1.6.1 Statutory Overview

must evaluate direct, indirect, and cumulative impacts associated with an action

that may significantly affect the environment (Section 1.6.1); therefore the

USACE must evaluate the potential environmental impacts associated with all

aspects of CDFs to include potential releases of contaminants from all pathways.

Coupled with regulatory application is determining which, if any, permitting

regimes apply to the various contaminant pathways. A purpose of the discussions

in this section is to clarify how the USACE intends to apply the regulatory

regimes to the five contaminant pathways under the jurisdiction of the various

statutes when dredged material is proposed for disposal in CDFs.

1.6.1 Statutory Overview

National Environmental Policy Act (NEPA). NEPA and its implementing

regulations (at 40 CFR 1500-1508) is the basic national charter for protecting the

environment. Assessing the short- and long-term effects of proposed Federal

actions (e.g., proposals, permits, and legislation) is among NEPA's many

requirements. Section 1502.16 requires an assessment of the "(a) Direct effects

and their significance" and the "(b) Indirect effects and their significance."

Importantly, Section 1508.8 requires an evaluation of the "Indirect effects, which

are caused by the action and are later in time or farther removed in distance, but

are still reasonably foreseeable." Furthermore, Section 1508.25 requires that

cumulative impacts, along with direct and indirect impacts, shall be considered in

environmental impact assessments. Cumulative impact (Section 1508.7) "is the

impact on the environment which results from the incremental impact of the

action when added to other past, present, and reasonably foreseeable future

actions regardless of what agency (Federal of non-Federal) or person undertakes

such other actions." When placing dredged material in CDFs, the USACE and

applicants for USACE permits are bound to the fundamental principle that

ensures those discharges into the CDF itself are adequately evaluated and adverse

impacts managed. While NEPA does not require permits, it does, through the

Council on Environmental Quality regulations, require that potential adverse

environmental impacts are evaluated and managed (See 40 CFR 1500.2(e) and

(f), 1502.16, 1505.3 and 1508.8).

Clean Water Act (CWA). The CWA, specifically Section 404 (b)(1),

requires the development and application of environmental guidelines covering a

broad range of effects to human health and ecological systems. The 404(b)(1)

Guidelines (referred to here as the "Guidelines") are at 40 CFR 230 and contain a

number of evaluation provisions applicable when proposing dredged material

disposal in CDFs. Section 230.10(b)(1) prohibits the disposal of dredged material

that might violate applicable water quality standards, after consideration of

disposal site dilution and dispersion. This provision is aimed at the effluent or

runoff discharges from the CDF. That same section requires consideration of

"effects on municipal water supplies" and is reinforced at Section 230.50. This

section specifically addresses municipal and private water supplies including

groundwater, which is a potential concern for the CDF leachate pathway. Section

230.11(h) requires consideration of a broad range of secondary effects from

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Chapter 1

Introduction