United States Environmental Protection Agency
Office of Water
Washington, D.C. 20460
United States Department of the Army
Office of the Assistant Secretary
Washington, D.C 20310-0103
3 MAY 1S90
MEMORANDUM FOR THE FIELD
SUBJECT: Clean Water Act Section 404 Regulatory Program and Agricultural
Activities
A number of questions have recently been raised about the applicability of the
Clean Water Act Section 404 Regulatory Program to agriculture. This memorandum is
intended to assist Section 404 field personnel in responding to those questions and to
assure that the program is implemented in a consistent manner.. At the outset, we
should emphasize that we respect and support the underlying purposes of the Clean
Water Act regarding the exemption from Section 404 permitting requirements for
"normal farming" activities. The exemptions (at Section 404(f) of the Act)
recognize that American agriculture fulfills the vitally important public need for
supplying abundant and affordable food and fiber and it is our. intent to assure that the
exemptions are appropriately implemented.
What are normal farming activities? Who makes that determination? Can
agricultural producers plant crops in wetlands areas that have been farmed for many
years? These are questions that have generated significant confusion and concern in
the agricultural community. This memorandum will explain the extent of the Section
404 program and clarify some misunderstandings that may exist in the field. Therefore
we encourage you to widely distribute this memorandum.
What is Section 404?
The Federal Water Pollution Control Act Amendments of 1972 established the
Section 404 Regulatory Program. Under this Act, it is unlawful to discharge dredged or
fill material into waters of the United States without first receiving authorization
(usually a permit) from the Corps, unless the discharge is covered under an exemption.
The term "waters of the United States" defines the extent of geographic jurisdiction of
the Section 404 program. The term includes such waters as rivers, lakes, streams, tidal
waters, and most wetlands. A discharge of dredged or fill material involves the physical
placement of soil, sand, gravel, dredged material or other such materials into the waters
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of the United States. Section 404(f) exemptions, which were added in 1977, provide
that discharges that are part of normal .farming, ranching, and forestry activities
associated with an active and continuous ("ongoing") fanning or forestry operation
generally do not require a Section 404 permit
With this background in mind, we can now turn to the issues that are the focus
of concern. As previously noted, Section 404(f) exempts discharges of dredged or fill
material into waters of the United States associated with certain normal agricultural
activities. Of course, activities that do not involve a discharge of dredged or fill
material into waters of the United States never require a Section 404 permit. Further,
as provided in the Interagency Federal Manual for Identifying and Delineating
Jurisdictional Wetlands, while a site is effectively and legally drained to the extent that
it no longer meets the regulatory wetlands hydrology criteria (as interpreted by the
Interagency Manual), it is not a wetland subject to jurisdiction under Section 404 of the
dean Water Act.
What is the "normal fanning" activities exemption?
The Clean Water Act exempts from the Section 404 program discharges
associated with normal farming, ranching and forestry activities such as plowing,
cultivating, minor drainage, and harvesting for the production of food, fiber, and forest
products, or upland soil and water conservation practices (Section 404(f)(l)(A)). To be
exempt, these activities must be part of an established, ongoing operation. For
example, if a farmer has been plowing, planting and harvesting in wetlands, he can
continue to do so without the need for a Section 404 permit, so long as he does not
convert the wetlands to dry land. Activities which convert a wetland which has not
been used for farming or forestry into such uses are not considered part of an
established operation, and are not exempt. For example, the conversion of a
bottomland hardwood wetland to crop production is not exempt
In determining whether an activity is part of an established operation, several
points need to be considered. First, the specific farming activity need not itself have.
been ongoing as long as it is introduced as part of an ongoing farming operation. For
example, if crops have been grown and harvested on a regular basis, the mere addition
or change of a cultivation technique (e.g., discing between crop rows to control weeds
rather than using herbicides) is considered to be part of the established farming
operation. Second, the planting of different agricultural crops as part of an established
rotation (e.g., soybeans to rice) is exempt. Similarly, the rotation of rice and crawfish
production is also exempt (construction of fish ponds is not an exempt activity and is
addressed on page 5 of this memorandum). Third, the resumption of agricultural
production in areas laying fallow as part of a normal rotational cycle are considered to
be part'of an established operation and would be exempted under Section 404(f).
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However, if a wetland area has not been used for farming for so long that it would
require hydrological modifications (modifications to the surface or groundwater flow)
that would result in a discharge of dredged or fill material, the farming operation would
no longer be established or ongoing.
As explained earlier, normal farming operations include cultivating, harvesting,
minor drainage, plowing, and seeding. While these, terms all have common, everyday
definitions, it is important to recognize that these terms have specific, regulatory
meanings in .relation to the Section 404(f) exemptions. For example, plowing that is
exempt under Section 404(f) means all mechanical means of manipulating soil, including
land levelling, to prepare it for the planting of crops. However, grading activities that
would change any area of waters of the United States, including wetlands, into dry land
are not exempt. Minor drainage that is exempt under Section 404(f) is limited to
discharges associated with the continuation of established wetland crop production (e.g.,
buflding rice .levees) or the connection of upland crop drainage facilities to waters of
the United States. In addition, minor drainage also refers to the .emergency removal of
blockages that close or constrict existing drainageways used as part of an established
crop production. Minor drainage is defined such that it does not include discharges
associated with the construction of ditches which drain, or significantly modify any
wetlands or aquatic areas considered as waters of the United States. Seeding that is
exempt under Section 404(f) includes not only the placement of seeds themselves, but
also the placement of soil beds for seeds or seedlings on established farm or forest
lands. . Cultivating under Section 404(f) includes physical methods of soil treatment to
aid and improve the growth, quality, or yield of established crops. Except as provided
under Section 404(f)(2) as explained below, construction or maintenance of irrigation
ditches or maintenance of drainage ditches is also exempt. .
Recognizing area and regional differences in normal farming practices, EPA and
the Corps agree to develop additional definitions of normal farming practices in
consultation with the designated Land Grant Colleges and the Cooperative Extension
Services. We also further encourage our field staffs to utilize the expertise in these
colleges and agricultural services in the ongoing implementation of the Section 404
program.
When the normal farming activity exemptions do not apply
Section 404(f)(2) provides that discharges related to activities that change the use
of the waters of the United States, including wetlands, and reduce the reach, or impair
the flow or circulation of waters of the United States are not exempted. This
"recapture" provision involves a two-part test that results in an activity being considered
not exempt when both parts are met: 1) does the activity represent a "new use" of the
wetland and, 2) would the activity result in a "reduction in reach/impairment of flow or
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circulation" of waters of the United States? Consequently, any discharge of dredged or
fill material that results in the destruction of the wetlands character of an area (e.g., its
conversion to uplands due to new or expanded drainage) is considered a change in use
of the waters of the United States, and by definition, a reduction of their reach, and is
not exempt under Section 404(f). In addition, Section 404(f)(l) of the Act provides
that discharges that contain toxic pollutants listed under Section 307 are not exempted
and must be permitted. ' • •.
However, discharges that are not exempt are not necessarily prohibited. Non-
exempted discharges must first be authorized either through a general or individual
Section 404 permit before they are initiated. .
What are General Permits?
Even if a farming activity is one that does not fall under an exemption and a
permit is required, some farming activities are eligible for General Permits. Section
404(e) of the Act authorizes the Corps, after notice and opportunity for public hearing,
to issue General Permits on a State, regional or nationwide basis for certain categories
of activities involving a discharge of dredged or fill material in waters of the United
States. Such activities must be similar in nature and cause only minimal adverse
environmental effects. Discharges authorized under a General Permit may proceed
without applying to the Corps for an individual permit. However, in some
circumstances, conditions associated with a General Permit may require that persons
wishing to discharge under that permit must notify the Corps or other designated State
or local agency before the discharge takes place. A list of current General Permits is
available from each Corps.District Office, as well as information regarding notification
requirements or other relevant conditions.
Rice farming
Questions have arisen regarding the relationship of the Section 404 program to
rice farming. We understand these concerns, and recently have initiated actions that
will allow farmers to understand better the regulatory program and provide more
efficient and equitable mechanisms for implementing provisions of the Section 404
program.
In an April 19, 1990 letter responding to a request from Senator Patrick J.
Leahy, Chairman, and 11 members of the Senate Committee on Agriculture, Nutrition,
and Forestry, we stated our position that discharges of dredged material associated with
the construction of rice levees for rice farming in wetlands which are in established
agricultural crop production are "normal farming activities" within the meaning of
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Section 404(f)(l)(A) and are therefore exempt from Section 404 regulation under the
foD owing conditions:
1) the purpose of these levees is limited to the maintenance and manipulation of
shallow water levels for the production of rice crops; and
2) consistent with current agricultural practices associated with rice cultivation,
- the height of the rice levees should generally not exceed 24 inches above
their base; and
- the material to be discharged for levee construction should generally be
derived exclusively from the distribution of soil immediately adjacent to
the constructed levee.
Land levelling for rice farming in wetlands which are in established crop
production also is a "normal farming activity" within the meaning of Section
404{f)(l)(A) and is therefore exempt from Section 404 regulation.
Fish ponds
We are developing a General Permit authorizing discharges of dredged or fill
material associated with the construction of levees and ditches for the construction of
fish ponds in wetlands that were in agricultural crop production prior to December 23,
1985. A draft General Permit has been developed by the Vicksburg District, Army
Corps of Engineers and should be issued by June 1, 1990. This General Permit should
serve as a model permit for other areas of the country and this activity will be
considered for a nationwide General Permit.
It should be made clear, however, that the Section 404(f) exemption for "normal
fanning activities" and the General Permit being developed for fish ponds apply only to
the use of wetlands which are already in use for agricultural crop production. These
provisions do not apply to 1) wetlands that were once in use for agricultural crop
production but have lain idle so long that modifications to the hydrologic regime are
necessary to resume crop production or, 2) the conversion of naturally vegetated
wetlands to agriculture, such as the conversion of bottomland hardwood wetlands to
agriculture.
Limitations of the Section 404{f) Exemptions
It should be emphasized that the use of Section 404(f) exemptions does not
affect Section 404 jurisdiction. For example, the fact that an activity in wetlands is
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exempted as normal farming practices does not authorize the filling of the wetland for
the construction of buildings without a Section 404 permit. Similarly, a Section 404
permit would be.required for the discharge of dredged or fill material associated with
draining a wetland area and converting it to dry land.
Enforcement
Given that the normal farming practices as described above are exempt from
regulation under Section 404, neither EPA nor the Corps will initiate enforcement
actions against farmers or other persons for engaging in such normal farming activities.
Further, there will be no enforcement against actions that meet the description of
activities covered by, and any conditions contained in, general permits issued by the
Corps.
Conclusion
Proper implementation of the Section 404 program is an issue of extreme
importance to the nation. We encoura'ge you to distribute this memorandum not only
to your staffs but to the public at large so that there will be a better general
understanding of the program and how it operates. If you have any questions regarding
this memorandum, please contact us or have your staff contact Suzanne Schwartz in
EPA's Office of Wetlands Protection at 202-475-7799, or John Studt in the
Headquarters' Office of the U.S. Army Corps of Engineers at 202-272-1785 (temporary
number 202-272-1294).
LaJuarg/S. Wflcher
Assistant Administrator for Water
U.S. Environmental Protection Agency
Robert W. Page
Assistant Secretary of the Army
(Civil Works)
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