Current through Reg. 49, No. 38; September 20, 2024
(a) Dredging and the disposal and placement
of dredged material shall avoid and otherwise minimize adverse effects to
coastal waters, submerged lands, critical areas, coastal shore areas, and Gulf
beaches to the greatest extent practicable. The policies of this section are
supplemental to any further restrictions or requirements relating to the beach
access and use rights of the public. In implementing this section, cumulative
and secondary adverse effects of dredging and the disposal and placement of
dredged material and the unique characteristics of affected sites shall be
considered.
(1) Dredging and dredged material
disposal and placement shall not cause or contribute, after consideration of
dilution and dispersion, to violation of any applicable surface water quality
standards established under §26.21 of this title (relating to Policies for
Discharge of Municipal and Industrial Wastewater to Coastal Waters).
(2) Except as otherwise provided in paragraph
(4) of this subsection, adverse effects on critical areas from dredging and
dredged material disposal or placement shall be avoided and otherwise
minimized, and appropriate and practicable compensatory mitigation shall be
required, in accordance with §26.23 of this title (relating to Policies
for Development in Critical Areas).
(3) Except as provided in paragraph (4) of
this subsection, dredging and the disposal and placement of dredged material
shall not be authorized if:
(A) there is a
practicable alternative that would have fewer adverse effects on coastal
waters, submerged lands, critical areas, coastal shore areas, and Gulf beaches,
so long as that alternative does not have other significant adverse
effects;
(B) all appropriate and
practicable steps have not been taken to minimize adverse effects on coastal
waters, submerged lands, critical areas, coastal shore areas, and Gulf beaches;
or
(C) significant degradation of
critical areas under §26.23(a)(7)(E) of this title would result.
(4) A dredging or dredged material
disposal or placement project that would be prohibited solely by application of
paragraph (3) of this subsection may be allowed if it is determined to be of
overriding importance to the public and national interest in light of economic
impacts on navigation and maintenance of commercially navigable
waterways.
(b) Adverse
effects from dredging and dredged material disposal and placement shall be
minimized as required in subsection (a) of this section. Adverse effects can be
minimized by employing the techniques in this subsection where appropriate and
practicable.
(1) Adverse effects from dredging
and dredged material disposal and placement can be minimized by controlling the
location and dimensions of the activity. Some of the ways to accomplish this
include:
(A) locating and confining
discharges to minimize smothering of organisms;
(B) locating and designing projects to avoid
adverse disruption of water inundation patterns, water circulation, erosion and
accretion processes, and other hydrodynamic processes;
(C) using existing or natural channels and
basins instead of dredging new channels or basins, and discharging materials in
areas that have been previously disturbed or used for disposal or placement of
dredged material;
(D) limiting the
dimensions of channels, basins, and disposal and placement sites to the minimum
reasonably required to serve the project purpose, including allowing for
reasonable overdredging of channels and basins, and taking into account the
need for capacity to accommodate future expansion without causing additional
adverse effects;
(E) discharging
materials at sites where the substrate is composed of material similar to that
being discharged;
(F) locating and
designing discharges to minimize the extent of any plume and otherwise control
dispersion of material; and
(G)
avoiding the impoundment or drainage of critical areas.
(2) Dredging and disposal and placement of
material to be dredged shall comply with applicable standards for sediment
toxicity. Adverse effects from constituents contained in materials discharged
can be minimized by treatment of or limitations on the material itself. Some
ways to accomplish this include:
(A) disposal
or placement of dredged material in a manner that maintains physiochemical
conditions at discharge sites and limits or reduces the potency and
availability of pollutants;
(B)
limiting the solid, liquid, and gaseous components of material
discharged;
(C) adding treatment
substances to the discharged material; and
(D) adding chemical flocculants to enhance
the deposition of suspended particulates in confined disposal areas.
(3) Adverse effects from dredging
and dredged material disposal or placement can be minimized through control of
the materials discharged. Some ways of accomplishing this include:
(A) use of containment levees and sediment
basins designed, constructed, and maintained to resist breaches, erosion,
slumping, or leaching;
(B) use of
lined containment areas to reduce leaching where leaching of chemical
constituents from the material is expected to be a problem;
(C) capping in-place contaminated material
or, selectively discharging the most contaminated material first and then
capping it with the remaining material;
(D) properly containing discharged material
and maintaining discharge sites to prevent point and nonpoint pollution;
and
(E) timing the discharge to
minimize adverse effects from unusually high water flows, wind, wave, and tidal
actions.
(4) Adverse
effects from dredging and dredged material disposal or placement can be
minimized by controlling the manner in which material is dispersed. Some ways
of accomplishing this include:
(A) where
environmentally desirable, distributing the material in a thin layer;
(B) orienting material to minimize
undesirable obstruction of the water current or circulation patterns;
(C) using silt screens or other appropriate
methods to confine suspended particulates or turbidity to a small area where
settling or removal can occur;
(D)
using currents and circulation patterns to mix, disperse, dilute, or otherwise
control the discharge;
(E)
minimizing turbidity by using a diffuser system or releasing material near the
bottom;
(F) selecting sites or
managing discharges to confine and minimize the release of suspended
particulates and turbidity and maintain light penetration for organisms;
and
(G) setting limits on the
amount of material to be discharged per unit of time or volume of receiving
waters.
(5) Adverse
effects from dredging and dredged material disposal or placement operations can
be minimized by adapting technology to the needs of each site. Some ways of
accomplishing this include:
(A) using
appropriate equipment, machinery, and operating techniques for access to sites
and transport of material, including those designed to reduce damage to
critical areas;
(B) having
personnel on site adequately trained in avoidance and minimization techniques
and requirements; and
(C) designing
temporary and permanent access roads and channel spanning structures using
culverts, open channels, and diversions that will pass both low and high water
flows, accommodate fluctuating water levels, and maintain circulation and
faunal movement.
(6)
Adverse effects on plant and animal populations from dredging and dredged
material disposal or placement can be minimized by:
(A) avoiding changes in water current and
circulation patterns that would interfere with the movement of
animals;
(B) selecting sites or
managing discharges to prevent or avoid creating habitat conducive to the
development of undesirable predators or species that have a competitive edge
ecologically over indigenous plants or animals;
(C) avoiding sites having unique habitat or
other value, including habitat of endangered species;
(D) using planning and construction practices
to institute habitat development and restoration to produce a new or modified
environmental state of higher ecological value by displacement of some or all
of the existing environmental characteristics;
(E) using techniques that have been
demonstrated to be effective in circumstances similar to those under
consideration whenever possible and, when proposed development and restoration
techniques have not yet advanced to the pilot demonstration stage, initiating
their use on a small scale to allow corrective action if unanticipated adverse
effects occur;
(F) timing dredging
and dredged material disposal or placement activities to avoid spawning or
migration seasons and other biologically critical time periods; and
(G) avoiding the destruction of remnant
natural sites within areas already affected by development.
(7) Adverse effects on human use
potential from dredging and dredged material disposal or placement can be
minimized by:
(A) selecting sites and
following procedures to prevent or minimize any potential damage to the
aesthetically pleasing features of the site, particularly with respect to water
quality;
(B) selecting sites which
are not valuable as natural aquatic areas;
(C) timing dredging and dredged material
disposal or placement activities to avoid the seasons or periods when human
recreational activity associated with the site is most important; and
(D) selecting sites that will not increase
incompatible human activity or require frequent dredge or fill maintenance
activity in remote fish and wildlife areas.
(8) Adverse effects from new channels and
basins can be minimized by locating them at sites:
(A) that ensure adequate flushing and avoid
stagnant pockets; or
(B) that will
create the fewest practicable adverse effects on CNRAs from additional
infrastructure such as roads, bridges, causeways, piers, docks, wharves,
transmission line crossings, and ancillary channels reasonably likely to be
constructed as a result of the project; or
(C) with the least practicable risk that
increased vessel traffic could result in navigation hazards, spills, or other
forms of contamination which could adversely affect CNRAs;
(D) provided that, for any dredging of new
channels or basins subject to the requirements of §26.15 of this title
(relating to Policy for Major Actions), data and information on minimization of
secondary adverse effects need not be produced or evaluated to comply with this
paragraph if such data and information is produced and evaluated in compliance
with §26.15(b)(1) of this title.
(c) Disposal or placement of dredged material
in existing contained dredge disposal sites identified and actively used as
described in an environmental assessment or environmental impact statement
issued prior to the effective date of this chapter shall be presumed to comply
with the requirements of subsection (a) of this section unless modified in
design, size, use, or function.
(d)
Dredged material from dredging projects in commercially navigable waterways is
a potentially reusable resource and must be used beneficially in accordance
with this policy.
(1) If the costs of the
beneficial use of dredged material are reasonably comparable to the costs of
disposal in a non-beneficial manner, the material shall be used
beneficially.
(2) If the costs of
the beneficial use of dredged material are significantly greater than the costs
of disposal in a non-beneficial manner, the material shall be used beneficially
unless it is demonstrated that the costs of using the material beneficially are
not reasonably proportionate to the costs of the project and benefits that will
result. Factors that shall be considered in determining whether the costs of
the beneficial use are not reasonably proportionate to the benefits include,
but are not limited to:
(A) environmental
benefits, recreational benefits, flood or storm protection benefits, erosion
prevention benefits, and economic development benefits;
(B) the proximity of the beneficial use site
to the dredge site; and
(C) the
quantity and quality of the dredged material and its suitability for beneficial
use.
(3) Examples of the
beneficial use of dredged material include, but are not limited to:
(A) projects designed to reduce or minimize
erosion or provide shoreline protection;
(B) projects designed to create or enhance
public beaches or recreational areas;
(C) projects designed to benefit the sediment
budget or littoral system;
(D)
projects designed to improve or maintain terrestrial or aquatic wildlife
habitat;
(E) projects designed to
create new terrestrial or aquatic wildlife habitat, including the construction
of marshlands, coastal wetlands, or other critical areas;
(F) projects designed and demonstrated to
benefit benthic communities or aquatic vegetation;
(G) projects designed to create wildlife
management areas, parks, airports, or other public facilities;
(H) projects designed to cap landfills or
other water disposal areas;
(I)
projects designed to fill private property or upgrade agricultural land, if
cost-effective public beneficial uses are not available; and
(J) projects designed to remediate past
adverse impacts on the coastal zone.
(e) If dredged material cannot be used
beneficially as provided in subsection (d)(2) of this section, to avoid and
otherwise minimize adverse effects as required in subsection (a) of this
section, preference will be given to the greatest extent practicable to
disposal in:
(1) contained upland
sites;
(2) other contained sites;
and
(3) open water areas of
relatively low productivity or low biological value.
(f) For new sites, dredged materials shall
not be disposed of or placed directly on the boundaries of submerged lands or
at such location so as to slump or migrate across the boundaries of submerged
lands in the absence of an agreement between the affected public owner and the
adjoining private owner or owners that defines the location of the boundary or
boundaries affected by the deposition of the dredged material.
(g) Emergency dredging shall be allowed
without a prior consistency determination as required in the applicable
consistency rule when:
(1) there is an
unacceptable hazard to life or navigation;
(2) there is an immediate threat of
significant loss of property; or
(3) an immediate and unforeseen significant
economic hardship is likely if corrective action is not taken within a time
period less than the normal time needed under standard procedures. The CMP
coordinator shall be notified at least 24 hours prior to commencement of any
emergency dredging operation by the agency or entity responding to the
emergency. The notice shall include a statement demonstrating the need for
emergency action. Prior to initiation of the dredging operations the project
sponsor or permit-issuing agency shall, if possible, make all reasonable
efforts to meet with the CMP coordinator to ensure consideration of and
consistency with applicable policies in this subchapter. Compliance with all
applicable policies in this subchapter shall be required at the earliest
possible date. The permit-issuing agency and the applicant shall submit a
consistency determination within 60 days after the emergency operation is
complete.
(h) Mining of
sand, shell, marl, gravel, and mudshell on submerged lands shall be prohibited
unless there is an affirmative showing of no significant impact on erosion
within the coastal zone and no significant adverse effect on coastal water
quality or terrestrial and aquatic wildlife habitat within any CNRA.
(i) The GLO and the SLB shall comply with the
policies in this section when approving oil, gas, and other mineral lease plans
of operation and granting surface leases, easements, and permits and adopting
rules under the Texas Natural Resources Code, Chapters 32, 33, and 51 - 53, and
Texas Water Code, Chapter 61, for dredging and dredged material disposal and
placement. TxDOT shall comply with the policies in this subchapter when
adopting rules and taking actions as local sponsor of the Gulf Intracoastal
Waterway under Texas Transportation Code, Chapter 51. The TCEQ and the RRC
shall comply with the policies in this section when issuing certifications and
adopting rules under Texas Water Code, Chapter 26, and the Texas Natural
Resources Code, Chapter 91, governing certification of compliance with surface
water quality standards for federal actions and permits authorizing dredging or
the discharge or placement of dredged material. The TPWD shall comply with the
policies in this section when adopting rules at Chapter 57 of this title
(relating to Fisheries) governing dredging and dredged material disposal and
placement. The TPWD shall comply with the policies in subsection (h) of this
section when adopting rules and issuing permits under Texas Parks and Wildlife
Code, Chapter 86, governing the mining of sand, shell, marl, gravel, and
mudshell.
(j) To the extent
practicable, agencies and subdivisions should maximize the use of collaborative
partnerships between federal and non-federal interests to plan, fund, and
implement projects for the beneficial use of dredged material, and should
further endeavor to coordinate such projects with the U.S. Army Corps of
Engineers.
(k) Notwithstanding the
requirements of this policy, all projects for the beneficial use of dredged
material proposed under the Coastal Erosion Planning and Response Act (CEPRA),
Texas Natural Resources Code, Chapter 33, Subchapter H, shall comply with
Chapter 15 of this title and all other statutory and regulatory requirements
applicable to CEPRA projects.
