[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superseded by specific provisions of subsequently issued regulations or 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