[Federal Register Volume 64, Number 54 (Monday, March 22, 1999)]
[Notices]
[Pages 13783-13788]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-6892]
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DEPARTMENT OF DEFENSE
Department of the Army, Corps of Engineers
Regulatory Guidance Letters Issued by the Corps of Engineers
AGENCY: Army Corps of Engineers, DoD.
ACTION: Notice.
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SUMMARY: The purpose of this notice is to provide current Regulatory
Guidance Letters (RGLs) to all interested parties. RGLs are used by the
U.S. Army Corps of Engineers Headquarters as a means to transmit
guidance on the permit program (33 CFR parts 320-330) to its division
and district commanders. Each future RGL will be published in the
Notice Section of the Federal Register as a means to insure the widest
dissemination of this information while reducing costs to the Federal
Government. The Corps no longer maintains a mailing list to furnish
copies of the RGLs to the public.
FOR FURTHER INFORMATION CONTACT: Mr. Michael D. Smith, Regulatory
Branch, Office of the Chief of Engineers at (202) 761-0201.
SUPPLEMENTARY INFORMATION: RGLs were developed by the Corps as a system
to organize and track written guidance issued to its field agencies.
RGLs are normally issued as a result of evolving policy; judicial
decisions and changes to the Corps regulations or another agency's
regulations which affect the permit program. RGLs are used only to
interpret or clarify existing Regulatory Program policy, but do provide
mandatory guidance to Corps district offices. RGLs are sequentially
numbered and expire on a specified date. However, unless superseded by
specific provisions of subsequently issued regulations or RGLs, the
guidance provided in RGLs generally remains valid after the expiration
date. The Corps incorporates most of the guidance provided by RGLs
whenever it revises its permit regulations. We are hereby publishing
all current RGLs, beginning with RGL 94-1 and ending with RGL 96-2.
RGLs 92-1, 92-3, and 92-5 expired on December 31, 1997, and RGL 93-1
and 93-2 expired on December 31, 1998. All five RGLs have been removed
from this publication. We will continue to publish each RGL in the
Notice Section of the Federal Register upon issuance and in early 2000,
we will again publish the complete list of all current RGLs.
Dated: March 17, 1999.
Charles M. Hess.
Chief, Operations Division, Directorate of Civil Works.
Regulatory Guidance Letter (RGL 94-1)
Issued: May 23, 1994, EXPIRES: December 31, 1999.
Subject: Expiration of Geographic Jurisdictional Determinations.
1. Regulatory Guidance Letter (RGL) 90-6, Subject: ``Expiration
Dates for Wetlands Jurisdictional Delineations'' is extended until
December 31, 1999, subject to the following revisions.
2. This guidance should be applied to all jurisdictional
determinations for all waters of the United States made pursuant to
section 10 of the Rivers and Harbors Act of 1899, section 404 of the
Clean Water Act, and section 103 of the Marine Protection Research
and Sanctuaries Act of 1972.
3. To be consistent with paragraph IV.A. of the January 6, 1994,
interagency Memorandum of Agreement Concerning the Delineation of
Wetlands for Purposes of section 404 of the Clean Water Act and
subtitle B of the Food Security Act, all U.S. Army Corps of
Engineers geographic jurisdictional determinations shall be in
writing and normally remain valid for a period of five years. The
Corps letter (see paragraph 4.(d) of RGL 90-6) should include a
statement that the jurisdictional determination is valid for a
period of five years from the date of the letter unless new
information warrants revision of the determination before the
expiration date.
4. For wetland jurisdictional delineations the ``effective date
of this RGL'' referred to in paragraphs 4 and 5 of RGL 90-6 was and
remains August 14, 1990. For jurisdictional determinations, other
than wetlands jurisdictional delineations, the ``effective date of
this RGL'' referred to in paragraphs 4 and 5 of RGL 90-6 will be the
date of this RGL.
5. Previous Corps written jurisdictional determinations,
including wetland jurisdictional delineations, with a validity
period of three years remain valid for the stated period of three
years. The district engineer is not required to issue new letters to
extend such period from three years to a total of five years.
However, if requested to do so, the district engineer will normally
extend the three year period to a total of five years unless new
information warrants a new jurisdictional determination.
6. Districts are not required to issue a public notice on this
guidance but may do so at their discretion.
7. This guidance expires on December 31, 1999 unless sooner
revised or rescinded.
[[Page 13784]]
For the Director of Civil Works.
John P. Elmore, P.E.,
Chief, Operations, Construction and Readiness Division, Directorate of
Civil Works.
Regulatory Guidance Letter (RGL 94-2)
Issued: August 17, 1994, EXPIRES: December 31, 1999.
Subject: Superfund Projects.
1. Regulatory Guidance Letter (RGL) 85-07, subject: ``Superfund
Projects'' is hereby reissued (copy enclosed).
2. This RGL was previously extended by RGL 89-2. Although the
extension expired, RGL 85-07 has continued to be U.S. Army Corps of
Engineers policy.
3. This guidance expires December 31, 1999 unless sooner revised
or rescinded.
For the Director of Civil Works.
John P. Elmore, P.E.,
Chief, Operations, Construction and Readiness Division, Directorate of
Civil Works.
Regulatory Guidance Letter (RGL 95-1)
Issued: March 31, 1995, EXPIRES: December 31, 2000.
Subject: Guidance on Individual Permit Flexibility for Small
Landowners.
1. Enclosed is a memorandum for the field signed by the Acting
Assistant Secretary of the Army (Civil Works) and the Environmental
Protection Agency dated March 6, 1995. This memorandum provides
guidance on flexibility that the U.S. Army Corps of Engineers should
apply when making determinations of compliance with the section
404(b)(1) Guidelines with regard to the alternatives analysis.
2. This memorandum should be implemented immediately. It
constitutes an important aspect of the President's Plan for
protecting the Nation's wetlands, ``Protecting America's Wetlands: A
Fair, Flexible, and Effective Approach'' (published on August 24,
1993).
3. This guidance expires on December 31, 2000 unless sooner
revised or rescinded.
For the Director of Civil Works.
Daniel R. Burns, P.E.,
Chief, Operations, Construction and Readiness Division, Directorate of
Civil Works.
United States Environmental Protection Agency, Office of Water,
Washington, DC 20460
United States Department of the Army, Office of the Assistant
Secretary, Washington, DC 20310-0103
Memorandum for the Field
March 6, 1995.
Subject: Individual Permit Flexibility for Small Landowners.
In order to clearly affirm the flexibility afforded to small
landowners under section 404 of the Clean Water Act, this policy
clarifies that for discharges of dredged or fill material affecting
up to two acres of non-tidal wetlands for the construction or
expansion of a home or farm building, or expansion of a small
business, it is presumed that alternatives located on property not
currently owned by the applicant are not practicable under the
section 404(b)(1) Guidelines.
Specifically, for those activities involving discharges of
dredged or fill material affecting up to two acres into
jurisdictional wetlands for:
(1) The construction or expansion of a single family home and
attendant features, such as a driveway, garage, storage shed, or
septic field;
(2) The construction or expansion of a barn or other farm
building; or
(3) The expansion of a small business facility;
which are not otherwise covered by a general permit, it is presumed
that alternatives located on property not currently owned by the
applicant are not practicable under the section 404(b)(1)
Guidelines. The Guidelines' requirements to appropriately and
practicably minimize and compensate for any adverse environmental
impacts of such activities remain.
Discussion
The Clean Water Act Section 404 regulatory program provides that
the Army Corps of Engineers evaluate permit applications for the
discharge of dredged or fill material into waters of the U.S.,
including wetlands, in accordance with regulatory requirements of
the section 404(b)(1) Guidelines (Guidelines). The Guidelines are
substantive environmental criteria used in evaluating discharges of
dredged or fill material.
The Section 404(b)(1) Guidelines establish a mitigation sequence
that provides a sound framework to ensure that the environmental
impacts of permitted actions are acceptable. Under this framework,
there is a three-step sequence for mitigating potential adverse
impacts to the aquatic environment associated with a proposed
discharge--first avoidance, then minimization, and lastly
compensation for unavoidable impacts to aquatic resources.
The Guidelines' mitigation sequence is designed to establish a
consistent approach to be used in ensuring that all practicable
measures have been taken to reduce potential adverse impacts
associated with proposed projects in wetlands and other aquatic
systems. The Guidelines define the term ``practicable'' as
``available and capable of being done [by the applicant] after
taking into consideration cost, existing technology, and logistics
in light of overall project purposes'' (40 CFR 230.3(q)). The first
step in the sequence requires the evaluation of potential
alternative sites under Sec. 230.10(a) of the Guidelines, to locate
the proposed project so that aquatic impacts are avoided to the
extent practicable.
This policy statement clarifies that, for the purposes of the
alternatives analysis, it is presumed that practicable alternatives
are limited to property owned by the permit applicant in
circumstances involving certain small projects affecting less than
two acres of non-tidal wetlands. This presumption is consistent with
the practicability considerations required under the Guidelines and
reflects the nature of the projects to which the presumption
applies--specifically, the construction or expansion of a single
family home and attendant features, the construction or expansion of
a barn or other farm building, or the expansion of a business. For
such small projects that would solely expand an existing structure,
the basic project purpose is so tied to the existing structures
owned by the applicant, that it would be highly unusual that the
project could be practicably located on other sites not owned by the
applicant. In these cases, such as construction of driveways,
garages, or storage sheds, or with home and barn additions,
proximity to the existing structure is typically a fundamental
aspect of the project purpose.
In the evaluation of potential practicable alternatives, the
Guidelines do not exclude the consideration of sites that, while not
currently owned by the permit applicant, could reasonably be
obtained to satisfy the project purpose. However, it is the
experience of the Army Corps of Engineers and EPA that areas not
currently owned by the applicant have, in the great majority of
circumstances, not been determined to be practicable alternatives in
cases involving the small landowner activities described above.
Cost, availability, and logistical and capability considerations
inherent in the determination of practicability under the Guidelines
have been the basis for this conclusion by the agencies.
The agencies recognize that the presumption characterized in
this policy statement may be rebutted in certain circumstances. For
example, a more thorough review of practicable alternatives would be
warranted for individual sites comprising a subdivision of homes, if
following issuance of this policy statement, a real estate developer
subdivided a large, contiguous wetlands parcel into numerous
parcels. In addition, the presumption is applicable to the expansion
of existing small business facilities. Small businesses are
typically confined to only one location and with economic and
logistical limitations that generally preclude the availability of
practicable alternative locations to meet their expansion needs.
Conversely, larger businesses with multiple locations and greater
resources are expected to consider opportunities to practicably
avoid adverse aquatic impacts by evaluating off-site alternatives.
Finally, it is important to note that this presumption of
practicable alternatives is intended to apply to the individual
permit process. Alternatives are not evaluated for activities
covered by general permits. Many activities related to the
construction or expansion of a home, farm, or business, are already
covered by a general permit. In addition, in conjunction with the
issuance of this policy statement, a nationwide general permit
authorizing discharges related to single family residential
development is being proposed and will be available for public
comment.
If you have any questions regarding this memorandum, please
contact Gregory Peck of EPA's Wetlands Division at (202) 260-8794
[[Page 13785]]
or Michael Davis of the Corps of Engineer's Regulatory Branch at
(202) 272-0199.
Robert Perciasepe
Assistant Administrator for Water, U.S. Environmental Protection
Agency.
John Zirschky,
Acting Assistant Secretary of the Army (Civil Works).
Regulatory Guidance Letter (RGL 96-1)
Issued: November 5, 1996, Expires: December 31, 2001.
Subject: Use of Nationwide Permit Number 23 for U.S. Coast Guard
Categorical Exclusions.
1. We have concurred with the categorical exclusions (CE)
enclosure submitted by the United States Coast Guard (Coast Guard)
pursuant to the subject nationwide permit number 23 at 33 CFR part
330, including a notification requirement for CE numbers (6) and
(8). The U.S. Army Corps of Engineers published the Coast Guard CEs
in 61 FR 18573, April 26, 1996, for comment regarding the
applicability of nationwide permit number 23 for those activities
requiring Department of the Army authorization. This Regulatory
Guidance Letter supersedes the Coast Guard CEs previously approved
under nationwide permit number 23 in accordance with Regulatory
Guidance Letter 83-5, dated April 18, 1983.
2. The Corps has conditioned the nationwide permit to require
notification to the appropriate Corps office prior to beginning work
under Coast Guard CE number (6) to address potential impacts to
wetlands (notification is only required to the Corps for projects
where wetland impacts are proposed) and number (8) to address
potential impacts/encroachment on Federal navigation projects. The
District Engineer will review the notification and will either
verify whether the activity meets the terms and conditions of
nationwide permit 23, will require evaluation under standard permit
procedures, or that additional conditioning of the activity is
necessary to ensure that no unacceptable adverse effects will result
to wetlands for projects under CE number (8). Authorization of the
Coast Guard CEs does not restrict the Division or District
Engineers' authorities to exercise discretionary authority, or the
Corps modification, suspension, or revocation procedures.
Development of local procedures to streamline coordination is
encouraged where a Corps division or district further conditions the
nationwide permit to require a notification for additional
activities.
3. It should be noted that the Coast Guard provided a complete
listing of CEs, including many that do not require Department of the
Army authorization. However, to reduce confusion when referencing
the CE number, we have included all Coast Guard CEs in the
enclosure.
4. This guidance expires December 31, 2001 unless sooner revised
or rescinded.
For the Director of Civil Works.
Daniel R. Burns, P.E.,
Chief, Operations, Construction, and Readiness Division, Directorate of
Civil Works.
U.S. Coast Guard Categorical Exclusion List
The following is a consolidated list prepared from the U.S.
Coast Guard Federal Register notices (59 FR 38654, July 29, 1994, 60
FR 32197, June 20, 1995, and 61 FR 13563, March 27, 1996). The list
does not include the procedures the U.S. Coast Guard must follow to
determine whether certain activities qualify for a categorical
exclusion. Notification to the U.S. Army Corps of Engineers is
required prior to initiation of work for activities conducted under
numbers (6) (notification is only required to the Corps for projects
when wetland impacts are proposed) and number (8).
1. Routine personnel, fiscal, and administrative activities,
actions, procedures, and policies which clearly do not have any
environmental impacts, such as military and civilian personnel
recruiting, processing, paying, and record keeping.
2. Routine procurement activities and actions for goods and
services, including office supplies, equipment, mobile assets, and
utility services for routine administration, operation, and
maintenance.
3. Maintenance dredging and debris disposal where no new depths
are required, applicable permits are secured, and disposal will be
at an existing approved disposal site.
4. Routine repair, renovation, and maintenance actions on
aircraft and vessels.
5. Routine repair and maintenance of buildings, roads,
airfields, grounds, equipment, and other facilities which do not
result in a change in functional use, or an impact on a historically
significant element or settings.
6. Minor renovations and additions to buildings, roads,
airfields, grounds, equipment, and other facilities which do not
result in a change in functional use, a historically significant
element, or historically significant setting. (When wetland impacts
are proposed, notification is required to the appropriate office of
U.S. Army Corps of Engineers prior to initiation of work.)
7. Routine repair and maintenance to waterfront facilities,
including mooring piles, fixed floating piers, existing piers, and
unburied power cables.
8. Minor renovations and additions to waterfront facilities,
including mooring piles, fixed floating piers, existing piers, and
unburied power cables, which do not require special, site-specific
regulatory permits. (Notification is required to the appropriate
office of U.S. Army Corps of Engineers prior to initiation of work.)
9. Routine grounds maintenance and activities at units and
facilities. Examples include localized pest management actions and
actions to maintain improved grounds (such as landscaping, lawn
care, and minor erosion control measures) that are conducted in
accordance with applicable Federal, State, and local directives.
10. Installation of devices to protect human or animal life,
such as raptor electrocution prevention devices, fencing to restrict
wildlife movement on to airfields, and fencing and grating to
prevent accidental entry to hazardous areas.
11. New construction on heavily developed portions of Coast
Guard property, when construction, use, and operation will comply
with regulatory requirements and constraints.
12. Decisions to decommission equipment or temporarily
discontinue use of facilities or equipment. This does not preclude
the need to review decommissioning under Section 106 of the National
Historic Preservation Act.
13. Demolition or disposal actions that involve buildings or
structures when conducted in accordance with regulations applying to
removal of asbestos, PCB's, and other hazardous materials, or
disposal actions mandated by Congress. In addition, if the building
or structure is listed, or eligible for listing, in the National
Register of Historic Places, then compliance with Section 106 of the
National Historic Preservation Act is required.
14. Outleasing of historic lighthouse properties as outlined in
the Programmatic Memorandum of Agreement between the Coast Guard,
Advisory Council on Historic Preservation, and the National
Conference of State Historic Preservation Officers.
15. Transfer of real property from the Coast Guard to the
General Services Administration, Department of the Interior, and
other Federal departments and agencies, or as mandated by Congress;
and the granting of leases, permits, and easements where there is no
substantial change in use of the property.
16. Renewals and minor amendments of existing real estate
licenses or grants for use of government-owned real property where
prior environmental review has determined that no significant
environmental effects would occur.
17. New grants or renewal of existing grants of license,
easements, or similar arrangements for the use of existing rights-
of-way or incidental easements complementing the use of existing
rights-of-way for use by vehicles; for such existing rights-of-way
as electrical, telephone, and other transmission and communication
lines; water, wastewater, stormwater, and irrigation pipelines,
pumping stations, and irrigation facilities; and for similar utility
and transportation uses.
18. Defense preparedness training and exercises conducted on
other than Coast Guard property, where the lead agency or department
is not Coast Guard or Department of Transportation and the lead
agency or department has completed its NEPA analysis and
documentation requirements.
19. Defense preparedness training and exercise conducted on
Coast Guard property that do not involve undeveloped property or
increase noise levels over adjacent property and that involve a
limited number of personnel, such as exercises involving primarily
electric simulation or command post personnel.
20. Simulated exercises, including tactical and logistical
exercises that involve small numbers of personnel.
21. Training of an administrative or classroom nature.
[[Page 13786]]
22. Operations to carry out maritime safety, maritime law
enforcement, search and rescue, domestic ice breaking, and oil or
hazardous substance removal programs.
23. Actions performed as a part of Coast Guard operations and
the Aids to Navigation Program to carry out statutory authority in
the area of establishment of floating and minor fixed aids to
navigation, except electronic sound signals.
24. Routine movement of personnel and equipment, and the routine
movement, handling, and distribution of nonhazardous materials and
wastes in accordance with applicable regulations.
25. Coast Guard participation in disaster relief efforts under
the guidance or leadership of another Federal agency that has taken
responsibility for NEPA compliance.
26. Data gathering, information gathering, and studies that
involve no physical change to the environment. Examples include
topographic surveys, bird counts, wetland mapping, and other
inventories.
27. Natural and cultural resource management and research
activities that are in accordance with interagency agreements and
which are designed to improve or upgrade the Coast Guard's ability
to manage those resources.
28. Contracts for activities conducted at established
laboratories and facilities, to include contractor-operated
laboratories and facilities, on Coast Guard-owned property where all
airborne emissions, waterborne effluents, external radiation levels,
outdoor noise, and solid and bulk waste disposal practices are in
compliance with existing applicable Federal, State, and local laws
and regulations.
29. Approval of recreational activities (such as Coast Guard
unit picnic) which do not involve significant physical alteration of
the environment, increase disturbance by humans of sensitive natural
habitats, or disturbance of historic properties, and which do not
occur in, or adjacent to, areas inhabited by threatened or
endangered species.
30. Review of documents, such as studies, reports, and analyses,
prepared for legislative proposals that did not originate in DOT and
that relate to matters that are not the primary responsibility of
the Coast Guard.
31. Planning and technical studies which do not contain
recommendations for authorization or funding for future
construction, but may recommend further study. This includes
engineering efforts or environmental studies undertaken to define
the elements of a proposal or alternatives sufficiently so that the
environmental effects may be assessed and does not exclude
consideration of environmental matters in the studies.
32. Bridge Administration Program actions which can be described
as one of the following:
(a) Modification or replacement of an existing bridge on
essentially the same alignment or location. Excluded are bridges
with historic significance or bridges providing access to
undeveloped barrier islands and beaches. (Approach fills regulated
by the U.S. Army Corps of Engineers under Section 404 of the Clean
Water Act will require a separate individual or general permit.)
(b) Construction of pipeline bridges for transporting potable
water.
(c) Construction of pedestrian, bicycle, or equestrian bridges
and stream gauging cableways used to transport people.
(d) Temporary replacement of a bridge immediately after a
natural disaster or a catastrophic failure for reasons of public
safety, health, or welfare.
(e) Promulgation of operating regulations or procedures for
drawbridges.
(f) Identification of advance approval waterways under 33 CFR
115.70.
(g) Any Bridge Program action which is classified as a CE by
another Department of Transportation agency acting as lead agency
for such action.
34. Preparation of guidance documents that implement, without
substantive change, the applicable Commandant Instruction or other
Federal agency regulations, procedures, manuals, and other guidance
documents.
(a) Regulations which are editorial or procedural, such as those
updating addresses or establishing application procedures.
(b) Regulations concerning internal agency functions or
organization or personnel administration, such as funding,
establishing Captain of the Port boundaries, or delegating
authority.
(c) Regulations concerning the training, qualifying, licensing,
and disciplining of maritime personnel.
(d) Regulations concerning manning, documentation,
admeasurement, inspection, and equipping of vessels.
(e) Regulations concerning equipment approval and carriage
requirements.
(f) Regulations establishing, disestablishing, or changing the
size of Special Anchorage Areas or anchorage grounds.
(g) Regulations establishing, disestablishing, or changing
Regulated Navigation Areas and security or safety zones.
(h) Special local regulations issued in conjunction with a
regatta or marine parade; provided that, if a permit is required,
the environmental analysis conducted for the permit included an
analysis of the impact of the regulations.
(I) Regulations in aid of navigation, such as those concerning
rules of the road, International Regulations for the Prevention of
Collisions at Sea (COLREGS), bridge-to-bridge communication, vessel
traffic services, and marking of navigation systems.
35. Approvals of regatta and marine event permits for the
following events:
(a) Events that are not located in, proximate to, or above an
area designated as environmentally sensitive by an environmental
agency of the Federal, State, or local government. For example,
environmentally sensitive areas may include such areas as critical
habitats or migration routes for endangered or threatened species or
important fish or shellfish nursery areas.
(b) Events that are located in, proximate to, or above an area
designated as environmentally sensitive by an environmental agency
of the Federal, State, or local government and for which the Coast
Guard determines, based on consultation with the Government agency,
that the event will not significantly affect the environmentally
sensitive area.
Regulatory Guidance Letter (RGL 96-02)
Issued: December 12, 1996, Expires: December 31, 2001.
Subject: Applicability of Exemptions under Section 404(f) to
``Deep-Ripping'' Activities in Wetlands.
1. Enclosed is a memorandum to the field jointly signed by the
U.S. Environmental Protection Agency and U.S. Army Corps of
Engineers. The memorandum provides guidance clarifying when ``deep-
ripping'' activities within wetlands require Department of the Army
authorization.
2. This guidance expires December 31, 2001, unless sooner
revives or rescinded.
For the Director of Civil Works.
Daniel R. Burns, P.E.,
Chief, Operations, Construction and Readiness Division, Directorate of
Civil Works.
Department of the Army, U.S. Army Corps of Engineers, United States
Environmental Protection Agency
Memorandum to the Field
December 12, 1996.
Subject: Applicability of Exemptions under Section 404(f) to
``Deep-Ripping'' Activities in Wetlands.
Purpose: The purpose of this memorandum is to clarify the
applicability of exemptions provided under Section 404(f) of the
Clean Water Act (CWA) to discharges associated with ``deep-ripping''
and related activities in wetlands.\1\
\1\ As this guidance addresses primarily agricultural-related
activities, characterizations of such practices have been developed
in consultation with experts at the U.S. Department of Agriculture
(USDA), Natural Resources Conservation Service.
Background
1. Section 404(f)(1) of the CWA exempts from the permit
requirement certain discharges associated with normal farming,
forestry, and ranching practices in waters of the United States,
including wetlands. Discharges into waters subject to the Act
associated with farming, forestry, and ranching practices identified
under Section 404(f)(1) do not require a permit except as provided
under Section 40.4(f)(2).
2. Section 404(f)(1) does not provide a total automatic
exemption for all activities related to agricultural silvicultural
or ranching practices. Rather, Section 404(f)(1) exempts only those
activities specifically identified in paragraphs (A) through (F),
and ``other activities of essentially the same character as named''
(44 FR 34264). For example, Section 404(f)(1)(A) lists discharges of
dredged or fill material from ``normal farming, silviculture and
ranching activities, such as plowing, seeding, cultivating, minor
drainage, harvesting for the production of food, fiber, and forest
products, or upland soil and water conservation practices.''
3. Section 404(f)(1)(A) is limited to activities that are part
of an ``established (i.e.,
[[Page 13787]]
ongoing) farming, silviculture, or ranching operation.'' This
``established'' requirement is intended to reconcile the dual intent
reflected in the legislative history that although Section 40.4
should not unnecessarily restrict farming, forestry, or ranching
from continuing at a particular site, discharge activities which
could destroy wetlands or other waters should be subject to
regulation.
4. EPA and Corps regulations (40 CFR part 230 and 33 CFR part
320) and preamble define in some detail the specific ``normal''
activities fisted in Section 404(f)(1)(A). Three points may be
useful in the current context:
a. As explained in the preamble to the 1979 proposed
regulations, the words ``such as'' have been consistently
interpreted as restricting the section ``to the activities named in
the statute and other activities of essentially the same character
as named,'' and ``preclude the extension of the exemption * * * to
activities that are unlike those named.'' (44 FR 34264).
b. Plowing is specifically defined in the regulations not to
include the redistribution of surface material in a manner which
converts wetlands areas to uplands (See 40 CFR
233.35(a)(1)(iii)(D)).
c. Discharges associated with activities that establish an
agricultural operation in wetlands where previously ranching had
been conducted, represents a ``change in use'' within the meaning of
Section 404(f)(2). Similarly, discharges that establish forestry
practices in wetlands historically subject to agriculture also
represent a change in use of the site (See 40 CFR 233.35(c)).
5. The statute includes a provision at Section 404(f)(2) that
``recaptures'' or reestablishes the permit requirement for those
otherwise exempt discharges which:
a. Convert an area of the waters of the U.S. to a new use, and
b. Impair the flow or circulation of waters of the U.S. or
reduce the reach of waters of the U.S.
Conversion of an area of waters of the U.S. to uplands triggers
both provisions (a) and (b) above. Thus, at a minimum any otherwise
exempt discharge that results in the conversion of waters of the
U.S. to upland is recaptured under Section 404(f)(2) and requires a
permit. It should be noted that in order to trigger the recapture
provisions of Section 404(f)(2), the discharges themselves need not
be the sole cause of the destruction of the wetland or other change
in use or sole cause of the reduction or impairment of reach, flow,
or circulation of waters of the U.S. Rather, the discharges need
only be ``incidental to'' or ``part of'' an activity which is
intended to or will forseeably bring about that result. Thus, in
applying Section 404(f)(2), one must consider discharges in context,
rather than isolation.
Issue
1. Questions have been raised involving ``deep-ripping'' and
related activities in wetlands and whether discharges associated
with these actions fall within the exemptions at Section
404(f)(1)(A). In addition, the issue has been raised whether, if
such activities fall within the exemption, they would be recaptured
under Section 404(f)(2).
2. ``Deep-ripping'' is defined as the mechanical manipulation of
the soil to break up or pierce highly compacted, impermeable or
slowly permeable subsurface soil layers, or other similar kinds of
restrictive soil layers. These practices are typically used to break
up these subsoil layers (e.g., impermeable soil layer, hardpan) as
part of the initial preparation of the soil to establish an
agricultural or silvicultural operation. Deep-ripping and related
activities are also used in established farming operations to break
up highly compacted soil. Although deep-ripping and related
activities may be required more than once, the activity is typically
not an annual practice. Deep-ripping and related activities are
undertaken to improve site drainage and facilitate deep root growth,
and often occur to depths greater than 16 inches and, in some cases,
exceeding 4 feet below the surface. As such it requires the use of
heavy equipment, including bulldozers, equipped with ripper-blades,
shanks, or chisels often several feet in length. Deep-ripping and
related activities involve extending the blades to appropriate
depths and dragging them through the soil to break up the
restrictive layer.
3. Conversely, plowing is defined in EPA and Corps regulations
(40 CFR part 230 and 33 CFR part 320) as ``all forms of primary
tillage * * * used * * * for the breaking up, cutting, turning over,
or stirring of soil to prepare it for the planting of crops'' (40
CFR 232.3(d)(4)). As a general matter, normal plowing activities
involve the annual or at least regular, preparation of soil prior to
seeding or other planting activities. According to USDA, plowing
generally involves the use of a blade, chisel or series of blades,
chisels, or discs, usually 8-10 inches in length pulled behind a
farm vehicle to prepare the soil for the planting of annual crops or
to support an ongoing farming practice. Plowing is commonly used to
break up the surface of the soil to maintain soil tilth and to
facilitate infiltration throughout the upper root zone.
Discussion
1. Plowing in wetlands is exempt from regulation consistent with
the following circumstances:
a. It is conducted as part of an ongoing, established
Agricultural, silvicultural or ranching operation; and
b. The activity is consistent with the definition of plowing in
EPA and Corps regulations (40 CFR part 230 and 33 CFR part 320); and
c. The plowing is not incidental to an activity that results in
the immediate or gradual conversion of wetlands to non-waters.
2. Deep-ripping and related activities are distinguishable from
plowing and similar practices (e.g., discing, harrowing) with regard
to the purposes and circumstances under which it is conducted, the
nature of the equipment that is used, and its effect, including in
particular the impacts to the hydrology of the site.
a. Deep-ripping and related activities are commonly conducted to
depths exceeding 16 inches, and as deep as 6-8 feet below the soil
surface to break restrictive soil layers and improve water drainage
at sites that have not supported deeper rooting crops. Plowing
depths, according to USDA, rarely exceed one foot into the soil and
not deeper than 16 inches without the use of special equipment
involving special circumstances. As such, deep-ripping and related
activities typically involve the use of special equipment, including
heavy mechanized equipment and bulldozers, equipped with elongated
ripping blades, shanks, or chisels often several feet in length.
Moreover, while plowing is generally associated with ongoing
operations, deep-ripping and related activities are typically
conducted to prepare a site for establishing crops not previously
planted at the site. Although deep-ripping may have to be redone at
regular intervals in some circumstances to maintain proper soil
drainage, the activity is typically not an annual or routine
practice.
b. Frequently, deep-ripping and related activities are conducted
as a preliminary step for converting a ``natural'' system or for
preparing rangeland for a new use such as farming or silviculture.
In those instances, deep ripping and related activities are often
required to break up naturally-occurring impermeable or slowly
permeable subsurface soil layers to facilitate proper root growth.
For example, for certain depressional wetlands types such as vernal
pools, the silica-cemented hardpan (durapan) or other restrictive
layer traps precipitation and seasonal runoff creating ponding and
saturation conditions at the soil surface. The presence of these
impermeable or slowly permeable subsoil layers is essential to
support the hydrology of the system. Once these layers are disturbed
by activities such as deep-ripping, the hydrology of the system is
disturbed and the wetland is often destroyed.
c. In contrast, there are other circumstances where activities
such as deep-ripping and related activities are a standard practice
of an established on-going farming operation. For example, in parts
of the Southeast, where there are deep soils having a high clay
content, mechanized farming practices can lead to the compaction of
the soil below the sod surface. It may be necessary to break up, on
a regular although not annual basis, these restrictive layers in
order to allow for normal root development and infiltration. Such
activities may require special equipment and can sometimes occur to
depths greater than 16 inches. However, because of particular
physical conditions, including the presence of a water table at or
near the surface for part of the growing season, the activity
typically does not have the effect of impairing the hydrology of the
system or otherwise altering the wetland characteristics of the
site.
Conclusion
1. When deep-ripping and related activities are undertaken as
part of an established ongoing agricultural silvicultural or
ranching operation, to break up compacted soil layers and where the
hydrology of the site will not be altered such that it would result
in conversion of waters of the U.S. to upland, such activities are
exempt under Section 404(f)(1)(A).
2. Deep-ripping and related activities in wetlands are not part
of a normal ongoing
[[Page 13788]]
activity, and therefore not exempt, when such practices are
conducted in association with efforts to establish for the first
time (or when a previously established operation was abandoned) an
agricultural silvicultural or ranching operation. In addition, deep-
ripping and related activities are not exempt in circumstances where
such practices would trigger the ``recapture'' provision of Section
404(f)(2):
(a) Deep-ripping to establish a farming operation at a site
where a ranching or forestry operation was in place is a change in
use of such a site. Deep-ripping and related activities that also
have the effect of altering or removing the wetland hydrology of the
site would trigger Section 404(f)(2) and such ripping would require
a permit.
(b) Deep-ripping a site that has the effect of converting
wetlands to non-waters would also trigger Section 404(f)(2) and such
ripping would require a permit.
3. It is the agencies' experience that certain wetland types are
particularly vulnerable to hydrological alteration as a result of
deep-ripping and related activities. Depressional wetland systems
such as prairie potholes, vernal pools and playas whose hydrology is
critically dependent upon the presence of an impermeable or slowly
permeable subsoil layer are particularly sensitive to disturbance or
alteration of this subsoil layer. Based upon this experience, the
agencies have concluded that, as a general matter, deep-ripping and
similar practices, consistent with the descriptions above, conducted
in prairie potholes, vernal pools, playas, and similar depressions
wetlands destroy the hydrological integrity of these wetlands. In
these circumstances, deep-ripping in prairie potholes, vernal pools,
and playas is recaptured under Section 404(f)(2) and requires a
permit under the Clean Water Act.
Robert H. Wayland III,
Director, Office of Wetlands, and Watersheds, U.S. Envionmental
Protection Agency.
Daniel R. Burns, P.E.,
Chief, Operations, Construction and Readiness Division, Directorate of
Civil Works, U.S. Army Corps of Engineers.
[FR Doc. 99-6892 Filed 3-19-99; 8:45 am]
BILLING CODE 3710-92-P
