Overview of Dredged Material Management Regulations

The environmental laws and regulations that apply to dredged material management can vary depending on the method and location of disposal and the physical and chemical nature of the dredged material. This discussion will focus on those regulations that apply to the discharge of dredged material to lakes, rivers and wetlands. These regulations are administered by federal and state agencies to insure that dredged material is managed in an environmentally responsible manner.

Section 404 of the Clean Water Act of 1972 (PL 92-500), as amended, is the primary federal statute regulating the discharge of dredged or fill material into waters of the United States. Section 404 applies to the disposal of dredged or fill material into lakes, rivers and wetlands. It also applies to any "return water" from the upland disposal of dredged material, such as the effluent from an confined disposal facility, or CDF. Section 404 does not apply to the placement of dredged material at upland sites, unless that site is a fill created in waters of the U.S.

Section 404 designates the U.S. Army Corps of Engineers (USACE) as the lead federal agency in the regulation of dredge and fill discharges, using Guidelines developed by the USEPA in conjunction with the USACE. Federal regulations on the USACE permit program are contained in 33 CFR Parts 320-330 (Regulatory Programs of the Corps of Engineers). Section 404 permits are issued through USACE district offices. Some nationwide and regional permits have been issued to cover specific types of discharges. Section 404(g) of the Clean Water Act allows the USEPA to transfer a portion of the regulatory program for Section 404 to a qualifying state or Indian Tribe. Only one Great Lakes state (Michigan) has been transferred 404 permitting responsibilities. Permit applicants must provide sufficient information to complete a 404(b)(1) evaluation, which is prepared by the permitting office.

Section 404 of the Clean Water Act (CWA) is a holistic regulation. The final determination of acceptability of any proposed discharge of dredged material considers the probable impact, including cumulative impacts of the proposed discharge, on the public interest. The CWA directs that 404(b)(1) Guidelines be promulgated by the Administrator of the USEPA in conjunction with the USACE. The development of these Guidelines and implementation guidance are USEPA's primary role in dredged material decision making. The first Guidelines were issued in 1975. The amendments to the CWA in 1977 and experience gained between 1975 and 1980 led to a revision of these Guidelines. This revision, at 40 CFR 230, became a final rule on December 24, 1980.

The 404(b)(1) Guidelines require consideration of potential impacts on the following:

• physical & chemical characteristics of aquatic ecosystem;
• biological characteristics of the aquatic ecosystem;
• special aquatic sites, and;
• human use characteristics.

As indicated above, the 404(b)(1) evaluation process considers potential impacts of a proposed dredged material discharge from many perspectives. Potential physical impacts of disposal considered might include the covering of spawning areas and benthic communities, potential alterations to current or water circulation patterns, or clogging of water supply intakes. These considerations in the 404(b)(1) evaluation should address most of the questions raised for determining consistency with an approved state Coastal Zone Management (CZM) plan. The 404(b)(1) evaluation also considers the potential impacts of contaminants in the dredged material on water quality and aquatic life. These considerations should answer the questions required for determining state water quality compliance in accordance with Section 401 of the CWA.

The Great Lakes Dredged Material Testing & Evaluation Manual was developed to provide regional guidance on the evaluation of contaminants in dredged material proposed for discharge to waters of the Great Lakes. Through the procedures outlined in this manual, a "contaminant determination" is made. A "contaminant determination" is a conclusion, based on information gathered and testing (if necessary), that the proposed discharge of dredged material will, or will not cause unacceptable adverse impacts to water quality and aqutic life. This determination is one component of the 404(b)(1) evaluation, upon which the final decision of Section 404 compliance is based.

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