[Code of Federal Regulations]

[Title 40, Volume 24]

[Revised as of July 1, 2006]

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

[CITE: 40CFR232.2]



[Page 282-285]

 

                   TITLE 40--PROTECTION OF ENVIRONMENT

 

         CHAPTER I--ENVIRONMENTAL PROTECTION AGENCY (CONTINUED)

 

PART 232_404 PROGRAM DEFINITIONS; EXEMPT ACTIVITIES NOT REQUIRING 404 

PERMITS--Table of Contents

 

Sec.  232.2  Definitions.



    Administrator means the Administrator of the Environmental 

Protection Agency or an authorized representative.

    Application means a form for applying for a permit to discharge 

dredged or fill material into waters of the United States.

    Approved program means a State program which has been approved by 

the Regional Administrator under part 233 of this chapter or which is 

deemed approved under section 404(h)(3), 33 U.S.C. 1344(h)(3).

    Best management practices (BMPs) means schedules of activities, 

prohibitions of practices, maintenance procedures, and other management 

practices to prevent or reduce the pollution of waters of the United 

States from discharges of dredged or fill material. BMPs include 

methods, measures, practices, or design and performance standards which 

facilitate compliance with the section 404(b)(1) Guidelines (40 CFR part 

230), effluent limitations or prohibitions under section 307(a), and 

applicable water quality standards.

    Discharge of dredged material. (1) Except as provided below in 

paragraph (3), the term discharge of dredged material means any addition 

of dredged material into, including redeposit of dredged material other 

than incidental 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, associated with a dredging operation, 

from a contained land or water disposal area; and

    (iii) Any addition, including redeposit other than incidental 

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



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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.

    (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 U.S. 

as defined in paragraphs (5) and (6) of this definition; 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 (5) and (6) of this definition. 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 33 CFR part 329, 

with proper authorization from the Congress or the Corps pursuant to 33 

CFR part 322; however, this exception is not applicable to dredging 

activities in wetlands, as that term is defined at Sec.  232.2(r) 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 40 CFR 232.3 for 

discharges that do not require 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.

    Discharge of fill material. (1) 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 or infrastructure in a water of the United States; the 

building of any structure, infrastructure, or



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impoundment requiring rock, sand, dirt, or other material for its 

construction; site-development fills for recreational, industrial, 

commercial, residential, or 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; placement of fill material for construction or 

maintenance of any liner, berm, or other infrastructure associated with 

solid waste landfills; placement of overburden, slurry, or tailings or 

similar mining-related materials;'' after the words ``utility lines; and 

artificial reefs.

    (2) In addition, placement of pilings in waters of the United States 

constitutes a discharge of fill material and requires a Section 404 

permit when such placement has or would have the effect of a discharge 

of fill material. Examples of such activities that have the effect of a 

discharge of fill material include, but are not limited to, the 

following: Projects where the pilings are so closely spaced that 

sedimentation rates would be increased; projects in which the pilings 

themselves effectively would replace the bottom of a waterbody; projects 

involving the placement of pilings that would reduce the reach or impair 

the flow or circulation of waters of the United States; and projects 

involving the placement of pilings which would result in the adverse 

alteration or elimination of aquatic functions.

    (i) Placement of pilings in waters of the United States that does 

not have or would not have the effect of a discharge of fill material 

shall not require a Section 404 permit. Placement of pilings for linear 

projects, such as bridges, elevated walkways, and powerline structures, 

generally does not have the effect of a discharge of fill material. 

Furthermore, placement of pilings in waters of the United States for 

piers, wharves, and an individual house on stilts generally does not 

have the effect of a discharge of fill material. All pilings, however, 

placed in the navigable waters of the United States, as that term is 

defined in 33 CFR part 329, require authorization under section 10 of 

the Rivers and Harbors Act of 1899 (see 33 CFR part 322).

    (ii) [Reserved]

    Dredged material means material that is excavated or dredged from 

waters of the United States.

    Effluent means dredged material or fill material, including return 

flow from confined sites.

    Federal Indian reservation means all land within the limits of any 

Indian reservation under the jurisdiction of the United States 

Government, notwithstanding the issuance of any patent, and including 

rights-of-way running through the reservation.

    Fill material. (1) Except as specified in paragraph (3) of this 

definition, the term fill material means material placed in waters of 

the United States where the material has the effect of:

    (i) Replacing any portion of a water of the United States with dry 

land; or

    (ii) Changing the bottom elevation of any portion of a water of the 

United States.

    (2) Examples of such fill material include, but are not limited to: 

rock, sand, soil, clay, plastics, construction debris, wood chips, 

overburden from mining or other excavation activities, and materials 

used to create any structure or infrastructure in the waters of the 

United States.

    (3) The term fill material does not include trash or garbage.

    General permit means a permit authorizing a category of discharges 

of dredged or fill material under the Act. General permits are permits 

for categories of discharge which are similar in nature, will cause only 

minimal adverse environmental effects when performed separately, and 

will have only minimal cumulative adverse effect on the environment.

    Indian Tribe means any Indian Tribe, band, group, or community 

recognized by the Secretary of the Interior and exercising governmental 

authority over a Federal Indian reservation.

    Owner or operator means the owner or operator of any activity 

subject to regulation under the 404 program.

    Permit means a written authorization issued by an approved State to 

implement the requirements of part 233, or



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by the Corps under 33 CFR parts 320-330. When used in these regulations, 

``permit'' includes ``general permit'' as well as individual permit.

    Person means an individual, association, partnership, corporation, 

municipality, State or Federal agency, or an agent or employee thereof.

    Regional Administrator means the Regional Administrator of the 

appropriate Regional Office of the Environmental Protection Agency or 

the authorized representative of the Regional Administrator.

    Secretary means the Secretary of the Army acting through the Chief 

of Engineers.

    State means any of the 50 States, the District of Columbia, Guam, 

the Commonwealth of Puerto Rico, the Virgin Islands, American Samoa, the 

Commonwealth of the Northern Mariana Islands, the Trust Territory of the 

Pacific Islands, or an Indian Tribe as defined in this part, which meet 

the requirements of Sec.  233.60.

    State regulated waters means those waters of the United States in 

which the Corps suspends the issuance of section 404 permits upon 

approval of a State's section 404 permit program by the Administrator 

under section 404(h). The program cannot be transferred for those waters 

which are presently used, or are susceptible to use in their natural 

condition or by reasonable improvement as a means to transport 

interstate or foreign commerce shoreward to their ordinary high water 

mark, including all waters which are subject to the ebb and flow of the 

tide shoreward to the high tide line, including wetlands adjacent 

thereto. All other waters of the United States in a State with an 

approved program shall be under jurisdiction of the State program, and 

shall be identified in the program description as required by part 233.

    Waters of the United States means:

    All waters which are currently used, were used in the past, or may 

be susceptible to us in interstate or foreign commerce, including all 

waters which are subject to the ebb and flow of the tide.

    All interstate waters including interstate wetlands.

    All other waters, such as intrastate lakes, rivers, streams 

(including intermittent streams), mudflats, sandflats, wetlands, 

sloughs, prairie potholes, wet meadows, playa lakes, or natural ponds, 

the use, degradation, or destruction of which would or could affect 

interstate or foreign commerce including any such waters:

    Which are or could be used by interstate or foreign travelers for 

recreational or other purposes; or

    From which fish or shellfish are or could be taken and sold in 

interstate or foreign commerce; or

    Which are used or could be used for industrial purposes by 

industries in interstate commerce.

    All impoundments of waters otherwise defined as waters of the United 

States under this definition;

    Tributaries of waters identified in paragraphs (g)(1)-(4) of this 

section;

    The territorial sea; and

    Wetlands adjacent to waters (other than waters that are themselves 

wetlands) identified in paragraphs (q)(1)-(6) of this section.

    Waste treatment systems, including treatment ponds or lagoons 

designed to meet the requirements of the Act (other than cooling ponds 

as defined in 40 CFR 123.11(m) which also meet the criteria of this 

definition) are not waters of the United States.

    Waters of the United States do not include prior converted cropland. 

Notwithstanding the determination of an area's status as prior converted 

cropland by any other federal agency, for the purposes of the Clean 

Water Act, the final authority regarding Clean Water Act jurisdiction 

remains with EPA.

    Wetlands means those areas that are inundated or saturated by 

surface or ground water at a frequency and duration sufficient to 

support, and that under normal circumstances do support, a prevalence of 

vegetation typically adapted for life in saturated soil conditions. 

Wetlands generally include swamps, marshes, bogs, and similar areas.



[53 FR 20773, June 6, 1988, as amended at 58 FR 8182, Feb. 11, 1993; 58 

FR 45037, Aug. 25, 1993; 64 FR 25123, May 10, 1999; 66 FR 4575, Jan. 17, 

2001; 67 FR 31142, May 9, 2002]



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