[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: 33CFR323.4]

[Page 407-410]
 
                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. 323.4  Discharges not requiring permits.

    (a) General. Except as specified in paragraphs (b) and (c) of this 
section, any discharge of dredged or fill material that may result from 
any of the following activities is not prohibited by or otherwise 
subject to regulation under section 404:
    (1)(i) Normal farming, silviculture and ranching activities such as 
plowing, seeding, cultivating, minor drainage, and harvesting for the 
production of food, fiber, and forest products, or upland soil and water 
conservation practices, as defined in paragraph (a)(1)(iii) of this 
section.
    (ii) To fall under this exemption, the activities specified in 
paragraph (a)(1)(i) of this section must be part of an established 
(i.e., on-going) farming, silviculture, or ranching operation and must 
be in accordance with definitions in Sec. 323.4(a)(1)(iii). Activities 
on areas lying fallow as part of a conventional rotational cycle are 
part of an established operation. Activities which bring an area into 
farming, silviculture, or ranching use are not part of an established 
operation. An operation ceases to be established when the area on which 
it was conducted has been coverted to another use or has lain idle so 
long that modifications to the hydrological regime are necessary to 
resume operations. If an activity takes place outside the waters of the 
United States, or if it does not involve a discharge, it does not need a 
section 404 permit, whether or not it is part of an established farming, 
silviculture, or ranching operation.
    (iii)(A) Cultivating means physical methods of soil treatment 
employed within established farming, ranching and silviculture lands on 
farm, ranch, or forest crops to aid and improve their growth, quality or 
yield.
    (B) Harvesting means physical measures employed directly upon farm, 
forest, or ranch crops within established agricultural and silvicultural 
lands to bring about their removal from farm, forest, or ranch land, but 
does not include the construction of farm, forest, or ranch roads.
    (C)(1) Minor Drainage means:
    (i) The discharge of dredged or fill material incidental to 
connecting upland drainage facilities to waters of the United States, 
adequate to effect the removal of excess soil moisture from upland 
croplands. (Construction and maintenance of upland (dryland) facilities, 
such as ditching and tiling, incidential to the planting, cultivating, 
protecting, or harvesting of crops, involve no discharge of dredged or 
fill material into waters of the United States, and as such never 
require a section 404 permit.);
    (ii) The discharge of dredged or fill material for the purpose of 
installing ditching or other such water control facilities incidental to 
planting, cultivating, protecting, or harvesting of rice, cranberries or 
other wetland crop species, where these activities and the discharge 
occur in waters of the United States which are in established use for 
such agricultural and silvicultural wetland crop production;
    (iii) The discharge of dredged or fill material for the purpose of 
manipulating the water levels of, or regulating the flow or distribution 
of water within, existing impoundments which have been constructed in 
accordance with

[[Page 408]]

applicable requirements of CWA, and which are in established use for the 
production of rice, cranberries, or other wetland crop species. (The 
provisions of paragraphs (a)(1)(iii)(C)(1) (ii) and (iii) of this 
section apply to areas that are in established use exclusively for 
wetland crop production as well as areas in established use for 
conventional wetland/non-wetland crop rotation (e.g., the rotations of 
rice and soybeans) where such rotation results in the cyclical or 
intermittent temporary dewatering of such areas.)
    (iv) The discharges of dredged or fill material incidental to the 
emergency removal of sandbars, gravel bars, or other similar blockages 
which are formed during flood flows or other events, where such 
blockages close or constrict previously existing drainageways and, if 
not promptly removed, would result in damage to or loss of existing 
crops or would impair or prevent the plowing, seeding, harvesting or 
cultivating of crops on land in established use for crop production. 
Such removal does not include enlarging or extending the dimensions of, 
or changing the bottom elevations of, the affected drainageway as it 
existed prior to the formation of the blockage. Removal must be 
accomplished within one year of discovery of such blockages in order to 
be eligible for exemption.
    (2) Minor drainage in waters of the U.S. is limited to drainage 
within areas that are part of an established farming or silviculture 
operation. It does not include drainage associated with the immediate or 
gradual conversion of a wetland to a non-wetland (e.g., wetland species 
to upland species not typically adapted to life in saturated soil 
conditions), or conversion from one wetland use to another (for example, 
silviculture to farming). In addition, minor drainage does not include 
the construction of any canal, ditch, dike or other waterway or 
structure which drains or otherwise significantly modifies a stream, 
lake, swamp, bog or any other wetland or aquatic area constituting 
waters of the United States. Any discharge of dredged or fill material 
into the waters of the United States incidental to the construction of 
any such structure or waterway requires a permit.
    (D) Plowing means all forms of primary tillage, including moldboard, 
chisel, or wide-blade plowing, discing, harrowing and similar physical 
means utilized on farm, forest or ranch land for the breaking up, 
cutting, turning over, or stirring of soil to prepare it for the 
planting of crops. The term does not include the redistribution of soil, 
rock, sand, or other surficial materials in a manner which changes any 
area of the waters of the United States to dry land. For example, the 
redistribution of surface materials by blading, grading, or other means 
to fill in wetland areas is not plowing. Rock crushing activities which 
result in the loss of natural drainage characteristics, the reduction of 
water storage and recharge capabilities, or the overburden of natural 
water filtration capacities do not constitute plowing. Plowing as 
described above will never involve a discharge of dredged or fill 
material.
    (E) Seeding means the sowing of seed and placement of seedlings to 
produce farm, ranch, or forest crops and includes the placement of soil 
beds for seeds or seedlings on established farm and forest lands.
    (2) Maintenance, including emergency reconstruction of recently 
damaged parts, of currently serviceable structures such as dikes, dams, 
levees, groins, riprap, breakwaters, causeways, bridge abutments or 
approaches, and transportation structures. Maintenance does not include 
any modification that changes the character, scope, or size of the 
original fill design. Emergency reconstruction must occur within a 
reasonable period of time after damage occurs in order to qualify for 
this exemption.
    (3) Construction or maintenance of farm or stock ponds or irrigation 
ditches, or the maintenance (but not construction) of drainage ditches. 
Discharges associated with siphons, pumps, headgates, wingwalls, weirs, 
diversion structures, and such other facilities as are appurtenant and 
functionally related to irrigation ditches are included in this 
exemption.
    (4) Construction of temporary sedimentation basins on a construction 
site which does not include placement of fill material into waters of 
the U.S. The term ``construction site'' refers to

[[Page 409]]

any site involving the erection of buildings, roads, and other discrete 
structures and the installation of support facilities necessary for 
construction and utilization of such structures. The term also includes 
any other land areas which involve land-disturbing excavation 
activities, including quarrying or other mining activities, where an 
increase in the runoff of sediment is controlled through the use of 
temporary sedimentation basins.
    (5) Any activity with respect to which a State has an approved 
program under section 208(b)(4) of the CWA which meets the requirements 
of sections 208(b)(4) (B) and (C).
    (6) Construction or maintenance of farm roads, forest roads, or 
temporary roads for moving mining equipment, where such roads are 
constructed and maintained in accordance with best management practices 
(BMPs) to assure that flow and circulation patterns and chemical and 
biological characteristics of waters of the United States are not 
impaired, that the reach of the waters of the United States is not 
reduced, and that any adverse effect on the aquatic environment will be 
otherwise minimized. These BMPs which must be applied to satisfy this 
provision shall include those detailed BMPs described in the State's 
approved program description pursuant to the requirements of 40 CFR 
233.22(i), and shall also include the following baseline provisions:
    (i) Permanent roads (for farming or forestry activities), temporary 
access roads (for mining, forestry, or farm purposes) and skid trails 
(for logging) in waters of the U.S. shall be held to the minimum 
feasible number, width, and total length consistent with the purpose of 
specific farming, silvicultural or mining operations, and local 
topographic and climatic conditions;
    (ii) All roads, temporary or permanent, shall be located 
sufficiently far from streams or other water bodies (except for portions 
of such roads which must cross water bodies) to minimize discharges of 
dredged or fill material into waters of the U.S.;
    (iii) The road fill shall be bridged, culverted, or otherwise 
designed to prevent the restriction of expected flood flows;
    (iv) The fill shall be properly stabilized and maintained during and 
following construction to prevent erosion;
    (v) Discharges of dredged or fill material into waters of the United 
States to construct a road fill shall be made in a manner that minimizes 
the encroachment of trucks, tractors, bulldozers, or other heavy 
equipment within waters of the United States (including adjacent 
wetlands) that lie outside the lateral boundaries of the fill itself;
    (vi) In designing, constructing, and maintaining roads, vegetative 
disturbance in the waters of the U.S. shall be kept to a minimum;
    (vii) The design, construction and maintenance of the road crossing 
shall not disrupt the migration or other movement of those species of 
aquatic life inhabiting the water body;
    (viii) Borrow material shall be taken from upland sources whenever 
feasible;
    (ix) The discharge shall not take, or jeopardize the continued 
existence of, a threatened or endangered species as defined under the 
Endangered Species Act, or adversely modify or destroy the critical 
habitat of such species;
    (x) Discharges into breeding and nesting areas for migratory 
waterfowl, spawning areas, and wetlands shall be avoided if practical 
alternatives exist;
    (xi) The discharge shall not be located in the proximity of a public 
water supply intake;
    (xii) The discharge shall not occur in areas of concentrated 
shellfish production;
    (xiii) The discharge shall not occur in a component of the National 
Wild and Scenic River System;
    (xiv) The discharge of material shall consist of suitable material 
free from toxic pollutants in toxic amounts; and
    (xv) All temporary fills shall be removed in their entirety and the 
area restored to its original elevation.
    (b) If any discharge of dredged or fill material resulting from the 
activities listed in paragraphs (a) (1) through (6) of this section 
contains any toxic pollutant listed under section 307 of the CWA such 
discharge shall be subject to any applicable toxic effluent standard or 
prohibition, and shall require a section 404 permit.
    (c) Any discharge of dredged or fill material into waters of the 
United

[[Page 410]]

States incidental to any of the activities identified in paragraphs (a) 
(1) through (6) of this section must have a permit if it is part of an 
activity whose purpose is to convert an area of the waters of the United 
States into a use to which it was not previously subject, where the flow 
or circulation of waters of the United States nay be impaired or the 
reach of such waters reduced. Where the proposed discharge will result 
in significant discernible alterations to flow or circulation, the 
presumption is that flow or circulation may be impaired by such 
alteration. For example, a permit will be required for the conversion of 
a cypress swamp to some other use or the conversion of a wetland from 
silvicultural to agricultural use when there is a discharge of dredged 
or fill material into waters of the United States in conjunction with 
construction of dikes, drainage ditches or other works or structures 
used to effect such conversion. A conversion of a section 404 wetland to 
a non-wetland is a change in use of an area of waters of the United 
States. A discharge which elevates the bottom of waters of the United 
States without converting it to dry land does not thereby reduce the 
reach of, but may alter the flow or circulation of, waters of the United 
States.
    (d) Federal projects which qualify under the criteria contained in 
section 404(r) of the CWA are exempt from section 404 permit 
requirements, but may be subject to other State or Federal requirements.