[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 However, unless superseded by 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