In most situations, Section 404 of the Clean Water Act requires applicants to seek Department of Army Corps of Engineers permits for the discharge of dredged or fill material into waters of the United States, including wetlands. However, certain activities as specificed under Section 404(f) of the Clean Water Act are exempt from permit requirements.
Discharges Not Requiring Permits (Section 404(f) Exemptions):
1. Normal Farming, Silviculture, and Ranching Activities:
• Examples include: plowing, seeding, cultivating, minor drainage and harvesting for the production of food, fiber and forest products, or upland soil and water conservation practices. Definitions of each of these activities can be found at 33 CFR 323.4(a)(1)(iii). Prior to proceeding with any work ensure that your activity complies with these definitions.
• Must be a part of an established farming, silviculture, or ranching operation. An operation is no longer established when the area on which it was conducted has been converted to another use (something other than farming, silviculture, or ranching), or has lain idle so long that modifications to the hydrologic regime are necessary to resume operations.
• Activities which bring an area into farming, silviculture or ranching use are not part of an established operation.
• If the activity does not occur within waters of the U.S., or if it does not involve a discharge of fill material, the activity does not require a Department of the Army permit, whether or not it is part of an established farming, silviculture, or ranching operation.
Follow links to US Department of Agriculture (USDA), Natural Resources Conservation Services (NRCS) web site for:
2. Maintenance Activities:
• Examples include: emergency reconstruction of recently damaged parts, of currently serviceable structures
examples: dikes, dams, levees, groins, riprap, breakwaters, causeways, bridge abutments or approaches, and transportation structures.
• 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.
• If a maintenance activity would involve ANY modifications to the original fill design, including the location of the fill, the type of material to be used, the amount of material used, etc., then the activity DOES not qualify for the maintenance exemption and a DA permit would be required. However, the activity may qualify for authorization under a Nationwide Permit 3, Maintenance.
3. Construction and maintenance of Farm Ponds, Stock Ponds, or Irrigation Ditches or the Maintenance of Drainage Ditches:
• This exemption applies to the construction or maintenance of farm or stock ponds or irrigation ditches, or the maintenance (but not construction) of drainage ditches.
• Discharges associated with facilities that are appurtenance and functionally related to irrigation ditches are included in the exemption (e.g. siphons, pumps, headgates, wingwalls, weirs, diversion structures, etc.).
• Regulatory Guidance Letter (RGL 07-02) provides additional information regarding this exemption for the construction and maintenance of irrigation ditches and maintenance of drainage ditches, including definitions for irrigation ditches, drainage ditches, construction and maintenance.
• Regulatory Guidance Letter (RGL 87-09) provides additional information regarding this exemption of the construction or maintenance of Farm or Stock Ponds.
• The Wilmington District, Regulatory Division of the Corps of Engineers has issued additional guidance regarding the construction and maintenance of farm or stock ponds throughout North Carolina via a document titled ”Suggested Steps for Agricultural Pond Evaluation & Approval to Build”. The intent of this guidance is to assist the public in determining if their activity complies with this exemption.
4. Construction of Temporary Sedimentation Basins:
• This exemption applies to the construction of temporary sedimentation basins on a construction site which does not include the placement of fill material into waters of the U.S.
• A construction site is any site involving the erection of buildings, roads, and other discrete structures and the installation of support facilities necessary for construction and utilization of the structures. Also includes any other land areas which involve land-disturbing excavation activities, including quarrying and other mining areas, 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:
• Roads and associated construction must abide by the following:
• They must be constructed and maintained in accordance with best management practices to assure that flow and circulation patterns and chemical and biological characteristics of waters of the U.S. are not impaired and that the reach of the waters of the U.S. is not reduced, and that any adverse effect on the aquatic environment are minimized.
Roads and trails shall be held to the minimum feasible number, width, and total length consistent with the purpose of specific farming, silviculture or mining operations, and local topographic and climatic conditions.
• Roads shall be located sufficiently far from streams and other water bodies to minimize discharges of dredged or fill. material into waters of the U.S.
• Road fill shall be bridged, culverted or designed to prevent the restriction of expected flood flows.
• Fill shall be properly stabilized and maintained during and following construction to prevent erosion.
• Discharges shall be made in a manner that minimizes the encroachment of construction equipment in waters of the U.S. outside of the fill area.
• Vegetative disturbance shall be kept to a minimum.
• Construction and maintenance of crossing shall not disrupt the migration or other movement of aquatic life.
• Borrow material shall be taken from upland sources where feasible.
• The discharge shall not take, or jeopardize the continued existence of, a threatened or endangered species, or adversely modify or destroy the critical habitat of such species.
• Discharges into breeding and nesting areas for migratory waterfowl, spawning areas, and wetlands shall be avoided.
• The discharge shall not be located in the proximity of a public water supply intake.
• The discharge shall not occur in areas of concentrated shellfish production.
• The discharge shall not occur in a component of the National Wild and Scenic River System.
• The discharge of material shall consist of suitable material free from toxic pollutants in toxic amounts.
• All temporary fills shall be removed in their entirety and the area restored to its original elevation.
• Regulatory Guidance Letter (RGL 86-03) provides additional information regarding this exemption for the construction or maintenance of farm and forest roads.
• The Wilmington District, Regulatory Division of the Corps of Engineers has issued regional guidance via letter dated November 9, 2004 regarding the construction and maintenance of forest roads located within wetlands throughout North Carolina.
1. Toxic Pollutants:
• If any discharge resulting from the exempt activities contains any toxic pollutant listed under Section 307 of the Clean Water Act, the discharge will be subject to any applicable toxic effluent standard or prohibition, and will require a Section 404 permit.
2. Recapture Provision:
• Any discharge of dredged and/or fill material into waters of the U.S. incidental to any of the exempt activities must have a permit if it is part of an activity whose purpose is to convert an area of a water of the U.S. into a use to which it was not previously subject, where the flow and/or circulation of waters may be impaired or the reach of the waters reduced.
• For example conversion of a cypress swamp to some other use or the conversion of a wetland from silviculture to agriculture use when there is a discharge of dredged or fill material into waters of the U.S. in conjunction with construction of dikes, drainage ditches or other works or structure used to effect such conversion.
Additional information on the Section 404(f) exemptions can be obtained via the following link to 33 CFR 323.4 – Discharges not requiring permits.