Overview of Dredged Material Management Regulations

Dredged material management is shared by a variety of state and federal agencies. The U.S. Army Corps of Engineers and the Environmental Protection Agency share the responsibility for regulating the discharge of dredged material. In Oregon, the agencies tasked with this responsibility are the Department of Environmental Quality, the Division of State Lands, and the Department of Land Conservation and Development. In Washington, regulation is shared by the Departments of Ecology, Natural Resources, and Fish and Wildlife.

Federal Regulations

Clean Water Act (CWA)
The CWA governs the discharge of dredged material into the "waters of the United States". "Waters of the United States" includes all waters, including lakes, streams, mudflats, wetlands, and sloughs, "the use, degradation or destruction of which" could affect interstate or foreign commerce.

§404 - Regulatory permit program administered by the Corps for any discharge of dredge or fill material into the waters of the United States. 404 permit is required for dredged material disposal in an aquatic or nearshore environment. It is also required for hydraulic dredging that places the material on an upland site if the effluent from the disposal will be returned to waters of the US.

River and Harbors Act §10 - regulatory program administered by the Corps of Engineers that requires approval by the Secretary of the Army for any work in navigable waters of the United States. Section 10 permits are required for dredging activity in any navigable waters.

The EPA and the COE have developed guidelines for evaluating specific proposed aquatic or nearshore disposal sites. The Guidelines evaluate potential disposal sites based on potential impacts on the physical, chemical, and biological characteristics of the aquatic environment. They specify four conditions for the selection of any aquatic disposal site for dredged material (40 CFR 230):

a) There must be no other practicable alternatives available that would have less adverse impacts on the aquatic environment.
b) The disposal must not result in violations of applicable state water quality standards, toxic effluent standards, marine sanctuary requirements, or requirements of the Endangered Species Act.
c) The disposal must not cause or contribute to significant degradation of the waters of the United States.
d) The permit applicant must show that all appropriate and practicable steps have been taken to minimize potential adverse impacts of the discharge on the aquatic environment.

EPA has oversight authority over the Corps' decision to issue a permit and may veto it if they determine that it will have an "unacceptable adverse effect" on the environment.

Marine Protection, Research, and Sanctuaries Act (MPRSA)
The MPRSA governs the transportation of dredged material seaward of the baseline of the territorial sea for the purpose of disposal. MPRSA requires that any ocean disposal must be first evaluated to determine the potential environmental impact of such an activity. The Corps is the permitting agency subject to EPA oversight and review. EPA, in consultation with the Corps, is required to develop environmental criteria that must be complied with before any proposed ocean disposal activity is allowed to proceed.

In developing the criteria for the evaluation of permit applications, MPRSA provides that the following elements must be considered: (1) the need for the proposed dumping; (2) the effect of the dumping on human health and welfare, fisheries resources, marine ecosystems, and shorelines; (3) the persistence and permanence of the effects of the dumping; (4) the effect of dumping particular volumes and concentrations; (5) appropriate locations and methods of disposal or recycling, including land-based alternatives; and (6) the effect of dumping an alternate uses of the oceans.

The criteria for evaluating environmental impact calls for: (a) No unacceptable adverse effects on human health and no significant damage to the resources of the marine environment; (b) No unacceptable adverse effect on the marine ecosystem; (c) No unacceptable adverse persistent or permanent effects due to the dumping of particular volumes or concentrations of these materials; and (d) No unacceptable adverse effect on the ocean for other uses as a result of direct environmental impact.

National Environmental Policy Act (NEPA)
NEPA acts as an umbrella authority that assures that all applicable environmental requirements are complied with for federal dredging projects. All activities that are regulated by the CWA and MPRSA must also comply with NEPA.

Coastal Zone Management Act (CZMA)
The CZMA grants state and local governments the primary responsibility for planning and regulation of land and water uses in the coastal zone. States may develop and administer land and water use management programs for the coastal zone. Federal projects within the coastal zone must be consistent to the maximum extent practicable with the approved state programs. For non-federal projects, a permit cannot be issued until the appropriate state agency (Oregon - DLCD; Washington - DOE) has concurred that the project is in compliance with the approved coastal zone management plan.

Endangered Species Act (ESA)
Section 7 of the ESA requires all Federal agencies to ensure that their actions do not jeopardize endangered or threatened species or their critical habitat. Consultation with the U.S. Fish and Wildlife Service or National Marine Fisheries Service is required if the project could affect those species.

Oregon State Regulations
Coastal Program
Federal projects and projects requiring a federal permit must be reviewed by the Department of Land Conservation and Development for consistency with the Oregon coastal management program.

Clean Water Act, Section 401 Certification
Section 401 of the federal Clean Water Act requires that any federally permitted projects discharging into U.S. waters be certified by the state that the discharge will not violate state water quality standards. For non-federal dredging, §401 certification is a precondition to compliance with §404 guidelines and is required before receiving a §404 permit for disposal of dredged or fill material.

Oregon Department of Environmental Quality is the agency responsible for certifying under §401 that a proposed discharge will comply with the state water quality standards. DEQ may also add as conditions to the §401 certification any requirement or policy of state law that protects aquatic habitat. In situations where the state does not have jurisdiction, the EPA will provide the §401 certification.

Removal/Fill Permit
Oregon Division of State Lands issues a permit for any activity that proposes dredging or filling exceeding 50 cubic yards of material within the beds or banks of the waters of the state of Oregon.

State Beaches
Oregon State Parks issues permits for any activity on state beaches. This includes the placement of dredged material.

Washington State Regulations

Clean Water Act, Section 401 Certification
Section 401 of the federal Clean Water Act requires that any federally permitted projects discharging into U.S. waters be certified by the state that the discharge will not violate state water quality standards. For non-federal dredging, §401 certification is a precondition to compliance with §404 guidelines and is required before receiving a §404 permit for disposal of dredged or fill material.

Washington State Department of Ecology is the agency responsible for certifying under §401 that a proposed discharge will comply with the state water quality standards. DOE may also add as conditions to the §401 certification any requirement or policy of state law that protects aquatic habitat. In situations where the state does not have jurisdiction, the EPA will provide the §401 certification.

State Environmental Policy Act
SEPA environmental review is required for any action that involves a government "action". An environmental impact statement must be prepared when the lead agency determines a proposal is likely to have significant adverse environmental impacts. The EIS provides an impartial discussion of significant environmental impacts, reasonable alternatives, and mitigation measures that would avoid or minimize adverse impacts.

The SEPA Rules direct agencies to: (1) consider environmental information (impacts, alternatives, and mitigation) before committing to a particular course of action; (2) identify and evaluate probable impacts, alternatives and mitigation measures, emphasizing important environmental impacts and alternatives (including cumulative, short-term, long-term, direct and indirect impacts); (3) encourage public involvement in decisions; prepare environmental documents that are concise, clear, and to the point; (4) integrate SEPA with existing agency planning and licensing procedures, so that the procedures run concurrently rather than consecutively; and, (5) integrate SEPA with agency activities at the earliest possible time to ensure that planning and decisions reflect environmental values, to avoid delays later in the process, and seek to resolve potential problems.

To deny a proposal under SEPA, an agency must find that the proposal would be likely to result in a significant adverse environmental impact identified in a final EIS or final supplemental EIS; and reasonable mitigation measures are not sufficient to mitigate the identified impact to a non-significant level.

Ocean Resources Management Act
Requires that priority be given to resource uses and activities that will not adversely impact renewable resources over those uses that are likely to have an adverse impact. Requires that adverse impacts are avoided, minimized and mitigated.

Hydraulic Project Approval
Any actions affecting the natural flow of waters requires a State Hydraulic Project Approval permit. This generally means any action in saltwater or a stream below the ordinary high water mark. The Washington State Department of Fish and Wildlife must act upon this permit application within 30 days of receipt of a complete application package, including the determination of compliance with the State Environmental Policy Act.

Aquatic Lands Act
Department of Natural Resources has proprietary authority to manage state-owned aquatic lands in trust for the public. DNR has the power to lease state-owned aquatic lands for development and charge a fee for the discharge or use of dredged material. Aquatic or nearshore disposal sites can be subject to DNR management.

Sediment Management Standards
The State of Washington adopted Sediment Management Standards (SMS) for the purpose of reducing and ultimately eliminating adverse effects on biological resources and significant health threats to humans from surface sediment contamination. These standards apply to marine, estuarine, and freshwater surface sediments within the State.

The SMS provide two levels of effects specific to the contamination of marine sediments. that guide decisions pertaining to sediment cleanup and source control activities.

Shoreline Management Act
The Shoreline Management Act requires a permit for any "substantial development" within the shorelines of the state. "Shorelines of the State" are defined to include designated water bodies and their submerged beds with the state's territorial limits and all land areas 200 feet landward of ordinary high water and adjacent wetlands. Local jurisdictions are responsible for overseeing compliance, the Department of Ecology reviews and oversees the local jurisdictions' plans and decisions.

Local Shoreline Master Programs have been adopted as state regulations. Thus, a local Shoreline Permit that has been issued and survived any appeals is the mechanism for determining compliance with Federal Coastal Zone Management Act.

Local Jurisdiction Regulations
Dredging and dredged material disposal must comply with local shoreline management master plans and zoning ordinances.