[Federal Register Volume 65, Number 47 (Thursday, March 9, 2000)]
[Notices]
[Pages 12518-12523]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-5815]
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DEPARTMENT OF DEFENSE
Corps of Engineers, Department of the Army
Regulatory Guidance Letters Issued by the Corps of Engineers
AGENCY: U.S. 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
Corps Headquarters as a means to transmit guidance on the permit
program (33 CFR 320-330) to its division and district commanders. The
Corps is discontinuing the practice of publishing the current RGLs 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, all information regarding the RGLs may now be
obtained by accessing the Corps of Engineers Regulatory Home Page at:
http://www.usace.army.mil/inet/functions/cw/cecwo/reg/. 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 of
Engineers 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superseded by specific provisions of subsequently issued regulations or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 95-1 and ending with RGL
96-2. RGLs 94-1 and 94-2 expired on December 31, 1999, and both have
been removed from this publication. The Corps is discontinuing the
practice of publishing each RGL in the Notice Section of the Federal
Register at this time. All information regarding the RGLs may now be
obtained by accessing the Corps of Engineers Regulatory Home Page at:
http://www.usace.army.mil/inet/functions/cw/cecwo/reg/.
Dated: March 6, 2000.
Charles M. Hess
Chief, Operations Division, Office of Deputy Commanding General for
Civil Works.
Regulatory Guidance Letter (RGL 95-1)
Issued: 31 March 1995, EXPIRES: 31 December 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 6 March 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 24 August 1993).
3. This guidance expires on 31 December 2000 unless sooner revised
or rescinded.
FOR THE DIRECTOR OF CIVIL WORKS:
Encl
/S/
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
[[Page 12519]]
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 FPexibility for Small Landowners
In order to clearly affirm the FPexibility 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 mitigation 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 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 or Michael
Davis of the Corps of Engineer's Regulatory Branch at (202) 272-0199.
\S\
Robert Perciasepe
Assistant Administrator for Water
U.S. Environmental Protection Agency
\S\
John Zirschky
Acting Assistant
Secretary of the Army
(Civil Works)
REGULATORY GUIDANCE LETTER (RGL 96-1)
Issued: 05 NOVEMBER 1998, EXPIRES: 31 DECEMBER 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
[[Page 12520]]
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 18 April 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 31 December 2001 unless sooner revised or
rescinded.
FOR THE DIRECTOR OF CIVIL WORKS:
\S\
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
[[Page 12521]]
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.
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.
(e) Regulations establishing, disestablishing, or changing the size
of Special Anchorage Areas or anchorage grounds.
(f) Regulations establishing, disestablishing, or changing
Regulated Navigation Areas and security or safety zones.
(g) Special local regulations issued in conjunction with a regatta
or marine
(h) 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 96-02
ISSUED: 12 DECEMBER 1966, EXPIRES: 31 DECEMBER 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 31 December 2001, unless sooner revived
or rescinded.
FOR THE DIRECTOR OF CIVIL WORKS:
[[Page 12522]]
\S\ Encl.
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
12 December 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\
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\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.
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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., 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 230 and 33 CFR 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 provision (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 230 and 33 CFR 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.
[[Page 12523]]
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 plowing is not incidental to an activity that results in the
immediate or gradual conversion of wetlands to non-waters.
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 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 depressional 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, Oceans and Watersheds
U.S. Environmental 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. 00-5815 Filed 3-8-00; 8:45 am]
BILLING CODE 3710-92-P