[Code of Federal Regulations]
[Title 33, Volume 3]
[Revised as of July 1, 2001]
From the U.S. Government Printing Office via GPO Access
[CITE: 33CFR323.2]

[Page 404-406]
 
                TITLE 33--NAVIGATION AND NAVIGABLE WATERS
 
         CHAPTER II--CORPS OF ENGINEERS, DEPARTMENT OF THE ARMY
 
PART 323--PERMITS FOR DISCHARGES OF DREDGED OR FILL MATERIAL INTO WATERS OF THE UNITED STATES--Table of Contents
 
Sec. 323.2  Definitions.

    For the purpose of this part, the following terms are defined:
    (a) The term waters of the United States and all other terms 
relating to the geographic scope of jurisdiction are defined at 33 CFR 
part 328.
    (b) The term lake means a standing body of open water that occurs in 
a natural depression fed by one or more streams from which a stream may 
flow, that occurs due to the widening or natural blockage or cutoff of a 
river or stream, or that occurs in an isolated natural depression that 
is not a part of a surface river or stream. The term also includes a 
standing body of open water created by artificially blocking or 
restricting the flow of a river, stream, or tidal area. As used in this 
regulation, the term does not include artificial lakes or ponds created 
by excavating and/or diking dry land to collect and retain water for 
such purposes as stock watering, irrigation, settling basins, cooling, 
or rice growing.
    (c) The term dredged material means material that is excavated or 
dredged from waters of the United States.
    (d)(1) Except as provided below in paragraph (d)(3), the term 
discharge of dredged material means any addition of dredged material 
into, including redeposit of dredged material other than incidential 
fallback within, the waters of the United States. The term includes, but 
is not limited to, the following:
    (i) The addition of dredged material to a specified discharge site 
located in waters of the United States;
    (ii) The runoff or overflow from a contained land or water disposal 
area; and
    (iii) Any addition, including redeposit other than incidential 
fallback, of dredged material, including excavated material, into waters 
of the United States which is incidental to any activity, including 
mechanized landclearing, ditching, channelization, or other excavation.
    (2)(i) The Corps and EPA regard the use of mechanized earth-moving 
equipment to conduct landclearing, ditching, channelization, in-stream 
mining or other earth-moving activity in waters of the United States as 
resulting in a discharge of dredged material unless project-specific 
evidence shows that the activity results in only incidental fallback. 
This paragraph (i) does

[[Page 405]]

not and is not intended to shift any burden in any administrative or 
judicial proceeding under the CWA.
    (ii) Incidental fallback is the redeposit of small volumes of 
dredged material that is incidental to excavation activity in waters of 
the United States when such material falls back to substantially the 
same place as the initial removal. Examples of incidental fallback 
include soil that is disturbed when dirt is shoveled and the back-spill 
that comes off a bucket when such small volume of soil or dirt falls 
into substantially the same place from which it was initially removed.
    (3) The term discharge of dredged material does not include the 
following:
    (i) Discharges of pollutants into waters of the United States 
resulting from the onshore subsequent processing of dredged material 
that is extracted for any commercial use (other than fill). These 
discharges are subject to section 402 of the Clean Water Act even though 
the extraction and deposit of such material may require a permit from 
the Corps or applicable State section 404 program.
    (ii) Activities that involve only the cutting or removing of 
vegetation above the ground (e.g., mowing, rotary cutting, and 
chainsawing) where the activity neither substantially disturbs the root 
system nor involves mechanized pushing, dragging, or other similar 
activities that redeposit excavated soil material.
    (iii) Incidental fallback.
    (4) Section 404 authorization is not required for the following:
    (i) Any incidental addition, including redeposit, of dredged 
material associated with any activity that does not have or would not 
have the effect of destroying or degrading an area of waters of the 
United States as defined in paragraphs (d)(5) and (d)(6) of this 
section; however, this exception does not apply to any person preparing 
to undertake mechanized landclearing, ditching, channelization and other 
excavation activity in a water of the United States, which would result 
in a redeposit of dredged material, unless the person demonstrates to 
the satisfaction of the Corps, or EPA as appropriate, prior to 
commencing the activity involving the discharge, that the activity would 
not have the effect of destroying or degrading any area of waters of the 
United States, as defined in paragraphs (d)(5) and (d)(6) of this 
section. The person proposing to undertake mechanized landclearing, 
ditching, channelization or other excavation activity bears the burden 
of demonstrating that such activity would not destroy or degrade any 
area of waters of the United States.
    (ii) Incidental movement of dredged material occurring during normal 
dredging operations, defined as dredging for navigation in navigable 
waters of the United States, as that term is defined in part 329 of this 
chapter, with proper authorization from the Congress and/or the Corps 
pursuant to part 322 of this Chapter; however, this exception is not 
applicable to dredging activities in wetlands, as that term is defined 
at section 328.3 of this Chapter.
    (iii) Certain discharges, such as those associated with normal 
farming, silviculture, and ranching activities, are not prohibited by or 
otherwise subject to regulation under section 404. See 33 CFR 323.4 for 
discharges that do not required permits.
    (5) For purposes of this section, an activity associated with a 
discharge of dredged material destroys an area of waters of the United 
States if it alters the area in such a way that it would no longer be a 
water of the United States.
    Note: Unauthorized discharges into waters of the United States do 
not eliminate Clean Water Act jurisdiction, even where such unauthorized 
discharges have the effect of destroying waters of the United States.
    (6) For purposes of this section, an activity associated with a 
discharge of dredged material degrades an area of waters of the United 
States if it has more than a de minimis (i.e., inconsequential) effect 
on the area by causing an identifiable individual or cumulative adverse 
effect on any aquatic function.
    (e) The term fill material means any material used for the primary 
purpose of replacing an aquatic area with dry land or of changing the 
bottom elevation of an waterbody. The term does not include any 
pollutant discharged into the water primarily to dispose of waste, as 
that activity is regulated under section 402 of the Clean Water

[[Page 406]]

Act. See Sec. 323.3(c) concerning the regulation of the placement of 
pilings in waters of the United States.
    (f) The term discharge of fill material means the addition of fill 
material into waters of the United States. The term generally includes, 
without limitation, the following activities: Placement of fill that is 
necessary for the construction of any structure in a water of the United 
States; the building of any structure or impoundment requiring rock, 
sand, dirt, or other material for its construction; site-development 
fills for recreational, industrial, commercial, residential, and other 
uses; causeways or road fills; dams and dikes; artificial islands; 
property protection and/or reclamation devices such as riprap, groins, 
seawalls, breakwaters, and revetments; beach nourishment; levees; fill 
for structures such as sewage treatment facilities, intake and outfall 
pipes associated with power plants and subaqueous utility lines; and 
artificial reefs. The term does not include plowing, cultivating, 
seeding and harvesting for the production of food, fiber, and forest 
products (See Sec. 323.4 for the definition of these terms). See 
Sec. 323.3(c) concerning the regulation of the placement of pilings in 
waters of the United States.
    (g) The term individual permit means a Department of the Army 
authorization that is issued following a case-by-case evaluation of a 
specific project involving the proposed discharge(s) in accordance with 
the procedures of this part and 33 CFR part 325 and a determination that 
the proposed discharge is in the public interest pursuant to 33 CFR part 
320.
    (h) The term general permit means a Department of the Army 
authorization that is issued on a nationwide or regional basis for a 
category or categories of activities when:
    (1) Those activities are substantially similar in nature and cause 
only minimal individual and cumulative environmental impacts; or
    (2) The general permit would result in avoiding unnecessary 
duplication of regulatory control exercised by another Federal, State, 
or local agency provided it has been determined that the environmental 
consequences of the action are individually and cumulatively minimal. 
(See 33 CFR 325.2(e) and 33 CFR part 330.)

[51 FR 41232, Nov. 13, 1986, as amended at 58 FR 45035, Aug. 25, 1993; 
58 FR 48424, Sept. 15, 1993; 63 FR 25123, May 10, 1999; 66 FR 4574, Jan. 
17, 2001; 66 FR 10367, Feb. 15, 2001]