[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: 40CFR232.3]



[Page 286-289]

 

                   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.  232.3  Activities not requiring permits.



    Except as specified in paragraphs (a) and (b) of this section, any 

discharge of dredged or fill material that may result from any of the 

activities described in paragraph (c) of this section is not prohibited 

by or otherwise subject to regulation under this part.

    (a) If any discharge of dredged or fill material resulting from the 

activities listed in paragraph (c) of this section contains any toxic 

pollutant listed under section 307 of the Act, such discharge shall be 

subject to any applicable toxic effluent standard or prohibition, and 

shall require a section 404 permit.

    (b) Any discharge of dredged or fill material into waters of the 

United States incidental to any of the activities identified in 

paragraph (c) 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 may be impaired or the 

reach of such waters reduced. Where the proposed discharge will result 

in significant discernable alterations to flow or circulation, the 

presumption is that flow or circulation may be impaired by such 

alteration.



    Note: 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 

constuction of dikes, drainage ditches or other works or structures used 

to effect such conversion. A conversion of section 404 wetland to a non-

wetland is a change in use of an area of waters of the U.S. 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.



    (c) The following activities are exempt from section 404 permit 

requirements, except as specified in paragraphs (a) and (b) of this 

section:

    (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 (d) of this section.

    (ii)(A) To fall under this exemption, the activities specified in 

paragraph (c)(1) of this section must be part of an established (i.e., 

ongong) farming, silviculture, or ranching operation, and must be in 

accordance with definitions in paragraph (d) of this section. Activities 

on areas lying fallow as part of a conventional rotational cycle are 

part of an established operation.

    (B) 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 in which it was conducted has 

been converted to another use or has lain idle so long that 

modifications to the hydrological regime are necessary to resume 

operation. 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 was part of an es tab lished 

farming, silviculture or ranching operation.

    (2) Maintenance, including emergency reconstruction of recently 

damaged parts, of currently serviceable structures such as dikes, dams, 

levees, groins, riprap, breakwaters, cause ways, 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. 

Discharge associated with siphons, pumps, headgates, wingwalls, wiers, 

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 United States. The term ``construction site'' refers to any site 

involving the



[[Page 287]]



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 Act which meets the requirements 

of section 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. The BMPs which must be applied to satisfy this 

provision 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 United States 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 United States;

    (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 to prevent 

erosion during and following construction;

    (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 the 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 United States 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.

    (d) For purpose of paragraph (c)(1) of this section, cultivating, 

harvesting, minor drainage, plowing, and seeding are defined as follows:

    (1) 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.

    (2) 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,



[[Page 288]]



forest, or ranch land, but does not include the construction of farm, 

forest, or ranch roads.

    (3)(i) Minor drainage means:

    (A) 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, incidental 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;

    (B) The discharge of dredged or fill material for the purpose of 

installing ditching or other 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;

    (C) 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 the Act, and which are in 

established use for the production or rice, cranberries, or other 

wetland crop species.



    Note: The provisions of paragraphs (d)(3)(i) (B) and (C) 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.



    (D) The discharge 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 drain age ways 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 after such blockages are discovered in 

order to be eligible for exemption.

    (ii) Minor drainage in waters of the United States 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 adequate 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.

    (4) Plowing means all forms of primary tillage, including moldboard, 

chisel, or wide-blade plowing, discing, harrowing, and similar physical 

means used 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. Plowing 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 dryland. 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.



[[Page 289]]



    (5) 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.

    (e) Federal projects which qualify under the criteria contained in 

section 404(r) of the Act are exempt from section 404 permit 

requirements, but may be subject to other State or Federal requirements.