1.6 Statutory and Regulatory Overview

describing the evaluations for the five contaminant migration pathways. These

chapters describe the rationale and sequence of chemical and biological

evaluations and tests under the tiered approach. Chapter 10 introduces

contaminant controls and management actions that may be considered for each

pathway. Each of the chapters is supported by appendices that provide the detailed

systematic procedures for specific tests or evaluations.

1.6 Statutory and Regulatory Overview

The sections that follow provide an overview of the laws and regulations

governing disposal of dredged material in CDFs. As with the evolution of the

testing protocols for CDFs, the regulatory scheme has also evolved with the

passage of legislation going back to the National Environmental Policy Act

(NEPA) of 1969 and subsequent regulations and the development of the

Technical Framework for evaluation of dredged material disposal alternatives

(USACE/EPA 1992). Inasmuch as some of the polices are continuing to evolve,

this regulatory overview sets forth the USACE approach for ensuring that

appropriate regulatory practices are followed for disposal of dredged material in

CDFs. Importantly, the goal is and will continue to be to ensure that consistent,

predictable, and reliable regulatory practices are employed when dredged material

is proposed for disposal in CDFs.

Disposal of dredged material in inland, near-coastal, and ocean waters has a

clear regulatory basis. The discharge of dredged material into waters of the

United States is regulated under the Clean Water Act. Waters of the United States

subject to the Clean Water Act are defined in 33 CFR Part 328 and 40 CFR

230.3(s) and are made up of waters inland of, and including, the territorial sea.

The ITM referenced in Section 1.4.3 was specifically developed to evaluate

proposed discharges of dredged material into waters of the United States (waters

regulated under CWA Section 404). The CWA states that any "discharge of

dredged or fill material into the navigable waters" would be regulated.

The MPRSA, also called the Ocean Dumping Act, regulates the transportation

of dredged material for the purpose of disposal into ocean waters. Ocean waters

subject to the MPRSA are made up of the territorial sea and the waters lying

seaward. While the CWA governs inland and near-coastal waters and the

MPRSA applies to the open ocean, they share jurisdiction in the territorial sea

(measured from the baseline, usually the mean low water mark, out 3 miles). In

general, dredged material disposed of in the territorial sea is evaluated under the

MPRSA, and material discharged for the purpose of fill (e.g., island creation,

underwater berms, beach nourishment, and some beneficial use applications) is

evaluated under the Clean Water Act. The CWA also includes discharges at

CDFs that have a return flow to waters of the United States.

The regulatory path for disposal of dredged material in CDFs is not as clear.

However, both the CWA and NEPA provide strong mandates for USACE

regulation of placement in CDFs. The discharge of return flow (effluent and

surface runoff) to waters of the United States is specifically defined as a dredged

material discharge under the CWA (Section 1.6.1). Under NEPA, the USACE

1-8

Chapter 1

Introduction