(2) The fact that practice firing is to take place over the designated area will be advertised to the public through the usual media for the dissemination of such information. Factual information as to the dates, time, and characteristics of the firing will be advertised in advance of each session of firing but in no case less than one week nor more than four weeks before such firing is scheduled to take place.

(3) Prior to conducting each practice firing, the entire danger zone will be patrolled by aircraft or surface vessels to insure that no watercraft are within the danger zone. Any watercraft in the vicinity will be warned that practice firing is about to take place. Any such watercraft shall, upon being so warned, leave the danger zone immediately and shall not return until such practice shall have been terminated and notification to that effect shall have been given by the patrol craft, except that vessels proceeding on a regular course through the area will be allowed to proceed out of the area without warning, and firing will not commence until such vessels are clear of the area.

(4) This section shall be enforced by the Commanding General, U.S. Army Forces Antilles, and such agencies as he may designate.

[14 FR 4552, July 21, 1949. Redesignated at 14 FR 5593, Sept. 13, 1949, and amended at 15 FR 6758, Oct. 6, 1950. Redesignated at 50 FR 42696, Oct. 22, 1985, as amended at 62 FR 17559, Apr. 10, 1997; 62 FR 24034, May 2, 1997]

§334.1460 Atlantic Ocean and Vieques

the

Sound, in vicinity of Culebra Island; bombing and gunnery target area. (a) The danger zone. From Punta Resaca on the north coast of Culebra at latitude 18°20′12′′, longitude 65°17′29′′ to latitude 18°25′07′′, longitude 65°12′07′′; thence to latitude 18°26′31′′, longitude 65°16′45′′; thence to latitude 18°23′00′′, longitude 65°24'30"; thence to charted position of nun buoy "2" at latitude 18°20′19′′, longitude 65°24′51′′; thence to latitude 18°18′47′′, longitude 65°24′35′′; thence to latitude 18°15′30′′, longitude 65°21′30′′; thence to a point on southeast coast of Cayo de Luis Pena at latitude 18°17′51′′, longitude 65°19′41′′; and thence to Punta Tamarindo on the west coast of Culebra at latitude 18°19′12′′ longitude 65°19′22′′.

the

(b) The regulations. (1) The danger zone is subject to use as a target area for bombing and gunnery practice. It will be open to navigation at all times except when firing is being conducted. At such times, no person or surface vessels, except those patrolling the area, shall enter or remain within the danger area. Prior to conducting each firing or dropping of ordnance the danger area will be patrolled to insure that no watercraft are within the danger area. Any watercraft in the vicinity will be warned that practice firing is about to take place and advised to vacate the area.

(2) The regulations in this section shall be enforced by the Commander, Caribbean Sea Frontier, San Juan. Puerto Rico, and such agencies as he may designate.

(Sec. 7, 40 Stat. 266, (33 U.S.C. 1))

[13 FR 9530, Dec. 31, 1948. Redesignated at 14 FR 4904, Aug. 9, 1949, and amended at 28 FR 349, Jan. 12, 1963; 39 FR 27133, July 25, 1974; 44 FR 69298, Dec. 3, 1979. Redesignated at 50 FR 42696, Oct. 22, 1985, as amended at 62 FR 17559, Apr. 10, 1997]

§334.1470 Caribbean Sea and Vieques Sound, in vicinity of Eastern Vieques; bombing and gunnery target area.

(a) The danger zone. From Punta Conejo on the south coast of Vieques at latitude 18°06′30′′, longitude 65°22′33′′; thence to latitude 18°03′00′′, longitude 65°21′00′′; thence to latitude 18°03′00′′, longitude 65°15′30′′; thence to latitude 18°11′30′′, longitude 65°14'30"; thence to latitude 18°12′00′′, longitude 65°20′00′′; and thence to Cabellos Colorados on the north coast of Vieques at latitude 18°09′49′′, longitude 65°23′27′′.

(b) Regulations. (1) It will be open to navigation at all times except when firing is being conducted. At such times, no persons or surface vessels, except those patrolling the area, shall enter or remain within the danger area. Prior to conducting each firing or dropping of ordnance the danger area will be patrolled to insure that no watercraft are within the danger area. Any watercraft in the vicinity will be warned that practice firing is about to take place and advised to vacate the

area.

(2) The regulations will be enforced by the Commander, U.S. Naval Forces Caribbean, U.S. Naval Station, Roosevelt Roads, Puerto Rico, and such agencies and subordinate commands as he/she may designate.

(Sec. 7, 40 Stat. 266, (33 U.S.C. 1))

[39 FR 27133, July 25, 1974, as amended at 46 FR 29935, June 4, 1981. Redesignated at 50 FR 42696, Oct. 22, 1985, as amended at 62 FR 17559, Apr. 10, 1997]

§334.1480 Vieques Passage and Atlantic Ocean, off east coast of Puerto Rico and coast of Vieques Island; naval restricted areas.

(a) The restricted areas. (1) A strip, 1,500 yards wide, off the naval reservation shoreline along the east coast of Puerto Rico extending from Point Figuera south to Point Puerca, and thence west to Point Cascajo and the mouth of the Daguada River.

(2) A strip, 1,500 yards wide, off the naval reservation shoreline along the west end of Vieques Island extending from Caballo Point on the north shore, west around the breakwater to Point Arenas, and thence south and east to a point on the shoreline one mile east of the site of the abandoned central at Playa Grande.

(3) A strip, 1,500 yards wide, off the south coast of Vieques Island extending from the entrance to Port Mosquito east to Conejo Point.

(4) An area inclosed by an arc with a radius of 3,000 yards centered on Cabras Island Lighthouse and extending from Point Puerca to Point Cascajo.

(b) The regulations. No person or vessel shall enter or remain within the restricted areas at any time unless on official business. Fishing vessels are permitted to anchor in Playa Blanca, passing through the restricted area described in paragraph (a)(1) of this section, to and from anchorage on as near a north-south course as sailing conditions permit. Under no conditions will swimming, diving, snorkeling, other water related activities or fishing, be permitted in the restricted area.

[13 FR 9564, Dec. 31, 1948. Redesignated at 50 FR 42696, Oct. 22, 1985, as amended at 62 FR 17559, Apr. 10, 1997]

(b) The regulations. (1) Anchoring in the restricted areas is prohibited with the exception of U.S. Government owned vessels and private vessels that have been specifically authorized to do so by the Commanding Officer, Atlantic Fleet Range Support Facility.

(2) The regulations in this paragraph shall be enforced by the Commanding Officer, Atlantic Fleet Range Support Facility, Roosevelt Roads, P.R., and such agencies as he may designate.

[34 FR 19030, Nov. 29, 1969. Redesignated at 50 FR 42696, Oct. 22, 1985]

the Corps of Engineers to ensure compliance with the specific statutes governing Army Civil Works operations and maintenance projects involving the discharge of dredged or fill material into waters of the U.S. or the transportation of dredged material for the purpose of disposal into ocean waters. These practices and procedures should be employed throughout the decision/ management process concerning methodologies and alternatives to be used to ensure prudent operation and maintenance activities.

§335.2 Authority.

Under authority delegated from the Secretary of the Army and in accordance with section 404 of the Clean Water Act of 1977 (CWA) and section 103 of the Marine Protection, Research, and Sanctuaries Act of 1972, hereinafter referred to as the Ocean Dumping Act (ODA), the Corps of Engineers regulates the discharge of dredged or fill material into waters of the United States and the transportation of dredged material for the purpose of disposal into ocean waters. Section 404 of the CWA requires public notice with opportunity for public hearing for discharges of dredged or fill material into waters of the U.S. and that discharge sites can be specified through the application of guidelines developed by the Administrator of the Environmental Protection Agency (EPA) in conjunction with the Secretary of the Army. Section 103 of the ODA requires public notice with opportunity for public hearing for the transportation for disposal of dredged material for disposal in ocean waters. Ocean disposal of dredged material must be evaluated using the criteria developed by the Administrator of EPA in consultation with the Secretary of the Army. Section 103(e) of the ODA provides that the Secretary of the Army may, in lieu of permit procedures, issue regulations for Federal projects involving the transportation of dredged material for ocean disposal which require the application of the same criteria, procedures, and requirements which apply to the issuance of permits. Similarly, the Corps does not issue itself a CWA permit to authorize Corps discharges of dredged material or fill material into

U.S. waters, but does apply the 404(b)(1) guidelines and other substantive requirements of the CWA and other environmental laws.

$335.3 Applicability.

This regulation (33 CFR parts 335 through 338) is applicable to the Corps of Engineers when undertaking operation and maintenance activities at Army Civil Works projects.

$335.4 Policy.

The Corps of Engineers undertakes operations and maintenance activities where appropriate and environmentally acceptable. All practicable and reasonable alternatives are fully considered on an equal basis. This includes the discharge of dredged or fill material into waters of the U.S. or ocean waters in the least costly manner, at the least costly and most practicable location, and consistent with engineering and environmental requirements.

§335.5 Applicable laws.

(a) The Clean Water Act (33 U.S.C. 1251 et seq.) (also known as the Federal Water Pollution Control Act Amendments of 1972, 1977, and 1987).

(b) The Marine Protection, Research, and Sanctuaries Act of 1972 (33 U.S.C. 1401 et seq.) (commonly referred to as the Ocean Dumping Act (ODA)).

§335.6 Related laws and Executive Orders.

(a) The National Historic Preservation Act of 1966 (16 U.S.C. 470a et seq.), as amended.

(b) The Reservoir Salvage Act of 1960 (16 U.S.C. 469), as amended.

(c) The Endangered Species Act (16 U.S.C. 1531 et seq.), as amended.

(d) The Estuary Protection Act (16 U.S.C. 1221).

(e) The Fish and Wildlife Coordination Act (16 U.S.C. 661 et seq.), as amended.

(f) The National Environmental Policy Act (42 U.S.C. 4341 et seq.), as amended.

(g) The Wild and Scenic Rivers Act (16 U.S.C. 1271 et seq.) as amended.

(h) Section 307(c) of the Coastal Zone Management Act of 1976 (16 U.S.C. 1456 (c)), as amended.

(i) The Water Resources Development Act of 1976 (Pub. L. 94-587).

(j) Executive Order 11593, Protection and Enhancement of the Cultural Environment, May 13, 1971, (36 FR 8921, May 15, 1971).

(k) Executive Order 11988, Floodplain Management, May 24, 1977, (42 FR 26951, May 25, 1977).

(1) Executive Order 11990, Protection of Wetlands, May 24, 1977, (42 FR 26961, May 25, 1977).

(m) Executive Order 12372, Intergovernmental Review of Federal Programs, July 14, 1982, (47 FR 3959, July 16, 1982). (n) Executive Order 12114, Environmental Effects Abroad of Major Federal Actions, January 4, 1979.

$335.7 Definitions.

The definitions of 33 CFR parts 323, 324, 327, and 329 are hereby incorporated. The following terms are defined or interpreted from parts 320 through 330 for purposes of 33 CFR parts 335 through 338.

Beach nourishment means the discharge of dredged or fill material for the purpose of replenishing an eroded beach or placing sediments in the littoral transport process.

Emergency means a situation which would result in an unacceptable hazard to life or navigation, a significant loss of property, or an immediate and unforeseen significant economic hardship if corrective action is not taken within a time period less than the normal time needed under standard procedures.

Federal standard means the dredged material disposal alternative or alternatives identified by the Corps which represent the least costly alternatives consistent with sound engineering

practices and meeting the environmental standards established by the 404(b)(1) evaluation process or ocean dumping criteria.

Navigable waters of the U.S. means those waters of the U.S. that are subject to the ebb and flow of the tide shoreward to the mean high water mark, and/or are presently used, have been used in the past, or may be susceptible to use with or without reasonable improvement to transport interstate or foreign commerce. A more complete definition is provided in 33

CFR part 329. For the purpose of this regulation, the term also includes the confines of Federal navigation approach channels extending into ocean waters beyond the territorial sea which are used for interstate or foreign commerce.

Practicable means available and capable of being done after taking into consideration cost, existing technology, and logistics in light of overall project purposes.

Statement of Findings (SOF) means a comprehensive summary compliance document signed by the district engineer after completion of appropriate environmental documentation and public involvement.

Territorial sea means the belt of the seas measured from the line of ordinary low water along that portion of the coast which is in direct contact with the open sea and the line marking the seaward limit of inland waters, extending seaward a distance of three miles as described in the convention on the territorial sea and contiguous zone, 15 U.S.T. 1606.

PART 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

Sec.

336.0 General.

336.1 Discharges of dredged or fill material into waters of the U.S.

336.2 Transportation of dredged material for the purpose of disposal into ocean waters.

AUTHORITY: 33 U.S.C. 1344; 33 U.S.C. 1413.

SOURCE: 53 FR 14912, Apr. 26, 1988, unless otherwise noted.

§336.0 General.

Since the jurisdiction of the CWA extends to all waters of the U.S., including the territorial sea, and the jurisdiction of the ODA extends over ocean waters including the territorial sea, the

following rules are established to assure appropriate regulation of discharges of dredged or fill material into waters of the U.S. and ocean waters.

(a) The disposal into ocean waters, including the territorial sea, of dredged material excavated or dredged from navigable waters of the U.S. will be evaluated by the Corps in accordance with the ODA.

(b) In those cases where the district engineer determines that the discharge of dredged material into the territorial sea would be for the primary purpose of fill, such as the use of dredged material for beach nourishment, island creation, or construction of underwater berms, the discharge will be evaluated under section 404 of the CWA.

(c) For those cases where the district engineer determines that the materials proposed for discharge in the territorial sea would not be adequately evaluated under the section 404(b)(1) guidelines of the CWA, he may evaluate that material under the ODA.

$336.1 Discharges of dredged or fill material into waters of the U.S.

(a) Applicable laws. Section 404 of the CWA governs the discharge of dredged or fill material into waters of the U.S. Although the Corps does not process and issue permits for its own activities, the Corps authorizes its own discharges of dredged or fill material by applying all applicable substantive legal requirements, including public notice, opportunity for public hearing, and application of the section 404(b)(1) guidelines.

(1) The CWA requires the Corps to seek state water quality certification for discharges of dredged or fill material into waters of the U.S.

(2) Section 307 of the Coastal Zone Management Act (CZMA) requires that certain activities that a Federal agency conducts or supports be consistent with the Federally-approved state management plan to the maximum extent practicable.

(b) Procedures. If changes in a previously approved disposal plan for a Corps navigation project warrant reevaluation under the CWA, the following procedures should be followed by district enginers prior to discharging dredged material into waters

of the U.S. except where emergency action as described in § 337.7 of this chapter is required.

(1) A public notice providing opportunity for a public hearing should be issued at the earliest practicable time. The public notification procedures of §337.1 of this chapter should be followed.

(2) The public hearing procedures of 33 CFR part 327 should be followed.

(3) As soon as practicable, the district engineer will request from the state a 401 water quality certification and, if applicable, provide a coastal zone consistency determination for the Corps activity using the procedures of §336.1(b) (8) and (9), respectively, of this part.

(4) Discharges of dredged material will be evaluated using the guidelines authorized under section 404(b)(1) of the CWA, or using the ODA regulations, where appropriate. If the guidelines alone would prohibit the designation of a proposed discharge site, the economic impact on navigation and anchorage of the failure to use the proposed discharge site will also be considered in evaluating whether the proposed discharge is to be authorized under CWA section 404(b)(2).

(5) The EPA Administrator can prohibit or restrict the use of any defined area as a discharge site under 404(c) whenever he determines, after notice and opportunity for public hearing and after consultation with the Secretary of the Army, that the discharge of such materials into such areas will have an unacceptable adverse effect on municipal water supplies, shellfish beds and fishery areas, wildlife, or recreation areas. Upon notification of the prohibition of a discharge site by the Administrator the district engineer will complete the administrative processing of the proposed project up to the point of signing the Statement of Findings (SOF) or Record of Decision (ROD). The unsigned SOF or ROD along with a report described in §337.8 of this chapter will be forwarded through the appropriate Division office to the Dredging Division, Office of the Chief of Engi

neers.

(6) In accordance with the National Environmental Policy Act (NEPA), and