch. II (7–1–20 Edition)
‘‘The decision whether to issue a permit Federal agencies, to local, regional and
will be based on an evaluation of the prob- national shipping and other concerned
able impact including cumulative impacts of business and conservation organiza-
the proposed activity on the public interest.
tions, to appropriate River Basin Com-
That decision will reflect the national con-
cern for both protection and utilization of missions, to appropriate state and
important resources. The benefit which rea- areawide clearing houses as prescribed
sonably may be expected to accrue from the by OMB Circular A–95, to local news
proposal must be balanced against its rea- media and to any other interested
sonably foreseeable detriments. All factors party. Copies of public notices will be
which may be relevant to the proposal will sent to all parties who have specifi-
be considered including the cumulative ef- cally requested copies of public no-
fects thereof; among those are conservation,
tices, to the U.S. Senators and Rep-
economics, aesthetics, general environ-
mental concerns, wetlands, historic prop- resentatives for the area where the
erties, fish and wildlife values, flood hazards, work is to be performed, the field rep-
floodplain values, land use, navigation, resentative of the Secretary of the In-
shoreline erosion and accretion, recreation, terior, the Regional Director of the
water supply and conservation, water qual- Fish and Wildlife Service, the Regional
ity, energy needs, safety, food and fiber pro- Director of the National Park Service,
duction, mineral needs, considerations of the Regional Administrator of the En-
property ownership and, in general, the
vironmental Protection Agency (EPA),
needs and welfare of the people.’’
the Regional Director of the National
(2) If the activity would involve the Marine Fisheries Service of the Na-
discharge of dredged or fill material tional Oceanic and Atmospheric Ad-
into the waters of the United States or ministration (NOAA), the head of the
the transportation of dredged material state agency responsible for fish and
for the purpose of disposing of it in wildlife resources, the State Historic
ocean waters, the public notice shall Preservation Officer, and the District
also indicate that the evaluation of the Commander, U.S. Coast Guard.
impact of the activity on the public in- (2) In addition to the general dis-
terest will include application of the tribution of public notices cited above,
guidelines promulgated by the Admin- notices will be sent to other addressees
istrator, EPA, (40 CFR part 230) or of in appropriate cases as follows:
the criteria established under author- (i) If the activity would involve
ity of section 102(a) of the Marine Pro- structures or dredging along the shores
tection, Research and Sanctuaries Act of the seas or Great Lakes, to the
of 1972, as amended (40 CFR parts 220 to Coastal Engineering Research Center,
229), as appropriate. (See 33 CFR parts Washington, DC 20016.
323 and 324). (ii) If the activity would involve con-
(3) In cases involving construction of struction of fixed structures or artifi-
artificial islands, installations and cial islands on the outer continental
other devices on outer continental shelf or in the territorial seas, to the
shelf lands which are under mineral Assistant Secretary of Defense (Man-
lease from the Department of the Inte- power, Installations, and Logistics
rior, the notice will contain the fol- (ASD(MI&L)), Washington, DC 20310;
lowing statement: ‘‘The decision as to the Director, Defense Mapping Agency
whether a permit will be issued will be (Hydrographic Center) Washington, DC
based on an evaluation of the impact of 20390, Attention, Code NS12; and the
the proposed work on navigation and National Ocean Service, Office of Coast
national security.’’ Survey, N/CS261, 1315 East West High-
(d) Distribution of public notices. (1) way, Silver Spring, Maryland 20910–
Public notices will be distributed for 3282, and to affected military installa-
posting in post offices or other appro- tions and activities.
priate public places in the vicinity of (iii) If the activity involves the con-
the site of the proposed work and will struction of structures to enhance fish
be sent to the applicant, to appropriate propagation (e.g., fishing reefs) along
city and county officials, to adjoining the coasts of the United States, to the
property owners, to appropriate state Director, Office of Marine Recreational
agencies, to appropriate Indian Tribes Fisheries, National Marine Fisheries

or tribal representatives, to concerned Service, Washington, DC 20235.
416
(iv) If the activity involves the con- istence of controls imposed under other
struction of structures which may af- federal, state, or local programs which
fect aircraft operations or for purposes would achieve the objective of the de-
associated with seaplane operations, to sired condition, or the existence of an
the Regional Director of the Federal enforceable agreement between the ap-
Aviation Administration. plicant and another party concerned
(v) If the activity would be in connec- with the resource in question, in deter-
tion with a foreign-trade zone, to the mining whether a proposal complies
Executive Secretary, Foreign-Trade with the 404(b)(1) guidelines, ocean
Zones Board, Department of Com- dumping criteria, and other applicable
merce, Washington, DC 20230 and to the statutes, and is not contrary to the
appropriate District Director of Cus- public interest. In such cases, the De-
toms as Resident Representative, For- partment of the Army permit will be
eign-Trade Zones Board. conditioned to state that material
(3) It is presumed that all interested changes in, or a failure to implement
parties and agencies will wish to re- and enforce such program or agree-
spond to public notices; therefore, a ment, will be grounds for modifying,
lack of response will be interpreted as suspending, or revoking the permit.
meaning that there is no objection to (3) Such conditions may be accom-
the proposed project. A copy of the plished on-site, or may be accom-
public notice with the list of the ad- plished off-site for mitigation of sig-
dresses to whom the notice was sent nificant losses which are specifically
will be included in the record. If a ques- identifiable, reasonably likely to
tion develops with respect to an activ- occur, and of importance to the human
ity for which another agency has re- or aquatic environment.
sponsibility and that other agency has (b) District engineers are authorized
not responded to the public notice, the to add special conditions, exclusive of
district engineer may request its com- paragraph (a) of this section, at the ap-
ments. Whenever a response to a public plicant’s request or to clarify the per-
notice has been received from a mem- mit application.
ber of Congress, either in behalf of a (c) If the district engineer determines
constitutent or himself, the district en- that special conditions are necessary
gineer will inform the member of Con- to insure the proposal will not be con-
gress of the final decision. trary to the public interest, but those
(4) District engineers will update conditions would not be reasonably
public notice mailing lists at least implementable or enforceable, he will
once every two years. deny the permit.
(d) Bonds. If the district engineer has
§ 325.4 Conditioning of permits. reason to consider that the permittee
(a) District engineers will add special might be prevented from completing
conditions to Department of the Army work which is necessary to protect the
permits when such conditions are nec- public interest, he may require the per-
essary to satisfy legal requirements or mittee to post a bond of sufficient
to otherwise satisfy the public interest amount to indemnify the government
requirement. Permit conditions will be against any loss as a result of correc-
directly related to the impacts of the tive action it might take.
proposal, appropriate to the scope and
degree of those impacts, and reason- § 325.5 Forms of permits.
ably enforceable. (a) General discussion. (1) DA permits
(1) Legal requirements which may be under this regulation will be in the
satisfied by means of Corps permit conform of individual permits or general
ditions include compliance with the permits. The basic format shall be ENG
404(b)(1) guidelines, the EPA ocean Form 1721, DA Permit (Appendix A).
dumping criteria, the Endangered Spe- (2) The general conditions included in
cies Act, and requirements imposed by ENG Form 1721 are normally applicable
conditions on state section 401 water to all permits; however, some condi-
quality certifications. tions may not apply to certain permits
(2) Where appropriate, the district and may be deleted by the issuing offi-
engineer may take into account the ex- cer. Special conditions applicable to
417
§ 325.6 33 CFR Ch. II (7–1–20 Edition)
the specific activity will be included in § 325.6 Duration of permits.

the permit as necessary to protect the
(a) General. DA permits may author-
public interest in accordance with
ize both the work and the resulting
§ 325.4 of this part.
use. Permits continue in effect until
(b) Individual permits—(1) Standard
they automatically expire or are modi-
permits. A standard permit is one which
fied, suspended, or revoked.
has been processed through the public
(b) Structures. Permits for the exist-
interest review procedures, including
ence of a structure or other activity of
public notice and receipt of comments,
a permanent nature are usually for an
described throughout this part. The
indefinite duration with no expiration
standard individual permit shall be
date cited. However, where a tem-
issued using ENG Form 1721.
porary structure is authorized, or
(2) Letters of permission. A letter of where restoration of a waterway is con-
permission will be issued where proce- templated, the permit will be of lim-
dures of § 325.2(e)(1) have been followed. ited duration with a definite expiration
It will be in letter form and will iden- date.
tify the permittee, the authorized work (c) Works. Permits for construction
and location of the work, the statutory work, discharge of dredged or fill mate-
authority, any limitations on the rial, or other activity and any con-
work, a construction time limit and a struction period for a structure with a
requirement for a report of completed permit of indefinite duration under
work. A copy of the relevant general paragraph (b) of this section will speci-
conditions from ENG Form 1721 will be fy time limits for completing the work
attached and will be incorporated by or activity. The permit may also speci-
reference into the letter of permission. fy a date by which the work must be
(c) General permits—(1) Regional per- started, normally within one year from
mits. Regional permits are a type of the date of issuance. The date will be
general permit. They may be issued by established by the issuing official and
a division or district engineer after will provide reasonable times based on
compliance with the other procedures the scope and nature of the work in-
of this regulation. If the public interest volved. Permits issued for the trans-
so requires, the issuing authority may port of dredged material for the pur-
condition the regional permit to re- pose of disposing of it in ocean waters
quire a case-by-case reporting and ac- will specify a completion date for the
knowledgment system. However, no disposal not to exceed three years from
separate applications or other author- the date of permit issuance.
ization documents will be required. (d) Extensions of time. An authoriza-
(2) Nationwide permits. Nationwide tion or construction period will auto-
permits are a type of general permit matically expire if the permittee fails
and represent DA authorizations that to request and receive an extension of
have been issued by the regulation (33 time. Extensions of time may be grant-
CFR part 330) for certain specified ac- ed by the district engineer. The per-
tivities nationwide. If certain condi- mittee must request the extension and
tions are met, the specified activities explain the basis of the request, which
can take place without the need for an will be granted unless the district engi-
individual or regional permit. neer determines that an extension
(3) Programmatic permits. Pro- would be contrary to the public inter-
grammatic permits are a type of gen- est. Requests for extensions will be
eral permit founded on an existing processed in accordance with the reg-
state, local or other Federal agency ular procedures of § 325.2 of this part,
program and designed to avoid duplica- including issuance of a public notice,
tion with that program. except that such processing is not re-
(d) Section 9 permits. Permits for quired where the district engineer de-
structures in interstate navigable wa- termines that there have been no sig-
ters of the United States under section nificant changes in the attendant cir-
9 of the Rivers and Harbors Act of 1899 cumstances since the authorization
will be drafted at DA level. was issued.
418
(e) Maintenance dredging. If the au- in reliance on the permit. Significant

thorized work includes periodic main- increases in scope of a permitted activ-
tenance dredging, an expiration date ity will be processed as new applica-
for the authorization of that mainte- tions for permits in accordance with
nance dredging will be included in the § 325.2 of this part, and not as modifica-
permit. The expiration date, which in tions under this section.
no event is to exceed ten years from (b) Modification. Upon request by the
the date of issuance of the permit, will permittee or, as a result of reevalua-
be established by the issuing official tion of the circumstances and condi-
after evaluation of the proposed meth- tions of a permit, the district engineer
od of dredging and disposal of the may determine that the public interest
dredged material in accordance with requires a modification of the terms or
the requirements of 33 CFR parts 320 to conditions of the permit. In such cases,
325. In such cases, the district engineer the district engineer will hold informal
shall require notification of the main- consultations with the permittee to as-
tenance dredging prior to actual per- certain whether the terms and condi-
formance to insure continued compli- tions can be modified by mutual agree-
ance with the requirements of this reg- ment. If a mutual agreement is reached
ulation and 33 CFR parts 320 to 324. If on modification of the terms and condi-
the permittee desires to continue tions of the permit, the district engi-
maintenance dredging beyond the expi- neer will give the permittee written
ration date, he must request a new per- notice of the modification, which will
mit. The permittee should be advised then become effective on such date as
to apply for the new permit six months the district engineer may establish. In
prior to the time he wishes to do the the event a mutual agreement cannot
maintenance work. be reached by the district engineer and
the permittee, the district engineer
§ 325.7 Modification, suspension, or will proceed in accordance with para-
revocation of permits. graph (c) of this section if immediate
(a) General. The district engineer suspension is warranted. In cases where
may reevaluate the circumstances and immediate suspension is not warranted
conditions of any permit, including re- but the district engineer determines
gional permits, either on his own mo- that the permit should be modified, he
tion, at the request of the permittee, or will notify the permittee of the pro-
a third party, or as the result of peri- posed modification and reasons there-
odic progress inspections, and initiate for, and that he may request a meeting
action to modify, suspend, or revoke a with the district engineer and/or a pub-
permit as may be made necessary by lic hearing. The modification will be-
considerations of the public interest. In come effective on the date set by the
the case of regional permits, this re- district engineer which shall be at
evaluation may cover individual activi- least ten days after receipt of the no-
ties, categories of activities, or geo- tice by the permittee unless a hearing
graphic areas. Among the factors to be or meeting is requested within that pe-
considered are the extent of the per- riod. If the permittee fails or refuses to
mittee’s compliance with the terms comply with the modification, the dis-
and conditions of the permit; whether trict engineer will proceed in accord-
or not circumstances relating to the ance with 33 CFR part 326. The district
authorized activity have changed since engineer shall consult with resource
the permit was issued or extended, and agencies before modifying any permit
the continuing adequacy of or need for terms or conditions, that would result
the permit conditions; any significant in greater impacts, for a project about
objections to the authorized activity which that agency expressed a signifi-
which were not earlier considered; revi- cant interest in the term, condition, or
sions to applicable statutory and/or feature being modified prior to permit
regulatory authorities; and the extent issuance.
to which modification, suspension, or (c) Suspension. The district engineer
other action would adversely affect may suspend a permit after preparing a
plans, investments and actions the per- written determination and finding that
mittee has reasonably made or taken immediate suspension would be in the
419
§ 325.8 33 CFR Ch. II (7–1–20 Edition)
public interest. The district engineer thorized the Chief of Engineers and his
will notify the permittee in writing by authorized representatives to issue or
the most expeditious means available deny permits for dams or dikes in
that the permit has been suspended intrastate waters of the United States
with the reasons therefor, and order pursuant to section 9 of the Rivers and
the permittee to stop those activities Harbors Act of 1899; for construction or
previously authorized by the suspended other work in or affecting navigable
permit. The permittee will also be ad- waters of the United States pursuant
vised that following this suspension a to section 10 of the Rivers and Harbors
decision will be made to either rein- Act of 1899; for the discharge of dredged
state, modify, or revoke the permit, or fill material into waters of the
and that he may within 10 days of re- United States pursuant to section 404
ceipt of notice of the suspension, re- of the Clean Water Act; or for the
quest a meeting with the district engi- transportation of dredged material for
neer and/or a public hearing to present the purpose of disposing of it into
information in this matter. If a hearing ocean waters pursuant to section 103 of
is requested, the procedures prescribed the Marine Protection, Research and
in 33 CFR part 327 will be followed. Sanctuaries Act of 1972, as amended.
After the completion of the meeting or The authority to issue or deny permits
hearing (or within a reasonable period in interstate navigable waters of the
of time after issuance of the notice to United States pursuant to section 9 of
the permittee that the permit has been the Rivers and Harbors Act of March 3,
suspended if no hearing or meeting is 1899 has not been delegated to the Chief
requested), the district engineer will of Engineers or his authorized rep-
take action to reinstate, modify, or re- resentatives.
voke the permit. (b) District engineer’s authority. Dis-
(d) Revocation. Following completion trict engineers are authorized to issue
of the suspension procedures in para- or deny permits in accordance with
graph (c) of this section, if revocation these regulations pursuant to sections
of the permit is found to be in the pub- 9 and 10 of the Rivers and Harbors Act
lic interest, the authority who made of 1899; section 404 of the Clean Water
the decision on the original permit Act; and section 103 of the Marine Pro-
may revoke it. The permittee will be tection, Research and Sanctuaries Act
advised in writing of the final decision. of 1972, as amended, in all cases not re-
(e) Regional permits. The issuing offi- quired to be referred to higher author-
cial may, by following the procedures ity (see below). It is essential to the le-
of this section, revoke regional permits gality of a permit that it contain the
for individual activities, categories of name of the district engineer as the
activities, or geographic areas. Where issuing officer. However, the permit
groups of permittees are involved, such need not be signed by the district engi-
as for categories of activities or geo- neer in person but may be signed for
graphic areas, the informal discussions and in behalf of him by whomever he
provided in paragraph (b) of this sec- designates. In cases where permits are
tion may be waived and any written denied for reasons other than naviga-
notification nay be made through the tion or failure to obtain required local,
general public notice procedures of this state, or other federal approvals or cer-
regulation. If a regional permit is re- tifications, the Statement of Findings
voked, any permittee may then apply must conclusively justify a denial deci-
for an individual permit which shall be sion. District engineers are authorized
processed in accordance with these reg- to deny permits without issuing a pub-
ulations. lic notice or taking other procedural
steps where required local, state, or
§ 325.8 Authority to issue or deny per- other federal permits for the proposed
mits. activity have been denied or where he
(a) General. Except as otherwise pro- determines that the activity will clear-
vided in this regulation, the Secretary ly interfere with navigation except in
of the Army, subject to such conditions all cases required to be referred to
as he or his authorized representative higher authority (see below). District

may from time to time impose, has au- engineers are also authorized to add,
420
modify, or delete special conditions in (4) When the division engineer is pre-
permits in accordance with § 325.4 of cluded by law or procedures required
this part, except for those conditions by law from taking final action on the
which may have been imposed by high- application.
er authority, and to modify, suspend
and revoke permits according to the § 325.9 Authority to determine juris-
diction.
procedures of § 325.7 of this part. Dis-
trict engineers will refer the following District engineers are authorized to
applications to the division engineer determine the area defined by the
for resolution: terms ‘‘navigable waters of the United
(1) When a referral is required by a States’’ and ‘‘waters of the United
written agreement between the head of States’’ except:
a Federal agency and the Secretary of (a) When a determination of naviga-
the Army; bility is made pursuant to 33 CFR 329.14
(division engineers have this author-
(2) When the recommended decision
ity); or
is contrary to the written position of
(b) When EPA makes a section 404 ju-
the Governor of the state in which the risdiction determination under its au-
work would be performed; thority.
(3) When there is substantial doubt as
to authority, law, regulations, or poli- § 325.10 Publicity.
cies applicable to the proposed activ- The district engineer will establish
ity; and maintain a program to assure that
(4) When higher authority requests potential applicants for permits are in-
the application be forwarded for deci- formed of the requirements of this reg-
sion; or ulation and of the steps required to ob-
(5) When the district engineer is pre- tain permits for activities in waters of
cluded by law or procedures required the United States or ocean waters.
by law from taking final action on the Whenever the district engineer be-
application (e.g. section 9 of the Rivers comes aware of plans being developed
and Harbors Act of 1899, or territorial by either private or public entities
sea baseline changes). which might require permits for imple-
(c) Division engineer’s authority. Divi- mentation, he should advise the poten-
sion engineers will review and evaluate tial applicant in writing of the statu-
all permit applications referred by dis- tory requirements and the provisions
trict engineers. Division engineers may of this regulation. Whenever the dis-
authorize the issuance or denial of per- trict engineer is aware of changes in
mits pursuant to section 10 of the Riv- Corps of Engineers regulatory jurisdic-
ers and Harbors Act of 1899; section 404 tion, he will issue appropriate public
of the Clean Water Act; and section 103 notices.
of the Marine Protection, Research and
Sanctuaries Act of 1972, as amended; APPENDIX A TO PART 325—PERMIT FORM
and the inclusion of conditions in ac- AND SPECIAL CONDITIONS
cordance with § 325.4 of this part in all A. Permit Form
cases not required to be referred to the
Chief of Engineers. Division engineers DEPARTMENT OF THE ARMY PERMIT
will refer the following applications to Permittee llllllllllllllllll
the Chief of Engineers for resolution: Permit No. lllllllllllllllll
(1) When a referral is required by a Issuing Office llllllllllllllll
NOTE: The term ‘‘you’’ and its derivatives,
written agreement between the head of as used in this permit, means the permittee
a Federal agency and the Secretary of or any future transferee. The term ‘‘this of-
the Army; fice’’ refers to the appropriate district or di-
(2) When there is substantial doubt as vision office of the Corps of Engineers having
to authority, law, regulations, or poli- jurisdiction over the permitted activity or
cies applicable to the proposed activ- the appropriate official of that office acting
under the authority of the commanding offi-
ity;
cer.
(3) When higher authority requests
You are authorized to perform work in ac-

the application be forwarded for deci- cordance with the terms and conditions spec-
sion; or ified below.
421
Project Description: (Describe the per- Special Conditions: (Add special conditions
mitted activity and its intended use with ref- as required in this space with reference to a
erences to any attached plans or drawings continuation sheet if necessary.)
that are considered to be a part of the Further Information:
project description. Include a description of 1. Congressional Authorities: You have
the types and quantities of dredged or fill been authorized to undertake the activity
materials to be discharged in jurisdictional described above pursuant to:
waters.) ( ) Section 10 of the Rivers and Harbors
Project Location: (Where appropriate, pro- Act of 1899 (33 U.S.C. 403).
vide the names of and the locations on the ( ) Section 404 of the Clean Water Act (33
waters where the permitted activity and any U.S.C. 1344).
off-site disposals will take place. Also, using ( ) Section 103 of the Marine Protection,
name, distance, and direction, locate the per- Research and Sanctuaries Act of 1972 (33
U.S.C. 1413).
mitted activity in reference to a nearby
2. Limits of this authorization.
landmark such as a town or city.)
a. This permit does not obviate the need to
Permit Conditions: obtain other Federal, state, or local author-
General Conditions: izations required by law.
1. The time limit for completing the work b. This permit does not grant any property
authorized ends on llllll. If you find rights or exclusive privileges.
that you need more time to complete the au- c. This permit does not authorize any in-
thorized activity, submit your request for a jury to the property or rights of others.
time extension to this office for consider- d. This permit does not authorize inter-
ation at least one month before the above ference with any existing or proposed Fed-
date is reached. eral project.
2. You must maintain the activity author- 3. Limits of Federal Liability. In issuing
ized by this permit in good condition and in this permit, the Federal Government does
conformance with the terms and conditions not assume any liability for the following:
of this permit. You are not relieved of this a. Damages to the permitted project or
requirement if you abandon the permitted uses thereof as a result of other permitted or
activity, although you may make a good unpermitted activities or from natural
faith transfer to a third party in compliance causes.
with General Condition 4 below. Should you b. Damages to the permitted project or
wish to cease to maintain the authorized ac- uses thereof as a result of current or future
tivity or should you desire to abandon it activities undertaken by or on behalf of the
without a good faith transfer, you must ob- United States in the public interest.
tain a modification of this permit from this c. Damages to persons, property, or to
office, which may require restoration of the other permitted or unpermitted activities or
area. structures caused by the activity authorized
3. If you discover any previously unknown by this permit.
d. Design or construction deficiencies asso-
historic or archeological remains while ac-
ciated with the permitted work.
complishing the activity authorized by this
e. Damage claims associated with any fu-
permit, you must immediately notify this of-
ture modification, suspension, or revocation
fice of what you have found. We will initiate
of this permit.
the Federal and state coordination required
4. Reliance on Applicant’s Data: The deter-
to determine if the remains warrant a recov- mination of this office that issuance of this
ery effort or if the site is eligible for listing permit is not contrary to the public interest
in the National Register of Historic Places. was made in reliance on the information you
4. If you sell the property associated with provided.
this permit, you must obtain the signature 5. Reevaluation of Permit Decision. This
of the new owner in the space provided and office may reevaluate its decision on this
forward a copy of the permit to this office to permit at any time the circumstances war-
validate the transfer of this authorization. rant. Circumstances that could require a re-
5. If a conditioned water quality certifi- evaluation include, but are not limited to,
cation has been issued for your project, you the following:
must comply with the conditions specified in a. You fail to comply with the terms and
the certification as special conditions to this conditions of this permit.
permit. For your convenience, a copy of the b. The information provided by you in sup-
certification is attached if it contains such port of your permit application proves to
conditions. have been false, incomplete, or inaccurate
6. You must allow representatives from (See 4 above).
this office to inspect the authorized activity c. Significant new information surfaces
at any time deemed necessary to ensure that which this office did not consider in reaching
it is being or has been accomplished in ac- the original public interest decision.
cordance with the terms and conditions of Such a reevaluation may result in a deter-
your permit. mination that it is appropriate to use the
422
suspension, modification, and revocation 1. Your use of the permitted activity must
procedures contained in 33 CFR 325.7 or en- not interfere with the public’s right to free
forcement procedures such as those con- navigation on all navigable waters of the
tained in 33 CFR 326.4 and 326.5. The ref- United States.
erenced enforcement procedures provide for 2. You must have a copy of this permit
the issuance of an administrative order re- available on the vessel used for the author-
quiring you to comply with the terms and ized transportation and disposal of dredged
conditions of your permit and for the initi- material.
ation of legal action where appropriate. You 3. You must advise this office in writing, at
will be required to pay for any corrective least two weeks before you start mainte-
measures ordered by this office, and if you nance dredging activities under the author-
fail to comply with such directive, this office ity of this permit.
may in certain situations (such as those 4. You must install and maintain, at your
specified in 33 CFR 209.170) accomplish the expense, any safety lights and signals pre-
corrective measures by contract or otherwise scribed by the United States Coast Guard
and bill you for the cost. (USCG), through regulations or otherwise,
6. Extensions. General condition 1 estab- on your authorized facilities. The USCG may
lishes a time limit for the completion of the be reached at the following address and tele-
activity authorized by this permit. Unless phone number:
there are circumstances requiring either a llllllllllllllllllllllll
prompt completion of the authorized activ- llllllllllllllllllllllll
ity or a reevaluation of the public interest 5. The condition below will be used when a
decision, the Corps will normally give favor- Corps permit authorizes an artificial reef, an
able consideration to a request for an exten- aerial transmission line, a submerged cable
sion of this time limit. or pipeline, or a structure on the outer conti-
Your signature below, as permittee, indi- nental shelf.
cates that you accept and agree to comply National Ocean Service (NOS) has been no-
with the terms and conditions of this permit. tified of this authorization. You must notify
llllllllllllllllllllllll NOS and this office in writing, at least two
weeks before you begin work and upon com-
(Permittee) pletion of the activity authorized by this
llllllllllllllllllllllll permit. Your notification of completion
must include a drawing which certifies the
(Date) location and configuration of the completed
activity (a certified permit drawing may be
This permit becomes effective when the used). Notifications to NOS will be sent to
Federal official, designated to act for the the following address: National Ocean Serv-
Secretary of the Army, has signed below. ice, Office of Coast Survey, N/CS261, 1315
llllllllllllllllllllllll East West Highway, Silver Spring, Maryland
20910–3282.
(District Engineer) 6. The following condition should be used
llllllllllllllllllllllll for every permit where legal recordation of
the permit would be reasonably practicable
(Date) and recordation could put a subsequent pur-
chaser or owner of property on notice of per-
When the structures or work authorized by
mit conditions.
this permit are still in existence at the time
You must take the actions required to
the property is transferred, the terms and
record this permit with the Registrar of
conditions of this permit will continue to be
Deeds or other appropriate official charged
binding on the new owner(s) of the property.
with the responsibility for maintaining
To validate the transfer of this permit and
records of title to or interest in real prop-
the associated liabilities associated with
erty.
compliance with its terms and conditions,
have the transferee sign and date below. [51 FR 41236, Nov. 13, 1986, as amended at 62
llllllllllllllllllllllll FR 26230, May 13, 1997]
(Transferee) APPENDIX B TO PART 325—NEPA IMPLE-

MENTATION PROCEDURES FOR THE
llllllllllllllllllllllll
REGULATORY PROGRAM
(Date)
1. Introduction
B. Special Conditions. No special condi- 2. General
tions will be preprinted on the permit form. 3. Development of Information and Data
The following and other special conditions 4. Elimination of Duplication with State and
should be added, as appropriate, in the space Local Procedures

provided after the general conditions or on a 5. Public Involvement
referenced continuation sheet: 6. Categorical Exclusions
423
7. EA/FONSI Document (1) Fixed or floating small private piers,
8. Environmental Impact Statement—Gen- small docks, boat hoists and boathouses.
eral (2) Minor utility distribution and collec-
9. Organization and Content of Draft EISs tion lines including irrigation;
10. Notice of Intent (3) Minor maintenance dredging using ex-
11. Public Hearing isting disposal sites;
12. Organization and Content of Final EIS (4) Boat launching ramps;
13. Comments Received on the Final EIS (5) All applications which qualify as letters
14. EIS Supplement
of permission (as described at 33 CFR
15. Filing Requirements
325.5(b)(2)).
16. Timing
17. Expedited Filing b. Extraordinary Circumstances. District en-
18. Record of Decision gineers should be alert for extraordinary cir-
19. Predecision Referrals by Other Agencies cumstances where normally excluded actions
20. Review of Other Agencies’ EISs could have substantial environmental effects
21. Monitoring and thus require an EA or EIS. For a period
of one year from the effective data of these
1. Introduction. In keeping with Executive
regulations, district engineers should main-
Order 12291 and 40 CFR 1500.2, where interpre-
tain an information list on the type and
tive problems arise in implementing this
number of categorical exclusion actions
regulation, and consideration of all other
which, due to extraordinary circumstances,
factors do not give a clear indication of a
triggered the need for an EA/FONSI or EIS.
reasonable interpretation, the interpretation
If a district engineer determines that a cat-
(consistent with the spirit and intent of
egorical exclusion should be modified, the in-
NEPA) which results in the least paperwork
formation will be furnished to the division
and delay will be used. Specific examples of
ways to reduce paperwork in the NEPA proc- engineer who will review and analyze the ac-
ess are found at 40 CFR 1500.4. Maximum ad- tions and circumstances to determine if
vantage of these recommendations should be there is a basis for recommending a modi-
taken. fication to the list of categorical exclusions.
2. General. This Appendix sets forth imple- HQUSACE (CECW-OR) will review rec-
menting procedures for the Corps regulatory ommended changes for Corps-wide consist-
program. For additional guidance, see the ency and revise the list accordingly.
Corps NEPA regulation 33 CFR part 230 and 7. EA/FONSI Document. (See 40 CFR 1508.9
for general policy guidance, see the CEQ reg- and 1508.13 for definitions)—a. Environmental
ulations 40 CFR 1500–1508. Assessment (EA) and Findings of No Significant
3. Development of Information and Data. See Impact (FONSI). The EA should normally be
40 CFR 1506.5. The district engineer may re- combined with other required documents
quire the applicant to furnish appropriate in- (EA/404(b)(1)/SOF/FONSI). ‘‘EA’’ as used
formation that the district engineer con- throughout this Appendix normally refers to
siders necessary for the preparation of an this combined document. The district engi-
Environmental Assessment (EA) or Environ- neer should complete an EA as soon as prac-
mental Impact Statement (EIS). See also 40 ticable after all relevant information is
CFR 1502.22 regarding incomplete or unavail- available (i.e., after the comment period for
able information. the public notice of the permit application
4. Elimination of Duplication with State and has expired) and when the EA is a separate
Local Procedures. See 40 CFR 1506.2. document it must be completed prior to
5. Public Involvement. Several paragraphs of completion of the statement of finding
this appendix (paragraphs 7, 8, 11, 13, and 19) (SOF). When the EA confirms that the im-
provide information on the requirements for pact of the applicant’s proposal is not sig-
district engineers to make available to the nificant and there are no ‘‘unresolved con-
public certain environmental documents in flicts concerning alternative uses of avail-
accordance with 40 CFR 1506.6. able resources * * *’’ (section 102(2)(E) of
6. Categorical Exclusions—a. General. Even NEPA), and the proposed activity is a ‘‘water
though an EA or EIS is not legally mandated dependent’’ activity as defined in 40 CFR
for any Federal action falling within one of 230.10(a)(3), the EA need not include a discus-
the ‘‘categorical exclusions,’’ that fact does sion on alternatives. In all other cases where
not exempt any Federal action from proce- the district engineer determines that there
dural or substantive compliance with any are unresolved conflicts concerning alter-
other Federal law. For example, compliance native uses of available resources, the EA
with the Endangered Species Act, the Clean shall include a discussion of the reasonable
Water Act, etc., is always mandatory, even alternatives which are to be considered by
for actions not requiring an EA or EIS. The the ultimate decision-maker. The decision
following activities are not considered to be options available to the Corps, which em-
major Federal actions significantly affecting brace all of the applicant’s alternatives, are
the quality of the human environment and issue the permit, issue with modifications or
are therefore categorically excluded from deny the permit. Modifications are limited
NEPA documentation: to those project modifications within the
424
scope of established permit conditioning pol- ing funding assistance solely in the form of
icy (See 33 CFR 325.4). The decision option to general revenue sharing funds, with no Fed-
deny the permit results in the ‘‘no action’’ eral agency control over the subsequent use
alternative (i.e., no activity requiring a of such funds, and not including judicial or
Corps permit). The combined document nor- administrative civil or criminal enforcement
mally should not exceed 15 pages and shall actions).
conclude with a FONSI (See 40 CFR 1508.13) B. In determining whether sufficient cumu-
or a determination that an EIS is required. lative Federal involvement exists to expand
The district engineer may delegate the sign- the scope of Federal action the district engi-
ing of the NEPA document. Should the EA neer should consider whether other Federal
demonstrate that an EIS is necessary, the agencies are required to take Federal action
district engineer shall follow the procedures under the Fish and Wildlife Coordination Act
outlined in paragraph 8 of this Appendix. In (16 U.S.C. 661 et seq.), the National Historic
those cases where it is obvious an EIS is re- Preservation Act of 1966 (16 U.S.C. 470 et seq.),
quired, an EA is not required. However, the the Endangered Species Act of 1973 (16 U.S.C.
district engineer should document his rea- 1531 et seq.), Executive Order 11990, Protec-
sons for requiring an EIS. tion of Wetlands, (42 U.S.C. 4321 91977), and
b. Scope of Analysis. (1) In some situations, other environmental review laws and execu-
a permit applicant may propose to conduct a tive orders.
specific activity requiring a Department of C. The district engineer should also refer
the Army (DA) permit (e.g., construction of to paragraphs 8(b) and 8(c) of this appendix
a pier in a navigable water of the United for guidance on determining whether it
States) which is merely one component of a
should be the lead or a cooperating agency in
larger project (e.g., construction of an oil re-
these situations.
finery on an upland area). The district engi-
These factors will be added to or modified
neer should establish the scope of the NEPA
document (e.g., the EA or EIS) to address the through guidance as additional field experi-
impacts of the specific activity requiring a ence develops.
DA permit and those portions of the entire (3) Examples: If a non-Federal oil refinery,
project over which the district engineer has electric generating plant, or industrial facil-
sufficient control and responsibility to war- ity is proposed to be built on an upland site
rant Federal review. and the only DA permit requirement relates
(2) The district engineer is considered to to a connecting pipeline, supply loading ter-
have control and responsibility for portions minal or fill road, that pipeline, terminal or
of the project beyond the limits of Corps ju- fill road permit, in and of itself, normally
risdiction where the Federal involvement is would not constitute sufficient overall Fed-
sufficient to turn an essentially private ac- eral involvement with the project to justify
tion into a Federal action. These are cases expanding the scope of a Corps NEPA docu-
where the environmental consequences of ment to cover upland portions of the facility
the larger project are essentially products of beyond the structures in the immediate vi-
the Corps permit action. cinity of the regulated activity that would
Typical factors to be considered in deter- effect the location and configuration of the
mining whether sufficient ‘‘control and re- regulated activity.
sponsibility’’ exists include: Similarly, if an applicant seeks a DA per-
(i) Whether or not the regulated activity mit to fill waters or wetlands on which other
comprises ‘‘merely a link’’ in a corridor type construction or work is proposed, the control
project (e.g., a transportation or utility and responsibility of the Corps, as well as its
transmission project). overall Federal involvement would extend to
(ii) Whether there are aspects of the upland the portions of the project to be located on
facility in the immediate vicinity of the reg- the permitted fill. However, the NEPA re-
ulated activity which affect the location and view would be extended to the entire project,
configuration of the regulated activity. including portions outside waters of the
(iii) The extent to which the entire project United States, only if sufficient Federal con-
will be within Corps jurisdiction. trol and responsibility over the entire
(iv) The extent of cumulative Federal con- project is determined to exist; that is, if the
trol and responsibility. regulated activities, and those activities in-
A. Federal control and responsibility will volving regulation, funding, etc. by other
include the portions of the project beyond Federal agencies, comprise a substantial por-
the limits of Corps jurisdiction where the cution of the overall project. In any case, once
mulative Federal involvement of the Corps the scope of analysis has been defined, the
and other Federal agencies is sufficient to NEPA analysis for that action should in-
grant legal control over such additional por- clude direct, indirect and cumulative im-
tions of the project. These are cases where pacts on all Federal interests within the pur-
the environmental consequences of the addi- view of the NEPA statute. The district engi-
tional portions of the projects are essentially neer should, whenever practicable, incor-
products of Federal financing, assistance, di- porate by reference and rely upon the re-
rection, regulation, or approval (not includ- views of other Federal and State agencies.
425
For those regulated activities that com- paragraph 3 of this appendix. It is
prise merely a link in a transportation or permissable for the Corps to reimburse,
utility transmission project, the scope of under agreement, staff support from other
analysis should address the Federal action, Federal agencies beyond the immediate ju-
i.e., the specific activity requiring a DA per- risdiction of those agencies.
mit and any other portion of the project that c. Corps as Cooperating Agency. If another
is within the control or responsibility of the agency is the lead agency as set forth by the
Corps of Engineers (or other Federal agen- CEQ regulations (40 CFR 1501.5 and 1501.6(a)
cies). and 1508.16), the district engineer will coordi-
For example, a 50-mile electrical trans- nate with that agency as a cooperating agen-
mission cable crossing a 11⁄4 mile wide river cy under 40 CFR 1501.6(b) and 1508.5 to insure
that is a navigable water of the United that agency’s resulting EIS may be adopted
States requires a DA permit. Neither the ori- by the Corps for purposes of exercising its
gin and destination of the cable nor its route regulatory authority. As a cooperating agen-
to and from the navigable water, except as cy the Corps will be responsible to the lead
the route applies to the location and configu- agency for providing environmental informa-
ration of the crossing, are within the control tion which is directly related to the regu-
or responsibility of the Corps of Engineers. latory matter involved and which is required
Those matters would not be included in the for the preparation of an EIS. This in no way
scope of analysis which, in this case, would shall be construed as lessening the district
address the impacts of the specific cable engineer’s ability to request the applicant to
crossing. furnish appropriate information as discussed
Conversely, for those activities that rein paragraph 3 of this appendix.
quire a DA permit for a major portion of a
When the Corps is a cooperating agency be-
transportation or utility transmission
cause of a regulatory responsibility, the dis-
project, so that the Corps permit bears upon
trict engineer should, in accordance with 40
the origin and destination as well as the
CFR 1501.6(b)(4), ‘‘make available staff sup-
route of the project outside the Corps regu-
port at the lead agency’s request’’ to en-
latory boundaries, the scope of analysis
hance the latter’s interdisciplinary capa-
should include those portions of the project
bility provided the request pertains to the
outside the boundaries of the Corps section
Corps regulatory action covered by the EIS,
10/404 regulatory jurisdiction. To use the
to the extent this is practicable. Beyond
same example, if 30 miles of the 50-mile
transmission line crossed wetlands or other this, Corps staff support will generally be
‘‘waters of the United States,’’ the scope of made available to the lead agency to the ex-
analysis should reflect impacts of the whole tent practicable within its own responsi-
50-mile transmission line. bility and available resources. Any assist-
For those activities that require a DA per- ance to a lead agency beyond this will nor-
mit for a major portion of a shoreside facil- mally be by written agreement with the lead
ity, the scope of analysis should extend to agency providing for the Corps expenses on a
upland portions of the facility. For example, cost reimbursable basis. If the district engi-
a shipping terminal normally requires dredg- neer believes a public hearing should be held
ing, wharves, bulkheads, berthing areas and and another agency is lead agency, the dis-
disposal of dredged material in order to func- trict engineer should request such a hearing
tion. Permits for such activities are nor- and provide his reasoning for the request.
mally considered sufficient Federal control The district engineer should suggest a joint
and responsibility to warrant extending the hearing and offer to take an active part in
scope of analysis to include the upland por- the hearing and ensure coverage of the Corps
tions of the facility. concerns.
In all cases, the scope of analysis used for d. Scope of Analysis. See paragraph 7b.
analyzing both impacts and alternatives e. Scoping Process. Refer to 40 CFR 1501.7
should be the same scope of analysis used for and 33 CFR 230.12.
analyzing the benefits of a proposal. f. Contracting. See 40 CFR 1506.5.
8. Environmental Impact Statement—Gen- (1) The district engineer may prepare an
eral—a. Determination of Lead and Cooperating EIS, or may obtain information needed to
Agencies. When the district engineer deter- prepare an EIS, either with his own staff or
mines that an EIS is required, he will con- by contract. In choosing a contractor who
tact all appropriate Federal agencies to de- reports directly to the district engineer, the
termine their respective role(s), i.e., that of procedures of 40 CFR 1506.5(c) will be fol-
lead agency or cooperating agency. lowed.
b. Corps as Lead Agency. When the Corps is (2) Information required for an EIS also
lead agency, it will be responsible for man- may be furnished by the applicant or a con-
aging the EIS process, including those por- sultant employed by the applicant. Where
tions which come under the jurisdiction of this approach is followed, the district engi-
other Federal agencies. The district engineer neer will (i) advise the applicant and/or his
is authorized to require the applicant to fur- consultant of the Corps information require-
nish appropriate information as discussed in ments, and (ii) meet with the applicant and/
426
or his consultant from time to time and pro- action and shall briefly state the beneficial/
vide him with the district engineer’s views adverse impacts of the proposed action.
regarding adequacy of the data that are (3) Table of Contents.
being developed (including how the district (4) Purpose and Need. See 40 CFR 1502.13. If
engineer will view such data in light of any the scope of analysis for the NEPA document
possible conflicts of interest). (see paragraph 7b) covers only the proposed
The applicant and/or his consultant may specific activity requiring a Department of
accept or reject the district engineer’s guid- the Army permit, then the underlying pur-
ance. The district engineer, however, may pose and need for that specific activity
after specifying the information in conten- should be stated. (For example, ‘‘The purpose
tion, require the applicant to resubmit any and need for the pipe is to obtain cooling
previously submitted data which the district water from the river for the electric gener-
engineer considers inadequate or inaccurate. ating plant.’’) If the scope of analysis covers
In all cases, the district engineer should doc- a more extensive project, only part of which
ument in the record the Corps independent may require a DA permit, then the under-
evaluation of the information and its accu- lying purpose and need for the entire project
racy, as required by 40 CFR 1506.5(a). should be stated. (For example, ‘‘The purpose
g. Change in EIS Determination. If it is de- and need for the electric generating plant is
termined that an EIS is not required after a to provide increased supplies of electricity to
notice of intent has been published, the dis- the (named) geographic area.’’) Normally,
trict engineer shall terminate the EIS prepa- the applicant should be encouraged to pro-
ration and withdraw the notice of intent. vide a statement of his proposed activity’s
The district engineer shall notify in writing purpose and need from his perspective (for
the appropriate division engineer; HQUSACE example, ‘‘to construct an electric gener-
(CECW-OR); the appropriate EPA regional ating plant’’). However, whenever the NEPA
administrator, the Director, Office of Fed- document’s scope of analysis renders it ap-
propriate, the Corps also should consider and
eral Activities (A–104), EPA, 401 M Street
express that activity’s underlying purpose
SW., Washington, DC 20460 and the public of
and need from a public interest perspective
the determination.
(to use that same example, ‘‘to meet the
h. Time Limits. For regulatory actions, the
public’s need for electric energy’’). Also,
district engineer will follow 33 CFR 230.17(a)
while generally focusing on the applicant’s
unless unusual delays caused by applicant statement, the Corps, will in all cases, exer-
inaction or compliance with other statutes cise independent judgment in defining the
require longer time frames for EIS prepara- purpose and need for the project from both
tion. At the outset of the EIS effort, sched- the applicant’s and the public’s perspective.
ule milestones will be developed and made (5) Alternatives. See 40 CFR 1502.14. The
available to the applicant and the public. If Corps is neither an opponent nor a proponent
the milestone dates are not met the district of the applicant’s proposal; therefore, the ap-
engineer will notify the applicant and ex- plicant’s final proposal will be identified as
plain the reason for delay. the ‘‘applicant’s preferred alternative’’ in
9. Organization and Content of Draft EISs— the final EIS. Decision options available to
a. General. This section gives detailed infor- the district engineer, which embrace all of
mation for preparing draft EISs. When the the applicant’s alternatives, are issue the
Corps is the lead agency, this draft EIS for- permit, issue with modifications or condi-
mat and these procedures will be followed. tions or deny the permit.
When the Corps is one of the joint lead agen- (a) Only reasonable alternatives need be
cies, the joint lead agencies will mutually considered in detail, as specified in 40 CFR
decide which agency’s format and procedures 1502.14(a). Reasonable alternatives must be
will be followed. those that are feasible and such feasibility
b. Format—(1) Cover Sheet. (a) Ref. 40 CFR must focus on the accomplishment of the un-
1502.11. derlying purpose and need (of the applicant
(b) The ‘‘person at the agency who can sup- or the public) that would be satisfied by the
ply further information’’ (40 CFR 1502.11(c) is proposed Federal action (permit issuance).
the project manager handling that permit The alternatives analysis should be thorough
application. enough to use for both the public interest re-
(c) The cover sheet should identify the EIS view and the 404(b)(1) guidelines (40 CFR part
as a Corps permit action and state the au- 230) where applicable. Those alternatives
thorities (sections 9, 10, 404, 103, etc.) under that are unavailable to the applicant, wheth-
which the Corps is exerting its jurisdiction. er or not they require Federal action (per-
(2) Summary. In addition to the require- mits), should normally be included in the
ments of 40 CFR 1502.12, this section should analysis of the no-Federal-action (denial) al-
identify the proposed action as a Corps per- ternative. Such alternatives should be evalu-
mit action stating the authorities (sections ated only to the extent necessary to allow a
9, 10, 404, 103, etc.) under which the Corps is complete and objective evaluation of the
exerting its jurisdiction. It shall also sum- public interest and a fully informed decision
marize the purpose and need for the proposed regarding the permit application.
427
(b) The ‘‘no-action’’ alternative is one the public at least 15 days in advance of the
which results in no construction requiring a hearing. If a hearing request is received from
Corps permit. It may be brought by (1) the another agency having jurisdiction as pro-
applicant electing to modify his proposal to vided in 40 CFR 1506.6(c)(2), the district engi-
eliminate work under the jurisdiction of the neer should coordinate a joint hearing with
Corps or (2) by the denial of the permit. Dis- that agency whenever appropriate.
trict engineers, when evaluating this alter- 12. Organization and Content of Final EIS.
native, should discuss, when appropriate, the The organization and content of the final
consequences of other likely uses of a project EIS including the abbreviated final EIS pro-
site, should the permit be denied. cedures shall follow the guidance in 33 CFR
(c) The EIS should discuss geographic al- 230.14(a).
ternatives, e.g., changes in location and 13. Comments Received on the Final EIS. For
other site specific variables, and functional permit cases to be decided at the district
alternatives, e.g., project substitutes and de- level, the district engineer should consider
sign modifications. all incoming comments and provide re-
(d) The Corps shall not prepare a cost-ben- sponses when substantive issues are raised
efit analysis for projects requiring a Corps which have not been addressed in the final
permit. 40 CFR 1502.23 states that the weigh- EIS. For permit cases decided at higher au-
ing of the various alternatives need not be thority, the district engineer shall forward
displayed in a cost-benefit analysis and the final EIS comment letters together with
‘‘* * * should not be when there are impor- appropriate responses to higher authority
tant qualitative considerations.’’ The EIS along with the case. In the case of a letter
should, however, indicate any cost consider- recommending a referral under 40 CFR part
ations that are likely to be relevant to a de- 1504, the district engineer will follow the
cision. guidance in paragraph 19 of this appendix.
(e) Mitigation is defined in 40 CFR 1508.20, 14. EIS Supplement. See 33 CFR 230.13(b).
and Federal action agencies are directed in 15. Filing Requirements. See 40 CFR 1506.9.
40 CFR 1502.14 to include appropriate mitiga- Five (5) copies of EISs shall be sent to Direc-
tion measures. Guidance on the conditioning tor, Office of Federal Activities (A–104), En-
of permits to require mitigation is in 33 CFR vironmental Protection Agency, 401 M Street
320.4(r) and 325.4. The nature and extent of SW., Washington, DC 20460. The official re-
mitigation conditions are dependent on the view periods commence with EPA’s publica-
results of the public interest review in 33 tion of a notice of availability of the draft or
CFR 320.4. final EISs in the FEDERAL REGISTER. Gen-
(6) Affected Environment. See Ref. 40 CFR erally, this notice appears on Friday of each
1502.15. week. At the same time they are mailed to
(7) Environmental Consequences. See Ref. 40 EPA for filing, one copy of each draft or final
CFR 1502.16. EIS, or EIS supplement should be mailed to
(8) List of Preparers. See Ref. 40 CFR 1502.17. HQUSACE (CECW-OR) WASH DC 20314–1000.
(9) Public Involvement. This section should 16. Timing. 40 CFR 1506.10 describes the tim-
list the dates and nature of all public no- ing of an agency action when an EIS is in-
tices, scoping meetings and public hearings volved.
and include a list of all parties notified. 17. Expedited Filing. 40 CFR 1506.10 provides
(10) Appendices. See 40 CFR 1502.18. Appen- information on allowable time reductions
dices should be used to the maximum extent and time extensions associated with the EIS
practicable to minimize the length of the process. The district engineer will provide
main text of the EIS. Appendices normally the necessary information and facts to
should not be circulated with every copy of HQUSACE (CECW-RE) WASH DC 20314–1000
the EIS, but appropriate appendices should (with copy to CECW-OR) for consultation
be provided routinely to parties with special with EPA for a reduction in the prescribed
interest and expertise in the particular sub- review periods.
ject. 18. Record of Decision. In those cases involv-
(11) Index. The Index of an EIS, at the end ing an EIS, the statement of findings will be
of the document, should be designed to pro- called the record of decision and shall incor-
vide for easy reference to items discussed in porate the requirements of 40 CFR 1505.2. The
the main text of the EIS. record of decision is not to be included when
10. Notice of Intent. The district engineer filing a final EIS and may not be signed until
shall follow the guidance in 33 CFR part 230, 30 days after the notice of availability of the
Appendix C in preparing a notice of intent to final EIS is published in the FEDERAL REG-
prepare a draft EIS for publication in the ISTER. To avoid duplication, the record of de-
FEDERAL REGISTER. cision may reference the EIS.
11. Public Hearing. If a public hearing is to 19. Predecision Referrals by Other Agencies.
be held pursuant to 33 CFR part 327 for a per- See 40 CFR part 1504. The decisionmaker
mit application requiring an EIS, the actions should notify any potential referring Federal
analyzed by the draft EIS should be consid- agency and CEQ of a final decision if it is
ered at the public hearing. The district engi- contrary to the announced position of a po-
neer should make the draft EIS available to tential referring agency. (This pertains to a
428
NEPA referral, not a 404(q) referral under the 1. Definitions
Clean Water Act. The procedures for a 404(q)
a. Designated historic property is a historic
referral are outlined in the 404(q) Memo- property listed in the National Register of
randa of Agreement. The potential referring Historic Places (National Register) or which
agency will then have 25 calendar days to has been determined eligible for listing in
refer the case to CEQ under 40 CFR part 1504. the National Register pursuant to 36 CFR
Referrals will be transmitted through divi- part 63. A historic property that, in both the
sion to CECW-RE for further guidance with opinion of the SHPO and the district engi-
an information copy to CECW-OR. neer, appears to meet the criteria for inclu-
20. Review of Other Agencies’ EISs. District sion in the National Register will be treated
engineers should provide comments directly as a ‘‘designated historic property.’’
to the requesting agency specifically related b. Historic property is a property which has
to the Corps jurisdiction by law or special historical importance to any person or
expertise as defined in 40 CFR 1508.15 and group. This term includes the types of dis-
1508.26 and identified in Appendix II of CEQ tricts, sites, buildings, structures or objects
regulations (49 FR 49750, December 21, 1984). eligible for inclusion, but not necessarily
If the district engineer determines that an- listed, on the National Register.
other agency’s draft EIS which involves a c. Certified local government is a local gov-
Corps permit action is inadequate with re- ernment certified in accordance with section
spect to the Corps permit action, the district 101(c)(1) of the NHPA (See 36 CFR part 61).
engineer should attempt to resolve the dif- d. The term ‘‘criteria for inclusion in the
ferences concerning the Corps permit action National Register’’ refers to the criteria pub-
prior to the filing of the final EIS by the lished by the Department of Interior at 36
other agency. If the district engineer finds CFR 60.4.
that the final EIS is inadequate with respect e. An ‘‘effect’’ on a ‘‘designated historic
to the Corps permit action, the district engi- property’’ occurs when the undertaking may
neer should incorporate the other agency’s alter the characteristics of the property that
final EIS or a portion thereof and prepare an qualified the property for inclusion in the
appropriate and adequate NEPA document to National Register. Consideration of effects
address the Corps involvement with the pro- on ‘‘designated historic properties’’ includes
posed action. See 33 CFR 230.21 for guidance. indirect effects of the undertaking. The cri-
The agency which prepared the original EIS teria for effect and adverse effect are de-
should be given the opportunity to provide scribed in Paragraph 15 of this appendix.
f. The term ‘‘undertaking’’ as used in this
additional information to that contained in
appendix means the work, structure or dis-
the EIS in order for the Corps to have all rel-
charge that requires a Department of the
evant information available for a sound deci-
Army permit pursuant to the Corps regula-
sion on the permit.
tions at 33 CFR 320–334.
21. Monitoring. Monitoring compliance with g. Permit area.
permit requirements should be carried out in (1) The term ‘‘permit area’’ as used in this
accordance with 33 CFR 230.15 and with 33 appendix means those areas comprising the
CFR part 325. waters of the United States that will be di-
[53 FR 3134, Feb. 3, 1988] rectly affected by the proposed work or
structures and uplands directly affected as a
APPENDIX C TO PART 325—PROCEDURES result of authorizing the work or structures.
The following three tests must all be satis-
FOR THE PROTECTION OF HISTORIC
fied for an activity undertaken outside the
PROPERTIES waters of the United States to be included
within the ‘‘permit area’’:
1. Definitions (i) Such activity would not occur but for
2. General Policy the authorization of the work or structures
3. Initial Review within the waters of the United States;
4. Public Notice (ii) Such activity must be integrally re-
5. Investigations lated to the work or structures to be author-
6. Eligibility Determinations ized within waters of the United States. Or,
7. Assessing Effects conversely, the work or structures to be au-
8. Consultation thorized must be essential to the complete-
9. ACHP Review and Comment ness of the overall project or program; and
(iii) Such activity must be directly associ-
10. District Engineer Decision
ated (first order impact) with the work or
11. Historic Properties Discovered During structures to be authorized.
Construction (2) For example, consider an application
12. Regional General Permits for a permit to construct a pier and dredge
13. Nationwide General Permits
an access channel so that an industry may

14. Emergency Procedures be established and operated on an upland
15. Criteria of Effect and Adverse Effect area.
429
(i) Assume that the industry requires the crossing, meets all three tests and hence is
access channel and the pier and that without part of the permit area.
such channel and pier the project would not (ii) Accordingly, in the case of the linear
be feasible. Clearly then, the industrial site, crossing, the permit area shall extend in ei-
even though upland, would be within the ther direction from the crossing to that
‘‘permit area.’’ It would not be established point at which alternative alignments lead-
‘‘but for’’ the access channel and pier; it also ing to reasonable alternative locations for
is integrally related to the work and struc- the crossing can be considered and evalu-
ture to be authorized; and finally it is di- ated. Such a point may often coincide with
rectly associated with the work and struc- the physical feature of the waterbody to be
ture to be authorized. Similarly, all three crossed, for example, a bluff, the limit of the
tests are satisfied for the dredged material flood plain, a vegetational change, etc., or
disposal site and it too is in the ‘‘permit with a jurisdictional feature associated with
area’’ even if located on uplands. the waterbody, for example, a zoning change,
(ii) Consider further that the industry, if easement limit, etc., although such features
established, would cause local agencies to should not be controlling in selecting the
extend water and sewer lines to service the limits of the permit area.
area of the industrial site. Assume that the
extension would not itself involve the waters 2. General Policy
of the United States and is not solely the re- This appendix establishes the procedures
sult of the industrial facility. The extensions to be followed by the U.S. Army Corps of En-
would not be within the ‘‘permit area’’ be- gineers (Corps) to fulfill the requirements
cause they would not be directly associated set forth in the National Historic Preserva-
with the work or structure to be authorized. tion Act (NHPA), other applicable historic
(iii) Now consider that the industry, if es- preservation laws, and Presidential direc-
tablished, would require increased housing tives as they relate to the regulatory pro-
for its employees, but that a private devel- gram of the Corps of Engineers (33 CFR parts
oper would develop the housing. Again, even 320–334).
if the housing would not be developed but for a. The district engineer will take into ac-
the authorized work and structure, the hous- count the effects, if any, of proposed under-
ing would not be within the permit area be- takings on historic properties both within
cause it would not be directly associated and beyond the waters of the U.S. Pursuant
with or integrally related to the work or to section 110(f) of the NHPA, the district en-
structure to be authorized. gineer, where the undertaking that is the
(3) Consider a different example. This time subject of a permit action may directly and
an industry will be established that requires adversely affect any National Historic Land-
no access to the navigable waters for its op- mark, shall, to the maximum extent pos-
eration. The plans for the facility, however, sible, condition any issued permit as may be
call for a recreational pier with an access necessary to minimize harm to such land-
channel. The pier and channel will be used mark.
for the company-owned yacht and employee b. In addition to the requirements of the
recreation. In the example, the industrial NHPA, all historic properties are subject to
site is not included within the permit area. consideration under the National Environ-
Only areas of dredging, dredged material dis- mental Policy Act, (33 CFR part 325, appen-
posal, and pier construction would be within dix B), and the Corps’ public interest review
the permit area. requirements contained in 33 CFR 320.4.
(4) Lastly, consider a linear crossing of the Therefore, historic properties will be in-
waters of the United States; for example, by cluded as a factor in the district engineer’s
a transmission line, pipeline, or highway. decision on a permit application.
(i) Such projects almost always can be un- c. In processing a permit application, the
dertaken without Corps authorization, if district engineer will generally accept for
they are designed to avoid affecting the wa- Federal or Federally assisted projects the
ters of the United States. Corps authoriza- Federal agency’s or Federal lead agency’s
tion is sought because it is less expensive or compliance with the requirements of the
more convenient for the applicant to do so NHPA.
than to avoid affecting the waters of the d. If a permit application requires the prep-
United States. Thus the ‘‘but for’’ test is not aration of an Environmental Impact State-
met by the entire project right-of-way. The ment (EIS) pursuant to the National Envi-
‘‘same undertaking’’ and ‘‘integral relation- ronmental Policy Act, the draft EIS will
ship’’ tests are met, but this is not sufficient contain the information required by para-
to make the whole right-of-way part of the graph 9.a. below. Furthermore, the SHPO
permit area. Typically, however, some por- and the ACHP will be given the opportunity
tion of the right-of-way, approaching the to participate in the scoping process and to
crossing, would not occur in its given con- comment on the Draft and Final EIS.
figuration ‘‘but for’’ the authorized activity. e. During pre-application consultations

This portion of the right-of-way, whose loca- with a prospective applicant the district en-
tion is determined by the location of the gineer will encourage the consideration of
430
historic properties at the earliest practical (2) Areas which have been created in mod-
time in the planning process. ern times. Some recently created areas, such
f. This appendix is organized to follow the as dredged material disposal islands, have
Corps standard permit process and to indi- had no human habitation. In such cases, it
cate how historic property considerations may be presumed that there is no potential
are to be addressed during the processing and for the existence of historic properties unless
evaluating of permit applications. The proce- specific information indicates the presence
dures of this Appendix are not intended to of such a property.
diminish the full consideration of historic (3) Certain types of work or structures that
properties in the Corps regulatory program. are of such limited nature and scope that
Rather, this appendix is intended to provide there is little likelihood of impinging upon a
for the maximum consideration of historic historic property even if such properties
properties within the time and jurisdictional were to be present within the affected area.
constraints of the Corps regulatory program. c. If, when using the pre-application proce-
The Corps will make every effort to provide dures of 33 CFR 325.1(b), the district engineer
information on historic properties and the believes that a designated historic property
effects of proposed undertakings on them to may be affected, he will inform the prospec-
the public by the public notice within the tive applicant for consideration during
time constraints required by the Clean project planning of the potential applica-
Water Act. Within the time constraints of bility of the Secretary of the Interior’s
applicable laws, executive orders, and regu- Standards and Guidelines for Archeology and
lations, the Corps will provide the maximum Historic Preservation (48 FR 44716). The dis-
coordination and comment opportunities to trict engineer will also inform the prospec-
interested parties especially the SHPO and tive applicant that the Corps will consider
ACHP. The Corps will discuss with and en- any effects on historic properties in accord-
courage the applicant to avoid or minimize ance with this appendix.
effects on historic properties. In reaching its d. At the earliest practical time the dis-
decisions on permits, the Corps will adhere trict engineer will discuss with the applicant
to the goals of the NHPA and other applica- measures or alternatives to avoid or mini-
ble laws dealing with historic properties. mize effects on historic properties.
3. Initial Review 4. Public Notice.
a. Upon receipt of a completed permit ap- a. Except as specified in subparagraph 4.c.,
plication, the district engineer will consult the district engineer’s current knowledge of
district files and records, the latest pub- the presence or absence of historic properties
lished version(s) of the National Register, and the effects of the undertaking upon
lists of properties determined eligible, and these properties will be included in the pub-
other appropriate sources of information to lic notice. The public notice will be sent to
determine if there are any designated his- the SHPO, the regional office of the National
toric properties which may be affected by Park Service (NPS), certified local govern-
the proposed undertaking. The district engi- ments (see paragraph (1.c.) and Indian tribes,
neer will also consult with other appropriate and interested citizens. If there are des-
sources of information for knowledge of un- ignated historic properties which reasonably
designated historic properties which may be may be affected by the undertaking or if
affected by the proposed undertaking. The there are undesignated historic properties
district engineer will establish procedures within the affected area which the district
(e.g., telephone calls) to obtain supplemental engineer reasonably expects to be affected by
information from the SHPO and other appro- the undertaking and which he believes meet
priate sources. Such procedures shall be ac- the criteria for inclusion in the National
complished within the time limits specified Register, the public notice will also be sent
in this appendix and 33 CFR part 325. to the ACHP.
b. In certain instances, the nature, scope, b. During permit evaluation for newly des-
and magnitude of the work, and/or struc- ignated historic properties or undesignated
tures to be permitted may be such that there historic properties which reasonably may be
is little likelihood that a historic property affected by the undertaking and which have
exists or may be affected. Where the district been newly identified through the public in-
engineer determines that such a situation terest review process, the district engineer
exists, he will include a statement to this ef- will immediately inform the applicant, the
fect in the public notice. Three such situa- SHPO, the appropriate certified local gov-
tions are: ernment and the ACHP of the district engi-
(1) Areas that have been extensively modi- neer’s current knowledge of the effects of the
fied by previous work. In such areas, historic undertaking upon these properties. Com-
properties that may have at one time existed mencing from the date of the district engi-
within the permit area may be presumed to neer’s letter, these entities will be given 30
have been lost unless specific information in- days to submit their comments.
dicates the presence of such a property (e.g., c. Locational and sensitive information re-
a shipwreck). lated to archeological sites is excluded from
431
the Freedom of Information Act (Section 304 cision . As part of any site visit, Corps per-
of the NHPA and Section 9 of ARPA). If the sonnel will examine the permit area for the
district engineer or the Secretary of the In- presence of potentially eligible historic prop-
terior determine that the disclosure of infor- erties. The Corps will notify the SHPO, if
mation to the public relating to the location any evidence is found which indicates the
or character of sensitive historic resources presence of potentially eligible historic prop-
may create a substantial risk of harm, theft, erties.
or destruction to such resources or to the e. As determined by the district engineer,
area or place where such resources are lo- investigations may consist of any of the fol-
cated, then the district engineer will not in- lowing: further consultations with the
clude such information in the public notice SHPO, the State Archeologist, local govern-
nor otherwise make it available to the pub- ments, Indian tribes, local historical and ar-
lic. Therefore, the district engineer will fur- cheological societies, university archeolo-
nish such information to the ACHP and the gists, and others with knowledge and exper-
SHPO by separate notice. tise in the identification of historical, ar-
cheological, cultural and scientific re-
5. Investigations
sources; field examinations; and archeo-
a. When initial review, addition submis- logical testing. In most cases, the district
sions by the applicant, or response to the engineer will require, in accordance with 33
public notice indicates the existence of a po- CFR 325.1(e), that the applicant conduct the
tentially eligible property, the district engi- investigation at his expense and usually by
neer shall examine the pertinent evidence to third party contract.
determine the need for further investigation. f. The Corps of Engineers’ responsibilities
The evidence must set forth specific reasons to seek eligibility determinations for poten-
for the need to further investigate within the tially eligible historic properties is limited
permit area and may consist of: to resources located within waters of the
(1) Specific information concerning prop- U.S. that are directly affected by the under-
erties which may be eligible for inclusion in taking. The Corps responsibilities to identify
the National Register and which are known potentially eligible historic properties is
to exist in the vicinity of the project; and limited to resources located within the per-
(2) Specific information concerning known mit area that are directly affected by related
sensitive areas which are likely to yield re- upland activities. The Corps is not respon-
sources eligible for inclusion in the National sible for identifying or assessing potentially
Register, particularly where such sensitive eligible historic properties outside the per-
area determinations are based upon data col- mit area, but will consider the effects of un-
lected from other, similar areas within the dertakings on any known historic properties
general vicinity. that may occur outside the permit area.
b. Where the scope and type of work pro-
posed by the applicant or the evidence pre- 6. Eligibility determinations
sented leads the district engineer to con-
clude that the chance of disturbance by the a. For a historic property within waters of
undertaking to any potentially eligible his- the U.S. that will be directly affected by the
toric property is too remote to justify fur- undertaking the district engineer will, for
ther investigation, he shall so advise the re- the purposes of this Appendix and compli-
porting party and the SHPO. ance with the NHPA:
c. If the district engineer’s review indi- (1) Treat the historic property as a ‘‘des-
cates that an investigation for the presence ignated historic property,’’ if both the SHPO
of potentially eligible historic properties on and the district engineer agree that it is eli-
the upland locations of the permit area (see gible for inclusion in the National Register;
paragraph 1.g.) is justified, the district engi- or
neer will conduct or cause to be conducted (2) Treat the historic property as not eligi-
such an investigation. Additionally, if the ble, if both the SHPO and the district engi-
notification indicates that a potentially eli- neer agree that it is not eligible for inclusion
gible historic property may exist within wa- in the National Register; or
ters of the U.S., the district engineer will (3) Request a determination of eligibility
conduct or cause to be conducted an inves- from the Keeper of the National Register in
tigation to determine whether this property accordance with applicable National Park
may be eligible for inclusion in the National Service regulations and notify the applicant,
Register. Comments or information of a gen- if the SHPO and the district engineer dis-
eral nature will not be considered as suffi- agree or the ACHP or the Secretary of the
cient evidence to warrant an investigation. Interior so request. If the Keeper of the Na-
d. In addition to any investigations con- tional Register determines that the re-
ducted in accordance with paragraph 6.a. sources are not eligible for listing in the Na-
above, the district engineer may conduct or tional Register or fails to respond within 45
cause to be conducted additional investiga- days of receipt of the request, the district
tions which the district engineer determines engineer may proceed to conclude his action
are essential to reach the public interest de- on the permit application.
432
b. For a historic property outside of waters engineer may conclude the permit decision if
of the U.S. that will be directly affected by the ACHP does not object to the district en-
the undertaking the district engineer will, gineer’s determination or if the district engi-
for the purposes of this appendix and compli- neer accepts any conditions requested by the
ance with the NHPA: ACHP for a no adverse effect determination,
(1) Treat the historic property as a ‘‘des- or the ACHP fails to respond within 30 days
ignated historic property,’’ if both the SHPO of the district engineer’s notice to the
and the district engineer agree that it is eli- ACHP. If the ACHP objects or the district
gible for inclusion in the National Register; engineer does not accept the conditions pro-
or posed by the ACHP, then the effect shall be
(2) Treat the historic property as not eligi- considered as adverse.
ble, if both the SHPO and the district engi-
d. Adverse Effect. If an adverse effect on
neer agree that it is not eligible for inclusion
in the National Register; or designated historic properties is found, the
(3) Treat the historic property as not eligi- district engineer will notify the ACHP and
ble unless the Keeper of the National Reg- coordinate with the SHPO to seek ways to
ister determines it is eligible for or lists it avoid or reduce effects on designated historic
on the National Register. (See paragraph 6.c. properties. Either the district engineer or
below.) the SHPO may request the ACHP to partici-
c. If the district engineer and the SHPO do pate. At its discretion, the ACHP may par-
not agree pursuant to paragraph 6.b.(1) and ticipate without such a request. The district
the SHPO notifies the district engineer that engineer, the SHPO or the ACHP may state
it is nominating a potentially eligible his- that further coordination will not be produc-
toric property for the National Register that tive. The district engineer shall then request
may be affected by the undertaking, the dis- the ACHP’s comments in accordance with
trict engineer will wait a reasonable period paragraph 9.
of time for that determination to be made
before concluding his action on the permit. 8. Consultation
Such a reasonable period of time would nor-
At any time during permit processing, the
mally be 30 days for the SHPO to nominate
the historic property plus 45 days for the district engineer may consult with the in-
Keeper of the National Register to make volved parties to discuss and consider pos-
such determination. The district engineer sible alternatives or measures to avoid or
will encourage the applicant to cooperate minimize the adverse effects of a proposed
with the SHPO in obtaining the information activity. The district engineer will termi-
necessary to nominate the historic property. nate any consultation immediately upon de-
termining that further consultation is not
7. Assessing Effects productive and will immediately notify the
a. Applying the Criteria of Effect and Adverse consulting parties. If the consultation re-
Effect. During the public notice comment pe- sults in a mutual agreement among the
riod or within 30 days after the determina- SHPO, ACHP, applicant and the district en-
tion or discovery of a designated history gineer regarding the treatment of designated
property the district engineer will coordi- historic properties, then the district engi-
nate with the SHPO and determine if there is neer may formalize that agreement either
an effect and if so, assess the effect. (See through permit conditioning or by signing a
Paragraph 15.) Memorandum of Agreement (MOA) with
b. No Effect. If the SHPO concurs with the these parties. Such MOA will constitute the
district engineer’s determination of no effect comments of the ACHP and the SHPO, and
or fails to respond within 15 days of the dis- the district engineer may proceed with the
trict engineer’s notice to the SHPO of a no permit decision. Consultation shall not con-
effect determination, then the district engi- tinue beyond the comment period provided
neer may proceed with the final decision. in paragraph 9.b.
c. No Adverse Effect. If the district engi-
neer, based on his coordination with the 9. ACHP Review and Comment
SHPO (see paragraph 7.a.), determines that
an effect is not adverse, the district engineer a. If: (i) The district engineer determines
will notify the ACHP and request the com- that coordination with the SHPO is unpro-
ments of the ACHP. The district engineer’s ductive; or (ii) the ACHP, within the appro-
notice will include a description of both the priate comment period, requests additional
project and the designated historic property; information in order to provide its com-
both the district engineer’s and the SHPO’s ments; or (iii) the ACHP objects to any
views, as well as any views of affected local agreed resolution of impacts on designated
governments, Indian tribes, Federal agen- historic properties; the district engineer,
cies, and the public, on the no adverse effect normally within 30 days, shall provide the
determination; and a description of the ef- ACHP with:

forts to identify historic properties and so- (1) A project description, including, as ap-
licit the views of those above. The district propriate, photographs, maps, drawings, and
433
specifications (such as, dimensions of struc- will be included to ensure that any required
tures, fills, or excavations; types of mate- mitigation occurs.
rials and quantity of material);
(2) A listing and description of the des- 11. Historic Properties Discovered During
ignated historic properties that will be af- Construction
fected, including the reports from any sur- After the permit has been issued, if the dis-
veys or investigations; trict engineer finds or is notified that the
(3) A description of the anticipated adverse permit area contains a previously unknown
effects of the undertaking on the designated potentially eligible historic property which
historic properties and of the proposed miti- he reasonably expects will be affected by the
gation measures and alternatives considered, undertaking, he shall immediately inform
if any; and the Department of the Interior Depart-
(4) The views of any commenting parties mental Consulting Archeologist and the re-
regarding designated historic properties. gional office of the NPS of the current
In developing this information, the district knowledge of the potentially eligible historic
engineer may coordinate with the applicant, property and the expected effects, if any, of
the SHPO, and any appropriate Indian tribe the undertaking on that property. The dis-
or certified local government. trict engineer will seek voluntary avoidance
Copies of the above information also of construction activities that could affect
should be forwarded to the applicant, the the historic property pending a recommenda-
SHPO, and any appropriate Indian tribe or tion from the National Park Service pursu-
certified local government. The district engi- ant to the Archeological and Historic Preser-
neer will not delay his decision but will con- vation Act of 1974. Based on the cir-
sider any comments these parties may wish cumstances of the discovery, equity to all
to provide. parties, and considerations of the public in-
b. The district engineer will provide the terest, the district engineer may modify,
ACHP 60 days from the date of the district suspend or revoke a permit in accordance
engineer’s letter forwarding the information with 33 CFR 325.7.
in paragraph 9.a., to provide its comments. If
the ACHP does not comment by the end of 12. Regional General Permits
this comment period, the district engineer
will complete processing of the permit appli- Potential impacts on historic properties
cation. When the permit decision is other- will be considered in development and eval-
wise delayed as provided in 33 CFR 325.2(d) uation of general permits. However, many of
(3) & (4), the district engineer will provide the specific procedures contained in this ap-
additional time for the ACHP to comment pendix are not normally applicable to gen-
consistent with, but not extending beyond eral permits. In developing general permits,
that delay. the district engineer will seek the views of
the SHPO and, the ACHP and other organiza-
10. District Engineer Decision tions and/or individuals with expertise or in-
terest in historic properties. Where des-
a. In making the public interest decision
ignated historic properties are reasonably
on a permit application, in accordance with
33 CFR 320.4, the district engineer shall likely to be affected, general permits shall
weigh all factors, including the effects of the be conditioned to protect such properties or
undertaking on historic properties and any to limit the applicability of the permit cov-
comments of the ACHP and the SHPO, and erage.
any views of other interested parties. The 13. Nationwide General Permit
district engineer will add permit conditions
to avoid or reduce effects on historic prop- a. The criteria at paragraph 15 of this Ap-
erties which he determines are necessary in pendix will be used for determining compli-
accordance with 33 CFR 325.4. In reaching his ance with the nationwide permit condition
determination, the district engineer will at 33 CFR 330.5(b)(9) regarding the effect on
consider the Secretary of the Interior’s designated historic properties. When making
Standards and Guidelines for Archeology and this determination the district engineer may
Historic Preservation (48 FR 44716). consult with the SHPO, the ACHP or other
b. If the district engineer concludes that interested parties.
permitting the activity would result in the b. If the district engineer is notified of a
irrevocable loss of important scientific, pre- potentially eligible historic property in ac-
historic, historical, or archeological data, cordance with nationwide permit regulations
the district engineer, in accordance with the and conditions, he will immediately notify
Archeological and Historic Preservation Act the SHPO. If the district engineer believes
of 1974, will advise the Secretary of the Inte- that the potentially eligible historic prop-
rior (by notifying the National Park Service erty meets the criteria for inclusion in the
(NPS)) of the extent to which the data may National Register and that it may be af-
be lost if the undertaking is permitted, any fected by the proposed undertaking then he
plans to mitigate such loss that will be im- may suspend authorization of the nationwide
plemented, and the permit conditions that permit until he provides the ACHP and the
434
SHPO the opportunity to comment in ac- (2) When the undertaking is limited to the
cordance with the provisions of this Appen- rehabilitation of buildings and structures
dix. Once these provisions have been satis- and is conducted in a manner that preserves
fied, the district engineer may notify the the historical and architectural value of af-
general permittee that the activity is au- fected designated historic properties through
thorized including any special activity spe- conformance with the Secretary’s ‘‘Stand-
cific conditions identified or that an indi- ards for Rehabilitation and Guidelines for
vidual permit is required. Rehabilitating Historic Buildings’’, or
(3) When the undertaking is limited to the
14. Emergency Procedures transfer, lease, or sale of a designated his-
The procedures for processing permits in toric property, and adequate restrictions or
emergency situations are described at 33 conditions are included to ensure preserva-
CFR 325.2(e)(4). In an emergency situation tion of the property’s important historic fea-
the district engineer will make every reason- tures.
able effort to receive comments from the [55 FR 27003, June 29, 1990]
SHPO and the ACHP, when the proposed un-
dertaking can reasonably be expected to af-
fect a potentially eligible or designated his- PART 326—ENFORCEMENT
toric property and will comply with the pro-
visions of this Appendix to the extent time Sec.
and the emergency situation allows. 326.1 Purpose.
326.2 Policy.
15. Criteria of Effect and Adverse Effect 326.3 Unauthorized activities.
(a) An undertaking has an effect on a des- 326.4 Supervision of authorized activities.
ignated historic property when the under- 326.5 Legal action.
taking may alter characteristics of the prop- 326.6 Class I administrative penalties.
erty that qualified the property for inclusion AUTHORITY: 33 U.S.C. 401 et seq.; 33 U.S.C.
in the National Register. For the purpose of 1344; 33 U.S.C. 1413; 33 U.S.C. 2104; 33 U.S.C.
determining effect, alteration to features of 1319; 28 U.S.C. 2461 note.
a property’s location, setting, or use may be
relevant, and depending on a property’s im- SOURCE: 51 FR 41246, Nov. 13, 1986, unless
portant characteristics, should be consid- otherwise noted.
ered.
(b) An undertaking is considered to have § 326.1 Purpose.
an adverse effect when the effect on a des- This part prescribes enforcement
ignated historic property may diminish the
integrity of the property’s location, design,
policies (§ 326.2) and procedures applica-
setting, materials, workmanship, feeling, or ble to activities performed without re-
association. Adverse effects on designated quired Department of the Army per-
historic properties include, but are not lim- mits (§ 326.3) and to activities not in
ited to: compliance with the terms and condi-
(1) Physical destruction, damage, or alter- tions of issued Department of the
ation of all or part of the property; Army permits (§ 326.4). Procedures for
(2) Isolation of the property from or alter-
initiating legal actions are prescribed
ation of the character of the property’s set-
ting when that character contributes to the in § 326.5. Nothing contained in this
property’s qualification for the National part shall establish a non-discretionary
Register; duty on the part of district engineers
(3) Introduction of visual, audible, or at- nor shall deviation from these
mospheric elements that are out of character precedures give rise to a private right
with the property or alter its setting; of action against a district engineer.
(4) Neglect of a property resulting in its de-
terioration or destruction; and § 326.2 Policy.
(5) Transfer, lease, or sale of the property.
(c) Effects of an undertaking that would Enforcement, as part of the overall
otherwise be found to be adverse may be con- regulatory program of the Corps, is
sidered as being not adverse for the purpose based on a policy of regulating the wa-
of this appendix: ters of the United States by discour-
(1) When the designated historic property aging activities that have not been
is of value only for its potential contribution properly authorized and by requiring
to archeological, historical, or architectural
corrective measures, where appro-
research, and when such value can be sub-
stantially preserved through the conduct of priate, to ensure those waters are not
misused and to maintain the integrity
appropriate research, and such research is

conducted in accordance with applicable proof the program. There are several
fessional standards and guidelines; methods discussed in the remainder of
435
§ 326.3 33 CFR Ch. II (7–1–20 Edition)
this part which can be used either sin- district engineer should still notify the
gly or in combination to implement responsible parties of the violation.
this policy, while making the most ef- (3) All notifications, pursuant to
fective use of the enforcement re- paragraphs (c) (1) and (2) of this sec-
sources available. As EPA has inde- tion, should identify the relevant stat-
pendent enforcement authority under utory authorities, indicate potential
the Clean Water Act for unauthorized enforcement consequences, and direct
discharges, the district engineer should the responsible parties to submit any
normally coordinate with EPA to de- additional information that the dis-
termine the most effective and effi- trict engineer may need at that time to
cient manner by which resolution of a determine what course of action he
section 404 violation can be achieved. should pursue in resolving the viola-
tion; further information may be re-
§ 326.3 Unauthorized activities. quested, as needed, in the future.
(a) Surveillance. To detect unauthor- (4) In situations which would, if a
ized activities requiring permits, dis- violation were not involved, qualify for
trict engineers should make the best emergency procedures pursuant to 33
use of all available resources. Corps CFR part 325.2(e)(4), the district engi-
employees; members of the public; and neer may decide it would not be appro-
representatives of state, local, and priate to direct that the unauthorized
other Federal agencies should be en- work be stopped. Therefore, in such sit-
couraged to report suspected viola- uations, the district engineer may, at
tions. Additionally, district engineers his discretion, allow the work to con-
should consider developing joint sur- tinue, subject to appropriate limita-
veillance procedures with Federal, tions and conditions as he may pre-
state, or local agencies having similar scribe, while the violation is being re-
regulatory responsibilities, special ex- solved in accordance with the proce-
pertise, or interest. dures contained in this part.
(b) Initial investigation. District engi- (5) When an unauthorized activity re-
neers should take steps to investigate quiring a permit has been undertaken
suspected violations in a timely man- by American Indians (including Alas-
ner. The scheduling of investigations kan natives, Eskimos, and Aleuts, but
will reflect the nature and location of not including Native Hawaiians) on
the suspected violations, the antici- reservation lands or in pursuit of spe-
pated impacts, and the most effective cific treaty rights, the district engi-
use of inspection resources available to neer should use appropriate means to
the district engineer. These investiga- coordinate proposed directives and or-
tions should confirm whether a viola- ders with the Assistant Chief Counsel
tion exists, and if so, will identify the for Indian Affairs (DAEN-CCI).
extent of the violation and the parties (6) When an unauthorized activity re-
responsible. quiring a permit has been undertaken
(c) Formal notifications to parties re- by an official acting on behalf of a for-
sponsible for violations. Once the district eign government, the district engineer
engineer has determined that a viola- should use appropriate means to co-
tion exists, he should take appropriate ordinate proposed directives and orders
steps to notify the responsible parties. with the Office, Chief of Engineers,
(1) If the violation involves a project ATTN: DAEN-CCK.
that is not complete, the district engi- (d) Initial corrective measures. (1) The
neer’s notification should be in the district engineer should, in appropriate
form of a cease and desist order prohib- cases, depending upon the nature of the
iting any further work pending resolu- impacts associated with the unauthor-
tion of the violation in accordance ized, completed work, solicit the views
with the procedures contained in this of the Environmental Protection Agen-
part. See paragraph (c)(4) of this sec- cy; the U.S. Fish and Wildlife Service;
tion for exception to this procedure. the National Marine Fisheries Service,
(2) If the violation involves a com- and other Federal, state, and local
pleted project, a cease and desist order agencies to facilitate his decision on
should not be necessary. However, the what initial corrective measures are
436
required. If the district engineer deter- where no permit application will be

mines as a result of his investigation, processed or where the acceptance of a
coordination, and preliminary evalua- permit application must be deferred
tion that initial corrective measures are as follows:
are required, he should issue an appro- (i) No permit application will be
priate order to the parties responsible processed when restoration of the wa-
for the violation. In determining what ters of the United States has been com-
initial corrective measures are re- pleted that eliminates current and fu-
quired, the district engineer should ture detrimental impacts to the satis-
consider whether serious jeopardy to faction of the district engineer.
life, property, or important public re- (ii) No permit application will be ac-
sources (see 33 CFR 320.4) may be rea- cepted in connection with a violation
sonably anticipated to occur during the where the district engineer determines
period required for the ultimate resolu- that legal action is appropriate
tion of the violation. In his order, the (§ 326.5(a)) until such legal action has
district engineer will specify the initial been completed.
corrective measures required and the (iii) No permit application will be ac-
time limits for completing this work. cepted where a Federal, state, or local
In unusual cases where initial correc- authorization or certification, required
tive measures substantially eliminate by Federal law, has already been de-
all current and future detrimental im- nied.
pacts resulting from the unauthorized (iv) No permit application will be ac-
work, further enforcement actions cepted nor will the processing of an ap-
should normally be unnecessary. For plication be continued when the dis-
all other cases, the district engineer’s trict engineer is aware of enforcement
order should normally specify that litigation that has been initiated by
compliance with the order will not other Federal, state, or local regu-
foreclose the Government’s options to latory agencies, unless he determines
initiate appropriate legal action or to that concurrent processing of an after-
later require the submission of a per- the-fact permit application is clearly
mit application. appropriate.
(2) An order requiring initial correc- (v) No appeal of an approved jurisdic-
tive measures that resolve the viola- tional determination (JD) associated
tion may also be issued by the district with an unauthorized activity or after-
engineer in situations where the ac- the-fact permit application will be ac-
ceptance or processing of an after-the- cepted unless and until the applicant
fact permit application is prohibited or has furnished a signed statute of limi-
considered not appropriate pursuant to tations tolling agreement to the dis-
§ 326.3(e)(1) (iii) through (iv) below. trict engineer. A separate statute of
However, such orders will be issued limitations tolling agreement will be
only when the district engineer has prepared for each unauthorized activ-
reached an independent determination ity. Any person who appeals an ap-
that such measures are necessary and proved JD associated with an unau-
appropriate. thorized activity or applies for an
(3) It will not be necessary to issue a after-the-fact permit, where the appli-
Corps permit in connection with initial cation is accepted and evaluated by the
corrective measures undertaken at the Corps, thereby agrees that the statute
direction of the district engineer. of limitations regarding any violation
(e) After-the-fact permit applications. associated with that application is sus-
(1) Following the completion of any re- pended until one year after the final
quired initial corrective measures, the Corps decision, as defined at 33 CFR
district engineer will accept an after- 331.10. Moreover, the recipient of an ap-
the-fact permit application unless he proved JD associated with an unau-
determines that one of the exceptions thorized activity or an application for
listed in subparagraphs i-iv below is ap- an after-the-fact permit must also me-
plicable. Applications for after-the-fact morialize that agreement to toll the
permits will be processed in accordance statute of limitations, by signing an
with the applicable procedures in 33 agreement to that effect, in exchange

CFR parts 320 through 325. Situations for the Corps acceptance of the after-
437
§ 326.4 33 CFR Ch. II (7–1–20 Edition)
the-fact permit application, and/or any the-fact permitting, as well as to ap-

administrative appeal. Such agreement propriate legal enforcement actions.
will state that, in exchange for the
Corps acceptance of any after-the-fact FR 11714, Mar. 9, 1999; 65 FR 16493, Mar. 28,
permit application and/or any adminis- 2000]
trative appeal associated with the un-
authorized activity, the responsible § 326.4 Supervision of authorized ac-
party agrees that the statute of limita- tivities.
tions will be suspended (i.e., tolled) (a) Inspections. District engineers
until one year after the final Corps de-
will, at their discretion, take reason-
cision on the after-the-fact permit ap-
able measures to inspect permitted ac-
plication or, if there is an administra-
tivities, as required, to ensure that
tive appeal, one year after the final
these activities comply with specified
Corps decision as defined at 33 CFR
terms and conditions. To supplement
331.10, whichever date is later.
inspections by their enforcement per-
(2) Upon completion of his review in
sonnel, district engineers should en-
accordance with 33 CFR parts 320
courage their other personnel; mem-
through 325, the district engineer will
bers of the public; and interested state,
determine if a permit should be issued,
local, and other Federal agency rep-
with special conditions if appropriate,
resentatives to report suspected viola-
or denied. In reaching a decision to
issue, he must determine that the work tions of Corps permits. To facilitate in-
involved is not contrary to the public spections, district engineers will, in ap-
interest, and if section 404 is applica- propriate cases, require that copies of
ble, that the work also complies with ENG Form 4336 be posted conspicu-
the Environmental Protection Agen- ously at the sites of authorized activi-
cy’s section 404(b)(1) guidelines. If he ties and will make available to all in-
determines that a denial is warranted, terested persons information on the
his notification of denial should pre- terms and conditions of issued permits.
scribe any final corrective actions re- The U.S. Coast Guard will inspect per-
quired. His notification should also es- mitted ocean dumping activities pursu-
tablish a reasonable period of time for ant to section 107(c) of the Marine Pro-
the applicant to complete such actions tection, Research and Sanctuaries Act
unless he determines that further in- of 1972, as amended.
formation is required before the correc- (b) Inspection limitations. Section 326.4
tive measures can be specified. If fur- does not establish a non-discretionary
ther information is required, the final duty to inspect permitted activities for
corrective measures may be specified safety, sound engineering practices, or
at a later date. If an applicant refuses interference with other permitted or
to undertake prescribed corrective ac- unpermitted structures or uses in the
tions ordered subsequent to permit de- area. Further, the regulations imple-
nial or refuses to accept a conditioned menting the Corps regulatory program
permit, the district engineer may ini- do not establish a non-discretionary
tiate legal action in accordance with duty to inspect permitted activities for
§ 326.5. any other purpose.
(f) Combining steps. The procedural (c) Inspection expenses. The expenses
steps in this section are in the normal incurred in connection with the inspec-
sequence. However, these regulations tion of permitted activities will nor-
do not prohibit the streamlining of the mally be paid by the Federal Govern-
enforcement process through the comment unless daily supervision or other
bining of steps. unusual expenses are involved. In such
(g) Coordination with EPA. In all cases unusual cases, the district engineer
where the district engineer is aware may condition permits to require per-
that EPA is considering enforcement mittees to pay inspection expenses pur-
action, he should coordinate with EPA suant to the authority contained in
to attempt to avoid conflict or duplica- section 9701 of Pub L. 97–258 (33 U.S.C.
tion. Such coordination applies to in- 9701). The collection and disposition of
terim protective measures and after- inspection expense funds obtained from
438
applicants will be administered in ac- the violation or during the processing

cordance with the relevant Corps regu- of a permit application and a rec-
lations governing such funds. ommendation of appropriate legal ac-
(d) Non-compliance. If a district engi- tion. The litigation report or alter-
neer determines that a permittee has native documentation will also rec-
violated the terms or conditions of the ommend what, if any, restoration or
permit and that the violation is suffi- mitigative measures are required and
ciently serious to require an enforce- will provide the rationale for any such
ment action, then he should, unless at recommendation.
his discretion he deems it inappro- (c) Referral to the local U.S. Attorney.
priate: (1) First contact the permittee; Except as provided in paragraph (d) of
(2) Request corrected plans reflecting this section, district engineers are au-
actual work, if needed; and thorized to refer cases directly to the
(3) Attempt to resolve the violation. U.S. Attorney. Because of the unique
Resolution of the violation may take legal system in the Trust Territories,
the form of the permitted project being all cases over which the Department of
voluntarily brought into compliance or Justice has no authority will be re-
of a permit modification (33 CFR ferred to the Attorney General for the
325.7(b)). If a mutually agreeable solu- trust Territories. Information copies of
tion cannot be reached, a written order all letters of referral shall be forwarded
requiring compliance should normally to the appropriate division counsel, the
be issued and delivered by personal Office, Chief of Engineers, ATTN:
service. Issuance of an order is not, DAEN-CCK, the Office of the Assistant
however, a prerequisite to legal action. Secretary of the Army (Civil Works),
If an order is issued, it will specify a and the Chief of the Environmental De-
time period of not more than 30 days fense Section, Lands and Natural Re-
for bringing the permitted project into sources Division, U.S. Department of
compliance, and a copy will be sent to Justice.
the appropriate state official pursuant (d) Referral to the Office, Chief of Engi-
to section 404(s)(2) of the Clean Water neers. District engineers will forward
Act. If the permittee fails to comply litigation reports with recommenda-
with the order within the specified pe- tions through division offices to the Of-
riod of time, the district engineer may fice, Chief of Engineers, ATTN: DAEN-
consider using the suspension/revoca- CCK, for all cases that qualify under
tion procedures in 33 CFR 325.7(c) and/ the following criteria:
or he may recommend legal action in (1) Significant precedential or con-
accordance with § 326.5. troversial questions of law or fact;
(2) Requests for elevation to the
§ 326.5 Legal action. Washington level by the Department of
(a) General. For cases the district en- Justice;
gineer determines to be appropriate, he (3) Violations of section 9 of the Riv-
will recommend criminal or civil ac- ers and Harbors Act of 1899;
tions to obtain penalties for violations, (4) Violations of section 103 the Ma-
compliance with the orders and direc- rine Protection, Research and Sanc-
tives he has issued pursuant to §§ 326.3 tuaries Act of 1972;
and 326.4, or other relief as appropriate. (5) All cases involving violations by
Appropriate cases for criminal or civil American Indians (original of litiga-
action include, but are not limited to, tion report to DAEN-CCI with copy to
violations which, in the district engi- DAEN-CCK) on reservation lands or in
neer’s opinion, are willful, repeated, pursuit of specific treaty rights;
flagrant, or of substantial impact. (6) All cases involving violations by
(b) Preparation of case. If the district officials acting on behalf of foreign
engineer determines that legal action governments; and
is appropriate, he will prepare a litiga- (7) Cases requiring action pursuant to
tion report or such other documenta- paragraph (e) of this section.
tion that he and the local U.S. Attor- (e) Legal option not available. In cases
ney have mutually agreed to, which where the local U.S. Attorney declines
contains an analysis of the information to take legal action, it would be appro-

obtained during his investigation of priate for the district engineer to close
439
§ 326.6 33 CFR Ch. II (7–1–20 Edition)
the enforcement case record unless he ministration of Class I administrative

believes that the case warrants special penalty orders under Section 309(g) of
attention. In that situation, he is en- the Clean Water Act, judicially-im-
couraged to forward a litigation report posed civil penalties under Section
to the Office, Chief of Engineers, 404(s) of the Clean Water Act, and Sec-
ATTN: DAEN-CCK, for direct coordination 205 of the National Fishing En-
tion through the Office of the Assistant hancement Act. Under Section
Secretary of the Army (Civil Works) 309(g)(2)(A) of the Clean Water Act,
with the Department of Justice. Fur- Class I civil penalties may not exceed
ther, the case record should not be
$22,321 per violation, except that the
closed if the district engineer antici-
pates that further administrative en- maximum amount of any Class I civil
forcement actions, taken in accordance penalty shall not exceed $55,801. Under
with the procedures prescribed in this Section 404(s)(4) of the Clean Water
part, will identify remedial measures Act, judicially-imposed civil penalties
which, if not complied with by the par- may not exceed $55,801 per day for each
ties responsible for the violation, will violation. Under Section 205(e) of the
result in appropriate legal action at a National Fishing Enhancement Act,
later date. penalties for violations of permits
issued in accordance with that Act
§ 326.6 Class I administrative pen- shall not exceed $24,441 for each viola-
alties. tion.
(a) Introduction. (1) This section sets
forth procedures for initiation and ad-
TABLE 1 TO PARAGRAPH (a)(1)
Statutory civil monetary penalty amount for violations that oc-
Environmental statute and U.S. code citation curred after November 2, 2015, and are assessed on or after
June 8, 2020
Clean Water Act (CWA), Section 309(g)(2)(A), 33 U.S.C. $22,321 per violation, with a maximum of $55,801.
1319(g)(2)(A).
CWA, Section 404(s)(4), 33 U.S.C. 1344(s)(4) ........................... Maximum of $55,801 per day for each violation.
National Fishing Enhancement Act, Section 205(e), 33 U.S.C. Maximum of $24,441 per violation.
2104(e).
(2) These procedures supplement the filed written comments on the pro-
existing enforcement procedures at posed penalty order, and any other per-
§§ 326.1 through 326.5. However, as a son not employed by the Corps with an
matter of Corps enforcement discretion interest in the subject of proposed pen-
once the Corps decides to proceed with alty order, and any attorney of record
an administrative penalty under these for those persons.
procedures it shall not subsequently (iii) Interested Corps staff means those
pursue judicial action pursuant to Corps employees, whether temporary
§ 326.5. Therefore, an administrative or permanent, who may investigate,
penalty should not be pursued if a sub- litigate, or present evidence, argu-
sequent judicial action for civil pen- ments, or the position of the Corps in
alties is desired. An administrative the hearing or who participated in the
civil penalty may be pursued in con- preparation, investigation or delibera-
junction with a compliance order; re- tions concerning the proposed penalty
quest for restoration and/or request for order, including any employee, con-
mitigation issued under § 326.4. tractor, or consultant who may be
(3) Definitions. For the purposes of called as a witness.
this section of the regulation: (iv) Permittee means the person to
(i) Corps means the Secretary of the whom the Corps issued a permit under
Army, acting through the U.S. Army section 404 of the Clean Water Act, (or
Corps of Engineers, with respect to the section 10 of the Rivers and Harbors
matters covered by this regulation. Act for an Artificial Reef) the condi-
(ii) Interested person outside the Corps tions and limitations of which permit
includes the permittee, any person who have allegedly been violated.
440
(v) Presiding Officer means a member civil penalties, including opportunities

of Corps Counsel staff or any other for public participation;
qualified person designated by the Dis- (iv) A statement of the amount of the
trict Engineer (DE), to hold a hearing penalty that is proposed and a state-
on a proposed administrative civil pen- ment of the maximum amount of the
alty order (hereinafter referred to as penalty which the DE is authorized to
‘‘proposed order’’) in accordance with assess for the violations alleged;
the rules set forth in this regulation (v) A statement that the permittee
and to make such recommendations to may within 30 calendar days of receipt
the DE as prescribed in this regulation. of the notice provided under this sub-
(vi) Ex parte communication means paragraph, request a hearing prior to
any communication, written or oral, issuance of any final order. Further,
relating to the merits of the pro- that the permittee must request a
ceeding, between the Presiding Officer hearing within 30 calendar days of re-
and an interested person outside the ceipt of the notice provided under this
Corps or the interested Corps staff, subparagraph in order to be entitled to
which was not originally filed or stated receive such a hearing;
in the administrative record or in the (vi) The name and address of the per-
hearing. Such communication is not an son to whom the permittee must send a
‘‘ex parte communication’’ if all par- request for hearing;
ties have received prior written notice (vii) Notification that the DE may
of the proposed communication and issue the final order on or after 30 cal-
have been given the opportunity to endar days following receipt of the no-
participate herein. tice provided under these rules, if the
(b) Initiation of action. (1) If the DE or permittee does not request a hearing;
a delegatee of the DE finds that a re- and
cipient of a Department of the Army (viii) An explanation that any final
permit (hereinafter referred to as ‘‘the order issued under this section shall
permittee’’) has violated any permit become effective 30 calendar days fol-
condition or limitation contained in lowing its issuance unless a petition to
that permit, the DE is authorized to set aside the order and to hold a hear-
prepare and process a proposed order in ing is filed by a person who commented
accordance with these procedures. The on the proposed order and such petition
proposed order shall specify the is granted or an appeal is taken under
amount of the penalty which the per- section 309(g)(8) of the Clean Water
mittee may be assessed and shall de- Act.
scribe with reasonable specificity the (3) At the same time that actual no-
nature of the violation. tice is provided to the permittee, the
(2) The permittee will be provided ac- DE shall give public notice of the pro-
tual notice, in writing, of the DE’s proposed order, and provide reasonable op-
posal to issue an administrative civil portunity for public comment on the
penalty and will be advised of the right proposed order, prior to issuing a final
to request a hearing and to present evi- order assessing an administrative civil
dence on the alleged violation. Notice penalty. Procedures for giving public
to the permittee will be provided by notice and providing the opportunity
certified mail, return receipt re- for public comment are contained in
quested, or other notice, at the discre- § 326.6(c).
tion of the DE when he determines jus- (4) At the same time that actual no-
tice so requires. This notice will be ac- tice is provided to the permittee, the
companied by a copy of the proposed DE shall provide actual notice, in writ-
order, and will include the following ing, to the appropriate state agency for
information: the state in which the violation oc-
(i) A description of the alleged viola- curred. Procedures for providing actual
tion and copies of the applicable law notice to and consulting with the ap-
and regulations; propriate state agency are contained in
(ii) An explanation of the authority § 326.6(d).
to initiate the proceeding; (c) Public notice and comment. (1) At
(iii) An explanation, in general the same time the permittee and the
terms, of the procedure for assessing appropriate state agency are provided
441
§ 326.6 33 CFR Ch. II (7–1–20 Edition)
actual notice, the DE shall provide may delete from the list the name of
public notice of and a reasonable op- any person who fails to respond to such
portunity to comment on the DE’s pro- a request.
posal to issue an administrative civil (5) All public notices under this sub-
penalty against the permittee. part shall contain at a minimum the
(2) A 30 day public comment period information provided to the permittee
shall be provided. Any person may sub- as described in § 326.6(b)(2) and:
mit written comments on the proposed (i) A statement of the opportunity to
administrative penalty order. The DE submit written comments on the pro-
shall include all written comments in posed order and the deadline for sub-
an administrative record relating to mission of such comments;
the proposed order. Any person who (ii) Any procedures through which
comments on a proposed order shall be the public may comment on or partici-
given notice of any hearing held on the pate in proceedings to reach a final de-
proposed order. Such persons shall cision on the order;
have a reasonable opportunity to be
(iii) The location of the administra-
heard and to present evidence in such
tive record referenced in § 326.6(e), the
hearings.
times at which the administrative
(3) If no hearing is requested by the
record will be available for public in-
permittee, any person who has sub-
spection, and a statement that all in-
mitted comments on the proposed
formation submitted by the permittee
order shall be given notice by the DE of
and persons commenting on the pro-
any final order issued, and will be
given 30 calendar days in which to peti- posed order is available as part of the
tion the DE to set aside the order and administrative record, subject to provi-
to provide a hearing on the penalty. sions of law restricting the public dis-
The DE shall set aside the order and closure of confidential information.
provide a hearing in accordance with (d) State consultation. (1) At the same
these rules if the evidence presented by time that the permittee is provided ac-
the commenter in support of the com- tual notice, the DE shall send the ap-
menter’s petition for a hearing is mate- propriate state agency written notice
rial and was not considered when the of proposal to issue an administrative
order was issued. If the DE denies a civil penalty order. This notice will in-
hearing, the DE shall provide notice to clude the same information required
the commenter filing the petition for pursuant to § 326.6(c)(5).
the hearing, together with the reasons (2) For the purposes of this regula-
for the denial. Notice of the denial and tion, the appropriate State agency will
the reasons for the denial shall be pub- be the agency administering the 401
lished in the FEDERAL REGISTER by the certification program, unless another
DE. state agency is agreed to by the Dis-
(4) The DE shall give public notice by trict and the respective state through
mailing a copy of the information list- formal/informal agreement with the
ed in paragraph (c)(5), of this section state.
to: (3) The appropriate state agency will
(i) Any person who requests notice; be provided the same opportunity to
(ii) Other persons on a mailing list comment on the proposed order and
developed to include some or all of the participate in any hearing that is pro-
following sources: vided pursuant to § 326.6(c).
(A) Persons who request in writing to (e) Availability of the administrative
be on the list; record. (1) At any time after the public
(B) Persons on ‘‘area lists’’ developed notice of a proposed penalty order is
from lists of participants in past simi- given under § 326.6(c), the DE shall
lar proceedings in that area, including make available the administrative
hearings or other actions related to record at reasonable times for inspec-
section 404 permit issuance as required tion and copying by any interested per-
by § 325.3(d)(1). The DE may update the son, subject to provisions of law re-
mailing list from time to time by restricting the public disclosure of con-
questing written indication of contin- fidential information. Any person re-

ued interest from those listed. The DE questing copies of the administrative
442
record or portions of the administra- (2) The permittee waives the right to
tive record may be required by the DE a hearing to present evidence on the al-
to pay reasonable charges for reproduc- leged violation or violations if the per-
ing the information requested. mittee does not submit the request for
(2) The administrative record shall the hearing to the official designated
include the following: in the notice of the proposed order
(i) Documentation relied on by the within 30 calendar days of receipt of
DE to support the violations alleged in the notice. The DE shall determine the
the proposed penalty order with a sum- date of receipt of notice by permittee’s
mary of violations, if a summary has signed and dated return receipt or such
been prepared; other evidence that constitutes proof
(ii) Proposed penalty order or assess- of actual notice on a certain date.
ment notice;
(3) The DE shall promptly schedule
(iii) Public notice of the proposed
requested hearings and provide reason-
order with evidence of notice to the
able notice of the hearing schedule to
permittee and to the public;
all participants, except that no hearing
(iv) Comments by the permittee and/
or the public on the proposed penalty shall be scheduled prior to the end of
order, including any requests for a the thirty day public comment period
hearing; provided in § 326.6(c)(2). The DE may
(v) All orders or notices of the Pre- grant any delays or continuances nec-
siding Officer; essary or desirable to resolve the case
(vi) Subpoenas issued, if any, for the fairly.
attendance and testimony of witnesses (4) The hearing shall be held at the
and the production of relevant papers, district office or a location chosen by
books, or documents in connection the DE, except the permittee may re-
with any hearings; quest in writing upon a showing of
(vii) All submittals or responses of good cause that the hearing be held at
any persons or comments to the pro- an alternative location. Action on such
ceeding, including exhibits, if any; request is at the discretion of the DE.
(viii) A complete and accurate record (h) Hearing. (1) Hearings shall afford
or transcription of any hearing; permittees with an opportunity to
(ix) The recommended decision of the present evidence on alleged violations
Presiding Officer and final decision and shall be informal, adjudicatory
and/or order of the Corps issued by the hearings and shall not be subject to
DE; and section 554 or 556 of the Administrative
(x) Any other appropriate documents Procedure Act. Permittees may present
related to the administrative pro- evidence either orally or in written
ceeding; form in accordance with the hearing
(f) Counsel. A permittee may be rep- procedures specified in § 326.6(i).
resented at all stages of the proceeding
(2) The DE shall give written notice
by counsel. After receiving notification
that a permittee or any other party or of any hearing to be held under these
commenter is represented by counsel, rules to any person who commented on
the Presiding Officer and DE shall di- the proposed administrative penalty
rect all further communications to order under § 326.6(c). This notice shall
that counsel. specify a reasonable time prior to the
(g) Opportunity for hearing. (1) The hearing within which the commenter
permittee may request a hearing and may request an opportunity to be
may provide written comments on the heard and to present oral evidence or
proposed administrative penalty order to make comments in writing in any
at any time within 30 calendar days such hearing. The notice shall require
after receipt of the notice set forth in that any such request specify the facts
§ 326.6(b)(2). The permittee must re- or issues which the commenter wishes
quest the hearing in writing, specifying to address. Any commenter who files
in summary form the factual and legal comments pursuant to § 326.6(c)(2) shall
issues which are in dispute and the spe- have a right to be heard and to present
cific factual and legal grounds for the evidence at the hearing in conformance
permittee’s defense. with these procedures.
443
§ 326.6 33 CFR Ch. II (7–1–20 Edition)
(3) The DE shall select a member of siding Officer and terminate on the
the Corps counsel staff or other quali- date of final action or the final order.
fied person to serve as Presiding Offi- (i) Hearing procedures. (1) The Pre-
cer of the hearing. The Presiding Offi- siding Officer shall conduct a fair and
cer shall exercise no other responsi- impartial proceeding in which the par-
bility, direct or supervisory, for the in- ticipants are given a reasonable oppor-
vestigation or prosecution of any case tunity to present evidence.
before him. The Presiding Officer shall (2) The Presiding Officer may sub-
conduct hearings as specified by these poena witnesses and issue subpoenas
rules and make a recommended deci- for documents pursuant to the provi-
sion to the DE. sions of the Clean Water Act.
(4) The Presiding Officer shall con- (3) The Presiding Officer shall pro-
sider each case on the basis of the evi- vide interested parties a reasonable op-
dence presented, and must have no portunity to be heard and to present
prior connection with the case. The evidence. Interested parties include the
Presiding Officer is solely responsible permittee, any person who filed a re-
for the recommended decision in each quest to participate under 33 CFR
case. 326.6(c), and any other person attending
(5) Ex parte communications. (i) No in- the hearing. The Presiding Officer may
terested person outside the Corps or establish reasonable time limits for
member of the interested Corps staff
oral testimony.
shall make, or knowingly cause to be
(4) The permittee may not challenge
made, any ex parte communication on
the permit condition or limitation
the merits of the proceeding.
(ii) The Presiding Officer shall not which is the subject matter of the ad-
make, or knowingly cause to be made, ministrative penalty order.
any ex parte communication on the (5) Prior to the commencement of the
proceeding to any interested person hearing, the DE shall provide to the
outside the Corps or to any member of Presiding Officer the complete admin-
the interested Corps staff. istrative record as of that date. During
(iii) The DE may replace the Pre- the hearing, the DE, or an authorized
siding Officer in any proceeding in representative of the DE may summa-
which it is demonstrated to the DE’s rize the basis for the proposed adminis-
satisfaction that the Presiding Officer trative order. Thereafter, the adminis-
has engaged in prohibited ex parte trative record shall be admitted into
communications to the prejudice of evidence and the Presiding Officer
any participant. shall maintain the administrative
(iv) Whenever an ex parte commu- record of the proceedings and shall in-
nication in violation of this section is clude in that record all documentary
received by the Presiding Officer or evidence, written statements, cor-
made known to the Presiding Officer, respondence, the record of hearing, and
the Presiding Officer shall immediately any other relevant matter.
notify all participants in the pro- (6) The Presiding Officer shall cause
ceeding of the circumstances and sub- a tape recording, written transcript or
stance of the communication and may other permanent, verbatim record of
require the person who made the com- the hearing to be made, which shall be
munication or caused it to be made, or included in the administrative record,
the party whose representative made and shall, upon written request, be
the communication or caused it to be made available, for inspection or copy-
made, to the extent consistent with ing, to the permittee or any person,
justice and the policies of the Clean subject to provisions of law restricting
Water Act, to show cause why that per- the public disclosure of confidential in-
son or party’s claim or interest in the formation. Any person making a re-
proceedings should not be dismissed, quest may be required to pay reason-
denied, disregarded, or otherwise ad- able charges for copies of the adminis-
versely affected on account of such vio- trative record or portions thereof.
lation. (7) In receiving evidence, the Pre-
(v) The prohibitions of this paragraph siding Officer is not bound by strict
apply upon designation of the Pre- rules of evidence. The Presiding Officer
444
may determine the weight to be ac- (13) At the close of this 10 business
corded the evidence. day period, the Presiding Officer may
(8) The permittee has the right to ex- allow the introduction of rebuttal evi-
amine, and to respond to the adminis- dence. The Presiding Officer may hold
trative record. The permittee may the record open for an additional 10
offer into evidence, in written form or business days to allow the presentation
through oral testimony, a response to of such rebuttal evidence.
the administrative record including, (j) The decision. (1) Within a reason-
any facts, statements, explanations, able time following the close of the
documents, testimony, or other excul- hearing and receipt of any statements
patory items which bear on any appro- following the hearing and after con-
priate issues. The Presiding Officer sultation with the state pursuant to
may question the permittee and re- § 326.6(d), the Presiding Officer shall
quire the authentication of any written forward a recommended decision ac-
exhibit or statement. The Presiding Of- companied by a written statement of
ficer may exclude any repetitive or ir- reasons to the DE. The decision shall
relevant matter. recommend that the DE withdraw,
(9) At the close of the permittee’s issue, or modify and issue the proposed
presentation of evidence, the Presiding order as a final order. The rec-
Officer should allow the introduction of ommended decision shall be based on a
rebuttal evidence. The Presiding Offi- preponderance of the evidence in the
cer may allow the permittee to respond administrative record. If the Presiding
to any such rebuttal evidence sub- Officer finds that there is not a prepon-
mitted and to cross-examine any wit- derance of evidence in the record to
ness. support the penalty or the amount of
the penalty in a proposed order, the
(10) The Presiding Officer may take
Presiding Officer may recommend that
official notice of matters that are not
the order be withdrawn or modified and
reasonably in dispute and are com-
then issued on terms that are sup-
monly known in the community or are
ported by a preponderance of evidence
ascertainable from readily available
on the record. The Presiding Officer
sources of known accuracy. Prior to also shall make the complete adminis-
taking official notice of a matter, the trative record available to the DE for
Presiding Officer shall give the Corps review.
and the permittee an opportunity to (2) The Presiding Officer’s rec-
show why such notice should not be ommended decision to the DE shall be-
taken. In any case in which official no- come part of the administrative record
tice is taken, the Presiding Officer and shall be made available to the par-
shall place a written statement of the ties to the proceeding at the time the
matters as to which such notice was DE’s decision is released pursuant to
taken in the record, including the basis § 326.6(j)(5). The Presiding Officer’s rec-
for such notice and a statement that ommended decision shall not become
the Corps or permittee consented to part of the administrative record until
such notice being taken or a summary the DE’s final decision is issued, and
of the objections of the Corps or the shall not be made available to the per-
permittee. mittee or public prior to that time.
(11) After all evidence has been pre- (3) The rules applicable to Presiding
sented, any participant may present Officers under § 326.6(h)(5) regarding ex
argument on any relevant issue, sub- parte communications are also applica-
ject to reasonable time limitations set ble to the DE and to any person who
at the discretion of the Presiding Offi- advises the DE on the decision or the
cer. order, except that communications be-
(12) The hearing record shall remain tween the DE and the Presiding Officer
open for a period of 10 business days do not constitute ex parte communica-
from the date of the hearing so that tions, nor do communications between
the permittee or any person who has the DE and his staff prior to issuance
submitted comments on the proposed of the proposed order.
order may examine and submit re- (4) The DE may request additional in-
sponses for the record. formation on specified issues from the
445
participants, in whatever form the DE (ii) If the evidence is material and

designates, giving all participants a was not considered in the issuance of
fair opportunity to be heard on such the order, the DE shall immediately
additional matters. The DE shall in- set aside the final order and schedule a
clude this additional information in hearing. In that case, a hearing will be
the administrative record. held, a new recommendation will be
(5) Within a reasonable time fol- made by the Presiding Officer to the
lowing receipt of the Presiding Offi- DE and a new final decision issued by
cer’s recommended decision, the DE the DE.
shall withdraw, issue, or modify and (iii) If the DE denies a hearing under
issue the proposed order as a final this subparagraph, the DE shall pro-
order. The DE’s decision shall be based vide to the petitioner, and publish in
on a preponderance of the evidence in the FEDERAL REGISTER, notice of, and
the administrative record, shall con- the reasons for, such denial.
sider the penalty factors set out in sec- (l) Judicial review. (1) Any permittee
tion 309(g)(3) of the CWA, shall be in against whom a final order assessing a
writing, shall include a clear and con- civil penalty under these regulations or
cise statement of reasons for the deci- any person who provided written com-
sion, and shall include any final order ments on a proposed order may obtain
assessing a penalty. The DE’s decision, judicial review of the final order.
once issued, shall constitute final (2) In order to obtain judicial review,
Corps action for purposes of judicial re- the permittee or commenter must file
view. a notice of appeal in the United States
(6) The DE shall issue the final order District Court for either the District of
by sending the order, or written notice Columbia, or the district in which the
of its withdrawal, to the permittee by violation was alleged to have occurred,
certified mail. Issuance of the order within 30 calendar days after the date
under this subparagraph constitutes of issuance of the final order.
final Corps action for purposes of judi-
(3) Simultaneously with the filing of
cial review.
the notice of appeal, the permittee or
(7) The DE shall provide written no- commenter must send a copy of such
tice of the issuance, modification and notice by certified mail to the DE and
issuance, or withdrawal of the proposed the Attorney General.
order to every person who submitted
written comments on the proposed [54 FR 50709, Dec. 8, 1989, as amended at 69
order. FR 35518, June 25, 2004; 78 FR 5726, Jan. 28,
(8) The notice shall include a state- 2013; 82 FR 47628, Oct. 13, 2017; 83 FR 19184,
May 2, 2018; 84 FR 18982, May 3, 2019; 85 FR
ment of the right to judicial review and
35005, June 8, 2020]
of the procedures and deadlines for ob-
taining judicial review. The notice
shall also note the right of a com- PART 327—PUBLIC HEARINGS
menter to petition for a hearing pursu-
ant to 33 CFR 326.6(c)(3) if no hearing Sec.
was previously held. 327.1 Purpose.
(k) Effective date of order. (1) Any 327.2 Applicability.
final order issued under this subpart 327.3 Definitions.
shall become effective 30 calendar days 327.4 General policies.
following its issuance unless an appeal 327.5 Presiding officer.
is taken pursuant to section 309(g)(8) of 327.6 Legal adviser.
327.7 Representation.
the Clean Water Act, or in the case
327.8 Conduct of hearings.
where no hearing was held prior to the
327.9 Filing of the transcript of the public
final order, and a petition for hearing
hearing.
is filed by a prior commenter. 327.10 Authority of the presiding officer.
(2) If a petition for hearing is re- 327.11 Public notice.
ceived within 30 days after the final
order is issued, the DE shall: AUTHORITY: 33 U.S.C. 1344; 33 U.S.C. 1413.
(i) Review the evidence presented by SOURCE: 51 FR 41249, Nov. 13, 1986, unless
the petitioner. otherwise noted.
446
§ 327.1 Purpose. permit application or Federal project.

In addition, a public hearing may be
This regulation prescribes the policy,
held when it is proposed to modify or
practice and procedures to be followed
revoke a permit. (See 33 CFR 325.7).
by the U.S. Army Corps of Engineers in
(b) Unless the public notice specifies
the conduct of public hearings con-
that a public hearing will be held, any
ducted in the evaluation of a proposed
person may request, in writing, within
DA permit action or Federal project as
the comment period specified in the
defined in § 327.3 of this part including
public notice on a DA permit applica-
those held pursuant to section 404 of
tion or on a Federal project, that a
the Clean Water Act (33 U.S.C. 1344)
public hearing be held to consider the
and section 103 of the Marine Protec-
material matters at issue in the permit
tion, Research and Sanctuaries Act
application or with respect to Federal
(MPRSA), as amended (33 U.S.C. 1413).
project. Upon receipt of any such re-
§ 327.2 Applicability. quest, stating with particularity the
reasons for holding a public hearing,
This regulation is applicable to all the district engineer may expeditiously
divisions and districts responsible for attempt to resolve the issues infor-
the conduct of public hearings. mally. Otherwise, he shall promptly set
a time and place for the public hearing,
and give due notice thereof, as pre-
(a) Public hearing means a public pro- scribed in § 327.11 of this part. Requests
ceeding conducted for the purpose of for a public hearing under this para-
acquiring information or evidence graph shall be granted, unless the dis-
which will be considered in evaluating trict engineer determines that the
a proposed DA permit action, or Fed- issues raised are insubstantial or there
eral project, and which affords the pub- is otherwise no valid interest to be
lic an opportunity to present their served by a hearing. The district engi-
views, opinions, and information on neer will make such a determination in
such permit actions or Federal writing, and communicate his reasons
projects. therefor to all requesting parties. Com-
(b) Permit action, as used herein ments received as form letters or peti-
means the evaluation of and decision tions may be acknowledged as a group
on an application for a DA permit pur- to the person or organization respon-
suant to sections 9 or 10 of the Rivers sible for the form letter or petition.
and Harbors Act of 1899, section 404 of (c) In case of doubt, a public hearing
the Clean Water Act, or section 103 of shall be held. HQDA has the discre-
the MPRSA, as amended, or the modi- tionary power to require hearings in
fication, suspension or revocation of any case.
any DA permit (see 33 CFR 325.7). (d) In fixing the time and place for a
(c) Federal project means a Corps of hearing, the convenience and necessity
Engineers project (work or activity of of the interested public will be duly
any nature for any purpose which is to considered.
be performed by the Chief of Engineers
pursuant to Congressional authoriza- § 327.5 Presiding officer.
tions) involving the discharge of (a) The district engineer, in whose
dredged or fill material into waters of district a matter arises, shall normally
the United States or the transpor- serve as the presiding officer. When the
tation of dredged material for the pur- district engineer is unable to serve, he
pose of dumping it in ocean waters sub- may designate the deputy district engi-
ject to section 404 of the Clean Water neer or other qualified person as pre-
Act, or section 103 of the MPRSA. siding officer. In cases of unusual inter-
est, the Chief of Engineers or the divi-
§ 327.4 General policies. sion engineer may appoint such person
(a) A public hearing will be held in as he deems appropriate to serve as the
connection with the consideration of a presiding officer.
DA permit application or a Federal (b) The presiding officer shall include
project whenever a public hearing is in the administrative record of the per-

needed for making a decision on such mit action the request or requests for
447
§ 327.6 33 CFR Ch. II (7–1–20 Edition)
the hearing and any data or material (e) All public hearings shall be re-
submitted in justification thereof, ma- ported verbatim. Copies of the tran-
terials submitted in opposition to or in scripts of proceedings may be pur-
support of the proposed action, the chased by any person from the Corps of
hearing transcript, and such other ma- Engineers or the reporter of such hear-
terial as may be relevant or pertinent ing. A copy will be available for public
to the subject matter of the hearing. inspection at the office of the appro-
The administrative record shall be priate district engineer.
available for public inspection with the (f) All written statements, charts,
exception of material exempt from dis- tabulations, and similar data offered in
closure under the Freedom of Informa- evidence at the hearing shall, subject
tion Act. to exclusion by the presiding officer for
reasons of redundancy, be received in
§ 327.6 Legal adviser. evidence and shall constitute a part of
At each public hearing, the district the record.
counsel or his designee may serve as (g) The presiding officer shall allow a
legal advisor to the presiding officer. period of not less than 10 days after the
In appropriate circumstances, the disclose of the public hearing for submis-
trict engineer may waive the require- sion of written comments.
ment for a legal advisor to be present. (h) In appropriate cases, the district
engineer may participate in joint pub-
§ 327.7 Representation. lic hearings with other Federal or state
agencies, provided the procedures of
At the public hearing, any person
those hearings meet the requirements
may appear on his own behalf, or may
of this regulation. In those cases in
be represented by counsel, or by other
which the other Federal or state agen-
representatives.
cy allows a cross-examination in its
§ 327.8 Conduct of hearings. public hearing, the district engineer
may still participate in the joint public
(a) The presiding officer shall make hearing but shall not require cross ex-
an opening statement outlining the amination as a part of his participa-
purpose of the hearing and prescribing tion.
the general procedures to be followed.
(b) Hearings shall be conducted by § 327.9 Filing of the transcript of the
the presiding officer in an orderly but public hearing.
expeditious manner. Any person shall Where the presiding officer is the ini-
be permitted to submit oral or written tial action authority, the transcript of
statements concerning the subject the public hearing, together with all
matter of the hearing, to call witnesses evidence introduced at the public hear-
who may present oral or written state- ing, shall be made a part of the admin-
ments, and to present recommenda- istrative record of the permit action or
tions as to an appropriate decision. Federal project. The initial action au-
Any person may present written state- thority shall fully consider the matters
ments for the hearing record prior to discussed at the public hearing in ar-
the time the hearing record is closed to riving at his initial decision or rec-
public submissions, and may present ommendation and shall address, in his
proposed findings and recommenda- decision or recommendation, all sub-
tions. The presiding officer shall afford stantial and valid issues presented at
participants a reasonable opportunity the hearing. Where a person other than
for rebuttal. the initial action authority serves as
(c) The presiding officer shall have presiding officer, such person shall for-
discretion to establish reasonable lim- ward the transcript of the public hear-
its upon the time allowed for state- ing and all evidence received in connec-
ments of witnesses, for arguments of tion therewith to the initial action au-
parties or their counsel or representa- thority together with a report summa-
tives, and upon the number of rizing the issues covered at the hear-
rebuttals. ing. The report of the presiding officer
(d) Cross-examination of witnesses and the transcript of the public hearing

shall not be permitted. and evidence submitted thereat shall in
448
such cases be fully considered by the PART 328—DEFINITION OF WATERS

initial action authority in making his OF THE UNITED STATES
decision or recommendation to higher
authority as to such permit action or Sec.
Federal project. 328.1 Purpose.
328.2 General scope.
§ 327.10 Authority of the presiding offi- 328.3 Definitions.
cer. 328.4 Limits of jurisdiction.
328.5 Changes in limits of waters of the
Presiding officers shall have the fol- United States.
lowing authority: AUTHORITY: 33 U.S.C. 1251 et seq.
(a) To regulate the course of the
hearing including the order of all ses- otherwise noted.
sions and the scheduling thereof, after
any initial session, and the recessing, § 328.1 Purpose.
reconvening, and adjournment thereof; This section defines the term ‘‘waters
and of the United States’’ as it applies to
(b) To take any other action nec- the jurisdictional limits of the author-
essary or appropriate to the discharge ity of the Corps of Engineers under the
of the duties vested in them, consistent Clean Water Act. It prescribes the pol-
with the statutory or other authority icy, practice, and procedures to be used
under which the Chief of Engineers in determining the extent of jurisdic-
functions, and with the policies and dition of the Corps of Engineers con-
rectives of the Chief of Engineers and cerning ‘‘waters of the United States.’’
the Secretary of the Army. The terminology used by section 404 of
the Clean Water Act includes ‘‘navi-
§ 327.11 Public notice. gable waters’’ which is defined at sec-
tion 502(7) of the Act as ‘‘waters of the
(a) Public notice shall be given of any
United States including the territorial
public hearing to be held pursuant to seas.’’ To provide clarity and to avoid
this regulation. Such notice should confusion with other Corps of Engineer
normally provide for a period of not regulatory programs, the term ‘‘waters
less than 30 days following the date of of the United States’’ is used through-
public notice during which time inter- out 33 CFR parts 320 through 330. This
ested parties may prepare themselves section does not apply to authorities
for the hearing. Notice shall also be under the Rivers and Harbors Act of
given to all Federal agencies affected 1899 except that some of the same wa-
by the proposed action, and to state ters may be regulated under both stat-
and local agencies and other parties utes (see 33 CFR parts 322 and 329).
having an interest in the subject mat-
ter of the hearing. Notice shall be sent § 328.2 General scope.
to all persons requesting a hearing and Waters of the United States include
shall be posted in appropriate govern- those waters listed in § 328.3(a). The lat-
ment buildings and provided to news- eral limits of jurisdiction in those wa-
papers of general circulation for publi- ters may be divided into three cat-
cation. Comments received as form let- egories. The categories include the ter-
ters or petitions may be acknowledged ritorial seas, tidal waters, and non-
as a group to the person or organiza- tidal waters (see 33 CFR 328.4 (a), (b),
tion responsible for the form letter or and (c), respectively).
petition. § 328.3 Definitions.
(b) The notice shall contain time,
For the purpose of this regulation
place, and nature of hearing; the legal
these terms are defined as follows:
authority and jurisdiction under which
(a) Jurisdictional waters. For purposes
the hearing is held; and location of and of the Clean Water Act, 33 U.S.C. 1251 et
availability of the draft environmental seq. and its implementing regulations,
impact statement or environmental as- subject to the exclusions in paragraph
sessment. (b) of this section, the term ‘‘waters of

the United States’’ means:
449
§ 328.3 33 CFR Ch. II (7–1–20 Edition)
(1) The territorial seas, and waters (11) Groundwater recharge, water
which are currently used, or were used reuse, and wastewater recycling struc-
in the past, or may be susceptible to tures, including detention, retention,
use in interstate or foreign commerce, and infiltration basins and ponds, con-
including waters which are subject to structed or excavated in upland or in
the ebb and flow of the tide; non-jurisdictional waters; and
(2) Tributaries; (12) Waste treatment systems.
(3) Lakes and ponds, and impound- (c) Definitions. In this section, the fol-
ments of jurisdictional waters; and lowing definitions apply:
(4) Adjacent wetlands. (1) Adjacent wetlands. The term adja-
(b) Non-jurisdictional waters. The fol- cent wetlands means wetlands that:
lowing are not ‘‘waters of the United (i) Abut, meaning to touch at least at
States’’: one point or side of, a water identified
(1) Waters or water features that are in paragraph (a)(1), (2), or (3) of this
not identified in paragraph (a)(1), (2), section;
(3), or (4) of this section; (ii) Are inundated by flooding from a
(2) Groundwater, including groundwater identified in paragraph (a)(1), (2),
water drained through subsurface or (3) of this section in a typical year;
drainage systems; (iii) Are physically separated from a
(3) Ephemeral features, including water identified in paragraph (a)(1), (2),
ephemeral streams, swales, gullies, or (3) of this section only by a natural
rills, and pools; berm, bank, dune, or similar natural
(4) Diffuse stormwater run-off and di- feature; or
rectional sheet flow over upland; (iv) Are physically separated from a
(5) Ditches that are not waters iden- water identified in paragraph (a)(1), (2),
tified in paragraph (a)(1) or (2) of this or (3) of this section only by an artifi-
section, and those portions of ditches cial dike, barrier, or similar artificial
constructed in waters identified in structure so long as that structure al-
paragraph (a)(4) of this section that do lows for a direct hydrologic surface
not satisfy the conditions of paragraph connection between the wetlands and
(c)(1) of this section; the water identified in paragraph (a)(1),
(6) Prior converted cropland; (2), or (3) of this section in a typical
(7) Artificially irrigated areas, in- year, such as through a culvert, flood
cluding fields flooded for agricultural or tide gate, pump, or similar artificial
production, that would revert to up- feature. An adjacent wetland is juris-
land should application of irrigation dictional in its entirety when a road or
water to that area cease; similar artificial structure divides the
(8) Artificial lakes and ponds, includ- wetland, as long as the structure al-
ing water storage reservoirs and farm, lows for a direct hydrologic surface
irrigation, stock watering, and log connection through or over that struc-
cleaning ponds, constructed or exca- ture in a typical year.
vated in upland or in non-jurisdictional (2) Ditch. The term ditch means a con-
waters, so long as those artificial lakes structed or excavated channel used to
and ponds are not impoundments of ju- convey water.
risdictional waters that meet the con- (3) Ephemeral. The term ephemeral
ditions of paragraph (c)(6) of this sec- means surface water flowing or pooling
tion; only in direct response to precipitation
(9) Water-filled depressions con- (e.g., rain or snow fall).
structed or excavated in upland or in (4) High tide line. The term high tide
non-jurisdictional waters incidental to line means the line of intersection of
mining or construction activity, and the land with the water’s surface at the
pits excavated in upland or in non-ju- maximum height reached by a rising
risdictional waters for the purpose of tide. The high tide line may be deter-
obtaining fill, sand, or gravel; mined, in the absence of actual data,
(10) Stormwater control features con- by a line of oil or scum along shore ob-
structed or excavated in upland or in jects, a more or less continuous deposit
non-jurisdictional waters to convey, of fine shell or debris on the foreshore
treat, infiltrate, or store stormwater or berm, other physical markings or

run-off; characteristics, vegetation lines, tidal
450
gages, or other suitable means that de- (8) Perennial. The term perennial
lineate the general height reached by a means surface water flowing continu-
rising tide. The line encompasses ously year-round.
spring high tides and other high tides (9) Prior converted cropland. The term
that occur with periodic frequency but prior converted cropland means any area
does not include storm surges in which that, prior to December 23, 1985, was
there is a departure from the normal or drained or otherwise manipulated for
predicted reach of the tide due to the the purpose, or having the effect, of
piling up of water against a coast by making production of an agricultural
strong winds, such as those accom- product possible. EPA and the Corps
panying a hurricane or other intense will recognize designations of prior
storm. converted cropland made by the Sec-
(5) Intermittent. The term intermittent retary of Agriculture. An area is no
means surface water flowing continu- longer considered prior converted crop-
ously during certain times of the year land for purposes of the Clean Water
and more than in direct response to Act when the area is abandoned and
precipitation (e.g., seasonally when the has reverted to wetlands, as defined in
groundwater table is elevated or when paragraph (c)(16) of this section. Aban-
snowpack melts). donment occurs when prior converted
(6) Lakes and ponds, and impound- cropland is not used for, or in support
ments of jurisdictional waters. The term of, agricultural purposes at least once
lakes and ponds, and impoundments of in the immediately preceding five
years. For the purposes of the Clean
jurisdictional waters means standing
Water Act, the EPA Administrator
bodies of open water that contribute
shall have the final authority to deter-
surface water flow to a water identified
mine whether prior converted cropland
in paragraph (a)(1) of this section in a
has been abandoned.
typical year either directly or through
(10) Snowpack. The term snowpack
one or more waters identified in para-
means layers of snow that accumulate
graph (a)(2), (3), or (4) of this section. A
over extended periods of time in cer-
lake, pond, or impoundment of a juris-
tain geographic regions or at high ele-
dictional water does not lose its juris-
vation (e.g., in northern climes or
dictional status if it contributes sur- mountainous regions).
face water flow to a downstream juris-
(11) Tidal waters and waters subject to
dictional water in a typical year
the ebb and flow of the tide. The terms
through a channelized non-jurisdic- tidal waters and waters subject to the ebb
tional surface water feature, through a and flow of the tide mean those waters
culvert, dike, spillway, or similar arti- that rise and fall in a predictable and
ficial feature, or through a debris pile, measurable rhythm or cycle due to the
boulder field, or similar natural fea- gravitational pulls of the moon and
ture. A lake or pond, or impoundment sun. Tidal waters and waters subject to
of a jurisdictional water is also juris- the ebb and flow of the tide end where
dictional if it is inundated by flooding the rise and fall of the water surface
from a water identified in paragraph can no longer be practically measured
(a)(1), (2), or (3) of this section in a typ- in a predictable rhythm due to mask-
ical year. ing by hydrologic, wind, or other ef-
(7) Ordinary high water mark. The fects.
term ordinary high water mark means (12) Tributary. The term tributary
that line on the shore established by means a river, stream, or similar natu-
the fluctuations of water and indicated rally occurring surface water channel
by physical characteristics such as a that contributes surface water flow to
clear, natural line impressed on the a water identified in paragraph (a)(1) of
bank, shelving, changes in the char- this section in a typical year either di-
acter of soil, destruction of terrestrial rectly or through one or more waters
vegetation, the presence of litter and identified in paragraph (a)(2), (3), or (4)
debris, or other appropriate means that of this section. A tributary must be pe-
consider the characteristics of the sur- rennial or intermittent in a typical

rounding areas. year. The alteration or relocation of a
451
§ 328.4 33 CFR Ch. II (7–1–20 Edition)
tributary does not modify its jurisdic- § 328.4 Limits of jurisdiction.

tional status as long as it continues to
(a) Territorial Seas. The limit of juris-
satisfy the flow conditions of this defi-
nition. A tributary does not lose its ju- diction in the territorial seas is meas-
risdictional status if it contributes sur- ured from the baseline in a seaward di-
face water flow to a downstream juris- rection a distance of three nautical
dictional water in a typical year miles. (See 33 CFR 329.12)
through a channelized non-jurisdic- (b) Tidal waters of the United States.
tional surface water feature, through a The landward limits of jurisdiction in
subterranean river, through a culvert, tidal waters:
dam, tunnel, or similar artificial fea- (1) Extends to the high tide line, or
ture, or through a debris pile, boulder (2) When adjacent non-tidal waters of
field, or similar natural feature. The the United States are present, the ju-
term tributary includes a ditch that ei- risdiction extends to the limits identi-
ther relocates a tributary, is con- fied in paragraph (c) of this section.
structed in a tributary, or is con- (c) Non-tidal waters of the United
structed in an adjacent wetland as long States. The limits of jurisdiction in
as the ditch satisfies the flow condi- non-tidal waters:
tions of this definition.
(1) In the absence of adjacent wet-
(13) Typical year. The term typical
lands, the jurisdiction extends to the
year means when precipitation and
other climatic variables are within the ordinary high water mark, or
normal periodic range (e.g., seasonally, (2) When adjacent wetlands are
annually) for the geographic area of present, the jurisdiction extends be-
the applicable aquatic resource based yond the ordinary high water mark to
on a rolling thirty-year period. the limit of the adjacent wetlands.
(14) Upland. The term upland means (3) When the water of the United
any land area that under normal cir- States consists only of wetlands the ju-
cumstances does not satisfy all three risdiction extends to the limit of the
wetland factors (i.e., hydrology, wetland.
hydrophytic vegetation, hydric soils)
identified in paragraph (c)(16) of this § 328.5 Changes in limits of waters of
section, and does not lie below the or- the United States.
dinary high water mark or the high Permanent changes of the shoreline
tide line of a jurisdictional water. configuration result in similar alter-
(15) Waste treatment system. The term ations of the boundaries of waters of
waste treatment system includes all com- the United States. Gradual changes
ponents, including lagoons and treat-
which are due to natural causes and
ment ponds (such as settling or cooling
are perceptible only over some period
ponds), designed to either convey or re-
of time constitute changes in the bed
tain, concentrate, settle, reduce, or re-
move pollutants, either actively or pas- of a waterway which also change the
sively, from wastewater prior to dis- boundaries of the waters of the United
charge (or eliminating any such dis- States. For example, changing sea lev-
charge). els or subsidence of land may cause
(16) Wetlands. The term wetlands some areas to become waters of the
means areas that are inundated or United States while siltation or a
saturated by surface or ground water change in drainage may remove an
at a frequency and duration sufficient area from waters of the United States.
to support, and that under normal cir- Man-made changes may affect the lim-
cumstances do support, a prevalence of its of waters of the United States; how-
vegetation typically adapted for life in ever, permanent changes should not be
saturated soil conditions. Wetlands presumed until the particular cir-
generally include swamps, marshes, cumstances have been examined and
bogs, and similar areas. verified by the district engineer.
[51 FR 41250, Nov. 13, 1986, as amended at 58 Verification of changes to the lateral
FR 45036, Aug. 25, 1993; 80 FR 37104, June 29, limits of jurisdiction may be obtained
2015; 83 FR 5208, Feb. 6, 2018; 84 FR 56667, Oct. from the district engineer.
22, 2019; 85 FR 22338, Apr. 21, 2020]
452
PART 329—DEFINITION OF NAVI- teria contained in this regulation are

GABLE WATERS OF THE UNITED in close conformance with the tests
STATES used by Federal courts and determina-
tions made under this regulation are
Sec.
considered binding in regard to the ac-
329.1 Purpose. tivities of the Corps of Engineers.
329.3 General policies. § 329.4 General definition.
329.4 General definition. Navigable waters of the United
329.5 General scope of determination. States are those waters that are sub-
329.6 Interstate or foreign commerce.
329.7 Intrastate or interstate nature of wa-
ject to the ebb and flow of the tide and/
terway. or are presently used, or have been
329.8 Improved or natural conditions of the used in the past, or may be susceptible
waterbody. for use to transport interstate or for-
329.9 Time at which commerce exists or de- eign commerce. A determination of
termination is made. navigability, once made, applies lat-
329.10 Existence of obstructions. erally over the entire surface of the
329.11 Geographic and jurisdictional limits
of rivers and lakes.
waterbody, and is not extinguished by
329.12 Geographic and jurisdictional limits later actions or events which impede or
of oceanic and tidal waters. destroy navigable capacity.
329.13 Geographic limits: Shifting bound-
aries. § 329.5 General scope of determina-
329.14 Determination of navigability. tion.
329.15 Inquiries regarding determinations. The several factors which must be ex-
329.16 Use and maintenance of lists of deter-
minations.
amined when making a determination
whether a waterbody is a navigable
AUTHORITY: 33 U.S.C. 401 et seq. water of the United States are dis-
SOURCE: 51 FR 41251, Nov. 13, 1986, unless cussed in detail below. Generally, the
otherwise noted. following conditions must be satisfied:
(a) Past, present, or potential pres-
§ 329.1 Purpose. ence of interstate or foreign commerce;
This regulation defines the term (b) Physical capabilities for use by
‘‘navigable waters of the United commerce as in paragraph (a) of this
States’’ as it is used to define authori- section; and
ties of the Corps of Engineers. It also (c) Defined geographic limits of the
prescribes the policy, practice and pro- waterbody.
cedure to be used in determining the
extent of the jurisdiction of the Corps § 329.6 Interstate or foreign commerce.
of Engineers and in answering inquiries (a) Nature of commerce: type, means,
concerning ‘‘navigable waters of the and extent of use. The types of commer-
United States.’’ This definition does cial use of a waterway are extremely
not apply to authorities under the varied and will depend on the character
Clean Water Act which definitions are of the region, its products, and the dif-
described under 33 CFR parts 323 and ficulties or dangers of navigation. It is
328. the waterbody’s capability of use by
the public for purposes of transpor-
§ 329.2 Applicability. tation of commerce which is the deter-
This regulation is applicable to all minative factor, and not the time, ex-
Corps of Engineers districts and divi- tent or manner of that use. As dis-
sions having civil works responsibil- cussed in § 329.9 of this part, it is suffi-
ities. cient to establish the potential for
commercial use at any past, present, or
§ 329.3 General policies. future time. Thus, sufficient commerce
Precise definitions of ‘‘navigable wa- may be shown by historical use of ca-
ters of the United States’’ or ‘‘naviga- noes, bateaux, or other frontier craft,
bility’’ are ultimately dependent on ju- as long as that type of boat was com-
dicial interpretation and cannot be mon or well-suited to the place and pe-
made conclusively by administrative riod. Similarly, the particular items of

agencies. However, the policies and cri- commerce may vary widely, depending
453
§ 329.7 33 CFR Ch. II (7–1–20 Edition)
again on the region and period. The may often constitute a navigable water
goods involved might be grain, furs, or of the United States, even though it
other commerce of the time. Logs are a has been privately developed and main-
common example; transportation of tained, or passes through private prop-
logs has been a substantial and well- erty. The test is generally as developed
recognized commercial use of many above, that is, whether the waterbody
navigable waters of the United States. is capable of use to transport inter-
Note, however, that the mere presence state commerce. Canals which connect
of floating logs will not of itself make two navigable waters of the United
the river ‘‘navigable’’; the logs must States and which are used for com-
have been related to a commercial ven- merce clearly fall within the test, and
ture. Similarly, the presence of rec- themselves become navigable. A canal
reational craft may indicate that a open to navigable waters of the United
waterbody is capable of bearing some States on only one end is itself navi-
forms of commerce, either presently, in gable where it in fact supports inter-
the future, or at a past point in time. state commerce. A canal or other arti-
(b) Nature of commerce: interstate and ficial waterbody that is subject to ebb
intrastate. Interstate commerce may of and flow of the tide is also a navigable
course be existent on an intrastate water of the United States.
voyage which occurs only between (2) The artificial waterbody may be a
places within the same state. It is only major portion of a river or harbor area
necessary that goods may be brought or merely a minor backwash, slip, or
from, or eventually be destined to go
turning area (see § 329.12(b) of this
to, another state. (For purposes of this
part).
regulation, the term ‘‘interstate com-
(3) Private ownership of the lands un-
merce’’ hereinafter includes ‘‘foreign
commerce’’ as well.) derlying the waterbody, or of the lands
through which it runs, does not pre-
§ 329.7 Intrastate or interstate nature clude a finding of navigability. Owner-
of waterway. ship does become a controlling factor if
A waterbody may be entirely within a privately constructed and operated
a state, yet still be capable of carrying canal is not used to transport inter-
interstate commerce. This is especially state commerce nor used by the public;
clear when it physically connects with it is then not considered to be a navi-
a generally acknowledged avenue of gable water of the United States. How-
interstate commerce, such as the ocean ever, a private waterbody, even though
or one of the Great Lakes, and is yet not itself navigable, may so affect the
wholly within one state. Nor is it nec- navigable capacity of nearby waters as
essary that there be a physically navi- to nevertheless be subject to certain
gable connection across a state bound- regulatory authorities.
ary. Where a waterbody extends (b) Non-existing improvements, past or
through one or more states, but sub- potential. A waterbody may also be con-
stantial portions, which are capable of sidered navigable depending on the fea-
bearing interstate commerce, are lo- sibility of use to transport interstate
cated in only one of the states, the en- commerce after the construction of
tirety of the waterway up to the head whatever ‘‘reasonable’’ improvements
(upper limit) of navigation is subject to may potentially be made. The improve-
Federal jurisdiction. ment need not exist, be planned, nor
even authorized; it is enough that po-
§ 329.8 Improved or natural conditions tentially they could be made. What is a
of the waterbody. ‘‘reasonable’’ improvement is always a
Determinations are not limited to matter of degree; there must be a bal-
the natural or original condition of the ance between cost and need at a time
waterbody. Navigability may also be when the improvement would be (or
found where artificial aids have been or would have been) useful. Thus, if an
may be used to make the waterbody improvement were ‘‘reasonable’’ at a
suitable for use in navigation. time of past use, the water was there-
(a) Existing improvements: artificial fore navigable in law from that time
waterbodies. (1) An artificial channel forward. The changes in engineering
454
practices or the coming of new indus- § 329.10 Existence of obstructions.

tries with varying classes of freight
A stream may be navigable despite
may affect the type of the improve-
the existence of falls, rapids, sand bars,
ment; those which may be entirely rea-
bridges, portages, shifting currents, or
sonable in a thickly populated, highly
similar obstructions. Thus, a waterway
developed industrial region may have
in its original condition might have
been entirely too costly for the same
had substantial obstructions which
region in the days of the pioneers. The
were overcome by frontier boats and/or
determination of reasonable improve- portages, and nevertheless be a ‘‘chan-
ment is often similar to the cost anal- nel’’ of commerce, even though boats
yses presently made in Corps of Engi- had to be removed from the water in
neers studies. some stretches, or logs be brought
around an obstruction by means of ar-
§ 329.9 Time at which commerce exists
or determination is made. tificial chutes. However, the question
is ultimately a matter of degree, and it
(a) Past use. A waterbody which was must be recognized that there is some
navigable in its natural or improved point beyond which navigability could
state, or which was susceptible of rea- not be established.
sonable improvement (as discussed in
§ 329.8(b) of this part) retains its char- § 329.11 Geographic and jurisdictional
acter as ‘‘navigable in law’’ even limits of rivers and lakes.
though it is not presently used for (a) Jurisdiction over entire bed. Federal
commerce, or is presently incapable of regulatory jurisdiction, and powers of
such use because of changed conditions improvement for navigation, extend
or the presence of obstructions. Nor laterally to the entire water surface
does absence of use because of changed and bed of a navigable waterbody,
economic conditions affect the legal which includes all the land and waters
character of the waterbody. Once hav- below the ordinary high water mark.
ing attained the character of ‘‘navi- Jurisdiction thus extends to the edge
gable in law,’’ the Federal authority (as determined above) of all such
remains in existence, and cannot be waterbodies, even though portions of
abandoned by administrative officers the waterbody may be extremely shal-
or court action. Nor is mere inatten- low, or obstructed by shoals, vegeta-
tion or ambiguous action by Congress tion or other barriers. Marshlands and
an abandonment of Federal control. similar areas are thus considered navi-
However, express statutory declara- gable in law, but only so far as the area
tions by Congress that described por- is subject to inundation by the ordi-
tions of a waterbody are non-navigable, nary high waters.
or have been abandoned, are binding (1) The ‘‘ordinary high water mark’’
upon the Department of the Army. on non-tidal rivers is the line on the
Each statute must be carefully exam- shore established by the fluctuations of
ined, since Congress often reserves the water and indicated by physical char-
power to amend the Act, or assigns spe- acteristics such as a clear, natural line
cial duties of supervision and control impressed on the bank; shelving;
to the Secretary of the Army or Chief changes in the character of soil; de-
of Engineers. struction of terrestrial vegetation; the
(b) Future or potential use. Naviga- presence of litter and debris; or other
bility may also be found in a appropriate means that consider the
waterbody’s susceptibility for use in its characteristics of the surrounding
ordinary condition or by reasonable areas.
improvement to transport interstate (2) Ownership of a river or lake bed or
commerce. This may be either in its of the lands between high and low
natural or improved condition, and water marks will vary according to
may thus be existent although there state law; however, private ownership
has been no actual use to date. Non-use of the underlying lands has no bearing
in the past therefore does not prevent on the existence or extent of the domi-
recognition of the potential for future nant Federal jurisdiction over a navi-
use. gable waterbody.
455
§ 329.12 33 CFR Ch. II (7–1–20 Edition)
(b) Upper limit of navigability. The (b) Bays and estuaries. Regulatory ju-
character of a river will, at some point risdiction extends to the entire surface
along its length, change from navigable and bed of all waterbodies subject to
to non-navigable. Very often that point tidal action. Jurisdiction thus extends
will be at a major fall or rapids, or to the edge (as determined by para-
other place where there is a marked de- graph (a)(2) of this section) of all such
crease in the navigable capacity of the waterbodies, even though portions of
river. The upper limit will therefore the waterbody may be extremely shal-
often be the same point traditionally low, or obstructed by shoals, vegeta-
recognized as the head of navigation, tion, or other barriers. Marshlands and
but may, under some of the tests de- similar areas are thus considered
scribed above, be at some point yet far- ‘‘navigable in law,’’ but only so far as
ther upstream. the area is subject to inundation by the
mean high waters. The relevant test is
§ 329.12 Geographic and jurisdictional therefore the presence of the mean
limits of oceanic and tidal waters. high tidal waters, and not the general
(a) Ocean and coastal waters. The nav- test described above, which generally
igable waters of the United States over applies to inland rivers and lakes.
which Corps of Engineers regulatory § 329.13 Geographic limits: Shifting
jurisdiction extends include all ocean boundaries.
and coastal waters within a zone three
Permanent changes of the shoreline
geographic (nautical) miles seaward
configuration result in similar alter-
from the baseline (The Territorial
ations of the boundaries of the navi-
Seas). Wider zones are recognized for
gable waters of the United States.
special regulatory powers exercised
Thus, gradual changes which are due to
over the outer continental shelf. (See
natural causes and are perceptible only
33 CFR 322.3(b)). over some period of time constitute
(1) Baseline defined. Generally, where changes in the bed of a waterbody
the shore directly contacts the open which also change the shoreline bound-
sea, the line on the shore reached by aries of the navigable waters of the
the ordinary low tides comprises the United States. However, an area will
baseline from which the distance of remain ‘‘navigable in law,’’ even
three geographic miles is measured. though no longer covered with water,
The baseline has significance for both whenever the change has occurred sud-
domestic and international law and is denly, or was caused by artificial forces
subject to precise definitions. Special intended to produce that change. For
problems arise when offshore rocks, is- example, shifting sand bars within a
lands, or other bodies exist, and the river or estuary remain part of the
baseline may have to be drawn seaward navigable water of the United States,
of such bodies. regardless that they may be dry at a
(2) Shoreward limit of jurisdiction. Reg- particular point in time.
ulatory jurisdiction in coastal areas
extends to the line on the shore § 329.14 Determination of navigability.
reached by the plane of the mean (aver- (a) Effect on determinations. Although
age) high water. Where precise deter- conclusive determinations of naviga-
mination of the actual location of the bility can be made only by federal
line becomes necessary, it must be es- Courts, those made by federal agencies
tablished by survey with reference to are nevertheless accorded substantial
the available tidal datum, preferably weight by the courts. It is therefore
averaged over a period of 18.6 years. necessary that when jurisdictional
Less precise methods, such as observa- questions arise, district personnel care-
tion of the ‘‘apparent shoreline’’ which fully investigate those waters which
is determined by reference to physical may be subject to Federal regulatory
markings, lines of vegetation, or jurisdiction under guidelines set out
changes in type of vegetation, may be above, as the resulting determination
used only where an estimate is needed may have substantial impact upon a
of the line reached by the mean high judicial body. Official determinations
water. by an agency made in the past can be
456
revised or reversed as necessary to re- (8) Nature of jurisdiction known to

flect changed rules or interpretations have been exercised by Federal agen-
of the law. cies if any:
(b) Procedures of determination. A de- (9) State or Federal court decisions
termination whether a waterbody is a relating to navigability of the
navigable water of the United States waterbody, if any:
will be made by the division engineer, (10) Remarks:
and will be based on a report of find- (11) Finding of navigability (with
ings prepared at the district level in date) and recommendation for deter-
accordance with the criteria set out in mination:
this regulation. Each report of findings
will be prepared by the district engi- § 329.15 Inquiries regarding deter-
neer, accompanied by an opinion of the minations.
district counsel, and forwarded to the (a) Findings and determinations
division engineer for final determina-
should be made whenever a question
tion. Each report of findings will be
arises regarding the navigability of a
based substantially on applicable por-
waterbody. Where no determination
tions of the format in paragraph (c) of
has been made, a report of findings will
this section.
be prepared and forwarded to the divi-
(c) Suggested format of report of find- sion engineer, as described above. In-
ings: quiries may be answered by an interim
(1) Name of waterbody: reply which indicates that a final agen-
(2) Tributary to: cy determination must be made by the
(3) Physical characteristics: division engineer. If a need develops for
(i) Type: (river, bay, slough, estuary, an energency determination, district
etc.) engineers may act in reliance on a find-
(ii) Length: ing prepared as in section 329.14 of this
(iii) Approximate discharge volumes: part. The report of findings should then
Maximum, Minimum, Mean: be forwarded to the division engineer
(iv) Fall per mile: on an expedited basis.
(v) Extent of tidal influence: (b) Where determinations have been
(vi) Range between ordinary high and made by the division engineer, inquir-
ordinary low water: ies regarding the navigability of specific
(vii) Description of improvements to portions of waterbodies covered by
navigation not listed in paragraph these determinations may be answered
(c)(5) of this section: as follows:
(4) Nature and location of significant This Department, in the administra-
obstructions to navigation in portions tion of the laws enacted by Congress
of the waterbody used or potentially for the protection and preservation of
capable of use in interstate commerce: the navigable waters of the United
(5) Authorized projects: States, has determined that lll
(River) (Bay) (Lake, etc.) is a navigable
(i) Nature, condition and location of
water of the United States from lll
any improvements made under projects
to lll. Actions which modify or oth-
authorized by Congress:
erwise affect those waters are subject
(ii) Description of projects authorized to the jurisdiction of this Department,
but not constructed: whether such actions occur within or
(iii) List of known survey documents outside the navigable areas.
or reports describing the waterbody: (c) Specific inquiries regarding the
(6) Past or present interstate com- jurisdiction of the Corps of Engineers
merce: can be answered only after a deter-
(i) General types, extent, and period mination whether (1) the waters are
in time: navigable waters of the United States
(ii) Documentation if necessary: or
(7) Potential use for interstate com- (2) If not navigable, whether the pro-
merce, if applicable: posed type of activity may neverthe-
(i) If in natural condition: less so affect the navigable waters of

(ii) If improved: the United States that the assertion of
457
§ 329.16 33 CFR Ch. II (7–1–20 Edition)
regulatory jurisdiction is deemed nec- tle, if any, delay or paperwork certain

essary. activities having minimal impacts. The
NWPs are proposed, issued, modified,
§ 329.16 Use and maintenance of lists reissued (extended), and revoked from
of determinations.
time to time after an opportunity for
(a) Tabulated lists of final deter- public notice and comment. Proposed
minations of navigability are to be NWPs or modifications to or reissuance
maintained in each district office, and of existing NWPs will be adopted only
be updated as necessitated by court de- after the Corps gives notice and allows
cisions, jurisdictional inquiries, or the public an opportunity to comment
other changed conditions. on and request a public hearing regard-
(b) It should be noted that the lists ing the proposals. The Corps will give
represent only those waterbodies for full consideration to all comments re-
which determinations have been made;
ceived prior to reaching a final deci-
absence from that list should not be
sion.
taken as an indication that the
waterbody is not navigable. (c) Terms and conditions. An activity
(c) Deletions from the list are not au- is authorized under an NWP only if
thorized. If a change in status of a that activity and the permittee satisfy
waterbody from navigable to non-navi- all of the NWP’s terms and conditions.
gable is deemed necessary, an updated Activities that do not qualify for au-
finding should be forwarded to the divi- thorization under an NWP still may be
sion engineer; changes are not consid- authorized by an individual or regional
ered final until a determination has general permit. The Corps will consider
been made by the division engineer. unauthorized any activity requiring
Corps authorization if that activity is
PART 330—NATIONWIDE PERMIT under construction or completed and
PROGRAM does not comply with all of the terms
and conditions of an NWP, regional
Sec. general permit, or an individual per-
330.1 Purpose and policy. mit. The Corps will evaluate unauthor-
330.2 Definitions. ized activities for enforcement action
330.3 Activities occurring before certain under 33 CFR part 326. The district en-
dates. gineer (DE) may elect to suspend en-
330.4 Conditions, limitations, and restric- forcement proceedings if the permittee
tions.
330.5 Issuing, modifying, suspending, or re-
modifies his project to comply with an
voking nationwide permits and author- NWP or a regional general permit.
izations. After considering whether a violation
330.6 Authorization by nationwide permit. was knowing or intentional, and other
AUTHORITY: 33 U.S.C. 401 et seq.; 33 U.S.C. indications of the need for a penalty,
1344; 33 U.S.C. 1413. the DE can elect to terminate an en-
forcement proceeding with an after-
otherwise noted. the-fact authorization under an NWP,
if all terms and conditions of the NWP
§ 330.1 Purpose and policy. have been satisfied, either before or
(a) Purpose. This part describes the after the activity has been accom-
policy and procedures used in the De- plished.
partment of the Army’s nationwide (d) Discretionary authority. District
permit program to issue, modify, sus- and division engineers have been dele-
pend, or revoke nationwide permits; to gated a discretionary authority to sus-
identify conditions, limitations, and pend, modify, or revoke authorizations
restrictions on the nationwide permits; under an NWP. This discretionary au-
and, to identify any procedures, wheth- thority may be used by district and di-
er required or optional, for authoriza- vision engineers only to further condi-
tion by nationwide permits. tion or restrict the applicability of an
(b) Nationwide permits. Nationwide NWP for cases where they have con-
permits (NWPs) are a type of general cerns for the aquatic environment
permit issued by the Chief of Engineers under the Clean Water Act section
and are designed to regulate with lit- 404(b)(1) Guidelines or for any factor of
458
the public interest. Because of the na- (2) The DE will review the notifica-
ture of most activities authorized by tion and may add activity-specific con-
NWP, district and division engineers ditions to ensure that the activity
will not have to review every such ac- complies with the terms and conditions
tivity to decide whether to exercise of the NWP and that the adverse im-
discretionary authority. The terms and pacts on the aquatic environment and
conditions of certain NWPs require the other aspects of the public interest are
DE to review the proposed activity be- individually and cumulatively mini-
fore the NWP authorizes its construc- mal.
tion. However, the DE has the discre- (3) For some NWPs involving dis-
tionary authority to review any activ- charges into wetlands, the notification
ity authorized by NWP to determine must include a wetland delineation.
whether the activity complies with the The DE will review the notification
NWP. If the DE finds that the proposed and determine if the individual and cu-
activity would have more than mini- mulative adverse environmental effects
mal individual or cumulative net ad- are more than minimal. If the adverse
verse effects on the environment or effects are more than minimal the DE
otherwise may be contrary to the pub- will notify the prospective permittee
lic interest, he shall modify the NWP that an individual permit is required or
authorization to reduce or eliminate that the prospective permittee may
those adverse effects, or he shall in- propose measures to mitigate the loss
of special aquatic sites, including wet-
struct the prospective permittee to
lands, to reduce the adverse impacts to
apply for a regional general permit or
minimal. The prospective permittee
an individual permit. Discretionary au-
may elect to propose mitigation with
thority is also discussed at 33 CFR
the original notification. The DE will
330.4(e) and 330.5.
consider that proposed mitigation
(e) Notifications. (1) In most cases, when deciding if the impacts are mini-
permittees may proceed with activities mal. The DE shall add activity-specific
authorized by NWPs without notifying conditions to ensure that the mitiga-
the DE. However, the prospective per- tion will be accomplished. If sufficient
mittee should carefully review the lan- mitigation cannot be developed to re-
guage of the NWP to ascertain whether duce the adverse environmental effects
he must notify the DE prior to com- to the minimal level, the DE will not
mencing the authorized activity. For allow authorization under the NWP
NWPs requiring advance notification, and will instruct the prospective per-
such notification must be made in mittee on procedures to seek author-
writing as early as possible prior to ization under an individual permit.
commencing the proposed activity. The (f) Individual Applications. DEs should
permittee may presume that his review all incoming applications for in-
project qualifies for the NWP unless he dividual permits for possible eligibility
is otherwise notified by the DE within under regional general permits or
a 45-day period. The 45-day period NWPs. If the activity complies with
starts on the date of receipt of the no- the terms and conditions of one or
tification in the Corps district office more NWP, he should verify the au-
and ends 45 calendar days later regard- thorization and so notify the applicant.
less of weekends or holidays. If the DE If the DE determines that the activity
notifies the prospective permittee that could comply after reasonable project
the notification is incomplete, a new modifications and/or activity-specific
45-day period will commence upon re- conditions, he should notify the appli-
ceipt of the revised notification. The cant of such modifications and condi-
prospective permittee may not proceed tions. If such modifications and condi-
with the proposed activity before expi- tions are accepted by the applicant,
ration of the 45-day period unless oth- verbally or in writing, the DE will
erwise notified by the DE. If the DE verify the authorization with the modi-
fails to act within the 45-day period, he fications and conditions in accordance
must use the procedures of 33 CFR 330.5 with 33 CFR 330.6(a). However, the DE
in order to modify, suspend, or revoke will proceed with processing the appli-
the NWP authorization. cation as an individual permit and take
459
§ 330.2 33 CFR Ch. II (7–1–20 Edition)
the appropriate action within 15 cal- lands, that are part of a surface tribu-
endar days of receipt, in accordance tary system to an interstate or navi-
with 33 CFR 325.2(a)(2), unless the ap- gable water of the United States up-
plicant indicates that he will accept stream of the point on the river or
the modifications or conditions. stream at which the average annual
(g) Authority. NWPs can be issued to flow is less than five cubic feet per sec-
satisfy the permit requirements of second. The DE may estimate this point
tion 10 of the Rivers and Harbors Act of from available data by using the mean
1899, section 404 of the Clean Water annual area precipitation, area drain-
Act, section 103 of the Marine Protec- age basin maps, and the average runoff
tion, Research, and Sanctuaries Act, or coefficient, or by similar means. For
some combination thereof. The appli- streams that are dry for long periods of
cable authority will be indicated at the the year, DEs may establish the point
end of each NWP. NWPs and their con- where headwaters begin as that point
ditions previously published at 33 CFR on the stream where a flow of five
330.5 and 330.6 will remain in effect cubic feet per second is equaled or ex-
until they expire or are modified or re- ceeded 50 percent of the time.
voked in accordance with the proce-
(e) Isolated waters means those non-
dures of this part.
tidal waters of the United States that
[56 FR 59134, Nov. 22, 1991, as amended at 78 are:
FR 5733, Jan. 28, 2013] (1) Not part of a surface tributary
system to interstate or navigable wa-
ters of the United States; and
(a) The definitions found in 33 CFR (2) Not adjacent to such tributary
parts 320–329 are applicable to the waterbodies.
terms used in this part.
(f) Filled area means the area within
(b) Nationwide permit refers to a type
jurisdictional waters which is elimi-
of general permit which authorizes ac-
nated or covered as a direct result of
tivities on a nationwide basis unless
the discharge (i.e., the area actually
specifically limited. (Another type of
general permit is a ‘‘regional permit’’ covered by the discharged material). It
which is issued by division or district does not include areas excavated nor
engineers on a regional basis in accord- areas impacted as an indirect effect of
ance with 33 CFR part 325). (See 33 CFR the fill.
322.2(f) and 323.2(h) for the definition of (g) Discretionary authority means the
a general permit.) authority described in §§ 330.1(d) and
(c) Authorization means that specific 330.4(e) which the Chief of Engineers
activities that qualify for an NWP may delegates to division or district engi-
proceed, provided that the terms and neers to modify an NWP authorization
conditions of the NWP are met. After by adding conditions, to suspend an
determining that the activity complies NWP authorization, or to revoke an
with all applicable terms and condi- NWP authorization and thus require
tions, the prospective permittee may individual permit authorization.
assume an authorization under an (h) Terms and conditions. The ‘‘terms’’
NWP. This assumption is subject to the of an NWP are the limitations and pro-
DE’s authority to determine if an ac- visions included in the description of
tivity complies with the terms and the NWP itself. The ‘‘conditions’’ of
conditions of an NWP. If requested by NWPs are additional provisions which
the permittee in writing, the DE will place restrictions or limitations on all
verify in writing that the permittee’s of the NWPs. These are published with
proposed activity complies with the the NWPs. Other conditions may be im-
terms and conditions of the NWP. A posed by district or division engineers
written verification may contain activ- on a geographic, category-of-activity,
ity-specific conditions and regional or activity-specific basis (See 33 CFR
conditions which a permittee must sat- 330.4(e)).
isfy for the authorization to be valid. (i) Single and complete project means
(d) Headwaters means non-tidal riv- the total project proposed or accom-
ers, streams, and their lakes and im- plished by one owner/developer or part-
poundments, including adjacent wet- nership or other association of owners/
460
developers. For example, if construc- ward of applicable Federal Harbor lines

tion of a residential development af- before May 27, 1970 do not require spe-
fects several different areas of a head- cific authorization. (section 10)
water or isolated water, or several dif-
ferent headwaters or isolated waters, § 330.4 Conditions, limitations, and re-
the cumulative total of all filled areas strictions.
should be the basis for deciding wheth- (a) General. A prospective permittee
er or not the project will be covered by must satisfy all terms and conditions
an NWP. For linear projects, the ‘‘sin- of an NWP for a valid authorization to
gle and complete project’’ (i.e., single occur. Some conditions identify a
and complete crossing) will apply to ‘‘threshold’’ that, if met, requires addi-
each crossing of a separate water of the tional procedures or provisions con-
United States (i.e., single waterbody) tained in other paragraphs in this sec-
at that location; except that for linear tion. It is important to remember that
projects crossing a single waterbody the NWPs only authorize activities
several times at separate and distant from the perspective of the Corps regu-
locations, each crossing is considered a latory authorities and that other Fed-
single and complete project. However, eral, state, and local permits, approv-
individual channels in a braided stream als, or authorizations may also be re-
or river, or individual arms of a large, quired.
irregularly-shaped wetland or lake, (b) Further information. (1) DEs have
etc., are not separate waterbodies.
authority to determine if an activity
(j) Special aquatic sites means wet-
complies with the terms and conditions
lands, mudflats, vegetated shallows,
of an NWP.
coral reefs, riffle and pool complexes,
(2) NWPs do not obviate the need to
sanctuaries, and refuges as defined at
obtain other Federal, state, or local
40 CFR 230.40 through 230.45.
permits, approvals, or authorizations
§ 330.3 Activities occurring before cer- required by law.
tain dates. (3) NWPs do not grant any property
The following activities were per- rights or exclusive privileges.
mitted by NWPs issued on July 19, 1977, (4) NWPs do not authorize any injury
and, unless the activities are modified, to the property or rights of others.
they do not require further permitting: (5) NWPs do not authorize inter-
(a) Discharges of dredged or fill ma- ference with any existing or proposed
terial into waters of the United States Federal project.
outside the limits of navigable waters (c) State 401 water quality certification.
of the United States that occurred be- (1) State 401 water quality certification
fore the phase-in dates which extended pursuant to section 401 of the Clean
Section 404 jurisdiction to all waters of Water Act, or waiver thereof, is re-
the United States. The phase-in dates quired prior to the issuance or
were: After July 25, 1975, discharges reissuance of NWPs authorizing activi-
into navigable waters of the United ties which may result in a discharge
States and adjacent wetlands; after into waters of the United States.
September 1, 1976, discharges into navi- (2) If, prior to the issuance or
gable waters of the United States and reissuance of such NWPs, a state issues
their primary tributaries, including ad- a 401 water quality certification which
jacent wetlands, and into natural includes special conditions, the divi-
lakes, greater than 5 acres in surface sion engineer will make these special
area; and after July 1, 1977, discharges conditions regional conditions of the
into all waters of the United States, in- NWP for activities which may result in
cluding wetlands. (section 404) a discharge into waters of United
(b) Structures or work completed be- States in that state, unless he deter-
fore December 18, 1968, or in mines that such conditions do not com-
waterbodies over which the DE had not ply with the provisions of 33 CFR 325.4.
asserted jurisdiction at the time the In the latter case, the conditioned 401
activity occurred, provided in both in- water quality certification will be con-
stances, there is no interference with sidered a denial of the certification

navigation. Activities completed shore- (see paragraph (c)(3) of this section).
461
§ 330.4 33 CFR Ch. II (7–1–20 Edition)
(3) If a state denies a required 401 cation or a copy of the application to

water quality certification for an ac- the state for such certification. For
tivity otherwise meeting the terms and NWPs for which a state has denied the
conditions of a particular NWP, that 401 water quality certification, the DE
NWP’s authorization for all such ac- will determine a reasonable period of
tivities within that state is denied time after receipt of the request for an
without prejudice until the state issues activity-specific 401 water quality cer-
an individual 401 water quality certifi- tification (generally 60 days), upon the
cation or waives its right to do so. expiration of which the DE will pre-
State denial of 401 water quality cer- sume state waiver of the certification
tification for any specific NWP affects for the individual activity covered by
only those activities which may result the NWPs. However, the DE and the
in a discharge. That NWP continues to state may negotiate for additional
authorize activities which could not time for the 401 water quality certifi-
reasonably be expected to result in dis- cation, but in no event shall the period
charges into waters of the United exceed one (1) year (see 33 CFR
States. 1 325.2(b)(1)(ii)). Upon receipt of an indi-
(4) DEs will take appropriate meas- vidual 401 water quality certification,
ures to inform the public of which ac- or if the prospective permittee dem-
tivities, waterbodies, or regions require onstrates to the DE state waiver of
an individual 401 water quality certifi- such certification, the proposed work
cation before authorization by NWP. can be authorized under the NWP. For
(5) The DE will not require or process NWPs requiring a 45-day pre-construc-
an individual permit application for an tion notification the district engineer
activity which may result in a dis- will immediately begin, and complete,
charge and otherwise qualifies for an his review prior to the state action on
NWP solely on the basis that the 401 the individual section 401 water quality
water quality certification has been de- certification. If a state issues a condi-
nied for that NWP. However, the dis- tioned individual 401 water quality cer-
trict or division engineer may consider tification for an individual activity,
water quality, among other appro- the DE will include those conditions as
priate factors, in determining whether activity-specific conditions of the
to exercise his discretionary authority NWP.
and require a regional general permit (7) Where a state, after issuing a 401
or an individual permit. water quality certification for an NWP,
(6) In instances where a state has de- subsequently attempts to withdraw it
nied the 401 water quality certification for substantive reasons after the effec-
for discharges under a particular NWP, tive date of the NWP, the division engi-
permittees must furnish the DE with neer will review those reasons and con-
an individual 401 water quality certifi- sider whether there is substantial basis
for suspension, modification, or revoca-
1 NWPs numbered 1, 2, 8, 9, 10, 11, 19, 24, 28, tion of the NWP authorization as out-
and 35, do not require 401 water quality cer- lined in § 330.5. Otherwise, such at-
tification since they would authorize activi- tempted state withdrawal is not effec-
ties which, in the opinion of the Corps, could tive and the Corps will consider the
not reasonably be expected to result in a dis- state certification to be valid for the
charge and in the case of NWP 8 is seaward
of the territorial seas. NWPs numbered 3, 4,
NWP authorizations until such time as
5, 6, 7, 13, 14, 18, 20, 21, 22, 23, 27, 32, 36, 37, and the NWP is modified or reissued.
38, involve various activities, some of which (d) Coastal zone management consist-
may result in a discharge and require 401 ency determination. (1) Section 307(c)(1)
water quality certification, and others of of the Coastal Zone Management Act
which do not. State denial of 401 water qual- (CZMA) requires the Corps to provide a
ity certification for any specific NWP in this consistency determination and receive
category affects only those activities which state agreement prior to the issuance,
may result in a discharge. For those activi-
ties not involving discharges, the NWP re-
reissuance, or expansion of activities
mains in effect. NWPs numbered 12, 15, 16, 17, authorized by an NWP that authorizes
activities within a state with a Feder-
25, 26, and 40 involve activities which would

result in discharges and therefore 401 water ally-approved Coastal Management
quality certification is required. Program when activities that would
462
occur within, or outside, that state’s (6) In instances where a state has dis-
coastal zone will affect land or water agreed with the Corps consistency de-
uses or natural resources of the state’s termination for activities under a par-
coastal zone. ticular NWP, permittees must furnish
(2) If, prior to the issuance, the DE with an individual consistency
reissuance, or expansion of activities concurrence or a copy of the consist-
authorized by an NWP, a state indi- ency certification provided to the state
cates that additional conditions are for concurrence. If a state fails to act
necessary for the state to agree with on a permittee’s consistency certifi-
the Corps consistency determination, cation within six months after receipt
the division engineer will make such by the state, concurrence will be pre-
conditions regional conditions for the sumed. Upon receipt of an individual
NWP in that state, unless he deter- consistency concurrence or upon pre-
mines that the conditions do not com- sumed consistency, the proposed work
ply with the provisions of 33 CFR 325.4 is authorized if it complies with all
or believes for some other specific rea- terms and conditions of the NWP. For
son it would be inappropriate to in- NWPs requiring a 45-day pre-construc-
clude the conditions. In this case, the tion notification the DE will imme-
state’s failure to agree with the Corps diately begin, and may complete, his
consistency determination without the review prior to the state action on the
conditions will be considered to be a individual consistency certification. If
disagreement with the Corps consist- a state indicates that individual condi-
ency determination. tions are necessary for consistency
(3) When a state has disagreed with with the state’s Federally-approved
the Corps consistency determination, coastal management program for that
authorization for all such activities oc- individual activity, the DE will include
curring within or outside the state’s those conditions as activity-specific
coastal zone that affect land or water conditions of the NWP unless he deter-
uses or natural resources of the state’s mines that such conditions do not com-
coastal zone is denied without preju- ply with the provisions of 33 CFR 325.4.
dice until the prospective permittee In the latter case the DE will consider
furnishes the DE an individual consist- the conditioned concurrence as a non-
ency certification pursuant to section concurrence unless the permittee
307(c)(3) of the CZMA and demonstrates chooses to comply voluntarily with all
that the state has concurred in it (ei- the conditions in the conditioned con-
ther on an individual or generic basis), currence.
or that concurrence should be pre- (7) Where a state, after agreeing with
sumed (see paragraph (d)(6) of this sec- the Corps consistency determination,
tion). subsequently attempts to reverse it’s
(4) DEs will take appropriate meas- agreement for substantive reasons
ures, such as public notices, to inform after the effective date of the NWP, the
the public of which activities, division engineer will review those rea-
waterbodies, or regions require pro- sons and consider whether there is sub-
spective permittees to make an indi- stantial basis for suspension, modifica-
vidual consistency determination and tion, or revocation as outlined in 33
seek concurrence from the state. CFR 330.5. Otherwise, such attempted
(5) DEs will not require or process an reversal is not effective and the Corps
individual permit application for an ac- will consider the state CZMA consist-
tivity otherwise qualifying for an NWP ency agreement to be valid for the
solely on the basis that the activity NWP authorization until such time as
has not received CZMA consistency the NWP is modified or reissued.
agreement from the state. However, (8) Federal activities must be con-
the district or division engineer may sistent with a state’s Federally-ap-
consider that factor, among other approved coastal management program
propriate factors, in determining to the maximum extent practicable.
whether to exercise his discretionary Federal agencies should follow their
authority and require a regional gen- own procedures and the Department of
eral permit or an individual permit ap- Commerce regulations appearing at 15

plication. CFR part 930 to meet the requirements
463
§ 330.4 33 CFR Ch. II (7–1–20 Edition)
of the CZMA. Therefore, the provisions NWPs at any time he determines that
of 33 CFR 330.4(d)(1)–(7) do not apply to his reason for asserting discretionary
Federal activities. Indian tribes doing authority has been satisfied by a condi-
work on Indian Reservation lands shall tion, project modification, or new in-
be treated in the same manner as Fed- formation.
eral applicants. (4) When the Chief of Engineers modi-
(e) Discretionary authority. The Corps fies or reissues an NWP, division engi-
reserves the right (i.e., discretion) to neers must use the procedures of § 330.5
modify, suspend, or revoke NWP au- to reassert discretionary authority to
thorizations. Modification means the reinstate regional conditions or revoca-
imposition of additional or revised tion of NWP authorizations for specific
terms or conditions on the authoriza- geographic areas, class of activities, or
tion. Suspension means the temporary class of waters. Division engineers will
cancellation of the authorization while update existing documentation for
a decision is made to either modify, re- each NWP. Upon modification or
voke, or reinstate the authorization. reissuance of NWPs, previous activity-
Revocation means the cancellation of specific conditions or revocations of
the authorization. The procedures for NWP authorization will remain in ef-
modifying, suspending, or revoking fect unless the DE specifically removes
NWP authorizations are detailed in the activity-specific conditions or rev-
§ 330.5. ocations.
(1) A division engineer may assert (f) Endangered species. No activity is
discretionary authority by modifying, authorized by any NWP if that activity
suspending, or revoking NWP author- is likely to jeopardize the continued
izations for a specific geographic area, existence of a threatened or endan-
class of activity, or class of waters gered species as listed or proposed for
within his division, including on a listing under the Federal Endangered
statewide basis, whenever he deter-
Species Act (ESA), or to destroy or ad-
mines sufficient concerns for the envi-
versely modify the critical habitat of
ronment under the section 404(b)(1)
such species.
Guidelines or any other factor of the
public interest so requires, or if he oth- (1) Federal agencies should follow
erwise determines that the NWP would their own procedures for complying
result in more than minimal adverse with the requirements of the ESA.
environmental effects either individ- (2) Non-federal permittees shall no-
ually or cumulatively. tify the DE if any Federally listed (or
(2) A DE may assert discretionary au- proposed for listing) endangered or
thority by modifying, suspending, or threatened species or critical habitat
revoking NWP authorization for a spe- might be affected or is in the vicinity
cific activity whenever he determines of the project. In such cases, the pro-
sufficient concerns for the environ- spective permittee will not begin work
ment or any other factor of the public under authority of the NWP until noti-
interest so requires. Whenever the DE fied by the district engineer that the
determines that a proposed specific ac- requirements of the Endangered Spe-
tivity covered by an NWP would have cies Act have been satisfied and that
more than minimal individual or cu- the activity is authorized. If the DE de-
mulative adverse effects on the envi- termines that the activity may affect
ronment or otherwise may be contrary any Federally listed species or critical
to the public interest, he must either habitat, the DE must initiate section 7
modify the NWP authorization to re- consultation in accordance with the
duce or eliminate the adverse impacts, ESA. In such cases, the DE may:
or notify the prospective permittee (i) Initiate section 7 consultation and
that the proposed activity is not au- then, upon completion, authorize the
thorized by NWP and provide instruc- activity under the NWP by adding, if
tions on how to seek authorization appropriate, activity-specific condi-
under a regional general or individual tions; or
permit. (ii) Prior to or concurrent with sec-
(3) The division or district engineer tion 7 consultation, assert discre-

will restore authorization under the tionary authority (see 33 CFR 330.4(e))
464
and require an individual permit (see 33 ecution of the work authorized, he en-
CFR 330.5(d)). counters an historic property that has
(3) Prospective permittees are en- not been listed or determined eligible
couraged to obtain information on the for listing on the National Register,
location of threatened or endangered but which the prospective permittee
species and their critical habitats from has reason to believe may be eligible
the U.S. Fish and Wildlife Service, En- for listing on the National Register.
dangered Species Office, and the Na- (4) Prospective permittees are en-
tional Marine Fisheries Service. couraged to obtain information on the
(g) Historic properties. No activity location of historic properties from the
which may affect properties listed or State Historic Preservation Officer and
properties eligible for listing in the Na- the National Register of Historic
tional Register of Historic Places, is
Places.
authorized until the DE has complied
with the provisions of 33 CFR part 325, [56 FR 59134, Nov. 22, 1991, as amended at 78
appendix C. FR 5733, Jan. 28, 2013]
(1) Federal permittees should follow
their own procedures for compliance § 330.5 Issuing, modifying, suspending,
with the requirements of the National or revoking nationwide permits and
Historic Preservation Act and other authorizations.
Federal historic preservation laws. (a) General. This section sets forth
(2) Non-federal permittees will notify the procedures for issuing and reissu-
the DE if the activity may affect his- ing NWPs and for modifying, sus-
toric properties which the National pending, or revoking NWPs and author-
Park Service has listed, determined el- izations under NWPs.
igible for listing, or which the prospec- (b) Chief of Engineers. (1) Anyone
tive permittee has reason to believe may, at any time, suggest to the Chief
may be eligible for listing, on the Na- of Engineers, (ATTN: CECW-OR), any
tional Register of Historic Places. In new NWPs or conditions for issuance,
such cases, the prospective permittee or changes to existing NWPs, which he
will not begin the proposed activity believes to be appropriate for consider-
until notified by the DE that the re- ation. From time-to-time new NWPs
quirements of the National Historic and revocations of or modifications to
Preservation Act have been satisfied existing NWPs will be evaluated by the
and that the activity is authorized. If a Chief of Engineers following the proce-
property in the permit area of the ac- dures specified in this section. Within
tivity is determined to be an historic
five years of issuance of the NWPs, the
property in accordance with 33 CFR
Chief of Engineers will review the
part 325, appendix C, the DE will take
NWPs and propose modification, rev-
into account the effects on such prop-
ocation, or reissuance.
erties in accordance with 33 CFR part
325, appendix C. In such cases, the dis- (2) Public notice. (i) Upon proposed
trict engineer may: issuance of new NWPs or modification,
(i) After complying with the require- suspension, revocation, or reissuance of
ments of 33 CFR part 325, appendix C, existing NWPs, the Chief of Engineers
authorize the activity under the NWP will publish a document seeking public
by adding, if appropriate, activity-spe- comments, including the opportunity
cific conditions; or to request a public hearing. This docu-
(ii) Prior to or concurrent with comment will also state that the informa-
plying with the requirements of 33 CFR tion supporting the Corps’ provisional
part 325, appendix C, he may assert dis- determination that proposed activities
cretionary authority (see 33 CFR comply with the requirements for
330.4(e)) and instruct the prospective issuance under general permit author-
permittee of procedures to seek authority is available at the Office of the
ization under a regional general permit Chief of Engineers and at all district
or an individual permit. (See 33 CFR offices. The Chief of Engineers will pre-
330.5(d).) pare this information which will be
(3) The permittee shall immediately supplemented, if appropriate, by divi-

notify the DE if, before or during pros- sion engineers.
465
§ 330.5 33 CFR Ch. II (7–1–20 Edition)
(ii) Concurrent with the Chief of En- (ii) Consider fully the views of af-
gineers’ notification of proposed, modi- fected parties;
fied, reissued, or revoked NWPs, DEs (iii) Prepare supplemental docu-
will notify the known interested public mentation for any modifications or
by a notice issued at the district level. revocations that may result through
The notice will include proposed re- assertion of discretionary authority.
gional conditions or proposed revoca- Such documentation will include com-
tions of NWP authorizations for spe- ments received on the district public
cific geographic areas, classes of activi- notices and a statement of findings
ties, or classes of waters, if any, devel- showing how substantive comments
oped by the division engineer. were considered;
(3) Documentation. The Chief of Engi- (iv) Provide, if appropriate, a
neers will prepare appropriate NEPA grandfathering period as specified in
documents and, if applicable, section § 330.6(b) for those who have com-
404(b)(1) Guidelines compliance anal- menced work or are under contract to
yses for proposed NWPs. Documenta- commence in reliance on the NWP au-
tion for existing NWPs will be modified thorization; and
to reflect any changes in these permits (v) Notify affected parties of the
and to reflect the Chief of Engineers’ modification, suspension, or revoca-
evaluation of the use of the permit tion, including the effective date (the
since the last issuance. Copies of all DE will publish and circulate a notice
comments received on the document to the known interested public and to
will be included in the administrative anyone who commented on the pro-
record. The Chief of Engineers will con- posed action).
sider these comments in making his (2) The modification, suspension, or
decision on the NWPs, and will prepare revocation of authorizations under an
a statement of findings outlining his NWP by the division engineer will be-
views regarding each NWP and dis- come effective by issuance of public no-
cussing how substantive comments tice or a notification to the individuals
were considered. The Chief of Engi- involved.
neers will also determine the need to (3) A copy of all regional conditions
hold a public hearing for the proposed imposed by division engineers on ac-
NWPs. tivities authorized by NWPs will be for-
(4) Effective dates. The Chief of Engi- warded to the Office of the Chief of En-
neers will advise the public of the ef- gineers, ATTN: CECW-OR.
fective date of any issuance, modifica- (d) District Engineer. (1) When decid-
tion, or revocation of an NWP. ing whether to exercise his discre-
(c) Division Engineer. (1) A division tionary authority to modify, suspend,
engineer may use his discretionary au- or revoke a case specific activity’s au-
thority to modify, suspend, or revoke thorization under an NWP, the DE
NWP authorizations for any specific should consider to the extent relevant
geographic area, class of activities, or and appropriate: Changes in cir-
class of waters within his division, in- cumstances relating to the authorized
cluding on a statewide basis, by issuing activity since the NWP itself was
a public notice or notifying the indi- issued or since the DE confirmed au-
viduals involved. The notice will state thorization under the NWP by written
his concerns regarding the environ- verification; the continuing need for,
ment or the other relevant factors of or adequacy of, the specific conditions
the public interest. Before using his of the authorization; any significant
discretionary authority to modify or objections to the authorization not
revoke such NWP authorizations, divi- previously considered; progress inspec-
sion engineers will: tions of individual activities occurring
(i) Give an opportunity for interested under an NWP; cumulative adverse en-
parties to express their views on the vironmental effects resulting from ac-
proposed action (the DE will publish tivities occurring under the NWP; the
and circulate a notice to the known in- extent of the permittee’s compliance
terested public to solicit comments with the terms and conditions of the
and provide the opportunity to request NWPs; revisions to applicable statu-

a public hearing); tory or regulatory authorities; and, the
466
extent to which asserting discretionary mines that sufficient concerns for the
authority would adversely affect plans, environment, including the aquatic en-
investments, and actions the permittee vironment under the section 404(b)(1)
has made or taken in reliance on the Guidelines, or other relevant factors of
permit; and, other concerns for the en- the public interest so require, he will
vironment, including the aquatic envi- revoke authorization under the NWP.
ronment under the section 404(b)(1) The DE will provide the permittee a
Guidelines, and other relevant factors written final decision and instruct him
of the public interest. on the procedures to seek authoriza-
(2) Procedures. (i) When considering tion under a regional general permit or
whether to modify or revoke a specific an individual permit.
authorization under an NWP, whenever (3) The DE need not issue a public no-
practicable, the DE will initially hold
tice when asserting discretionary au-
informal consultations with the per-
thority over a specific activity. The
mittee to determine whether special
modification, suspension, or revocation
conditions to modify the authorization
will become effective by notification to
would be mutually agreeable or to
allow the permittee to furnish informa- the prospective permittee.
tion which satisfies the DE’s concerns.
§ 330.6 Authorization by nationwide
If a mutual agreement is reached, the permit.
DE will give the permittee written
verification of the authorization, in- (a) Nationwide permit verification. (1)
cluding the special conditions. If the Nationwide permittees may, and in
permittee furnishes information which some cases must, request from a DE
satisfies the DE’s concerns, the per- confirmation that an activity complies
mittee may proceed. If appropriate, the with the terms and conditions of an
DE may suspend the NWP authoriza- NWP. DEs should respond as promptly
tion while holding informal consulta- as practicable to such requests.
tions with the permittee. (2) If the DE decides that an activity
(ii) If the DE’s concerns remain after does not comply with the terms or con-
the informal consultation, the DE may ditions of an NWP, he will notify the
suspend a specific authorization under person desiring to do the work and in-
an NWP by notifying the permittee in struct him on the procedures to seek
writing by the most expeditious means authorization under a regional general
available that the authorization has permit or individual permit.
been suspended, stating the reasons for (3) If the DE decides that an activity
the suspension, and ordering the per- does comply with the terms and condi-
mittee to stop any activities being tions of an NWP, he will notify the na-
done in reliance upon the authorization
tionwide permittee.
under the NWP. The permittee will be
(i) The DE may add conditions on a
advised that a decision will be made ei-
ther to reinstate or revoke the author- case-by-case basis to clarify compli-
ization under the NWP; or, if appro- ance with the terms and conditions of
priate, that the authorization under an NWP or to ensure that the activity
the NWP may be modified by mutual will have only minimal individual and
agreement. The permittee will also be cumulative adverse effects on the envi-
advised that within 10 days of receipt ronment, and will not be contrary to
of the notice of suspension, he may re- the public interest.
quest a meeting with the DE, or his (ii) The DE’s response will state that
designated representative, to present the verification is valid for a specific
information in this matter. After com- period of time (generally until the ex-
pletion of the meeting (or within a rea- piration date of the NWP) unless the
sonable period of time after suspending NWP authorization is modified, sus-
the authorization if no meeting is re- pended, or revoked. The response
quested), the DE will take action to re- should also include a statement that
instate, modify, or revoke the author- the verification will remain valid for
ization. the specified period of time, if during
(iii) Following completion of the sus- that time period, the NWP authoriza-
pension procedures, if the DE deter- tion is reissued without modification
467
§ 330.6 33 CFR Ch. II (7–1–20 Edition)
or the activity complies with any sub- authorization in accordance with 33

sequent modification of the NWP au- CFR 330.4(e) and 33 CFR 330.5 (c) or (d).
thorization. Furthermore, the response Activities completed under the author-
should include a statement that the ization of an NWP which was in effect
provisions of § 330.6(b) will apply, if dur- at the time the activity was completed
ing that period of time, the NWP au- continue to be authorized by that
thorization expires, or is suspended or NWP.
revoked, or is modified, such that the (c) Multiple use of nationwide permits.
activity would no longer comply with Two or more different NWPs can be
the terms and conditions of an NWP. combined to authorize a ‘‘single and
Finally, the response should include complete project’’ as defined at 33 CFR
any known expiration date that would 330.2(i). However, the same NWP can-
occur during the specified period of not be used more than once for a single
time. A period of time less than the and complete project.
amount of time remaining until the ex- (d) Combining nationwide permits with
piration date of the NWP may be used individual permits. Subject to the fol-
if deemed appropriate. lowing qualifications, portions of a
(iii) For activities where a state has larger project may proceed under the
denied 401 water quality certification authority of the NWPs while the DE
and/or did not agree with the Corps evaluates an individual permit applica-
consistency determination for an NWP tion for other portions of the same
the DE’s response will state that the project, but only if the portions of the
proposed activity meets the terms and project qualifying for NWP authoriza-
conditions for authorization under the tion would have independent utility
NWP with the exception of a state 401 and are able to function or meet their
water quality certification and/or CZM purpose independent of the total
consistency concurrence. The response project. When the functioning or use-
will also indicate the activity is denied fulness of a portion of the total project
without prejudice and cannot be au- qualifying for an NWP is dependent on
thorized until the requirements of the remainder of the project, such that
§§ 330.4(c)(3), 330.4(c)(6), 330.4(d)(3), and its construction and use would not be
330.4(d)(6) are satisfied. The response fully justified even if the Corps were to
will also indicate that work may only deny the individual permit, the NWP
proceed subject to the terms and condi- does not apply and all portions of the
tions of the state 401 water quality cer- project must be evaluated as part of
tification and/or CZM concurrence. the individual permit process.
(iv) Once the DE has provided such (1) When a portion of a larger project
verification, he must use the proce- is authorized to proceed under an NWP,
dures of 33 CFR 330.5 in order to mod- it is with the understanding that its
ify, suspend, or revoke the authoriza- construction will in no way prejudice
tion. the decision on the individual permit
(b) Expiration of nationwide permits. for the rest of the project. Further-
The Chief of Engineers will periodi- more, the individual permit docu-
cally review NWPs and their conditions mentation must include an analysis of
and will decide to either modify, re- the impacts of the entire project, in-
issue, or revoke the permits. If an NWP cluding related activities authorized by
is not modified or reissued within five NWP.
years of its effective date, it automati- (2) NWPs do not apply, even if a por-
cally expires and becomes null and tion of the project is not dependent on
void. Activities which have commenced the rest of the project, when any por-
(i.e, are under construction) or are tion of the project is subject to an en-
under contract to commence in reli- forcement action by the Corps or EPA.
ance upon an NWP will remain author- (e) After-the-fact authorizations. These
ized provided the activity is completed authorizations often play an important
within twelve months of the date of an part in the resolution of violations. In
NWP’s expiration, modification, or rev- appropriate cases where the activity
ocation, unless discretionary authority complies with the terms and conditions
has been exercised on a case-by-case of an NWP, the DE can elect to use the
basis to modify, suspend, or revoke the NWP for resolution of an after-the-fact
468
permit situation following a consider- denied with prejudice, and declined

ation of whether the violation being re- permits. The appeal process will allow
solved was knowing or intentional and the affected party to pursue an admin-
other indications of the need for a pen- istrative appeal of certain Corps of En-
alty. For example, where an unauthor- gineers decisions with which they dis-
ized fill meets the terms and conditions agree. The basis for an appeal and the
of NWP 13, the DE can consider the ap- specific policies and procedures of the
propriateness of allowing the residual appeal process are described in the fol-
fill to remain, in situations where said lowing sections. It shall be the policy
fill would normally have been per- of the Corps of Engineers to promote
mitted under NWP 13. A knowing, in- and maintain an administrative appeal
tentional, willful violation should be process that is independent, objective,
the subject of an enforcement action fair, prompt, and efficient.
leading to a penalty, rather than an (b) Level of decision maker. Appealable
after-the-fact authorization. Use of actions decided by a division engineer
after-the-fact NWP authorization must or higher authority may be appealed to
be consistent with the terms of the an Army official at least one level
Army/EPA Memorandum of Agreement higher than the decision maker. This
on Enforcement. Copies are available higher Army official shall make the de-
from each district engineer. cision on the merits of the appeal, and
may appoint a qualified individual to
FR 5733, Jan. 28, 2013] act as a review officer (as defined in
§ 331.2). References to the division engi-
neer in this part shall be understood as
PART 331—ADMINISTRATIVE also referring to a higher level Army
APPEAL PROCESS official when such official is con-
ducting an administrative appeal.
Sec.
331.1 Purpose and policy. § 331.2 Definitions.
331.2 Definitions.
331.3 Review officer. The terms and definitions contained
331.4 Notification of appealable actions. in 33 CFR Parts 320 through 330 are ap-
331.5 Criteria. plicable to this part. In addition, the
331.6 Filing an appeal. following terms are defined for the pur-
331.7 Review procedures. poses of this part:
331.8 Timeframes for final appeal decisions. Affected party means a permit appli-
331.9 Final appeal decision. cant, landowner, a lease, easement or
331.10 Final Corps decision.
331.11 Unauthorized activities.
option holder (i.e., an individual who
331.12 Exhaustion of administrative rem- has an identifiable and substantial
edies. legal interest in the property) who has
APPENDIX A TO PART 331—ADMINISTRATIVE received an approved JD, permit de-
APPEAL PROCESS FOR PERMIT DENIALS nial, or has declined a proffered indi-
AND PROFFERED PERMITS vidual permit.
APPENDIX B TO PART 331—APPLICANT OPTIONS Agent(s) means the affected party’s
WITH INITIAL PROFFERED PERMIT business partner, attorney, consultant,
APPENDIX C TO PART 331—ADMINISTRATIVE engineer, planner, or any individual
APPEAL PROCESS FOR APPROVED JURISDIC- with legal authority to represent the
TIONAL DETERMINATIONS
APPENDIX D TO PART 331—PROCESS FOR UNAC-
appellant’s interests.
CEPTABLE REQUEST FOR APPEAL Appealable action means an approved
JD, a permit denial, or a declined per-
AUTHORITY: 33 U.S.C. 401 et seq., 1344, 1413. mit, as these terms are defined in this
SOURCE: 65 FR 16493, Mar. 28, 2000, unless section.
otherwise noted. Appellant means an affected party
who has filed an appeal of an approved
§ 331.1 Purpose and policy. JD, a permit denial or declined permit
(a) General. The purpose of this part under the criteria and procedures of
is to establish policies and procedures this part.
to be used for the administrative ap- Approved jurisdictional determination
peal of approved jurisdictional deter- means a Corps document stating the

minations (JDs), permit applications presence or absence of waters of the
469
§ 331.2 33 CFR Ch. II (7–1–20 Edition)
United States on a parcel or a written Section 404 of the Clean Water Act (33
statement and map identifying the U.S.C. 1344) or a written determination
limits of waters of the United States that a waterbody is subject to regu-
on a parcel. Approved JDs are clearly latory jurisdiction under Section 9 or
designated appealable actions and will 10 of the Rivers and Harbors Act of 1899
include a basis of JD with the docu- (33 U.S.C. 401 et seq.). Additionally, the
ment. term includes a written reverification
Basis of jurisdictional determination is of expired JDs and a written
a summary of the indicators that sup- reverification of JDs where new infor-
port the Corps approved JD. Indicators mation has become available that may
supporting the Corps approved JD can affect the previously written deter-
include, but are not limited to: indica- mination. For example, such geo-
tors of wetland hydrology, hydric soils, graphic JDs may include, but are not
and hydrophytic plant communities; limited to, one or more of the following
indicators of ordinary high water determinations: the presence or ab-
marks, high tide lines, or mean high sence of wetlands; the location(s) of the
water marks; indicators of adjacency wetland boundary, ordinary high water
to navigable or interstate waters; indi- mark, mean high water mark, and/or
cators that the wetland or waterbody high tide line; interstate commerce
is of part of a tributary system; or in- nexus for isolated waters; and adja-
dicators of linkages between isolated cency of wetlands to other waters of
water bodies and interstate or foreign the United States. All JDs will be in
commerce. writing and will be identified as either
Declined permit means a proffered in- preliminary or approved. JDs do not in-
dividual permit, including a letter of clude determinations that a particular
permission, that an applicant has re- activity requires a DA permit.
fused to accept, because he has objec- Notification of Appeal Process (NAP)
tions to the terms and special condi- means a fact sheet that explains the
tions therein. A declined permit can criteria and procedures of the adminis-
also be an individual permit that the trative appeal process. Every approved
applicant originally accepted, but JD, permit denial, and every proffered
where such permit was subsequently individual permit returned for recon-
modified by the district engineer, pur- sideration after review by the district
suant to 33 CFR 325.7, in such a manner engineer in accordance with § 331.6(b)
that the resulting permit contains will have an NAP form attached.
terms and special conditions that lead Notification of Applicant Options
the applicant to decline the modified (NAO) means a fact sheet explaining an
permit, provided that the applicant has applicant’s options with a proffered in-
not started work in waters of the dividual permit under the administra-
United States authorized by such per- tive appeal process.
mit. Where an applicant declines a per- Permit denial means a written denial
mit (either initial or modified), the ap- with prejudice (see 33 CFR 320.4(j)) of
plicant does not have a valid permit to an individual permit application as de-
conduct regulated activities in waters fined in 33 CFR 325.5(b).
of the United States, and must not Preliminary JDs are written indica-
begin construction of the work requir- tions that there may be waters of the
ing a Corps permit unless and until the United States on a parcel or indica-
applicant receives and accepts a valid tions of the approximate location(s) of
Corps permit. waters of the United States on a par-
Denial determination means a letter cel. Preliminary JDs are advisory in
from the district engineer detailing the nature and may not be appealed. Pre-
reasons a permit was denied with prej- liminary JDs include compliance or-
udice. The decision document for the ders that have an implicit JD, but no
project will be attached to the denial approved JD.
determination in all cases. Proffered permit means a permit that
Jurisdictional determination (JD) is sent to an applicant that is in the
means a written Corps determination proper format for the applicant to sign
that a wetland and/or waterbody is sub- (for a standard permit) or accept (for a
ject to regulatory jurisdiction under letter of permission). The term ‘‘initial
470
proffered permit’’ as used in this part any violation associated with that ap-
refers to the first time a permit is sent proved JD or application ‘‘tolled’’ or
to the applicant. The initial proffered temporarily set aside until one year
permit is not an appealable action. after the final Corps decision, as de-
However, the applicant may object to fined at § 331.10. No ATF permit appli-
the terms or conditions of the initial cation or administrative appeal associ-
proffered permit and, if so, a second re- ated with an unauthorized activity will
considered permit will be sent to the be accepted until a tolling agreement
applicant. The term ‘‘proffered permit’’ is furnished to the district engineer.
as used in this part refers to the second
permit that is sent to the applicant. § 331.3 Review officer.
Such proffered permit is an appealable (a) Authority. (1) The division engi-
action. neer has the authority and responsi-
Request for appeal (RFA) means the bility for administering a fair, reason-
affected party’s official request to ini- able, prompt, and effective administra-
tiate the appeal process. The RFA tive appeal process. The division engi-
must include the name of the affected neer may act as the review officer
party, the Corps file number of the ap- (RO), or may delegate, either generi-
proved JD, denied permit, or declined cally or on a case-by-case basis, any
permit, the reason(s) for the appeal, authority or responsibility described in
and any supporting data and informa- this part as that of the RO. With the
tion. No new information may be sub- exception of JDs, as described in this
mitted. A grant of right of entry for paragraph (a)(1), the division engineer
the Corps to the project site is a condi- may not delegate any authority or re-
tion of the RFA to allow the RO to sponsibility described in this part as
clarify elements of the record or to that of the division engineer. For ap-
conduct field tests or sampling for pur- proved JDs only, the division engineer
poses directly related to the appeal. A may delegate any authority or respon-
standard RFA form will be provided to sibility described in this part as that of
the affected party with the NAP form. the division engineer, including the
For appeals of decisions related to un- final appeal decision. In such cases,
authorized activities a signed tolling any delegated authority must be grant-
agreement, as required by 33 CFR ed to an official that is at the same or
326.3(e)(1)(v), must be included with the higher grade level than the grade level
RFA, unless a signed tolling agreement of the official that signed the approved
has previously been furnished to the JD. Regardless of any delegation of au-
Corps district office. The affected party thority or responsibility for ROs or for
initiates the administrative appeal final appeal decisions for approved JDs,
process by providing an acceptable the division engineer retains overall
RFA to the appropriate Corps of Engi- responsibility for the administrative
neers division office. An acceptable appeal process.
RFA contains all the required informa- (2) The RO will assist the division en-
tion and provides reasons for appeal gineer in reaching and documenting
that meets the criteria identified in the division engineer’s decision on the
§ 331.5. merits of an appeal, if the division en-
Review officer (RO) means the Corps gineer has delegated this responsibility
official responsible for assisting the di- as explained in paragraph (a)(1) of this
vision engineer or higher authority re- section. The division engineer has the
sponsible for rendering the final deci- authority to make the final decision on
sion on the merits of an appeal. the merits of the appeal. Neither the
Tolling agreement refers to a docu- RO nor the division engineer has the
ment signed by any person who appeals authority to make a final decision to
an approved JD associated with an un- issue or deny any particular permit nor
authorized activity or applies for an to make an approved JD, pursuant to
after-the-fact (ATF) permit, where the the administrative appeal process es-
application is accepted and evaluated tablished by this part. The authority to
by the Corps. The agreement states issue or deny permits remains with the
that the affected party agrees to have district engineer. However, the division
the statute of limitations regarding engineer may exercise the authority at
471
§ 331.4 33 CFR Ch. II (7–1–20 Edition)
33 CFR 325.8(c) to elevate any permit been previously involved in the action
application, and subsequently make under review.
the final permit decision. In such a
case, any appeal process of the district § 331.4 Notification of appealable ac-
engineer’s initial decision is termi- tions.
nated. If a particular permit applica- Affected parties will be notified in
tion is elevated to the division engi- writing of a Corps decision on those ac-
neer pursuant to 33 CFR 325.8(c), and tivities that are eligible for an appeal.
the division engineer’s decision on the For approved JDs, the notification
permit application is a permit denial must include an NAP fact sheet, an
or results in a declined permit, that RFA form, and a basis of JD. For per-
permit denial or declined permit would mit denials, the notification must in-
be subject to an administrative appeal clude a copy of the decision document
to the Chief of Engineers. for the permit application, an NAP fact
(3) Qualifications. The RO will be a sheet and an RFA form. For proffered
Corps employee with extensive knowl- individual permits, when the initial
edge of the Corps regulatory program. proffered permit is sent to the appli-
Where the permit decision being ap- cant, the notification must include an
NAO fact sheet. For declined permits
pealed was made by the division engi-
(i.e., proffered individual permits that
neer or higher authority, a Corps offi-
the applicant refuses to accept and
cial at least one level higher than the
sends back to the Corps), the notifica-
decision maker shall make the decision
tion must include an NAP fact sheet
on the merits of the RFA, and this
and an RFA form. Additionally, an af-
Corps official shall appoint a qualified
fected party has the right to obtain a
individual as the RO to conduct the ap-
copy of the administrative record.
peal process.
(b) General—(1) Independence. The RO § 331.5 Criteria.
will not perform, or have been involved (a) Criteria for appeal—(1) Submission
with, the preparation, review, or deci- of RFA. The appellant must submit a
sion making of the action being ap- completed RFA (as defined at § 331.2) to
pealed. The RO will be independent and the appropriate division office in order
impartial in reviewing any appeal, and to appeal an approved JD, a permit de-
when assisting the division engineer to nial, or a declined permit. An indi-
make a decision on the merits of the vidual permit that has been signed by
appeal. the applicant, and subsequently unilat-
(2) Review. The RO will conduct an erally modified by the district engineer
independent review of the administra- pursuant to 33 CFR 325.7, may be ap-
tive record to address the reasons for pealed under this process, provided
the appeal cited by the applicant in the that the applicant has not started work
RFA. In addition, to the extent that it in waters of the United States author-
is practicable and feasible, the RO will ized by the permit. The RFA must be
also conduct an independent review of received by the division engineer with-
the administrative record to verify in 60 days of the date of the NAP.
that the record provides an adequate (2) Reasons for appeal. The reason(s)
and reasonable basis supporting the for requesting an appeal of an approved
district engineer’s decision, that facts JD, a permit denial, or a declined per-
or analysis essential to the district en- mit must be specifically stated in the
gineer’s decision have not been omitted RFA and must be more than a simple
from the administrative record, and request for appeal because the affected
that all relevant requirements of law, party did not like the approved JD,
regulations, and officially promulgated permit decision, or the permit condi-
Corps policy guidance have been satis- tions. Examples of reasons for appeals
fied. Should the RO require expert ad- include, but are not limited to, the fol-
vice regarding any subject, he may lowing: A procedural error; an incor-
seek such advice from any employee of rect application of law, regulation or
the Corps or of another Federal or officially promulgated policy; omission
state agency, or from any recognized of material fact; incorrect application

expert, so long as that person had not of the current regulatory criteria and
472
associated guidance for identifying and submitted by the applicant. The new
delineating wetlands; incorrect appli- approved JD is an appealable action;
cation of the Section 404(b)(1) Guide- (8) An approved JD associated with
lines (see 40 CFR part 230); or use of in- an individual permit where the permit
correct data. The reasons for appealing has been accepted and signed by the
a permit denial or a declined permit permittee;
may include jurisdiction issues, wheth- (9) A preliminary JD; or
er or not a previous approved JD was (10) A JD associated with unauthor-
appealed. ized activities except as provided in
(b) Actions not appealable. An action § 331.11.
or decision is not subject to an admin-
§ 331.6 Filing an appeal.
istrative appeal under this part if it
falls into one or more of the following (a) An affected party appealing an ap-
categories: proved JD, permit denial or declined
(1) An individual permit decision (in- permit must submit an RFA that is re-
cluding a letter of permission or a ceived by the division engineer within
standard permit with special condi- 60 days of the date of the NAP. Flow
tions), where the permit has been ac- charts illustrating the appeal process
cepted and signed by the permittee. By are in the Appendices of this part.
signing the permit, the applicant (b) In the case where an applicant ob-
waives all rights to appeal the terms jects to an initial proffered individual
and conditions of the permit, unless permit, the appeal process proceeds as
the authorized work has not started in follows. To initiate the appeal process
waters of the United States and that regarding the terms and special condi-
issued permit is subsequently modified tions of the permit, the applicant must
by the district engineer pursuant to 33 write a letter to the district engineer
CFR 325.7; explaining his objections to the permit.
The district engineer, upon evaluation
(2) Any site-specific matter that has
of the applicant’s objections, may:
been the subject of a final decision of
Modify the permit to address all of the
the Federal courts;
applicant’s objections or modify the
(3) A final Corps decision that has re- permit to address some, but not all, of
sulted from additional analysis and the applicant’s objections, or not mod-
evaluation, as directed by a final ap- ify the permit, having determined that
peal decision; the permit should be issued as pre-
(4) A permit denial without prejudice viously written. In the event that the
or a declined permit, where the con- district engineer agrees to modify the
trolling factor cannot be changed by initial proffered individual permit to
the Corps decision maker (e.g., the re- address all of the applicant’s objec-
quirements of a binding statute, regu- tions, the district engineer will proffer
lation, state Section 401 water quality such modified permit to the applicant,
certification, state coastal zone man- enclosing an NAP fact sheet and an
agement disapproval, etc. (See 33 CFR RFA form as well. Should the district
320.4(j)); engineer modify the initial proffered
(5) A permit denial case where the ap- individual permit to address some, but
plicant has subsequently modified the not all, of the applicant’s objections,
proposed project, because this would the district engineer will proffer such
constitute an amended application that modified permit to the applicant, en-
would require a new public interest re- closing an NAP fact sheet, RFA form,
view, rather than an appeal of the ex- and a copy of the decision document
isting record and decision; for the project. If the district engineer
(6) Any request for the appeal of an does not modify the initial proffered
approved JD, a denied permit, or a de- individual permit, the district engineer
clined permit where the RFA has not will proffer the unmodified permit to
been received by the division engineer the applicant a second time, enclosing
within 60 days of the date of the NAP; an NAP fact sheet, an RFA form, and a
(7) A previously approved JD that has copy of the decision document. If the
been superceded by another approved applicant still has objections, after re-
JD based on new information or data ceiving the second proffered permit
473
§ 331.7 33 CFR Ch. II (7–1–20 Edition)
(modified or unmodified), the applicant begin processing JD appeals no later

may decline such proffered permit; this than May 30, 2000. All appeals must
declined permit may be appealed to the meet the criteria set forth in § 331.5. If
division engineer upon submittal of a work is authorized by either general or
complete RFA form. The completed individual permit, and the affected
RFA must be received by the division party wishes to request an appeal of
engineer within 60 days of the NAP. A the JD associated with the general per-
flow chart of an applicant’s options for mit authorization or individual permit
an initial proffered individual permit is or the special conditions of the prof-
shown in appendix B of this part. A fered individual permit, the appeal
flow chart of the appeal process for a must be received by the Corps and the
permit denial or a declined permit (i.e., appeal process concluded prior to the
a proffered permit declined after the commencement of any work in waters
Corps decision on the applicant’s objec- of the United States and prior to any
tions to the initial proffered permit) is work that could alter the hydrology of
shown in appendix A of this part. A waters of the United States.
flow chart of the appeal process for an
approved jurisdictional determination § 331.7 Review procedures.
is shown in appendix C of this part. A
(a) General. The administrative ap-
flow chart of the process for when an
peal process for approved JDs, permit
unacceptable request for appeal is re-
denials, and declined permits is a one
turned to an applicant is shown in ap-
level appeal, normally to the division
pendix D of this part.
engineer. The appeal process will nor-
(c) An approved JD will be reconsid-
mally be conducted by the RO. The RO
ered by the district engineer if the af-
will document the appeal process, and
fected party submits new information
or data to the district engineer within assist the division engineer in making
60 days of the date of the NAP. (An a decision on the merits of the appeal.
RFA that contains new information The division engineer may participate
will either be returned to the district in the appeal process as the division
engineer for reconsideration or the ap- engineer deems appropriate. The divi-
peal will be processed if the applicant sion engineer will make the decision on
withdraws the new information.) The the merits of the appeal, and provide
district engineer has 60 days from the any instructions, as appropriate, to the
receipt of such new information or data district engineer.
to review the new information or data, (b) Requests for the appeal of approved
consider whether or not that informa- JDs, permit denials, or declined permits.
tion changes the previously approved Upon receipt of an RFA, the RO shall
JD, and, reissue the approved JD or review the RFA to determine whether
issue a new approved JD. The reconsid- the RFA is acceptable (i.e., complete
eration of an approved JD by the dis- and meets the criteria for appeal). If
trict engineer does not commence the the RFA is acceptable, the RO will so
administrative appeal process. The af- notify the appellant in writing within
fected party may appeal the district 30 days of the receipt of the acceptable
engineer’s reissued or new approved RFA. If the RO determines that the
JD. RFA is not complete the RO will so no-
(d) The district engineer may not del- tify the appellant in writing within 30
egate his signature authority to deny days of the receipt of the RFA detail-
the permit with prejudice or to return ing the reason(s) why the RFA is not
an individual permit to the applicant complete. If the RO believes that the
with unresolved objections. The dis- RFA does not meet the criteria for ap-
trict engineer may delegate signature peal (see § 331.5), the RO will make a
authority for JDs, including approved recommendation on the RFA to the di-
JDs. vision engineer. If the division engi-
(e) Affected parties may appeal ap- neer determines that the RFA is not
proved JDs where the determination acceptable, the division engineer will
was dated after March 28, 2000, but may notify the appellant of this determina-
not appeal approved JDs dated on or tion by a certified letter detailing the
before March 28, 2000. The Corps will reason(s) why the appeal failed to meet
474
the criteria for appeal. No further ad- any required site visit within 60 days,
ministrative appeal is available, unless the RO may extend the time period for
the appellant revises the RFA to cor- review. Examples of extenuating cir-
rect the deficiencies noted in the divi- cumstances may include seasonal hy-
sion engineer’s letter or the RO’s let- drologic conditions, winter weather, or
ter. The revised RFA must be received disturbed site conditions. The site visit
by the division engineer within 30 days must be conducted as soon as prac-
of the date of the Corps letter indi- ticable as allowed by the extenuating
cating that the initial RFA is not ac- circumstances, however, in no case
ceptable. If the RO determines that the shall any site visit extend the total ap-
revised RFA is still not complete, the peals process beyond twelve months
RO will again so notify the appellant in from the date of receipt of the RFA. If
writing within 30 days of the receipt of any site visit delay is necessary, the
the RFA detailing the reason(s) why RO will notify the appellant in writing.
the RFA is not complete. If the divi- (d) Approved JD appeal meeting. The
sion engineer determines that the re- RO may schedule an informal meeting
vised RFA is still not acceptable, the moderated by the RO or conference call
division engineer will notify the appel- with the appellant, his authorized
lant of this determination by a cer-
agent, or both, and appropriate Corps
tified letter within 30 days of the date
regulatory personnel to review and dis-
of the receipt of the revised RFA, and
cuss issues directly related to the ap-
will advise the appellant that the mat-
peal for the purpose of clarifying the
ter is not eligible for appeal. No further
administrative record. If a meeting is
RFAs will be accepted after this point.
held, the appellant will bear his own
(c) Site investigations. Within 30 days
costs associated with necessary ar-
of receipt of an acceptable RFA, the
RO should determine if a site inves- rangements, exhibits, travel, and rep-
tigation is needed to clarify the admin- resentatives. The approved JD appeal
istrative record. The RO should nor- meeting should be held at a location of
mally conduct any such site investiga- reasonable convenience to the appel-
tion within 60 days of receipt of an ac- lant and near the site where the ap-
ceptable RFA. The RO may also con- proved JD was conducted.
duct a site investigation at the request (e) Permit denials and declined permits
of the appellant, provided the RO has appeal conference. Conferences held in
determined that such an investigation accordance with this part will be infor-
would be of benefit in interpreting the mal, and will be chaired by the RO. The
administrative record. The appellant purpose of the appeal conference is to
and the appellant’s authorized agent(s) provide a forum that allows the par-
must be provided an opportunity to ticipants to discuss freely all relevant
participate in any site investigation, issues and material facts associated
and will be given 15 days notice of any with the appeal. An appeal conference
site investigation. The RO will attempt will be held for every appeal of a per-
to schedule any site investigation at mit denial or a declined permit, unless
the earliest practicable time accept- the RO and the appellant mutually
able to both the RO and the appellant. agree to forego a conference. The con-
The RO, the appellant, the appellant’s ference will take place within 60 days
agent(s) and the Corps district staff are of receipt of an acceptable RFA, unless
authorized participants at any site in- the RO determines that unforeseen or
vestigation. The RO may also invite unusual circumstances require sched-
any other party the RO has determined uling the conference for a later date.
to be appropriate, such as any tech- The purpose of the conference will be
nical experts consulted by the Corps. to allow the appellant and the Corps
For permit denials and declined permit district representatives to discuss sup-
appeals, any site investigation should porting data and information on issues
be scheduled in conjunction with the previously identified in the administra-
appeal review conference, where prac- tive record, and to allow the RO the op-
ticable. If extenuating circumstances portunity to clarify elements of the ad-
occur at the site that preclude the ap- ministrative record. Presentations by
pellant and/or the RO from conducting the appellant and the Corps district
475
§ 331.7 33 CFR Ch. II (7–1–20 Edition)
representatives may include interpre- agent(s), will be given a reasonable op-

tation, clarification, or explanation of portunity to present the appellant’s
the legal, policy, and factual bases for views regarding the subject permit de-
their positions. The conference will be nial or declined permit.
governed by the following guidelines: (6) Subject matter. The purpose of the
(1) Notification. The RO will set a appeal conference will be to discuss the
date, time, and location for the con- reasons for appeal contained in the
ference. The RO will notify the appel- RFA. Any material in the administra-
lant and the Corps district office in tive record may be discussed during the
writing within 30 days of receipt of the conference, but the discussion should
RFA, and not less than 15 days before be focused on relevant issues needed to
the date of the conference. address the reasons for appeal con-
(2) Facilities. The conference will be tained in the RFA. The RO may ques-
held at a location that has suitable fa- tion the appellant or the Corps rep-
cilities and that is reasonably conven- resentatives with respect to interpreta-
ient to the appellant, preferably in the tion of particular issues in the record,
proximity of the project site. Public fa- or otherwise to clarify elements of the
cilities available at no expense are pre- administrative record. Issues not iden-
ferred. If a free facility is not avail- tified in the administrative record by
able, the Corps will pay the cost for the the date of the NAP for the application
facility. may not be raised or discussed, because
(3) Participants. The RO, the appel- substantive new information or project
lant, the appellant’s agent(s) and the modifications would be treated as a
Corps district staff are authorized par- new permit application (see
ticipants in the conference. The RO § 331.5(b)(5)).
may also invite any other party the RO (7) Documentation of the appeal con-
has determined to be appropriate, such ference. The appeal conference is an in-
as any technical experts consulted by formal proceeding, intended to provide
the Corps, adjacent property owners or clarifications and explanations of the
Federal or state agency personnel to administrative record for the RO and
clarify elements of the administrative the division engineer; it is not intended
record. The division engineer and/or to supplement the administrative
the district engineer may attend the record. Consequently, the proceedings
conference at their discretion. If the of the conference will not be recorded
appellant or his authorized agent(s) fail verbatim by the Corps or any other
to attend the appeal conference, the party attending the conference, and no
appeal process is terminated, unless verbatim transcripts of the conference
the RO excuses the appellant for a jus- will be made. However, after the con-
tifiable reason. Furthermore, should ference, the RO will write a memo-
the process be terminated in such a randum for the record (MFR) summa-
manner, the district engineer’s original rizing the presentations made at the
decision on the appealed action will be conference, and will provide a copy of
sustained. that MFR to the division engineer, the
(4) The role of the RO. The RO shall be appellant, and the district engineer.
in charge of conducting the conference. (8) Appellant costs. The appellant will
The RO shall open the conference with be responsible for his own expenses for
a summary of the policies and proce- attending the appeal conference.
dures for conducting the conference. (f) Basis of decision and communication
The RO will conduct a fair and impar- with the RO. The appeal of an approved
tial conference, hear and fully consider JD, a permit denial, or a declined per-
all relevant issues and facts, and seek mit is limited to the information con-
clarification of any issues of the ad- tained in the administrative record by
ministrative record, as needed, to allow the date of the NAP for the application
the division engineer to make a final or approved JD, the proceedings of the
determination on the merits of the ap- appeal conference, and any relevant in-
peal. The RO will also be responsible formation gathered by the RO as de-
for documenting the appeal conference. scribed in § 331.5. Neither the appellant
(5) Appellant rights. The appellant, nor the Corps may present new infor-
and/or the appellant’s authorized mation not already contained in the
476
administrative record, but both parties division engineer will normally make a
may interpret, clarify or explain issues final decision on the merits of the ap-
and information contained in the peal within 90 days of the receipt of an
record. acceptable RFA unless any site visit is
(g) Applicability of appeal decisions. delayed pursuant to § 331.7(c). In such
Because a decision to determine geo- case, the RO will complete the appeal
graphic jurisdiction, deny a permit, or review and the division engineer will
condition a permit depends on the make a final appeal decision within 30
facts, circumstances, and physical con- days of the site visit. In no case will a
ditions particular to the specific site visit delay extend the total appeal
project and/or site being evaluated, ap- process beyond twelve months from the
peal decisions would be of little or no date of receipt of an acceptable RFA.
precedential utility. Therefore, an ap-
peal decision of the division engineer is § 331.9 Final appeal decision.
applicable only to the instant appeal, (a) In accordance with the authori-
and has no other precedential effect.
ties contained in § 331.3(a), the division
Such a decision may not be cited in
engineer will make a decision on the
any other administrative appeal, and
merits of the appeal. While reviewing
may not be used as precedent for the
an appeal and reaching a decision on
evaluation of any other jurisdictional
the merits of an appeal, the division
determination or permit application.
engineer can consult with or seek in-
While administrative appeal decisions
formation from any person, including
lack precedential value and may not be
the district engineer.
cited by an appellant or a district engi-
neer in any other appeal proceeding, (b) The division engineer will dis-
the Corps goal is to have the Corps reg- approve the entirety of or any part of
ulatory program operate as consist- the district engineer’s decision only if
ently as possible, particularly with re- he determines that the decision on
spect to interpretations of law, regula- some relevant matter was arbitrary,
tion, an Executive Order, and offi- capricious, an abuse of discretion, not
cially-promulgated policy. Therefore, a supported by substantial evidence in
copy of each appeal decision will be the administrative record, or plainly
forwarded to Corps Headquarters; those contrary to a requirement of law, regu-
decisions will be periodically reviewed lation, an Executive Order, or officially
at the headquarters level for consist- promulgated Corps policy guidance.
ency with law, Executive Orders, and The division engineer will not attempt
policy. Additional official guidance to substitute his judgment for that of
will be issued as necessary to maintain the district engineer regarding a mat-
or improve the consistency of the ter of fact, so long as the district engi-
Corps’ appellate and permit decisions. neer’s determination was supported by
substantial evidence in the administra-
§ 331.8 Timeframes for final appeal de- tive record, or regarding any other
cisions. matter if the district engineer’s deter-
The Division Engineer will make a mination was reasonable and within
final decision on the merits of the ap- the zone of discretion delegated to the
peal at the earliest practicable time, in district engineer by Corps regulations.
accordance with the following time The division engineer may instruct the
limits. The administrative appeal proc- district engineer on how to correct any
ess is initiated by the receipt of an procedural error that was prejudicial
RFA by the division engineer. The to the appellant (i.e., that was not a
Corps will review the RFA to deter- ‘‘harmless’’ procedural error), or to re-
mine whether the RFA is acceptable. consider the decision where any essen-
The Corps will notify the appellant ac- tial part of the district engineer’s deci-
cordingly within 30 days of the receipt sion was not supported by accurate or
of the RFA in accordance with sufficient information, or analysis, in
§ 331.7(b). If the Corps determines that the administrative record. The division
the RFA is acceptable, the RO will im- engineer will document his decision on
mediately request the administrative the merits of the appeal in writing, and
record from the district engineer. The provide a copy of this decision to the
477
§ 331.10 33 CFR Ch. II (7–1–20 Edition)
applicant (using certified mail) and the suant to the division engineer’s remand
district engineer. of the appealed action becomes the
(c) The final decision of the division final Corps permit decision. Nothing in
engineer on the merits of the appeal this part precludes the agencies’ au-
will conclude the administrative ap- thorities pursuant to Section 404(q) of
peal process, and this decision will be the Clean Water Act.
filed in the administrative record for
the project. § 331.11 Unauthorized activities.
Approved JDs, permit denials, and
§ 331.10 Final Corps decision. declined permits associated with after-
The final Corps decision on a permit the-fact permit applications are ap-
application is the initial decision to pealable actions for the purposes of
issue or deny a permit, unless the ap- this part. If the Corps accepts an after-
plicant submits an RFA, and the divi- the-fact permit application, an admin-
sion engineer accepts the RFA, pursu- istrative appeal of an approved JD, per-
ant to this Part. The final Corps deci- mit denial, or declined permit may be
sion on an appealed action is as fol- filed and processed in accordance with
lows: these regulations subject to the provi-
(a) If the division engineer deter- sions of paragraphs (a), (b), and (c) of
mines that the appeal is without merit, this section. An appeal of an approved
the final Corps decision is the district JD associated with unauthorized ac-
engineer’s letter advising the applicant tivities will normally not be accepted
that the division engineer has decided unless the Corps accepts an after-the-
that the appeal is without merit, con- fact permit application. However, in
firming the district engineer’s initial rare cases, the district engineer may
decision, and sending the permit denial accept an appeal of such an approved
or the proffered permit for signature to JD, if the district engineer determines
the appellant; or that the interests of justice, fairness,
(b) If the division engineer deter- and administrative efficiency would be
mines that the appeal has merit, the served thereby. Furthermore, no such
final Corps decision is the district engi- appeal will be accepted if the unau-
neer’s decision made pursuant to the thorized activity is the subject of a re-
division engineer’s remand of the ap- ferral to the Department of Justice or
pealed action. The division engineer the EPA, or for which the EPA has the
will remand the decision to the district lead enforcement authority or has re-
engineer with specific instructions to quested lead enforcement authority.
review the administrative record, and (a) Initial corrective measures. If the
to further analyze or evaluate specific district engineer determines that ini-
issues. If the district engineer deter- tial corrective measures are necessary
mines that the effects of the district pursuant to 33 CFR 326.3(d), an RFA for
engineer’s reconsideration of the ad- an appealable action will not be ac-
ministrative record would be narrow in cepted by the Corps, until the initial
scope and impact, the district engineer corrective measures have been com-
must provide notification only to those pleted to the satisfaction of the dis-
parties who commented or participated trict engineer.
in the original review, and would allow (b) Penalties. If an affected party re-
15 days for the submission of supple- quests, under this Section, an adminis-
mental comments. For permit deci- trative appeal of an appealable action
sions, where the district engineer de- prior to the resolution of the unauthor-
termines that the effect of the district ized activity, and the division engineer
engineer’s reconsideration of the ad- determines that the appeal has no
ministrative record would be substan- merit, the responsible party remains
tial in scope and impact, the district subject to any civil, criminal, and ad-
engineer’s review process will include ministrative penalties as provided by
issuance of a new public notice, and/or law.
preparation of a supplemental environ- (c) Tolling of statute of limitations. Any
mental analysis and decision document person who appeals an approved JD as-
(see 33 CFR 325.7). Subsequently, the sociated with an unauthorized activity

district engineer’s decision made pur- or applies for an after-the-fact permit,
478
where the application is accepted and thorized activity or after-the-fact per-

processed by the Corps, thereby agrees mit application will be accepted until
that the statute of limitations regard- such signed tolling agreement is fur-
ing any violation associated with that nished to the district engineer.
approved JD or application is tolled
until one year after the final Corps de- § 331.12 Exhaustion of administrative
cision, as defined at § 331.10. Moreover, remedies.
the recipient of an approved JD associ- No affected party may file a legal ac-
ated with an unauthorized activity or tion in the Federal courts based on a
applicant for an after-the-fact permit permit denial or a proffered permit
must also memorialize that agreement until after a final Corps decision has
to toll the statute of limitations, by been made and the appellant has ex-
signing an agreement to that effect, in hausted all applicable administrative
exchange for the Corps acceptance of remedies under this part. The appellant
the after-the-fact permit application, is considered to have exhausted all ad-
and/or any administrative appeal (See ministrative remedies when a final
33 CFR 326.3(e)(1)(v)). No administra- Corps permit decision is made in ac-
tive appeal associated with an unau- cordance with § 331.10.
479
APPENDIX A TO PART 331—ADMINISTRATIVE APPEAL PROCESS FOR PERMIT DENIALS

AND PROFFERED PERMITS
480
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APPENDIX B TO PART 331—APPLICANT OPTIONS WITH INITIAL PROFFERED PERMIT

481
ER28MR00.001</GPH>
APPENDIX C TO PART 331—ADMINISTRATIVE APPEAL PROCESS FOR APPROVED

JURISDICTIONAL DETERMINATIONS
482
ER28MR00.002</GPH>
Corps of Engineers, Dept. of the Army, DoD Pt. 331, App. D
APPENDIX D TO PART 331—PROCESS FOR UNACCEPTABLE REQUEST FOR APPEAL

483
ER28MR00.003</GPH>
PART 332—COMPENSATORY MITI- pared jointly by U.S. EPA and the

GATION FOR LOSSES OF AQUAT- Corps at the national or regional level.
IC RESOURCES No modifications to the basic applica-
tion, meaning, or intent of this part
Sec.
will be made without further joint
332.1 Purpose and general considerations. rulemaking by the Secretary of the
332.2 Definitions. Army, acting through the Chief of En-
332.3 General compensatory mitigation re- gineers and the Administrator of the
quirements. Environmental Protection Agency,
332.4 Planning and documentation. pursuant to the Administrative Proce-
332.5 Ecological performance standards. dure Act (5 U.S.C. 551 et seq.).
332.6 Monitoring.
332.7 Management. (b) Applicability. This part does not
332.8 Mitigation banks and in-lieu fee pro- alter the regulations at § 320.4(r) of this
grams. title, which address the general mitiga-
AUTHORITY: 33 U.S.C. 401 et seq.; 33 U.S.C.
tion requirements for DA permits. In
1344; and Pub. L. 108–136. particular, it does not alter the cir-
cumstances under which compensatory
SOURCE: 73 FR 19670, Apr. 10, 2008, unless
mitigation is required or the defini-
otherwise noted.
tions of ‘‘waters of the United States’’
§ 332.1 Purpose and general consider- or ‘‘navigable waters of the United
ations. States,’’ which are provided at parts
(a) Purpose. (1) The purpose of this 328 and 329 of this chapter, respec-
part is to establish standards and cri- tively. Use of resources as compen-
teria for the use of all types of compensatory mitigation that are not other-
satory mitigation, including on-site wise subject to regulation under sec-
and off-site permittee-responsible miti- tion 404 of the Clean Water Act and/or
gation, mitigation banks, and in-lieu sections 9 or 10 of the Rivers and Har-
fee mitigation to offset unavoidable bors Act of 1899 does not in and of itself
impacts to waters of the United States make them subject to such regulation.
authorized through the issuance of De- (c) Sequencing. (1) Nothing in this sec-
partment of the Army (DA) permits tion affects the requirement that all
pursuant to section 404 of the Clean DA permits subject to section 404 of
Water Act (33 U.S.C. 1344) and/or sec- the Clean Water Act comply with ap-
tions 9 or 10 of the Rivers and Harbors plicable provisions of the Section
Act of 1899 (33 U.S.C. 401, 403). This part 404(b)(1) Guidelines at 40 CFR part 230.
implements section 314(b) of the 2004 (2) Pursuant to these requirements,
National Defense Authorization Act the district engineer will issue an indi-
(Pub. L. 108–136), which directs that the vidual section 404 permit only upon a
standards and criteria shall, to the determination that the proposed dis-
maximum extent practicable, maxi- charge complies with applicable provi-
mize available credits and opportuni- sions of 40 CFR part 230, including
ties for mitigation, provide for regional those which require the permit appli-
variations in wetland conditions, func- cant to take all appropriate and prac-
tions, and values, and apply equivalent ticable steps to avoid and minimize ad-
standards and criteria to each type of verse impacts to waters of the United
compensatory mitigation. This part is States. Practicable means available
intended to further clarify mitigation and capable of being done after taking
requirements established under U.S. into consideration cost, existing tech-
Army Corps of Engineers (Corps) and nology, and logistics in light of overall
U.S. Environmental Protection Agency project purposes. Compensatory miti-
(U.S. EPA) regulations at 33 CFR part gation for unavoidable impacts may be
320 and 40 CFR part 230, respectively. required to ensure that an activity re-
(2) This part has been jointly devel- quiring a section 404 permit complies
oped by the Secretary of the Army, with the Section 404(b)(1) Guidelines.
acting through the Chief of Engineers, (3) Compensatory mitigation for un-
and the Administrator of the Environ- avoidable impacts may be required to
mental Protection Agency. From time ensure that an activity requiring a sec-
to time guidance on interpreting and tion 404 permit complies with the Sec-
implementing this part may be pre- tion 404(b)(1) Guidelines. During the
484
404(b)(1) Guidelines compliance anal- § 332.2 Definitions.

ysis, the district engineer may deter- For the purposes of this part, the fol-
mine that a DA permit for the proposed lowing terms are defined:
activity cannot be issued because of Adaptive management means the de-
the lack of appropriate and practicable velopment of a management strategy
compensatory mitigation options. that anticipates likely challenges asso-
(d) Public interest. Compensatory ciated with compensatory mitigation
mitigation may also be required to en- projects and provides for the imple-
sure that an activity requiring author- mentation of actions to address those
ization under section 404 of the Clean challenges, as well as unforeseen
Water Act and/or sections 9 or 10 of the changes to those projects. It requires
Rivers and Harbors Act of 1899 is not consideration of the risk, uncertainty,
contrary to the public interest. and dynamic nature of compensatory
(e) Accounting for regional variations. mitigation projects and guides modi-
Where appropriate, district engineers fication of those projects to optimize
shall account for regional characteris- performance. It includes the selection
tics of aquatic resource types, func- of appropriate measures that will en-
tions and services when determining sure that the aquatic resource func-
tions are provided and involves anal-
performance standards and monitoring
ysis of monitoring results to identify
requirements for compensatory mitiga-
potential problems of a compensatory
tion projects. mitigation project and the identifica-
(f) Relationship to other guidance docu- tion and implementation of measures
ments. (1) This part applies instead of to rectify those problems.
the ‘‘Federal Guidance for the Estab- Advance credits means any credits of
lishment, Use, and Operation of Mitiga- an approved in-lieu fee program that
tion Banks,’’ which was issued on No- are available for sale prior to being ful-
vember 28, 1995, the ‘‘Federal Guidance filled in accordance with an approved
on the Use of In-Lieu Fee Arrange- mitigation project plan. Advance cred-
ments for Compensatory Mitigation it sales require an approved in-lieu fee
Under Section 404 of the Clean Water program instrument that meets all ap-
Act and Section 10 of the Rivers and plicable requirements including a spe-
Harbors Act,’’ which was issued on No- cific allocation of advance credits, by
vember 7, 2000, and Regulatory Guid- service area where applicable. The in-
ance Letter 02–02, ‘‘Guidance on Com- strument must also contain a schedule
pensatory Mitigation Projects for for fulfillment of advance credit sales.
Aquatic Resource Impacts Under the Buffer means an upland, wetland,
Corps Regulatory Program Pursuant to and/or riparian area that protects and/
Section 404 of the Clean Water Act and or enhances aquatic resource functions
Section 10 of the Rivers and Harbors associated with wetlands, rivers,
Act of 1899’’ which was issued on De- streams, lakes, marine, and estuarine
systems from disturbances associated
cember 24, 2002. These guidance docu-
with adjacent land uses.
ments are no longer to be used as com-
Compensatory mitigation means the
pensatory mitigation policy in the
restoration (re-establishment or reha-
Corps Regulatory Program. bilitation), establishment (creation),
(2) In addition, this part also applies enhancement, and/or in certain cir-
instead of the provisions relating to cumstances preservation of aquatic re-
the amount, type, and location of com- sources for the purposes of offsetting
pensatory mitigation projects, includ- unavoidable adverse impacts which re-
ing the use of preservation, in the Feb- main after all appropriate and prac-
ruary 6, 1990, Memorandum of Agree- ticable avoidance and minimization
ment (MOA) between the Department has been achieved.
of the Army and the Environmental Compensatory mitigation project means
Protection Agency on the Determina- compensatory mitigation implemented
tion of Mitigation Under the Clean by the permittee as a requirement of a
Water Act Section 404(b)(1) Guidelines. DA permit (i.e., permittee-responsible
All other provisions of this MOA re- mitigation), or by a mitigation bank or

main in effect. an in-lieu fee program.
485
§ 332.2 33 CFR Ch. II (7–1–20 Edition)
Condition means the relative ability filled, an equal number of new advance
of an aquatic resource to support and credits is restored to the program spon-
maintain a community of organisms sor for sale or transfer to permit appli-
having a species composition, diver- cants.
sity, and functional organization com- Functional capacity means the degree
parable to reference aquatic resources to which an area of aquatic resource
in the region. performs a specific function.
Credit means a unit of measure (e.g., Functions means the physical, chem-
a functional or areal measure or other ical, and biological processes that
suitable metric) representing the ac- occur in ecosystems.
crual or attainment of aquatic func- Impact means adverse effect.
tions at a compensatory mitigation In-kind means a resource of a similar
site. The measure of aquatic functions structural and functional type to the
is based on the resources restored, es- impacted resource.
tablished, enhanced, or preserved. In-lieu fee program means a program
DA means Department of the Army. involving the restoration, establish-
Days means calendar days. ment, enhancement, and/or preserva-
Debit means a unit of measure (e.g., a tion of aquatic resources through funds
functional or areal measure or other paid to a governmental or non-profit
suitable metric) representing the loss natural resources management entity
of aquatic functions at an impact or to satisfy compensatory mitigation re-
project site. The measure of aquatic quirements for DA permits. Similar to
functions is based on the resources im- a mitigation bank, an in-lieu fee pro-
pacted by the authorized activity. gram sells compensatory mitigation
Enhancement means the manipulation credits to permittees whose obligation
of the physical, chemical, or biological to provide compensatory mitigation is
characteristics of an aquatic resource then transferred to the in-lieu program
to heighten, intensify, or improve a sponsor. However, the rules governing
specific aquatic resource function(s). the operation and use of in-lieu fee pro-
Enhancement results in the gain of se- grams are somewhat different from the
lected aquatic resource function(s), but rules governing operation and use of
may also lead to a decline in other mitigation banks. The operation and
aquatic resource function(s). Enhance- use of an in-lieu fee program are gov-
ment does not result in a gain in erned by an in-lieu fee program instru-
aquatic resource area. ment.
Establishment (creation) means the In-lieu fee program instrument means
manipulation of the physical, chem- the legal document for the establish-
ical, or biological characteristics ment, operation, and use of an in-lieu
present to develop an aquatic resource fee program.
that did not previously exist at an up- Instrument means mitigation banking
land site. Establishment results in a instrument or in-lieu fee program in-
gain in aquatic resource area and func- strument.
tions. Interagency Review Team (IRT) means
Fulfillment of advance credit sales of an an interagency group of federal, tribal,
in-lieu fee program means application of state, and/or local regulatory and re-
credits released in accordance with a source agency representatives that re-
credit release schedule in an approved views documentation for, and advises
mitigation project plan to satisfy the the district engineer on, the establish-
mitigation requirements represented ment and management of a mitigation
by the advance credits. Only after any bank or an in-lieu fee program.
advance credit sales within a service Mitigation bank means a site, or suite
area have been fulfilled through the ap- of sites, where resources (e.g., wet-
plication of released credits from an in- lands, streams, riparian areas) are re-
lieu fee project (in accordance with the stored, established, enhanced, and/or
credit release schedule for an approved preserved for the purpose of providing
mitigation project plan), may addi- compensatory mitigation for impacts
tional released credits from that authorized by DA permits. In general, a
project be sold or transferred to per- mitigation bank sells compensatory

mittees. When advance credits are ful- mitigation credits to permittees whose
486
obligation to provide compensatory regional class of aquatic resources as a

mitigation is then transferred to the result of natural processes and anthro-
mitigation bank sponsor. The oper- pogenic disturbances.
ation and use of a mitigation bank are Rehabilitation means the manipula-
governed by a mitigation banking in- tion of the physical, chemical, or bio-
strument. logical characteristics of a site with
Mitigation banking instrument means the goal of repairing natural/historic
the legal document for the establish- functions to a degraded aquatic re-
ment, operation, and use of a mitiga- source. Rehabilitation results in a gain
tion bank. in aquatic resource function, but does
Off-site means an area that is neither not result in a gain in aquatic resource
located on the same parcel of land as area.
the impact site, nor on a parcel of land Release of credits means a determina-
contiguous to the parcel containing the tion by the district engineer, in con-
impact site. sultation with the IRT, that credits as-
On-site means an area located on the sociated with an approved mitigation
same parcel of land as the impact site, plan are available for sale or transfer,
or on a parcel of land contiguous to the or in the case of an in-lieu fee program,
impact site. for fulfillment of advance credit sales.
Out-of-kind means a resource of a dif- A proportion of projected credits for a
ferent structural and functional type specific mitigation bank or in-lieu fee
from the impacted resource. project may be released upon approval
Performance standards are observable of the mitigation plan, with additional
or measurable physical (including credits released as milestones specified
hydrological), chemical and/or biologi- in the credit release schedule are
cal attributes that are used to deter- achieved.
mine if a compensatory mitigation
Restoration means the manipulation
project meets its objectives.
of the physical, chemical, or biological
Permittee-responsible mitigation means
characteristics of a site with the goal
an aquatic resource restoration, estab-
of returning natural/historic functions
lishment, enhancement, and/or preser-
to a former or degraded aquatic re-
vation activity undertaken by the per-
source. For the purpose of tracking net
mittee (or an authorized agent or con-
gains in aquatic resource area, restora-
tractor) to provide compensatory miti-
tion is divided into two categories: re-
gation for which the permittee retains
establishment and rehabilitation.
full responsibility.
Preservation means the removal of a Riparian areas are lands adjacent to
threat to, or preventing the decline of, streams, rivers, lakes, and estuarine-
aquatic resources by an action in or marine shorelines. Riparian areas pro-
near those aquatic resources. This vide a variety of ecological functions
term includes activities commonly as- and services and help improve or main-
sociated with the protection and maintain local water quality.
tenance of aquatic resources through Service area means the geographic
the implementation of appropriate area within which impacts can be miti-
legal and physical mechanisms. Preser- gated at a specific mitigation bank or
vation does not result in a gain of an in-lieu fee program, as designated in
aquatic resource area or functions. its instrument.
Re-establishment means the manipula- Services mean the benefits that
tion of the physical, chemical, or bio- human populations receive from func-
logical characteristics of a site with tions that occur in ecosystems.
the goal of returning natural/historic Sponsor means any public or private
functions to a former aquatic resource. entity responsible for establishing, and
Re-establishment results in rebuilding in most circumstances, operating a
a former aquatic resource and results mitigation bank or in-lieu fee program.
in a gain in aquatic resource area and Standard permit means a standard, in-
functions. dividual permit issued under the au-
Reference aquatic resources are a set of thority of section 404 of the Clean
aquatic resources that represent the Water Act and/or sections 9 or 10 of the
full range of variability exhibited by a Rivers and Harbors Act of 1899.
487
§ 332.3 33 CFR Ch. II (7–1–20 Edition)
Temporal loss is the time lag between § 332.3 General compensatory mitiga-
the loss of aquatic resource functions tion requirements.
caused by the permitted impacts and (a) General considerations. (1) The fun-
the replacement of aquatic resource
damental objective of compensatory
functions at the compensatory mitiga-
mitigation is to offset environmental
tion site. Higher compensation ratios
losses resulting from unavoidable im-
may be required to compensate for
pacts to waters of the United States
temporal loss. When the compensatory
authorized by DA permits. The district
mitigation project is initiated prior to,
engineer must determine the compen-
or concurrent with, the permitted im-
satory mitigation to be required in a
pacts, the district engineer may deter-
DA permit, based on what is prac-
mine that compensation for temporal
ticable and capable of compensating
loss is not necessary, unless the re-
for the aquatic resource functions that
source has a long development time.
Watershed means a land area that will be lost as a result of the permitted
drains to a common waterway, such as activity. When evaluating compen-
a stream, lake, estuary, wetland, or ul- satory mitigation options, the district
timately the ocean. engineer will consider what would be
Watershed approach means an analyt- environmentally preferable. In making
ical process for making compensatory this determination, the district engi-
mitigation decisions that support the neer must assess the likelihood for eco-
sustainability or improvement of logical success and sustainability, the
aquatic resources in a watershed. It in- location of the compensation site rel-
volves consideration of watershed ative to the impact site and their sig-
needs, and how locations and types of nificance within the watershed, and the
compensatory mitigation projects ad- costs of the compensatory mitigation
dress those needs. A landscape perspec- project. In many cases, the environ-
tive is used to identify the types and mentally preferable compensatory
locations of compensatory mitigation mitigation may be provided through
projects that will benefit the watershed mitigation banks or in-lieu fee pro-
and offset losses of aquatic resource grams because they usually involve
functions and services caused by activi- consolidating compensatory mitigation
ties authorized by DA permits. The wa- projects where ecologically appro-
tershed approach may involve consider- priate, consolidating resources, pro-
ation of landscape scale, historic and viding financial planning and scientific
potential aquatic resource conditions, expertise (which often is not practical
past and projected aquatic resource im- for permittee-responsible compen-
pacts in the watershed, and terrestrial satory mitigation projects), reducing
connections between aquatic resources temporal losses of functions, and re-
when determining compensatory miti- ducing uncertainty over project suc-
gation requirements for DA permits. cess. Compensatory mitigation require-
Watershed plan means a plan devel- ments must be commensurate with the
oped by federal, tribal, state, and/or amount and type of impact that is as-
local government agencies or appro- sociated with a particular DA permit.
priate non-governmental organiza- Permit applicants are responsible for
tions, in consultation with relevant proposing an appropriate compensatory
stakeholders, for the specific goal of mitigation option to offset unavoidable
aquatic resource restoration, establish- impacts.
ment, enhancement, and preservation. (2) Compensatory mitigation may be
A watershed plan addresses aquatic re- performed using the methods of res-
source conditions in the watershed, toration, enhancement, establishment,
multiple stakeholder interests, and and in certain circumstances preserva-
land uses. Watershed plans may also tion. Restoration should generally be
identify priority sites for aquatic re- the first option considered because the
source restoration and protection. Ex- likelihood of success is greater and the
amples of watershed plans include spe- impacts to potentially ecologically im-
cial area management plans, advance portant uplands are reduced compared
identification programs, and wetland to establishment, and the potential

management plans. gains in terms of aquatic resource
488
functions are greater, compared to en- number and resource type of credits
hancement and preservation. available, the permittee’s compen-
(3) Compensatory mitigation projects satory mitigation requirements may be
may be sited on public or private lands. met by securing those credits from the
Credits for compensatory mitigation sponsor. Since an approved instrument
projects on public land must be based (including an approved mitigation plan
solely on aquatic resource functions and appropriate real estate and finan-
provided by the compensatory mitiga- cial assurances) for a mitigation bank
tion project, over and above those pro- is required to be in place before its
vided by public programs already credits can begin to be used to com-
planned or in place. All compensatory pensate for authorized impacts, use of
mitigation projects must comply with a mitigation bank can help reduce risk
the standards in this part, if they are and uncertainty, as well as temporal
to be used to provide compensatory loss of resource functions and services.
mitigation for activities authorized by Mitigation bank credits are not re-
DA permits, regardless of whether they leased for debiting until specific mile-
are sited on public or private lands and stones associated with the mitigation
whether the sponsor is a governmental bank site’s protection and development
or private entity. are achieved, thus use of mitigation
(b) Type and location of compensatory bank credits can also help reduce risk
mitigation. (1) When considering options that mitigation will not be fully suc-
for successfully providing the required cessful. Mitigation banks typically in-
compensatory mitigation, the district volve larger, more ecologically valu-
engineer shall consider the type and lo- able parcels, and more rigorous sci-
cation options in the order presented in entific and technical analysis, planning
paragraphs (b)(2) through (b)(6) of this and implementation than permittee-re-
section. In general, the required com- sponsible mitigation. Also, develop-
pensatory mitigation should be located ment of a mitigation bank requires site
within the same watershed as the im- identification in advance, project-spe-
pact site, and should be located where cific planning, and significant invest-
it is most likely to successfully replace ment of financial resources that is
lost functions and services, taking into often not practicable for many in-lieu
account such watershed scale features fee programs. For these reasons, the
as aquatic habitat diversity, habitat district engineer should give preference
connectivity, relationships to hydro- to the use of mitigation bank credits
logic sources (including the avail- when these considerations are applica-
ability of water rights), trends in land ble. However, these same consider-
use, ecological benefits, and compat- ations may also be used to override
ibility with adjacent land uses. When this preference, where appropriate, as,
compensating for impacts to marine for example, where an in-lieu fee pro-
resources, the location of the compen- gram has released credits available
satory mitigation site should be chosen from a specific approved in-lieu fee
to replace lost functions and services project, or a permittee-responsible
within the same marine ecological sys- project will restore an outstanding re-
tem (e.g., reef complex, littoral drift source based on rigorous scientific and
cell). Compensation for impacts to technical analysis.
aquatic resources in coastal watersheds (3) In-lieu fee program credits. Where
(watersheds that include a tidal water permitted impacts are located within
body) should also be located in a coast- the service area of an approved in-lieu
al watershed where practicable. Com- fee program, and the sponsor has the
pensatory mitigation projects should appropriate number and resource type
not be located where they will increase of credits available, the permittee’s
risks to aviation by attracting wildlife compensatory mitigation requirements
to areas where aircraft-wildlife strikes may be met by securing those credits
may occur (e.g., near airports). from the sponsor. Where permitted im-
(2) Mitigation bank credits. When per- pacts are not located in the service
mitted impacts are located within the area of an approved mitigation bank,
service area of an approved mitigation or the approved mitigation bank does

bank, and the bank has the appropriate not have the appropriate number and
489
§ 332.3 33 CFR Ch. II (7–1–20 Edition)
resource type of credits available to (6) Permittee-responsible mitigation

offset those impacts, in-lieu fee mitiga- through off-site and/or out-of-kind mitiga-
tion, if available, is generally pref- tion. If, after considering opportunities
erable to permittee-responsible mitiga- for on-site, in-kind compensatory miti-
tion. In-lieu fee projects typically in- gation as provided in paragraph (b)(5)
volve larger, more ecologically valu- of this section, the district engineer de-
able parcels, and more rigorous sci- termines that these compensatory
entific and technical analysis, planning mitigation opportunities are not prac-
and implementation than permittee-re- ticable, are unlikely to compensate for
sponsible mitigation. They also devote the permitted impacts, or will be in-
significant resources to identifying and compatible with the proposed project,
addressing high-priority resource needs and an alternative, practicable off-site
on a watershed scale, as reflected in and/or out-of-kind mitigation oppor-
their compensation planning frame- tunity is identified that has a greater
work. For these reasons, the district likelihood of offsetting the permitted
engineer should give preference to in- impacts or is environmentally pref-
lieu fee program credits over per- erable to on-site or in-kind mitigation,
mittee-responsible mitigation, where the district engineer should require
these considerations are applicable. that this alternative compensatory
However, as with the preference for mitigation be provided.
mitigation bank credits, these same (c) Watershed approach to compen-
considerations may be used to override satory mitigation. (1) The district engi-
this preference where appropriate. Ad- neer must use a watershed approach to
ditionally, in cases where permittee-re- establish compensatory mitigation re-
sponsible mitigation is likely to suc- quirements in DA permits to the ex-
cessfully meet performance standards tent appropriate and practicable.
before advance credits secured from an Where a watershed plan is available,
in-lieu fee program are fulfilled, the the district engineer will determine
district engineer should also give con- whether the plan is appropriate for use
sideration to this factor in deciding be- in the watershed approach for compen-
tween in-lieu fee mitigation and per- satory mitigation. In cases where the
mittee-responsible mitigation. district engineer determines that an
(4) Permittee-responsible mitigation appropriate watershed plan is avail-
under a watershed approach. Where per- able, the watershed approach should be
mitted impacts are not in the service based on that plan. Where no such plan
area of an approved mitigation bank or is available, the watershed approach
in-lieu fee program that has the appro- should be based on information pro-
priate number and resource type of vided by the project sponsor or avail-
credits available, permittee-responsible able from other sources. The ultimate
mitigation is the only option. Where goal of a watershed approach is to
practicable and likely to be successful maintain and improve the quality and
and sustainable, the resource type and quantity of aquatic resources within
location for the required permittee-re- watersheds through strategic selection
sponsible compensatory mitigation of compensatory mitigation sites.
should be determined using the prin- (2) Considerations. (i) A watershed ap-
ciples of a watershed approach as out- proach to compensatory mitigation
lined in paragraph (c) of this section. considers the importance of landscape
(5) Permittee-responsible mitigation position and resource type of compen-
through on-site and in-kind mitigation. In satory mitigation projects for the sus-
cases where a watershed approach is tainability of aquatic resource func-
not practicable, the district engineer tions within the watershed. Such an
should consider opportunities to offset approach considers how the types and
anticipated aquatic resource impacts locations of compensatory mitigation
by requiring on-site and in-kind com- projects will provide the desired aquat-
pensatory mitigation. The district en- ic resource functions, and will continue
gineer must also consider the practica- to function over time in a changing
bility of on-site compensatory mitiga- landscape. It also considers the habitat
tion and its compatibility with the pro- requirements of important species,
posed project. habitat loss or conversion trends,
490
sources of watershed impairment, and possible, to enhance the usefulness of

current development trends, as well as the approach in determining compen-
the requirements of other regulatory satory mitigation requirements.
and non-regulatory programs that af- (v) A watershed approach is not ap-
fect the watershed, such as storm propriate in areas where watershed
water management or habitat con- boundaries do not exist, such as marine
servation programs. It includes the areas. In such cases, an appropriate
protection and maintenance of terres- spatial scale should be used to replace
trial resources, such as non-wetland ri- lost functions and services within the
parian areas and uplands, when those same ecological system (e.g., reef com-
resources contribute to or improve the plex, littoral drift cell).
overall ecological functioning of aquat- (3) Information needs. (i) In the ab-
ic resources in the watershed. Compen- sence of a watershed plan determined
satory mitigation requirements deter- by the district engineer under para-
mined through the watershed approach graph (c)(1) of this section to be appro-
should not focus exclusively on specific priate for use in the watershed ap-
functions (e.g., water quality or habi- proach, the district engineer will use a
tat for certain species), but should pro- watershed approach based on analysis
vide, where practicable, the suite of of information regarding watershed
functions typically provided by the af- conditions and needs, including poten-
fected aquatic resource. tial sites for aquatic resource restora-
(ii) Locational factors (e.g., hydrol- tion activities and priorities for aquat-
ogy, surrounding land use) are impor- ic resource restoration and preserva-
tant to the success of compensatory tion. Such information includes: cur-
mitigation for impacted habitat func- rent trends in habitat loss or conver-
tions and may lead to siting of such sion; cumulative impacts of past devel-
mitigation away from the project area. opment activities, current develop-
However, consideration should also be
ment trends, the presence and needs of
given to functions and services (e.g.,
sensitive species; site conditions that
water quality, flood control, shoreline
favor or hinder the success of compen-
protection) that will likely need to be
satory mitigation projects; and chronic
addressed at or near the areas im-
environmental problems such as flood-
pacted by the permitted impacts.
ing or poor water quality.
(iii) A watershed approach may in-
clude on-site compensatory mitigation, (ii) This information may be avail-
off-site compensatory mitigation (in- able from sources such as wetland
cluding mitigation banks or in-lieu fee maps; soil surveys; U.S. Geological
programs), or a combination of on-site Survey topographic and hydrologic
and off-site compensatory mitigation. maps; aerial photographs; information
(iv) A watershed approach to compen- on rare, endangered and threatened
satory mitigation should include, to species and critical habitat; local eco-
the extent practicable, inventories of logical reports or studies; and other in-
historic and existing aquatic resources, formation sources that could be used to
including identification of degraded identify locations for suitable compen-
aquatic resources, and identification of satory mitigation projects in the wa-
immediate and long-term aquatic re- tershed.
source needs within watersheds that (iii) The level of information and
can be met through permittee-respon- analysis needed to support a watershed
sible mitigation projects, mitigation approach must be commensurate with
banks, or in-lieu fee programs. Plan- the scope and scale of the proposed im-
ning efforts should identify and pacts requiring a DA permit, as well as
prioritize aquatic resource restoration, the functions lost as a result of those
establishment, and enhancement ac- impacts.
tivities, and preservation of existing (4) Watershed scale. The size of water-
aquatic resources that are important shed addressed using a watershed ap-
for maintaining or improving ecologi- proach should not be larger than is ap-
cal functions of the watershed. The propriate to ensure that the aquatic re-
identification and prioritization of resources provided through compensation

source needs should be as specific as activities will effectively compensate
491
§ 332.3 33 CFR Ch. II (7–1–20 Edition)
for adverse environmental impacts re- aquatic resource functions and serv-
sulting from activities authorized by ices.
DA permits. The district engineer (3) Applicants should propose com-
should consider relevant environ- pensation sites adjacent to existing
mental factors and appropriate locally aquatic resources or where aquatic re-
developed standards and criteria when sources previously existed.
determining the appropriate watershed (e) Mitigation type. (1) In general, in-
scale in guiding compensation activi- kind mitigation is preferable to out-of-
ties. kind mitigation because it is most
(d) Site selection. (1) The compen- likely to compensate for the functions
satory mitigation project site must be and services lost at the impact site.
ecologically suitable for providing the For example, tidal wetland compen-
desired aquatic resource functions. In satory mitigation projects are most
determining the ecological suitability likely to compensate for unavoidable
of the compensatory mitigation project impacts to tidal wetlands, while peren-
site, the district engineer must con- nial stream compensatory mitigation
sider, to the extent practicable, the fol- projects are most likely to compensate
lowing factors: for unavoidable impacts to perennial
(i) Hydrological conditions, soil char- streams. Thus, except as provided in
acteristics, and other physical and paragraph (e)(2) of this section, the re-
chemical characteristics; quired compensatory mitigation shall
be of a similar type to the affected
(ii) Watershed-scale features, such as
aquatic resource.
aquatic habitat diversity, habitat
(2) If the district engineer deter-
connectivity, and other landscape scale
mines, using the watershed approach in
functions;
accordance with paragraph (c) of this
(iii) The size and location of the com- section that out-of-kind compensatory
pensatory mitigation site relative to mitigation will serve the aquatic re-
hydrologic sources (including the source needs of the watershed, the dis-
availability of water rights) and other trict engineer may authorize the use of
ecological features; such out-of-kind compensatory mitiga-
(iv) Compatibility with adjacent land tion. The basis for authorization of
uses and watershed management plans; out-of-kind compensatory mitigation
(v) Reasonably foreseeable effects the must be documented in the administra-
compensatory mitigation project will tive record for the permit action.
have on ecologically important aquatic (3) For difficult-to-replace resources
or terrestrial resources (e.g., shallow (e.g., bogs, fens, springs, streams, At-
sub-tidal habitat, mature forests), cul- lantic white cedar swamps) if further
tural sites, or habitat for federally- or avoidance and minimization is not
state-listed threatened and endangered practicable, the required compensation
species; and should be provided, if practicable,
(vi) Other relevant factors including, through in-kind rehabilitation, en-
but not limited to, development trends, hancement, or preservation since there
anticipated land use changes, habitat is greater certainty that these methods
status and trends, the relative loca- of compensation will successfully off-
tions of the impact and mitigation set permitted impacts.
sites in the stream network, local or (f) Amount of compensatory mitigation.
regional goals for the restoration or (1) If the district engineer determines
protection of particular habitat types that compensatory mitigation is nec-
or functions (e.g., re-establishment of essary to offset unavoidable impacts to
habitat corridors or habitat for species aquatic resources, the amount of re-
of concern), water quality goals, flood- quired compensatory mitigation must
plain management goals, and the rel- be, to the extent practicable, sufficient
ative potential for chemical contami- to replace lost aquatic resource func-
nation of the aquatic resources. tions. In cases where appropriate func-
(2) District engineers may require on- tional or condition assessment meth-
site, off-site, or a combination of on- ods or other suitable metrics are avail-
site and off-site compensatory mitiga- able, these methods should be used
tion to replace permitted losses of where practicable to determine how
492
much compensatory mitigation is re- engineer must use appropriate quan-

quired. If a functional or condition as- titative assessment tools, where avail-
sessment or other suitable metric is able;
not used, a minimum one-to-one acre- (iii) Preservation is determined by
age or linear foot compensation ratio the district engineer to be appropriate
must be used. and practicable;
(2) The district engineer must require (iv) The resources are under threat of
a mitigation ratio greater than one-to- destruction or adverse modifications;
one where necessary to account for the and
method of compensatory mitigation (v) The preserved site will be perma-
(e.g., preservation), the likelihood of nently protected through an appro-
success, differences between the func- priate real estate or other legal instru-
tions lost at the impact site and the ment (e.g., easement, title transfer to
functions expected to be produced by state resource agency or land trust).
the compensatory mitigation project, (2) Where preservation is used to pro-
temporal losses of aquatic resource vide compensatory mitigation, to the
functions, the difficulty of restoring or extent appropriate and practicable the
establishing the desired aquatic re- preservation shall be done in conjunc-
source type and functions, and/or the tion with aquatic resource restoration,
distance between the affected aquatic establishment, and/or enhancement ac-
resource and the compensation site. tivities. This requirement may be
The rationale for the required replace- waived by the district engineer where
ment ratio must be documented in the preservation has been identified as a
administrative record for the permit high priority using a watershed ap-
action. proach described in paragraph (c) of
(3) If an in-lieu fee program will be this section, but compensation ratios
used to provide the required compen- shall be higher.
satory mitigation, and the appropriate (i) Buffers. District engineers may re-
number and resource type of released quire the restoration, establishment,
credits are not available, the district enhancement, and preservation, as well
engineer must require sufficient com- as the maintenance, of riparian areas
pensation to account for the risk and and/or buffers around aquatic resources
uncertainty associated with in-lieu fee where necessary to ensure the long-
projects that have not been imple- term viability of those resources. Buff-
mented before the permitted impacts ers may also provide habitat or cor-
have occurred. ridors necessary for the ecological
(g) Use of mitigation banks and in-lieu functioning of aquatic resources. If
fee programs. Mitigation banks and in- buffers are required by the district en-
lieu fee programs may be used to com- gineer as part of the compensatory
pensate for impacts to aquatic re- mitigation project, compensatory miti-
sources authorized by general permits gation credit will be provided for those
and individual permits, including after- buffers.
the-fact permits, in accordance with (j) Relationship to other federal, tribal,
the preference hierarchy in paragraph state, and local programs. (1) Compen-
(b) of this section. satory mitigation projects for DA per-
(h) Preservation. (1) Preservation may mits may also be used to satisfy the
be used to provide compensatory miti- environmental requirements of other
gation for activities authorized by DA programs, such as tribal, state, or local
permits when all the following criteria wetlands regulatory programs, other
are met: federal programs such as the Surface
(i) The resources to be preserved pro- Mining Control and Reclamation Act,
vide important physical, chemical, or Corps civil works projects, and Depart-
biological functions for the watershed; ment of Defense military construction
(ii) The resources to be preserved projects, consistent with the terms and
contribute significantly to the ecologi- requirements of these programs and
cal sustainability of the watershed. In subject to the following considerations:
determining the contribution of those (i) The compensatory mitigation
resources to the ecological sustain- project must include appropriate com-

ability of the watershed, the district pensation required by the DA permit
493
§ 332.3 33 CFR Ch. II (7–1–20 Edition)
for unavoidable impacts to aquatic required for the compensatory mitiga-
sources authorized by that permit. tion project, unless they are provided
(ii) Under no circumstances may the in the approved final mitigation plan;
same credits be used to provide mitiga- and
tion for more than one permitted activ- (iv) Describe any required financial
ity. However, where appropriate, com- assurances or long-term management
pensatory mitigation projects, includ- provisions for the compensatory miti-
ing mitigation banks and in-lieu fee gation project, unless they are speci-
projects, may be designed to holis- fied in the approved final mitigation
tically address requirements under plan.
multiple programs and authorities for (3) For a general permit activity that
the same activity. requires permittee-responsible compen-
(2) Except for projects undertaken by satory mitigation, the special condi-
federal agencies, or where federal fund- tions must describe the compensatory
ing is specifically authorized to provide mitigation proposal, which may be ei-
compensatory mitigation, federally- ther conceptual or detailed. The gen-
funded aquatic resource restoration or eral permit verification must also in-
conservation projects undertaken for clude a special condition that states
purposes other than compensatory that the permittee cannot commence
mitigation, such as the Wetlands Re- work in waters of the United States
serve Program, Conservation Reserve until the district engineer approves the
Program, and Partners for Wildlife final mitigation plan, unless the dis-
Program activities, cannot be used for
trict engineer determines that such a
the purpose of generating compen-
special condition is not practicable and
satory mitigation credits for activities
not necessary to ensure timely comple-
authorized by DA permits. However,
tion of the required compensatory
compensatory mitigation credits may
mitigation. To the extent appropriate
be generated by activities undertaken
and practicable, special conditions of
in conjunction with, but supplemental
the general permit verification should
to, such programs in order to maximize
also address the requirements of para-
the overall ecological benefits of the
graph (k)(2) of this section.
restoration or conservation project.
(3) Compensatory mitigation projects (4) If a mitigation bank or in-lieu fee
may also be used to provide compen- program is used to provide the required
satory mitigation under the Endan- compensatory mitigation, the special
gered Species Act or for Habitat Con- conditions must indicate whether a
servation Plans, as long as they com- mitigation bank or in-lieu fee program
ply with the requirements of paragraph will be used, and specify the number
(j)(1) of this section. and resource type of credits the per-
(k) Permit conditions. (1) The compen- mittee is required to secure. In the
satory mitigation requirements for a case of an individual permit, the spe-
DA permit, including the amount and cial condition must also identify the
type of compensatory mitigation, must specific mitigation bank or in-lieu fee
be clearly stated in the special condi- program that will be used. For general
tions of the individual permit or gen- permit verifications, the special condi-
eral permit verification (see 33 CFR tions may either identify the specific
325.4 and 330.6(a)). The special condi- mitigation bank or in-lieu fee program,
tions must be enforceable. or state that the specific mitigation
(2) For an individual permit that re- bank or in-lieu fee program used to
quires permittee-responsible mitiga- provide the required compensatory
tion, the special conditions must: mitigation must be approved by the
(i) Identify the party responsible for district engineer before the credits are
providing the compensatory mitiga- secured.
tion; (l) Party responsible for compensatory
(ii) Incorporate, by reference, the mitigation. (1) For permittee-respon-
final mitigation plan approved by the sible mitigation, the special conditions
district engineer; of the DA permit must clearly indicate
(iii) State the objectives, perform- the party or parties responsible for the
ance standards, and monitoring re- implementation, performance, and
494
long-term management of the compen- financial assurances to ensure a high

satory mitigation project. level of confidence that the compen-
(2) For mitigation banks and in-lieu satory mitigation project will be suc-
fee programs, the instrument must cessfully completed, in accordance
clearly indicate the party or parties re- with applicable performance standards.
sponsible for the implementation, per- In cases where an alternate mechanism
formance, and long-term management is available to ensure a high level of
of the compensatory mitigation confidence that the compensatory
project(s). The instrument must also mitigation will be provided and main-
contain a provision expressing the tained (e.g., a formal, documented
sponsor’s agreement to assume respon- commitment from a government agen-
sibility for a permittee’s compensatory
cy or public authority) the district en-
mitigation requirements, once that
gineer may determine that financial
permittee has secured the appropriate
number and resource type of credits assurances are not necessary for that
from the sponsor and the district engi- compensatory mitigation project.
neer has received the documentation (2) The amount of the required finan-
described in paragraph (l)(3) of this sec- cial assurances must be determined by
tion. the district engineer, in consultation
(3) If use of a mitigation bank or in- with the project sponsor, and must be
lieu fee program is approved by the dis- based on the size and complexity of the
trict engineer to provide part or all of compensatory mitigation project, the
the required compensatory mitigation degree of completion of the project at
for a DA permit, the permittee retains the time of project approval, the likeli-
responsibility for providing the com- hood of success, the past performance
pensatory mitigation until the appro- of the project sponsor, and any other
priate number and resource type of factors the district engineer deems ap-
credits have been secured from a spon- propriate. Financial assurances may be
sor and the district engineer has rein the form of performance bonds, es-
ceived documentation that confirms crow accounts, casualty insurance, let-
that the sponsor has accepted the re- ters of credit, legislative appropria-
sponsibility for providing the required tions for government sponsored
compensatory mitigation. This docu- projects, or other appropriate instru-
mentation may consist of a letter or
ments, subject to the approval of the
form signed by the sponsor, with the
district engineer. The rationale for de-
permit number and a statement indi-
termining the amount of the required
cating the number and resource type of
credits that have been secured from the financial assurances must be docu-
sponsor. Copies of this documentation mented in the administrative record
will be retained in the administrative for either the DA permit or the instru-
records for both the permit and the in- ment. In determining the assurance
strument. If the sponsor fails to pro- amount, the district engineer shall
vide the required compensatory miti- consider the cost of providing replace-
gation, the district engineer may pur- ment mitigation, including costs for
sue measures against the sponsor to land acquisition, planning and engi-
ensure compliance. neering, legal fees, mobilization, con-
(m) Timing. Implementation of the struction, and monitoring.
compensatory mitigation project shall (3) If financial assurances are re-
be, to the maximum extent prac- quired, the DA permit must include a
ticable, in advance of or concurrent special condition requiring the finan-
with the activity causing the author- cial assurances to be in place prior to
ized impacts. The district engineer commencing the permitted activity.
shall require, to the extent appropriate (4) Financial assurances shall be
and practicable, additional compen- phased out once the compensatory
satory mitigation to offset temporal mitigation project has been determined
losses of aquatic functions that will re-
by the district engineer to be success-
sult from the permitted activity.
ful in accordance with its performance

(n) Financial assurances. (1) The dis-
trict engineer shall require sufficient
495
§ 332.4 33 CFR Ch. II (7–1–20 Edition)
standards. The DA permit or instru- Clean Water Act, the public notice for
ment must clearly specify the condi- the proposed activity must contain a
tions under which the financial assur- statement explaining how impacts as-
ances are to be released to the per- sociated with the proposed activity are
mittee, sponsor, and/or other financial to be avoided, minimized, and com-
assurance provider, including, as ap- pensated for. This explanation shall ad-
propriate, linkage to achievement of dress, to the extent that such informa-
performance standards, adaptive man- tion is provided in the mitigation
agement, or compliance with special statement required by § 325.1(d)(7) of
conditions. this chapter, the proposed avoidance
(5) A financial assurance must be in a and minimization and the amount,
form that ensures that the district en- type, and location of any proposed
gineer will receive notification at least compensatory mitigation, including
120 days in advance of any termination any out-of-kind compensation, or indi-
or revocation. For third-party assur- cate an intention to use an approved
ance providers, this may take the form mitigation bank or in-lieu fee program.
of a contractual requirement for the The level of detail provided in the pub-
assurance provider to notify the dis- lic notice must be commensurate with
trict engineer at least 120 days before the scope and scale of the impacts. The
the assurance is revoked or termi- notice shall not include information
nated. that the district engineer and the per-
(6) Financial assurances shall be pay- mittee believe should be kept confiden-
able at the direction of the district en- tial for business purposes, such as the
gineer to his designee or to a standby exact location of a proposed mitigation
trust agreement. When a standby trust site that has not yet been secured. The
is used (e.g., with performance bonds or
permittee must clearly identify any in-
letters of credit) all amounts paid by
formation being claimed as confiden-
the financial assurance provider shall
tial in the mitigation statement when
be deposited directly into the standby
submitted. In such cases, the notice
trust fund for distribution by the trust-
must still provide enough information
ee in accordance with the district engi-
to enable the public to provide mean-
neer’s instructions.
ingful comment on the proposed miti-
(o) Compliance with applicable law.
gation.
The compensatory mitigation project
must comply with all applicable fed- (2) For individual permits, district
eral, state, and local laws. The DA per- engineers must consider any timely
mit, mitigation banking instrument, or comments and recommendations from
in-lieu fee program instrument must other federal agencies; tribal, state, or
not require participation by the Corps local governments; and the public.
or any other federal agency in project (3) For activities authorized by let-
management, including receipt or man- ters of permission or general permits,
agement of financial assurances or the review and approval process for
long-term financing mechanisms, ex- compensatory mitigation proposals and
cept as determined by the Corps or plans must be conducted in accordance
other agency to be consistent with its with the terms and conditions of those
statutory authority, mission, and pri- permits and applicable regulations in-
orities. cluding the applicable provisions of
this part.
§ 332.4 Planning and documentation. (c) Mitigation plan—(1) Preparation
(a) Pre-application consultations. Po- and approval. (i) For individual per-
tential applicants for standard permits mits, the permittee must prepare a
are encouraged to participate in pre- draft mitigation plan and submit it to
application meetings with the Corps the district engineer for review. After
and appropriate agencies to discuss po- addressing any comments provided by
tential mitigation requirements and the district engineer, the permittee
information needs. must prepare a final mitigation plan,
(b) Public review and comment. (1) For which must be approved by the district
an activity that requires a standard DA engineer prior to issuing the individual

permit pursuant to section 404 of the permit. The approved final mitigation
496
plan must be incorporated into the in- (iii) Mitigation banks and in-lieu fee
dividual permit by reference. The final programs must prepare a mitigation
mitigation plan must include the items plan including the items in paragraphs
described in paragraphs (c)(2) through (c)(2) through (c)(14) of this section for
(c)(14) of this section, but the level of each separate compensatory mitiga-
detail of the mitigation plan should be tion project site. For mitigation banks
commensurate with the scale and scope and in-lieu fee programs, the prepara-
of the impacts. As an alternative, the tion and approval process for mitiga-
district engineer may determine that it tion plans is described in § 332.8.
would be more appropriate to address (2) Objectives. A description of the re-
any of the items described in para- source type(s) and amount(s) that will
graphs (c)(2) through (c)(14) of this sec- be provided, the method of compensa-
tion as permit conditions, instead of tion (i.e., restoration, establishment,
components of a compensatory mitiga- enhancement, and/or preservation), and
tion plan. For permittees who intend the manner in which the resource func-
to fulfill their compensatory mitiga- tions of the compensatory mitigation
tion obligations by securing credits project will address the needs of the
from approved mitigation banks or in- watershed, ecoregion, physiographic
lieu fee programs, their mitigation province, or other geographic area of
plans need include only the items de- interest.
scribed in paragraphs (c)(5) and (c)(6) of (3) Site selection. A description of the
factors considered during the site se-
this section, and the name of the spe-
lection process. This should include
cific mitigation bank or in-lieu fee pro-
consideration of watershed needs, on-
gram to be used.
site alternatives where applicable, and
(ii) For general permits, if compen- the practicability of accomplishing
satory mitigation is required, the dis- ecologically self-sustaining aquatic re-
trict engineer may approve a concep- source restoration, establishment, en-
tual or detailed compensatory mitiga- hancement, and/or preservation at the
tion plan to meet required time frames compensatory mitigation project site.
for general permit verifications, but a (See § 332.3(d).)
final mitigation plan incorporating the (4) Site protection instrument. A de-
elements in paragraphs (c)(2) through scription of the legal arrangements and
(c)(14) of this section, at a level of de- instrument, including site ownership,
tail commensurate with the scale and that will be used to ensure the long-
scope of the impacts, must be approved term protection of the compensatory
by the district engineer before the per- mitigation project site (see § 332.7(a)).
mittee commences work in waters of (5) Baseline information. A description
the United States. As an alternative, of the ecological characteristics of the
the district engineer may determine proposed compensatory mitigation
that it would be more appropriate to project site and, in the case of an appli-
address any of the items described in cation for a DA permit, the impact
paragraphs (c)(2) through (c)(14) of this site. This may include descriptions of
section as permit conditions, instead of historic and existing plant commu-
components of a compensatory mitiga- nities, historic and existing hydrology,
tion plan. For permittees who intend soil conditions, a map showing the lo-
to fulfill their compensatory mitiga- cations of the impact and mitigation
tion obligations by securing credits site(s) or the geographic coordinates
from approved mitigation banks or infor those site(s), and other site charac-
lieu fee programs, their mitigation teristics appropriate to the type of re-
plans need include only the items de- source proposed as compensation. The
scribed in paragraphs (c)(5) and (c)(6) of baseline information should also in-
this section, and either the name of the clude a delineation of waters of the
specific mitigation bank or in-lieu fee United States on the proposed compen-
program to be used or a statement in- satory mitigation project site. A pro-
dicating that a mitigation bank or in- spective permittee planning to secure
lieu fee program will be used (contin- credits from an approved mitigation
gent upon approval by the district en- bank or in-lieu fee program only needs
gineer). to provide baseline information about
497
§ 332.5 33 CFR Ch. II (7–1–20 Edition)
the impact site, not the mitigation ing on monitoring results to the dis-
bank or in-lieu fee project site. trict engineer must be included. (See
(6) Determination of credits. A descrip- § 332.6.)
tion of the number of credits to be pro- (11) Long-term management plan. A de-
vided, including a brief explanation of scription of how the compensatory
the rationale for this determination. mitigation project will be managed
(See § 332.3(f).) after performance standards have been
(i) For permittee-responsible mitiga- achieved to ensure the long-term sus-
tion, this should include an expla- tainability of the resource, including
nation of how the compensatory miti- long-term financing mechanisms and
gation project will provide the required the party responsible for long-term
compensation for unavoidable impacts management. (See § 332.7(d).)
to aquatic resources resulting from the (12) Adaptive management plan. A
permitted activity. management strategy to address un-
(ii) For permittees intending to se- foreseen changes in site conditions or
cure credits from an approved mitiga- other components of the compensatory
tion bank or in-lieu fee program, it mitigation project, including the party
should include the number and re- or parties responsible for implementing
source type of credits to be secured and adaptive management measures. The
how these were determined. adaptive management plan will guide
(7) Mitigation work plan. Detailed decisions for revising compensatory
written specifications and work de- mitigation plans and implementing
scriptions for the compensatory miti- measures to address both foreseeable
gation project, including, but not lim- and unforeseen circumstances that ad-
ited to, the geographic boundaries of versely affect compensatory mitigation
the project; construction methods, tim- success. (See § 332.7(c).)
ing, and sequence; source(s) of water, (13) Financial assurances. A descrip-
including connections to existing wa- tion of financial assurances that will
ters and uplands; methods for estab- be provided and how they are sufficient
lishing the desired plant community; to ensure a high level of confidence
plans to control invasive plant species; that the compensatory mitigation
the proposed grading plan, including project will be successfully completed,
elevations and slopes of the substrate; in accordance with its performance
soil management; and erosion control standards (see § 332.3(n)).
measures. For stream compensatory (14) Other information. The district
mitigation projects, the mitigation engineer may require additional infor-
work plan may also include other rel- mation as necessary to determine the
evant information, such as planform appropriateness, feasibility, and prac-
geometry, channel form (e.g., typical ticability of the compensatory mitiga-
channel cross-sections), watershed size, tion project.
design discharge, and riparian area
plantings. § 332.5 Ecological performance stand-
(8) Maintenance plan. A description ards.
and schedule of maintenance require- (a) The approved mitigation plan
ments to ensure the continued viabil- must contain performance standards
ity of the resource once initial con- that will be used to assess whether the
struction is completed. project is achieving its objectives. Per-
(9) Performance standards. Eco- formance standards should relate to
logically-based standards that will be the objectives of the compensatory
used to determine whether the compen- mitigation project, so that the project
satory mitigation project is achieving can be objectively evaluated to deter-
its objectives. (See § 332.5.) mine if it is developing into the desired
(10) Monitoring requirements. A de- resource type, providing the expected
scription of parameters to be mon- functions, and attaining any other ap-
itored in order to determine if the com- plicable metrics (e.g., acres).
pensatory mitigation project is on (b) Performance standards must be
track to meet performance standards based on attributes that are objective
and if adaptive management is needed. and verifiable. Ecological performance

A schedule for monitoring and report- standards must be based on the best
498
available science that can be measured (2) The district engineer may conduct
or assessed in a practicable manner. site inspections on a regular basis (e.g.,
Performance standards may be based annually) during the monitoring period
on variables or measures of functional to evaluate mitigation site perform-
capacity described in functional assess- ance.
ment methodologies, measurements of (b) Monitoring period. The mitigation
hydrology or other aquatic resource plan must provide for a monitoring pe-
characteristics, and/or comparisons to riod that is sufficient to demonstrate
reference aquatic resources of similar that the compensatory mitigation
type and landscape position. The use of project has met performance standards,
reference aquatic resources to estab- but not less than five years. A longer
lish performance standards will help monitoring period must be required for
ensure that those performance stand- aquatic resources with slow develop-
ards are reasonably achievable, by re- ment rates (e.g., forested wetlands,
flecting the range of variability exhib- bogs). Following project implementa-
ited by the regional class of aquatic re- tion, the district engineer may reduce
sources as a result of natural processes or waive the remaining monitoring re-
and anthropogenic disturbances. Per- quirements upon a determination that
formance standards based on measure- the compensatory mitigation project
ments of hydrology should take into has achieved its performance stand-
consideration the hydrologic varia- ards. Conversely the district engineer
bility exhibited by reference aquatic may extend the original monitoring pe-
resources, especially wetlands. Where riod upon a determination that per-
practicable, performance standards formance standards have not been met
should take into account the expected or the compensatory mitigation
stages of the aquatic resource develop- project is not on track to meet them.
ment process, in order to allow early The district engineer may also revise
identification of potential problems monitoring requirements when remedi-
and appropriate adaptive management. ation and/or adaptive management is
required.
§ 332.6 Monitoring. (c) Monitoring reports. (1) The district
(a) General. (1) Monitoring the com- engineer must determine the informa-
pensatory mitigation project site is tion to be included in monitoring re-
necessary to determine if the project is ports. This information must be suffi-
meeting its performance standards, and cient for the district engineer to deter-
to determine if measures are necessary mine how the compensatory mitigation
to ensure that the compensatory miti- project is progressing towards meeting
gation project is accomplishing its ob- its performance standards, and may in-
jectives. The submission of monitoring clude plans (such as as-built plans),
reports to assess the development and maps, and photographs to illustrate
condition of the compensatory mitiga- site conditions. Monitoring reports
tion project is required, but the con- may also include the results of func-
tent and level of detail for those moni- tional, condition, or other assessments
toring reports must be commensurate used to provide quantitative or quali-
with the scale and scope of the compen- tative measures of the functions pro-
satory mitigation project, as well as vided by the compensatory mitigation
the compensatory mitigation project project site.
type. The mitigation plan must address (2) The permittee or sponsor is re-
the monitoring requirements for the sponsible for submitting monitoring re-
compensatory mitigation project, in- ports in accordance with the special
cluding the parameters to be mon- conditions of the DA permit or the
itored, the length of the monitoring pe- terms of the instrument. Failure to
riod, the party responsible for con- submit monitoring reports in a timely
ducting the monitoring, the frequency manner may result in compliance ac-
for submitting monitoring reports to tion by the district engineer.
the district engineer, and the party re- (3) Monitoring reports must be pro-
sponsible for submitting those moni- vided by the district engineer to inter-
toring reports to the district engineer. ested federal, tribal, state, and local
499
§ 332.7 33 CFR Ch. II (7–1–20 Edition)
resource agencies, and the public, upon cation to the district engineer before
request. any action is taken to void or modify
the instrument, management plan, or
§ 332.7 Management. long-term protection mechanism, in-
(a) Site protection. (1) The aquatic cluding transfer of title to, or estab-
habitats, riparian areas, buffers, and lishment of any other legal claims
uplands that comprise the overall com- over, the compensatory mitigation
pensatory mitigation project must be site.
provided long-term protection through (4) For compensatory mitigation
real estate instruments or other avail- projects on public lands, where federal
able mechanisms, as appropriate. Long- facility management plans or inte-
term protection may be provided grated natural resources management
through real estate instruments such plans are used to provide long-term
as conservation easements held by en- protection, and changes in statute, reg-
tities such as federal, tribal, state, or ulation, or agency needs or mission re-
local resource agencies, non-profit con- sults in an incompatible use on public
servation organizations, or private lands originally set aside for compen-
land managers; the transfer of title to satory mitigation, the public agency
such entities; or by restrictive cov- authorizing the incompatible use is re-
enants. For government property, long- sponsible for providing alternative
term protection may be provided compensatory mitigation that is ac-
through federal facility management ceptable to the district engineer for
plans or integrated natural resources any loss in functions resulting from
management plans. When approving a the incompatible use.
method for long-term protection of (5) A real estate instrument, manage-
non-government property other than ment plan, or other long-term protec-
transfer of title, the district engineer tion mechanism used for site protec-
shall consider relevant legal con- tion of permittee-responsible mitiga-
straints on the use of conservation tion must be approved by the district
easements and/or restrictive covenants engineer in advance of, or concurrent
in determining whether such mecha- with, the activity causing the author-
nisms provide sufficient site protec- ized impacts.
tion. To provide sufficient site protec- (b) Sustainability. Compensatory miti-
tion, a conservation easement or re- gation projects shall be designed, to
strictive covenant should, where prac- the maximum extent practicable, to be
ticable, establish in an appropriate self-sustaining once performance
third party (e.g., governmental or non- standards have been achieved. This in-
profit resource management agency) cludes minimization of active engineer-
the right to enforce site protections ing features (e.g., pumps) and appro-
and provide the third party the re- priate siting to ensure that natural hy-
sources necessary to monitor and en- drology and landscape context will sup-
force these site protections. port long-term sustainability. Where
(2) The real estate instrument, man- active long-term management and
agement plan, or other mechanism pro- maintenance are necessary to ensure
viding long-term protection of the long-term sustainability (e.g., pre-
compensatory mitigation site must, to scribed burning, invasive species con-
the extent appropriate and practicable, trol, maintenance of water control
prohibit incompatible uses (e.g., clear structures, easement enforcement), the
cutting or mineral extraction) that responsible party must provide for such
might otherwise jeopardize the objec- management and maintenance. This in-
tives of the compensatory mitigation cludes the provision of long-term fi-
project. Where appropriate, multiple nancing mechanisms where necessary.
instruments recognizing compatible Where needed, the acquisition and pro-
uses (e.g., fishing or grazing rights) tection of water rights must be secured
may be used. and documented in the permit condi-
(3) The real estate instrument, man- tions or instrument.
agement plan, or other long-term pro- (c) Adaptive management. (1) If the
tection mechanism must contain a pro- compensatory mitigation project can-

vision requiring 60-day advance notifi- not be constructed in accordance with
500
the approved mitigation plans, the per- mitigation project site to a land stew-
mittee or sponsor must notify the dis- ardship entity, such as a public agency,
trict engineer. A significant modifica- non-governmental organization, or pri-
tion of the compensatory mitigation vate land manager, after review and
project requires approval from the disapproval by the district engineer. The
trict engineer. land stewardship entity need not be
(2) If monitoring or other informa- identified in the original permit or in-
tion indicates that the compensatory strument, as long as the future trans-
mitigation project is not progressing fer of long-term management responsi-
towards meeting its performance bility is approved by the district engi-
standards as anticipated, the respon- neer.
sible party must notify the district en- (2) A long-term management plan
gineer as soon as possible. The district should include a description of long-
engineer will evaluate and pursue term management needs, annual cost
measures to address deficiencies in the estimates for these needs, and identify
compensatory mitigation project. The the funding mechanism that will be
district engineer will consider whether used to meet those needs.
the compensatory mitigation project is (3) Any provisions necessary for long-
providing ecological benefits com- term financing must be addressed in
parable to the original objectives of the original permit or instrument. The
the compensatory mitigation project. district engineer may require provi-
(3) The district engineer, in consulta- sions to address inflationary adjust-
tion with the responsible party (and ments and other contingencies, as ap-
other federal, tribal, state, and local propriate. Appropriate long-term fi-
agencies, as appropriate), will deter- nancing mechanisms include non-wast-
mine the appropriate measures. The ing endowments, trusts, contractual
measures may include site modifica- arrangements with future responsible
tions, design changes, revisions to
parties, and other appropriate financial
maintenance requirements, and revised
instruments. In cases where the long-
monitoring requirements. The meas-
term management entity is a public
ures must be designed to ensure that
authority or government agency, that
the modified compensatory mitigation
entity must provide a plan for the
project provides aquatic resource func-
long-term financing of the site.
tions comparable to those described in
the mitigation plan objectives. (4) For permittee-responsible mitiga-
(4) Performance standards may be re- tion, any long-term financing mecha-
vised in accordance with adaptive man- nisms must be approved in advance of
agement to account for measures taken the activity causing the authorized im-
to address deficiencies in the compen- pacts.
satory mitigation project. Performance
§ 332.8 Mitigation banks and in-lieu fee
standards may also be revised to re- programs.
flect changes in management strate-
gies and objectives if the new standards (a) General considerations. (1) All miti-
provide for ecological benefits that are gation banks and in-lieu fee programs
comparable or superior to the approved must have an approved instrument
compensatory mitigation project. No signed by the sponsor and the district
other revisions to performance stand- engineer prior to being used to provide
ards will be allowed except in the case compensatory mitigation for DA per-
of natural disasters. mits.
(d) Long-term management. (1) The (2) To the maximum extent prac-
permit conditions or instrument must ticable, mitigation banks and in-lieu
identify the party responsible for own- fee project sites must be planned and
ership and all long-term management designed to be self-sustaining over
of the compensatory mitigation time, but some active management and
project. The permit conditions or in- maintenance may be required to ensure
strument may contain provisions al- their long-term viability and sustain-
lowing the permittee or sponsor to ability. Examples of acceptable man-
transfer the long-term management re- agement activities include maintaining

sponsibilities of the compensatory fire-dependent habitat communities in
501
§ 332.8 33 CFR Ch. II (7–1–20 Edition)
the absence of natural fire and control- ticable in reviewing proposed mitiga-
ling invasive exotic plant species. tion banks and in-lieu fee programs.
(3) All mitigation banks and in-lieu Members of the IRT may also sign the
fee programs must comply with the instrument, if they so choose. By sign-
standards in this part, if they are to be ing the instrument, the IRT members
used to provide compensatory mitiga- indicate their agreement with the
tion for activities authorized by DA terms of the instrument. As an alter-
permits, regardless of whether they are native, a member of the IRT may sub-
sited on public or private lands and mit a letter expressing concurrence
whether the sponsor is a governmental with the instrument. The IRT will also
or private entity. advise the district engineer in assess-
(b) Interagency Review Team. (1) The ing monitoring reports, recommending
district engineer will establish an remedial or adaptive management
Interagency Review Team (IRT) to re- measures, approving credit releases,
view documentation for the establish- and approving modifications to an in-
ment and management of mitigation strument. In order to ensure timely
banks and in-lieu fee programs. The processing of instruments and other
district engineer or his designated rep- documentation, comments from IRT
resentative serves as Chair of the IRT. members must be received by the dis-
In cases where a mitigation bank or in- trict engineer within the time limits
lieu fee program is proposed to satisfy specified in this section. Comments re-
the requirements of another federal, ceived after these deadlines will only
tribal, state, or local program, in addi- be considered at the discretion of the
tion to compensatory mitigation re- district engineer to the extent that
quirements of DA permits, it may be doing so does not jeopardize the dead-
appropriate for the administering lines for district engineer action.
agency to serve as co-Chair of the IRT. (4) The district engineer will give full
(2) In addition to the Corps, rep- consideration to any timely comments
resentatives from the U.S. Environ- and advice of the IRT. The district en-
mental Protection Agency, U.S. Fish gineer alone retains final authority for
and Wildlife Service, NOAA Fisheries, approval of the instrument in cases
the Natural Resources Conservation where the mitigation bank or in-lieu
Service, and other federal agencies, as fee program is used to satisfy compen-
appropriate, may participate in the satory mitigation requirements of DA
IRT. The IRT may also include rep- permits.
resentatives from tribal, state, and (5) MOAs with other agencies. The dis-
local regulatory and resource agencies, trict engineer and members of the IRT
where such agencies have authorities may enter into a memorandum of
and/or mandates directly affecting, or agreement (MOA) with any other fed-
affected by, the establishment, oper- eral, state or local government agency
ation, or use of the mitigation bank or to perform all or some of the IRT re-
in-lieu fee program. The district engi- view functions described in this sec-
neer will seek to include all public tion. Such MOAs must include provi-
agencies with a substantive interest in sions for appropriate federal oversight
the establishment of the mitigation of the review process. The district engi-
bank or in-lieu fee program on the IRT, neer retains sole authority for final ap-
but retains final authority over its proval of instruments and other docu-
composition. mentation required under this section.
(3) The primary role of the IRT is to (c) Compensation planning framework
facilitate the establishment of mitiga- for in-lieu fee programs. (1) The approved
tion banks or in-lieu fee programs instrument for an in-lieu fee program
through the development of mitigation must include a compensation planning
banking or in-lieu fee program instru- framework that will be used to select,
ments. The IRT will review the pro- secure, and implement aquatic re-
spectus, instrument, and other appro- source restoration, establishment, en-
priate documents and provide com- hancement, and/or preservation activi-
ments to the district engineer. The dis- ties. The compensation planning
trict engineer and the IRT should use a framework must support a watershed
watershed approach to the extent prac- approach to compensatory mitigation.
502
All specific projects used to provide (xi) Any other information deemed
compensation for DA permits must be necessary for effective compensation
consistent with the approved com- planning by the district engineer.
pensation planning framework. Modi- (3) The level of detail necessary for
fications to the framework must be ap- the compensation planning framework
proved as a significant modification to is at the discretion of the district engi-
the instrument by the district engineer, and will take into account the
neer, after consultation with the IRT. characteristics of the service area(s)
(2) The compensation planning and the scope of the program. As part
framework must contain the following of the in-lieu fee program instrument,
elements: the compensation planning framework
(i) The geographic service area(s), in- will be reviewed by the IRT, and will be
cluding a watershed-based rationale for a major factor in the district engi-
the delineation of each service area; neer’s decision on whether to approve
(ii) A description of the threats to the instrument.
aquatic resources in the service area(s), (d) Review process. (1) The sponsor is
including how the in-lieu fee program responsible for preparing all docu-
will help offset impacts resulting from mentation associated with establish-
those threats; ment of the mitigation bank or in-lieu
(iii) An analysis of historic aquatic fee program, including the prospectus,
resource loss in the service area(s); instrument, and other appropriate doc-
(iv) An analysis of current aquatic uments, such as mitigation plans for a
resource conditions in the service mitigation bank. The prospectus pro-
area(s), supported by an appropriate vides an overview of the proposed miti-
level of field documentation; gation bank or in-lieu fee program and
(v) A statement of aquatic resource serves as the basis for public and ini-
goals and objectives for each service tial IRT comment. For a mitigation
area, including a description of the bank, the mitigation plan, as described
general amounts, types and locations in § 332.4(c), provides detailed plans and
of aquatic resources the program will specifications for the mitigation bank
seek to provide; site. For in-lieu fee programs, mitiga-
(vi) A prioritization strategy for se- tion plans will be prepared as in-lieu
lecting and implementing compen- fee project sites are identified after the
satory mitigation activities; instrument has been approved and the
(vii) An explanation of how any pres- in-lieu fee program becomes oper-
ervation objectives identified in para- ational. The instrument provides the
graph (c)(2)(v) of this section and ad- authorization for the mitigation bank
dressed in the prioritization strategy or in-lieu fee program to provide cred-
in paragraph (c)(2)(vi) satisfy the cri- its to be used as compensatory mitiga-
teria for use of preservation in tion for DA permits.
§ 332.3(h); (2) Prospectus. The prospectus must
(viii) A description of any public and provide a summary of the information
private stakeholder involvement in regarding the proposed mitigation
plan development and implementation, bank or in-lieu fee program, at a suffi-
including, where appropriate, coordina- cient level of detail to support in-
tion with federal, state, tribal and formed public and IRT comment. The
local aquatic resource management review process begins when the sponsor
and regulatory authorities; submits a complete prospectus to the
(ix) A description of the long-term district engineer. For modifications of
protection and management strategies approved instruments, submittal of a
for activities conducted by the in-lieu new prospectus is not required; instead,
fee program sponsor; the sponsor must submit a written re-
(x) A strategy for periodic evaluation quest for an instrument modification
and reporting on the progress of the accompanied by appropriate docu-
program in achieving the goals and ob- mentation. The district engineer must
jectives in paragraph (c)(2)(v) of this notify the sponsor within 30 days
section, including a process for revising whether or not a submitted prospectus
the planning framework as necessary; is complete. A complete prospectus in-

and cludes the following information:
503
§ 332.8 33 CFR Ch. II (7–1–20 Edition)
(i) The objectives of the proposed spectus or an instrument modification

mitigation bank or in-lieu fee program. request that will be processed in ac-
(ii) How the mitigation bank or in- cordance with paragraph (g)(1) of this
lieu fee program will be established section, the district engineer will pro-
and operated. vide public notice of the proposed miti-
(iii) The proposed service area. gation bank or in-lieu fee program, in
(iv) The general need for and tech- accordance with the public notice pro-
nical feasibility of the proposed miti- cedures at 33 CFR 325.3. The public no-
gation bank or in-lieu fee program. tice must, at a minimum, include a
(v) The proposed ownership arrange- summary of the prospectus and indi-
ments and long-term management cate that the full prospectus is avail-
strategy for the mitigation bank or in- able to the public for review upon re-
lieu fee project sites. quest. For modifications of approved
(vi) The qualifications of the sponsor instruments, the public notice must in-
to successfully complete the type(s) of stead summarize, and make available
mitigation project(s) proposed, includ- to the public upon request, whatever
ing information describing any past documentation is appropriate for the
such activities by the sponsor. modification (e.g., a new or revised
(vii) For a proposed mitigation bank, mitigation plan). The comment period
the prospectus must also address: for public notice will be 30 days, unless
(A) The ecological suitability of the the district engineer determines that a
site to achieve the objectives of the longer comment period is appropriate.
proposed mitigation bank, including
The district engineer will notify the
the physical, chemical, and biological
sponsor if the comment period is ex-
characteristics of the bank site and
tended beyond 30 days, including an ex-
how that site will support the planned
planation of why the longer comment
types of aquatic resources and func-
period is necessary. Copies of all com-
tions; and
ments received in response to the pub-
(B) Assurance of sufficient water
lic notice must be distributed to the
rights to support the long-term sus-
other IRT members and to the sponsor
tainability of the mitigation bank.
within 15 days of the close of the public
(viii) For a proposed in-lieu fee pro-
comment period. The district engineer
gram, the prospectus must also in-
clude: and IRT members may also provide
(A) The compensation planning comments to the sponsor at this time,
framework (see paragraph (c) of this and copies of any such comments will
section); and also be distributed to all IRT members.
(B) A description of the in-lieu fee If the construction of a mitigation
program account required by para- bank or an in-lieu fee program project
graph (i) of this section. requires a DA permit, the public notice
(3) Preliminary review of prospectus. requirement may be satisfied through
Prior to submitting a prospectus, the the public notice provisions of the per-
sponsor may elect to submit a draft mit processing procedures, provided all
prospectus to the district engineer for of the relevant information is provided.
comment and consultation. The dis- (5) Initial evaluation. (i) After the end
trict engineer will provide copies of the of the comment period, the district en-
draft prospectus to the IRT and will gineer will review the comments re-
provide comments back to the sponsor ceived in response to the public notice,
within 30 days. Any comments from and make a written initial evaluation
IRT members will also be forwarded to as to the potential of the proposed
the sponsor. This preliminary review is mitigation bank or in-lieu fee program
optional but is strongly recommended. to provide compensatory mitigation
It is intended to identify potential for activities authorized by DA per-
issues early so that the sponsor may mits. This initial evaluation letter
attempt to address those issues prior must be provided to the sponsor within
to the start of the formal review proc- 30 days of the end of the public notice
ess. comment period.
(4) Public review and comment. Within (ii) If the district engineer deter-
30 days of receipt of a complete pro- mines that the proposed mitigation
504
bank or in-lieu fee program has poten- (ii) For mitigation banks and in-lieu
tial for providing appropriate compen- fee programs, the draft instrument
satory mitigation for activities author- must include the following informa-
ized by DA permits, the initial evaluation:
tion letter will inform the sponsor that (A) A description of the proposed geo-
he/she may proceed with preparation of graphic service area of the mitigation
the draft instrument (see paragraph bank or in-lieu fee program. The serv-
(d)(6) of this section). ice area is the watershed, ecoregion,
(iii) If the district engineer deter- physiographic province, and/or other
mines that the proposed mitigation geographic area within which the miti-
bank or in-lieu fee program does not gation bank or in-lieu fee program is
have potential for providing appro- authorized to provide compensatory
priate compensatory mitigation for DA mitigation required by DA permits.
permits, the initial evaluation letter The service area must be appropriately
must discuss the reasons for that de- sized to ensure that the aquatic re-
termination. The sponsor may revise sources provided will effectively com-
the prospectus to address the district pensate for adverse environmental im-
engineer’s concerns, and submit the re- pacts across the entire service area.
vised prospectus to the district engi- For example, in urban areas, a U.S. Ge-
neer. If the sponsor submits a revised ological Survey 8-digit hydrologic unit
prospectus, a revised public notice will code (HUC) watershed or a smaller wa-
be issued in accordance with paragraph tershed may be an appropriate service
area. In rural areas, several contiguous
(d)(4) of this section.
8-digit HUCs or a 6-digit HUC water-
(iv) This initial evaluation procedure
shed may be an appropriate service
does not apply to proposed modifica-
area. Delineation of the service area
tions of approved instruments. must also consider any locally-devel-
(6) Draft instrument. (i) After consid- oped standards and criteria that may
ering comments from the district engi- be applicable. The economic viability
neer, the IRT, and the public, if the of the mitigation bank or in-lieu fee
sponsor chooses to proceed with estab- program may also be considered in de-
lishment of the mitigation bank or in- termining the size of the service area.
lieu fee program, he must prepare a The basis for the proposed service area
draft instrument and submit it to the must be documented in the instrument.
district engineer. In the case of an in- An in-lieu fee program or umbrella
strument modification, the sponsor mitigation banking instrument may
must prepare a draft amendment (e.g., have multiple service areas governed
a specific instrument provision, a new by its instrument (e.g., each watershed
or modified mitigation plan), and sub- within a state or Corps district may be
mit it to the district engineer. The dis- a separate service area under the in-
trict engineer must notify the sponsor strument); however, all impacts and
within 30 days of receipt, whether the compensatory mitigation must be ac-
draft instrument or amendment is counted for by service area;
complete. If the draft instrument or (B) Accounting procedures;
amendment is incomplete, the district (C) A provision stating that legal re-
engineer will request from the sponsor sponsibility for providing the compen-
the information necessary to make the satory mitigation lies with the sponsor
draft instrument or amendment com- once a permittee secures credits from
plete. Once any additional information the sponsor;
is submitted, the district engineer (D) Default and closure provisions;
must notify the sponsor as soon as he (E) Reporting protocols; and
determines that the draft instrument (F) Any other information deemed
or amendment is complete. The draft necessary by the district engineer.
instrument must be based on the pro- (iii) For a mitigation bank, a com-
spectus and must describe in detail the plete draft instrument must include
physical and legal characteristics of the following additional information:
the mitigation bank or in-lieu fee pro- (A) Mitigation plans that include all
gram and how it will be established and applicable items listed in § 332.4(c)(2)
operated. through (14); and
505
§ 332.8 33 CFR Ch. II (7–1–20 Edition)
(B) A credit release schedule, which sion-making time frames specified in

is tied to achievement of specific mile- this section. Within 90 days of receipt
stones. All credit releases must be ap- of the complete draft instrument or
proved by the district engineer, in con- amendment by the IRT members, the
sultation with the IRT, based on a de- district engineer must notify the spon-
termination that required milestones sor of the status of the IRT review.
have been achieved. The district engi- Specifically, the district engineer must
neer, in consultation with the IRT, indicate to the sponsor if the draft in-
may modify the credit release sched- strument or amendment is generally
ule, including reducing the number of acceptable and what changes, if any,
available credits or suspending credit are needed. If there are significant un-
sales or transfers altogether, where resolved concerns that may lead to a
necessary to ensure that all credit formal objection from one or more IRT
sales or transfers remain tied to com- members to the final instrument or
pensatory mitigation projects with a amendment, the district engineer will
high likelihood of meeting performance indicate the nature of those concerns.
standards; (8) Final instrument. The sponsor must
(iv) For an in-lieu fee program, a submit a final instrument to the dis-
complete draft instrument must in-
trict engineer for approval, with sup-
clude the following additional informa-
porting documentation that explains
tion:
how the final instrument addresses the
(A) The compensation planning
comments provided by the IRT. For
framework (see paragraph (c) of this
modifications of approved instruments,
section);
(B) Specification of the initial alloca- the sponsor must submit a final
tion of advance credits (see paragraph amendment to the district engineer for
(n) of this section) and a draft fee approval, with supporting documenta-
schedule for these credits, by service tion that explains how the final amend-
area, including an explanation of the ment addresses the comments provided
basis for the allocation and draft fee by the IRT. The final instrument or
schedule; amendment must be provided directly
(C) A methodology for determining by the sponsor to all members of the
future project-specific credits and fees; IRT. Within 30 days of receipt of the
and final instrument or amendment, the
(D) A description of the in-lieu fee district engineer will notify the IRT
program account required by para- members whether or not he intends to
graph (i) of this section. approve the instrument or amendment.
(7) IRT review. Upon receipt of notifi- If no IRT member objects, by initiating
cation by the district engineer that the the dispute resolution process in para-
draft instrument or amendment is graph (e) of this section within 45 days
complete, the sponsor must provide the of receipt of the final instrument or
district engineer with a sufficient num- amendment, the district engineer will
ber of copies of the draft instrument or notify the sponsor of his final decision
amendment to distribute to the IRT and, if the instrument or amendment is
members. The district engineer will approved, arrange for it to be signed by
promptly distribute copies of the draft the appropriate parties. If any IRT
instrument or amendment to the IRT member initiates the dispute resolu-
members for a 30-day comment period. tion process, the district engineer will
The 30-day comment period begins 5 notify the sponsor. Following conclu-
days after the district engineer distrib- sion of the dispute resolution process,
utes the copies of the draft instrument the district engineer will notify the
or amendment to the IRT. Following sponsor of his final decision, and if the
the comment period, the district engi- instrument or amendment is approved,
neer will discuss any comments with arrange for it to be signed by the ap-
the appropriate agencies and with the propriate parties. For mitigation
sponsor. The district engineer will seek banks, the final instrument must con-
to resolve issues using a consensus tain the information items listed in
based approach, to the extent prac- paragraphs (d)(6)(ii), and (iii) of this
ticable, while still meeting the deci- section. For in-lieu fee programs, the
506
final instrument must contain the in- quarters review. This step is available
formation items listed in paragraphs only to the IRT members representing
(d)(6)(ii) and (iv) of this section. For these three federal agencies, however
the modification of an approved instru- other IRT members who do not agree
ment, the amendment must contain ap- with the district engineer’s final deci-
propriate information, as determined sion do not have to sign the instrument
by the district engineer. The final in- or amendment or recognize the mitiga-
strument or amendment must be made tion bank or in-lieu fee program for
available to the public upon request. purposes of their own programs and au-
(e) Dispute resolution process. (1) With- thorities. If an IRT member other than
in 15 days of receipt of the district en- the one filing the original objection
gineer’s notification of intent to ap- has a new objection based on the dis-
prove an instrument or amendment, trict engineer’s response, he may use
the Regional Administrator of the U.S. the first step in this procedure (para-
EPA, the Regional Director of the U.S. graph (e)(1) of this section) to provide
Fish and Wildlife Service, the Regional that objection to the district engineer.
Director of the National Marine Fish- (4) If the issue has not been for-
eries Service, and/or other senior offi- warded to the objecting agency’s Head-
cials of agencies represented on the quarters, then the district engineer
IRT may notify the district engineer may proceed with final action on the
and other IRT members by letter if instrument or amendment. If the issue
they object to the approval of the pro- has been forwarded to the objecting
posed final instrument or amendment. agency’s Headquarters, the district en-
This letter must include an expla- gineer must hold in abeyance the final
nation of the basis for the objection action on the instrument or amend-
and, where feasible, offer recommenda- ment, pending Headquarters level re-
tions for resolving the objections. If view described below.
the district engineer does not receive (5) Within 20 days from the date of
any objections within this time period, the letter requesting Headquarters
he may proceed to final action on the level review, the Assistant Adminis-
instrument or amendment. trator for Water, the Assistant Sec-
(2) The district engineer must re- retary for Fish and Wildlife and Parks,
spond to the objection within 30 days of or the Undersecretary for Oceans and
receipt of the letter. The district engi- Atmosphere must either notify the As-
neer’s response may indicate an intent sistant Secretary of the Army (Civil
to disapprove the instrument or Works) (ASA(CW)) that further review
amendment as a result of the objec- will not be requested, or request that
tion, an intent to approve the instru- the ASA(CW) review the final instru-
ment or amendment despite the objec- ment or amendment.
tion, or may provide a modified instru- (6) Within 30 days of receipt of the
ment or amendment that attempts to letter from the objecting agency’s
address the objection. The district en- Headquarters request for ASA(CW)’s
gineer’s response must be provided to review of the final instrument, the
all IRT members. ASA(CW), through the Director of Civil
(3) Within 15 days of receipt of the Works, must review the draft instru-
district engineer’s response, if the Re- ment or amendment and advise the dis-
gional Administrator or Regional Di- trict engineer on how to proceed with
rector is not satisfied with the re- final action on that instrument or
sponse he may forward the issue to the amendment. The ASA(CW) must imme-
Assistant Administrator for Water of diately notify the Assistant Adminis-
the U.S. EPA, the Assistant Secretary trator for Water, the Assistant Sec-
for Fish and Wildlife and Parks of the retary for Fish and Wildlife and Parks,
U.S. FWS, or the Undersecretary for and/or the Undersecretary for Oceans
Oceans and Atmosphere of NOAA, as and Atmosphere of the final decision.
appropriate, for review and must notify (7) In cases where the dispute resolu-
the district engineer by letter via election procedure is used, the district en-
tronic mail or facsimile machine (with gineer must notify the sponsor of his
copies to all IRT members) that the final decision within 150 days of receipt
issue has been forwarded for Head- of the final instrument or amendment.
507
§ 332.8 33 CFR Ch. II (7–1–20 Edition)
(f) Extension of deadlines. (1) The the proposed modification. IRT mem-
deadlines in paragraphs (d) and (e) of bers and the sponsor have 30 days to
this section may be extended by the notify the district engineer if they
district engineer at his sole discretion have concerns with the proposed modi-
in cases where: fication. If IRT members or the sponsor
(i) Compliance with other applicable notify the district engineer of such
laws, such as consultation under sec- concerns, the district engineer shall at-
tion 7 of the Endangered Species Act or tempt to resolve those concerns. With-
section 106 of the National Historic in 60 days of providing the proposed
Preservation Act, is required; modification to the IRT, the district
(ii) It is necessary to conduct govern- engineer must notify the IRT members
ment-to-government consultation with of his intent to approve or disapprove
Indian tribes; the proposed modification. If no IRT
(iii) Timely submittal of information member objects, by initiating the dis-
necessary for the review of the pro- pute resolution process in paragraph
posed mitigation bank or in-lieu fee (e) of this section, within 15 days of re-
program or the proposed modification ceipt of this notification, the district
of an approved instrument is not ac- engineer will notify the sponsor of his
complished by the sponsor; or final decision and, if the modification
(iv) Information that is essential to is approved, arrange for it to be signed
the district engineer’s decision cannot by the appropriate parties. If any IRT
be reasonably obtained within the spec- member initiates the dispute resolu-
ified time frame.
tion process, the district engineer will
(2) In such cases, the district engi-
so notify the sponsor. Following con-
neer must promptly notify the sponsor
clusion of the dispute resolution proc-
in writing of the extension and the rea-
ess, the district engineer will notify
son for it. Such extensions shall be for
the sponsor of his final decision, and if
the minimum time necessary to re-
the modification is approved, arrange
solve the issue necessitating the exten-
for it to be signed by the appropriate
sion.
parties.
(g) Modification of instruments—(1) Ap-
proval of an amendment to an approved (h) Umbrella mitigation banking instru-
instrument. Modification of an approved ments. A single mitigation banking in-
instrument, including the addition and strument may provide for future au-
approval of umbrella mitigation bank thorization of additional mitigation
sites or in-lieu fee project sites or ex- bank sites. As additional sites are se-
pansions of previously approved miti- lected, they must be included in the
gation bank or in-lieu fee project sites, mitigation banking instrument as
must follow the appropriate procedures modifications, using the procedures in
in paragraph (d) of this section, unless paragraph (g)(1) of this section. Credit
the district engineer determines that withdrawal from the additional bank
the streamlined review process de- sites shall be consistent with para-
scribed in paragraph (g)(2) of this sec- graph (m) of this section.
tion is warranted. (i) In-lieu fee program account. (1) The
(2) Streamlined review process. The in-lieu fee program sponsor must estab-
streamlined modification review proc- lish a program account after the in-
ess may be used for the following modi- strument is approved by the district
fications of instruments: changes re- engineer, prior to accepting any fees
flecting adaptive management of the from permittees. If the sponsor accepts
mitigation bank or in-lieu fee program, funds from entities other than permit-
credit releases, changes in credit re- tees, those funds must be kept in sepa-
leases and credit release schedules, and rate accounts. The program account
changes that the district engineer de- must be established at a financial in-
termines are not significant. If the dis- stitution that is a member of the Fed-
trict engineer determines that the eral Deposit Insurance Corporation. All
streamlined review process is war- interests and earnings accruing to the
ranted, he must notify the IRT mem- program account must remain in that
bers and the sponsor of this determina- account for use by the in-lieu fee pro-
tion and provide them with copies of gram for the purposes of providing
508
compensatory mitigation for DA per- (4) The district engineer may audit
mits. The program account may only the records pertaining to the program
be used for the selection, design, acqui- account. All books, accounts, reports,
sition, implementation, and manage- files, and other records relating to the
ment of in-lieu fee compensatory miti- in-lieu fee program account shall be
gation projects, except for a small per- available at reasonable times for in-
centage (as determined by the district spection and audit by the district engi-
engineer in consultation with the IRT neer.
and specified in the instrument) that (j) In-lieu fee project approval. (1) As
can be used for administrative costs. in-lieu fee project sites are identified
(2) The sponsor must submit proposed and secured, the sponsor must submit
in-lieu fee projects to the district engi- mitigation plans to the district engi-
neer for funding approval. Disburse-
neer that include all applicable items
ments from the program account may
listed in § 332.4(c)(2) through (14). The
only be made upon receipt of written
mitigation plan must also include a
authorization from the district engi-
credit release schedule consistent with
neer, after the district engineer has
consulted with the IRT. The terms of paragraph (o)(8) of this section that is
the program account must specify that tied to achievement of specific per-
the district engineer has the authority formance standards. The review and
to direct those funds to alternative approval of in-lieu fee projects will be
compensatory mitigation projects in conducted in accordance with the pro-
cases where the sponsor does not procedures in paragraph (g)(1) of this sec-
vide compensatory mitigation in action, as modifications of the in-lieu fee
cordance with the time frame specified program instrument. This includes
in paragraph (n)(4) of this section. compensatory mitigation projects con-
(3) The sponsor must provide annual ducted by another party on behalf of
reports to the district engineer and the the sponsor through requests for pro-
IRT. The annual reports must include posals and awarding of contracts.
the following information: (2) If a DA permit is required for an
(i) All income received, disburse- in-lieu fee project, the permit should
ments, and interest earned by the pro- not be issued until all relevant provi-
gram account; sions of the mitigation plan have been
(ii) A list of all permits for which in- substantively determined, to ensure
lieu fee program funds were accepted. that the DA permit accurately reflects
This list shall include: The Corps per- all relevant provisions of the approved
mit number (or the state permit num- mitigation plan, such as performance
ber if there is no corresponding Corps standards.
permit number, in cases of state pro- (k) Coordination of mitigation banking
grammatic general permits or other re- instruments and DA permit issuance. In
gional general permits), the service
cases where initial establishment of
area in which the authorized impacts
the mitigation bank, or the develop-
are located, the amount of authorized
ment of a new project site under an
impacts, the amount of required com-
pensatory mitigation, the amount paid umbrella banking instrument, involves
to the in-lieu fee program, and the date activities requiring DA authorization,
the funds were received from the per- the permit should not be issued until
mittee; all relevant provisions of the mitiga-
(iii) A description of in-lieu fee pro- tion plan have been substantively de-
gram expenditures from the account, termined. This is to ensure that the DA
such as the costs of land acquisition, permit accurately reflects all relevant
planning, construction, monitoring, provisions of the final instrument, such
maintenance, contingencies, adaptive as performance standards.
management, and administration; (l) Project implementation. (1) The
(iv) The balance of advance credits sponsor must have an approved instru-
and released credits at the end of the ment prior to collecting funds from
report period for each service area; and permittees to satisfy compensatory
(v) Any other information required mitigation requirements for DA per-

by the district engineer. mits.
509
§ 332.8 33 CFR Ch. II (7–1–20 Edition)
(2) Authorization to sell credits to tees when the instrument is approved.

satisfy compensatory mitigation re- The number of advance credits will be
quirements in DA permits is contin- determined by the district engineer, in
gent on compliance with all of the consultation with the IRT, and will be
terms of the instrument. This includes specified for each service area in the
constructing a mitigation bank or in- instrument. The number of advance
lieu fee project in accordance with the credits will be based on the following
mitigation plan approved by the dis- considerations:
trict engineer and incorporated by ref- (i) The compensation planning frame-
erence in the instrument. If the aquat- work;
ic resource restoration, establishment, (ii) The sponsor’s past performance
enhancement, and/or preservation ac- for implementing aquatic resource res-
tivities cannot be implemented in ac- toration, establishment, enhancement,
cordance with the approved mitigation and/or preservation activities in the
plan, the district engineer must con- proposed service area or other areas;
sult with the sponsor and the IRT to and
consider modifications to the instru- (iii) The projected financing nec-
ment, including adaptive management, essary to begin planning and imple-
revisions to the credit release schedule, mentation of in-lieu fee projects.
and alternatives for providing compen- (2) To determine the appropriate
satory mitigation to satisfy any cred- number of advance credits for a par-
its that have already been sold. ticular service area, the district engi-
(3) An in-lieu fee program sponsor is neer may require the sponsor to pro-
responsible for the implementation, vide confidential supporting informa-
long-term management, and any re- tion that will not be made available to
quired remediation of the restoration, the general public. Examples of con-
establishment, enhancement, and/or fidential supporting information may
preservation activities, even though include prospective in-lieu fee project
those activities may be conducted by sites.
other parties through requests for pro- (3) As released credits are produced
posals or other contracting mecha- by in-lieu fee projects, they must be
nisms. used to fulfill any advance credits that
(m) Credit withdrawal from mitigation have already been provided within the
banks. The mitigation banking instru- project service area before any remain-
ment may allow for an initial debiting ing released credits can be sold or
of a percentage of the total credits pro- transferred to permittees. Once pre-
jected at mitigation bank maturity, viously provided advance credits have
provided the following conditions are been fulfilled, an equal number of ad-
satisfied: the mitigation banking in- vance credits is re-allocated to the
strument and mitigation plan have sponsor for sale or transfer to fulfill
been approved, the mitigation bank new mitigation requirements, con-
site has been secured, appropriate fi- sistent with the terms of the instru-
nancial assurances have been estab- ment. The number of advance credits
lished, and any other requirements de- available to the sponsor at any given
termined to be necessary by the dis- time to sell or transfer to permittees in
trict engineer have been fulfilled. The a given service area is equal to the
mitigation banking instrument must number of advance credits specified in
provide a schedule for additional credit the instrument, minus any that have
releases as appropriate milestones are already been provided but not yet ful-
achieved (see paragraph (o)(8) of this filled.
section). Implementation of the ap- (4) Land acquisition and initial phys-
proved mitigation plan shall be initi- ical and biological improvements must
ated no later than the first full grow- be completed by the third full growing
ing season after the date of the first season after the first advance credit in
credit transaction. that service area is secured by a per-
(n) Advance credits for in-lieu fee pro- mittee, unless the district engineer de-
grams. (1) The in-lieu fee program in-

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Title 33

Navigation and Navigable Waters

Revised as of July 1, 2020

Containing a codification of documents

Published by the Office of the Federal Register

Legal Status and Use of Seals and Logos

Use of ISBN Prefix

U.S. GOVERNMENT PUBLISHING OFFICE

U.S. Superintendent of Documents • Washington, DC 20402–0001

Phone: toll-free (866) 512-1800; DC area (202) 512-1800

Chapter II—Corps of Engineers, Department of the Army, Depart-

Chapter IV—Saint Lawrence Seaway Development Corporation,

Table of CFR Titles and Chapters ....................................................... 747

Alphabetical List of Agencies Appearing in the CFR ......................... 767

List of CFR Sections Affected ............................................................. 777

To cite the regulations in

lishing in the CFR are also included in this volume.

Title 33—NAVIGATION AND NAVIGABLE WATERS is composed of three volumes.

CHAPTER II—Corps of Engineers, Department of the Army,

ABBREVIATION USED IN CHAPTER II:

273 Aquatic plant control .............................................. 350

Subpart G—Local Interests/Cooperation

Subpart B—Disaster Preparedness Subpart A—Introduction

Subpart F—Advance Measures

and the provision of Rehabilitation As- (1) Operation and maintenance of

(2) Corps assistance will be termi- maintained condition, or with funds to

turned to the Corps immediately after gain an Active status, a non-Federal

engineering, maintenance, and quali- tenance program is adequate. A rating

time as an adequate maintenance pro- (e) Cooperation Agreements. A Co-

or waivers thereof, will not be rehabili- dressed in § 203.82. Failure of project

during Continuing Eligibility Inspec- for conducting required inspections.

sponsor must be either a non-Federal of Civil Works when compelling rea-

99 will not be provided anywhere with- non-Federal interests from accepting

(b) Policies—(1) Active non-Federal mental Protection Agency pursuant to

or treatment technique for a contami- agreement (as an amendment to the

adequate supply of water to local in- farming partnership, corporation, or

to include Government-leased convey- required. All requests should identify

commitments and capabilities with re- considerations of available time (when

to occur), season (e.g., a snowpack that § 203.82 Requirements of local co-

HSPP’s. Sponsors will provide their sources for a ‘‘Capital Improvement

regulations. Harbor Beach; use and navigation.

feet shall be accurately and distinctly be removed at once as requested or di-

(n) The lock shall be operated od of communications between the

tailed in charge of the respective sec- responsibilities of the lockmaster set

(8) The building, assembling, or ans, Louisiana, if between Suwanee

in the waterways described in para- mediate management and control of

uninterrupted emergency or mainte- stream or downstream through the

as fire, collision, sinking, or stranding, shall be performed by the contract lock

FR 18235, May 14, 1987; 52 FR 34775, Sept. 15,

§ 207.260 Yazoo Diversion Canal, Latitude 32°20′12″, Longitude 90°53′41″,

use, administration, and navigation of normally be the first to lock through;

from this procedure to achieve opti- (3) Fenders shall be water-soaked or

locking process, including the act of

or by radio communication. The tion seems safe and appropriate, pro-

[40 FR 32121, July 31, 1975, as amended at 50

gation of the said river by means of steam-

and willfully violating such rules and regula-

from such dam, or in any way injure ities:

until modified or rescinded.

§ 207.390 [Reserved] laws, rules and regulations for the use

a steamer approaching from the opposite di-

(c) No vessel shall moor or anchor to and navigation thereof shall be in

§ 207.680 Willamette River, Oreg.; use, tacting the lockmaster on VHF-FM

(iv) To rafts. sistance shall be strictly under the or-