[Code of Federal Regulations]

[Title 33, Volume 3]

[Revised as of July 1, 2006]

From the U.S. Government Printing Office via GPO Access

[CITE: 33CFR323.4]



[Page 416-419]

 

                TITLE 33--NAVIGATION AND NAVIGABLE WATERS

 

 CHAPTER II--CORPS OF ENGINEERS, DEPARTMENT OF THE ARMY, DEPARTMENT OF 

                                 DEFENSE

 

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,



[[Page 417]]



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 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,



[[Page 418]]



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 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;



[[Page 419]]



    (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 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.