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Clean Water Act Section 404(f) Exemptions

There are a few activities which involve the placement of fill in a waterway that are not subject to the Section 404 regulatory program.  Section 404(f) of the Clean Water Act provides a list of activities exempt from regulation. Generally, If an activity involves the discharge of dredged or fill material into waters of the U.S. and falls within one of these activity categories, a Department of the Army Permit is not required (see Exceptions). Please contact your area office for more information and confirmation that a subject activity qualifies for exemption. These exemptions do not apply to any activity within a navigable water of the U.S. which requires a permit under Section 10 of the Rivers and Harbors Act of 1899. These exempted activities are briefly described below, and located in the regulations at 40 CFR 232.3.

Note: 
  1. If any discharge of dredged or fill material resulting from the activities listed below contains any toxic pollutant listed under section 307 of the Act, such discharge shall be subject to any applicable toxic effluent standard or prohibition, and shall require a section 404 permit.
  2. Any discharge of dredged or fill material into waters of the United States incidental to any of the activities identified below must have a permit if it is part of an activity whose purpose is to convert an area of the waters of the United States into a use to which it was not previously subject, where the flow or circulation of waters of the United States may be impaired or the reach of such waters reduced. Where the proposed discharge will result in significant discernable alterations to flow or circulation, the presumption is that flow or circulation may be impaired by such alteration.

Exempt Activities

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  1. Normal Farming, silviculture, and ranching activities such as plowing, seeding, cultivating, minor drainage, and harvesting.
  • MUST be a part of an established (on-going) farming, silviculture, or ranching operation. An operation is not longer established when the area on which it was conducted has been converted to another use or has lain idle so long that modifications to the hydrologic regime are necessary to resume operations.
  • includes: plowing, seeding, cultivating, minor drainage and harvesting for the production of food, fiber and forest products, or upland soil and water conservation practices
  • If the activity does not occur within waters of the U.S., or if it does not involve a discharge of fill material, the activity does not require a Department of the Army permit, whether or not it is part of an established farming, silviculture, or ranching operation.

 

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  1.  Maintenance, including emergency reconstruction of recently damaged parts, of currently serviceable structures such as dikes, dams, levees, groins, riprap, breakwaters, causeways, bridge abutments or approaches, and transportation structures. 
  • includes: emergency reconstruction of recently damaged parts, of currently serviceable structures
  • Emergency reconstruction must occur within a reasonable period of time after damage occurs to qualify for the exemption
  • DOES NOT include any modification that changes the character, scope, or size of the original fill design
  • If a maintenance activity would involve ANY modifications to the original fill design, including the location of the fill, the type of material to be used, the amount of material used, etc., then the activity DOES not qualify for the maintenance exemption and a DA permit would be required. However, the activity may qualify for authorization under a Nationwide Permit 3, Maintenance.
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  1. Construction or maintenance of farm or stock ponds or irrigation ditches or the maintenance (but not construction) of drainage ditches.
  • The U.S. Department of the Army and the U.S. Environmental Protection Agency executed a joint memorandum to the field concerning exempt construction or maintenance of irrigation ditches and maintenance of drainage ditches in accordance with Section 404 (f)(1)(C) of the Clean Water Act. Click the following link to view or download a pdf of this Joint Memorandum.
  • Discharge associated with siphons, pumps, headgates, wingwalls, wiers, diversion structures, and such other facilities as are appurtenant and functionally related to irrigation ditches are included in this exemption.
  • Regulatory Guidance Letter (RGL 07-02) provides additional information regarding this exemption for the construction and maintenance of irrigation ditches and maintenance of drainage ditches, including definitions for irrigation ditches, drainage ditches, construction and maintenance.
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  1. Construction of temporary sedimentation basins on a construction site which does not include placement of fill material into waters of the United States.
  • This exemption applies to the construction of temporary sedimentation basins on a construction site which does not include the placement of fill material into waters of the U.S.
  • Construction site is any site involving the erection of buildings, roads, and other discrete structures and the installation of support facilities necessary for construction and utilization of the structures. Also includes any other land areas which involve land-disturbing excavation activities, including quarrying and other mining areas, where an increase in the runoff of sediment is controlled through the use of temporary sedimentation basins.
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  1. Any activity with respect to which a State has an approved program under section 208(b)(4) of the CWA which meets the requirements of sections 208(b)(4) (B) and (C).
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  1. Construction or maintenance of farm roads, forest roads, or temporary roads for moving mining equipment
  • Roads must be constructed and maintained in accordance with best management practices to assure that flow and circulation patterns and chemical and biological characteristics of waters of the U.S. are not impaired and that the reach of the waters of the U.S. is not reduced, and that any adverse effect on the aquatic environment are minimized;
  • Permanent roads (for farming or forestry activities), temporary access roads (for mining, forestry, or farm purposes) and skid trails (for logging) in waters of the United States shall be held to the minimum feasible number, width, and total length consistent with the purpose of specific farming, silvicultural or mining operations, and local topographic and climatic conditions;
  • All roads, temporary or permanent, shall be located sufficiently far from streams or other water bodies (except for portions of such roads which must cross water bodies) to minimize discharges of dredged or fill material into waters of the United States;
  • The road fill shall be bridged, culverted, or otherwise designed to prevent the restriction of expected flood flows;
  • Discharges of dredged or fill material into waters of the United States to construct a road fill shall be made in a manner that minimizes the encroachment of trucks, tractors, bulldozers, or other heavy equipment within the waters of the United States (including adjacent wetlands) that lie outside the lateral boundaries of the fill itself;
  • In designing, constructing, and maintaining roads, vegetative disturbance in the waters of the United States shall be kept to a minimum;
  • The design, construction and maintenance of the road crossing shall not disrupt the migration or other movement of those species of aquatic life inhabiting the water body;
  • Borrow material shall be taken from upland sources whenever feasible;
  • The discharge shall not take, or jeopardize the continued existence of, a threatened or endangered species, or adversely modify or destroy the critical habitat of such species;
  • Discharges into breeding and nesting areas for migratory waterfowl, spawning areas, and wetlands shall be avoided;
  • The discharge shall not be located in the proximity of a public water supply intake;
  • The discharge shall not occur in areas of concentrated shellfish production;
  • The discharge shall not occur in a component of the National Wild and Scenic River System;
  • The discharge of material shall consist of suitable material free from toxic pollutants in toxic amounts; and
  • All temporary fills shall be removed in their entirety and the area restored to its original elevation.

Activities that may not require a Permit Authorization

Activities that would result in the discharge of dredged or fill material into waters of the United States, in most cases, require Corps authorization prior to such discharge.  Activities conducted within waters of the United States that do not result in the discharge of dredged or fill material do not require Corps authorization prior to work.  An example of these unregulated activities is Excavation Activities within Waters of the U.S. given the proposed activity fits the categories outlined there-in.

Note: This does not apply to any activity within a navigable water of the U.S. which requires a permit under Section 10 of the Rivers and Harbors Act of 1899. 

We recommend you contact our office to confirm permitting requirements prior to starting any work associated to any of the activities mentioned above. Please visit our Regulatory Contact page to get in touch with a project manager in your area.

Section 404(f) Exemption

Exempted Activities

 

There are a few activities which involve the placement of fill in a waterway that are not subject to the Section 404 regulatory program.  However, the fill must not change the use of the water and the flow must not be impaired.  These exempted activities are briefly described below, and located in the regulations at 33 CFR 323.4.

1. Normal farming, silviculture and ranching activities such as plowing, seeding, cultivating, minor drainage and harvesting.

2. Maintenance or emergency repair of a currently serviceable structure such as dams, riprap, abutments, and levees.  The original design may not be changed.

3. Maintenance or construction of stock ponds or irrigation ditches.  Maintenance (not construction) of drainage ditches.  Discharges associated with irrigation facilities are included.

The U.S. Department of the Army and the U.S. Environmental Protection Agency executed a joint memorandum to the field concerning exempt construction or maintenance of irrigation ditches and maintenance of drainage ditches in accordance with Section 404 (f)(1)(C) of the Clean Water Act. Click the following link to view or download a pdf of this Joint Memorandum.

4. Construction of temporary sedimentation basins at construction sites if fill material is not placed in waters of the United States.

5. Activities for which a state has an approved program under Section 208 of the Clean Water Act for non-point pollution sources.

6. Construction or maintenance of farm roads, forest roads, or temporary mining roads.  Best management practices must be followed to reduce flow pattern impairment and aquatic impacts (see regulations for more information).

 

Click the following link for more information on Exempted Activities:

http://www.spk.usace.army.mil/Missions/Regulatory/Permitting/Section404Exemptions.aspx.

 

Regulatory Program presentation to Pojoaque-area representatives on the Regulatory Program background and how to request an exemption or permit for acequia-related activities, conducted 4/4/2017.  2017 Pojoaque-area Exemptions Presentation

 

If you have questions about exempted activities please click the following link to contact a Regulatory Office: Contact Regulatory.