[Code of Federal Regulations]
[Title 33, Volume 3]
[Revised as of July 1, 2008]
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 ofthe 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 offood, 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 areaslying fallow as part of a conventional rotational cycle are part
of an established operation. Activities which bring an area into
farming, silviculture, orranching 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 toanother use or has lain idle so
long that modifications to the hydrological regime are necessary to
resume operations. If an activity takes place outsidethe 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 establishedfarming,
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
silviculturallands 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 toeffect the removal of excess soil moisture from upland
croplands. (Construction and maintenance of upland (dryland) facilities,
such as ditching andtiling,

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incidential to the planting, cultivating, protecting, or harvesting of
crops, involve no discharge of dredged or fill material into waters
ofthe 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
toplanting, cultivating, protecting, or harvesting of rice, cranberries
or other wetland crop species, where these activities and the discharge
occur inwaters 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
ofwater within, existing impoundments which have been constructed in
accordance with applicable requirements of CWA, and which are in
established use for theproduction of rice, cranberries, or other wetland
crop species. (The provisions of paragraphs (a)(1)(iii)(C)(1) (ii) and
(iii) of thissection apply to areas that are in established use
exclusively for wetland crop production as well as areas in established
use for conventionalwetland/non-wetland crop rotation (e.g., the
rotations of rice and soybeans) where such rotation results in the
cyclical or intermittent temporarydewatering of such areas.)
    (iv) The discharges of dredged or fill material incidental to the
emergency removal of sandbars, gravel bars, or other similar blockages
whichare formed during flood flows or other events, where such blockages
close or constrict previously existing drainageways and, if not promptly
removed, wouldresult in damage to or loss of existing crops or would
impair or prevent the plowing, seeding, harvesting or cultivating of
crops on land in establisheduse for crop production. Such removal does
not include enlarging or extending the dimensions of, or changing the
bottom elevations of, the affecteddrainageway as it existed prior to the
formation of the blockage. Removal must be accomplished within one year
of discovery of such blockages in order tobe 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 nottypically 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 modifiesa stream,
lake, swamp, bog or any other wetland or aquatic area constituting
waters of the United States. Any discharge of dredged or fill material
intothe 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
meansutilized 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 termdoes 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 Statesto dry land. For example, the
redistribution of surface materials by blading, grading, or other means
to fill in wetland areas is not plowing. Rockcrushing activities which
result in the loss of natural drainage characteristics, the reduction of
water storage and recharge capabilities, or theoverburden of natural
water filtration capacities do not constitute plowing. Plowing as
described above will never involve a discharge of dredged or
fillmaterial.
    (E) Seeding means the sowing of seed and placement of seedlings to
produce farm, ranch, or forest crops and includes the placement of soil
bedsfor 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 thatchanges the character,
scope, or size of the original fill design. Emergency reconstruction
must occur within a reasonable period of time after damageoccurs 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.
Dischargesassociated with siphons, pumps, headgates, wingwalls, weirs,
diversion structures, and such other facilities as are appurtenant and
functionally related toirrigation 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. Theterm ``construction site'' refers to any site involving the
erection of buildings, roads, and other discrete structures and the
installation ofsupport facilities necessary for construction and
utilization of such structures. The term also includes any other land
areas which involve land-disturbingexcavation activities, including
quarrying or other mining activities, where an increase in the runoff of
sediment is controlled through the use oftemporary 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 sections208(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 andmaintained in accordance with best management practices
(BMPs) to assure that flow and circulation patterns and chemical and
biological characteristics ofwaters 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 aquaticenvironment will be
otherwise minimized. These BMPs which must be applied to satisfy this
provision shall include those detailed BMPs described in theState'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, silviculturalor 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 whichmust 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
theencroachment of trucks, tractors, bulldozers, or other heavy
equipment within waters of the United States (including adjacent
wetlands) that lie outsidethe 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 lifeinhabiting 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 SpeciesAct, 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 anytoxic pollutant listed under section 307 of the CWA such
discharge shall be subject to any applicable toxic effluent standard or
prohibition, and shallrequire 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 ause 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 watersreduced. Where the proposed
discharge will result in significant discernible alterations to flow or
circulation, the presumption is that flow orcirculation 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 theconversion of a
wetland from silvicultural to agricultural use when there is a discharge
of dredged or fill material into waters of the United States
inconjunction with construction of dikes, drainage ditches or other
works or structures used to effect such conversion. A conversion of a
section 404 wetlandto 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 withoutconverting 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 maybe subject to other State or Federal requirements.