Clean Water Act Regulations and
Agricultural Exemptions
Erica Sachs Lambert
U.S. Environmental Protection Agency
Region 1 – New England
New England Farmers Union (12/12/2014)
Clean Water Act Regulatory
Authority and Scope
New England Farmers Union (12/12/2014)
Federal Water Pollution Control Act
• SEC. 101. (a) The objective of this Act is to
restore and maintain the chemical, physical,
and biological integrity of the Nation’s
waters.’’
• Also known as Clean Water Act
• Regulatory authority for a number of different
programs including 402 (NPDES) and 404
New England Farmers Union (12/12/2014)
Clean Water Act and Regulations
1) Describe the areas over which federal
agencies have regulatory authority =
–
JURISDICTIONAL RESOURCE
2) Determine when an activity in a jurisdictional
resource requires a federal permit =
–
REGULATED ACTIVITY
New England Farmers Union (12/12/2014)
Clean Water Act
Jurisdictional Resources
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JURISDICTIONAL RESOURCE
Statutory Definition
• The jurisdictional scope of the CWA is
‘‘navigable waters’’
• Defined in section 502(7) of the statute as:
‘‘waters of the United States, including the
territorial seas.’’
• Leaves it to the agencies to define “waters of
the U.S.” via regulation
New England Farmers Union (12/12/2014)
JURISDICTIONAL RESOURCE
Regulatory Definition
Title 40 CFR Part 230.3(s) and 33 CFR Part 328.3
(a) The term waters of the United States means
(1) Traditional navigable waters (interstate and foreign commerce).
(2) Interstate waters including interstate wetlands;
(3) All other waters that could affect interstate or foreign commerce
(4) All impoundments of waters of the U.S.
(5) Tributaries of waters
(6) The territorial seas;
(7) Wetlands adjacent to waters (other than waters that are themselves
wetlands) identified in paragraphs (a) (1) through (6) of this section.
New England Farmers Union (12/12/2014)
JURISDICTIONAL RESOURCE
Regulatory Definition
Title 40 CFR Part 230.3(s) and 33 CFR Part 328.3
(1) All waters which are currently used, or were used in
the past, or may be susceptible to use in interstate
or foreign commerce, including all waters which are
subject to the ebb and flow of the tide
TRADITIONAL NAVIGABLE WATERS
(2) Interstate waters, including interstate wetlands
New England Farmers Union (12/12/2014)
JURISDICTIONAL RESOURCE
Regulatory Definition
Title 40 CFR Part 230.3(s) and 33 CFR Part 328.3
(3) All other waters such as intrastate lakes, rivers, streams
(including intermittent streams), mudflats, sandflats,
wetlands, sloughs, prairie potholes, wet meadows, playa
lakes, or natural ponds, the use, degradation or
destruction of which could affect interstate or foreign
commerce
New England Farmers Union (12/12/2014)
JURISDICTIONAL RESOURCE
Regulatory Definition
Title 40 CFR Part 230.3(s) and 33 CFR Part 328.3
(4) All impoundments of waters of the U.S.
(5) Tributaries of waters
(6) The territorial seas;
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JURISDICTIONAL RESOURCE
Regulatory Definition
Title 40 CFR Part 230.3(s) and 33 CFR Part 328.3
(7) Wetlands adjacent to waters (other than waters that are
themselves wetlands) identified in paragraphs (a) (1)
through (6) of this section.
Wetlands: those areas that are inundated or saturated by
surface or ground water at a frequency and duration
sufficient to support, and that under normal circumstances
do support, a prevalence of vegetation typically adapted
for life in saturated soil conditions.
Adjacent: bordering, contiguous, or neighboring
New England Farmers Union (12/12/2014)
NOT Waters of the U.S.
Title 40 CFR Part 230.3(s)
(and 33 CFR – Part 328.3)
Waste treatment systems, including treatment ponds
or lagoons designed to meet the requirements of CWA
Waters of the United States do not include prior
converted cropland.
New England Farmers Union (12/12/2014)
Important Supreme Court
Cases
(1) Riverside Bayview (1985): Wetlands adjacent to
traditional navigable waters are covered by the CWA
(2) SWANCC (2001): Use of “isolated” ponds by
migratory birds does not confer jurisdiction
(3) Rapanos (2006): Reexamine CWA scope as applied
to tributaries and adjacent wetlands
– Wetlands with a continuous surface connection to relatively
permanent waters
– Wetlands with a significant nexus to traditional navigable
waters
New England Farmers Union (12/12/2014)
Post-Rapanos Guidance
December 2, 2008
The agencies will assert jurisdiction over the following waters:
• Traditional navigable waters (TNW)
• Wetlands adjacent to TNWs
• Non-navigable tributaries of TNWs that are relatively
permanent (RPWs)
• Wetlands that directly abut RPWs
New England Farmers Union (12/12/2014)
Post-Rapanos Guidance
December 2, 2008
The agencies will assert jurisdiction over the following waters
on a case by case basis (significant nexus):
• Non-navigable tributaries that are not relatively permanent
• Wetlands adjacent to non-RPWs
• Wetlands adjacent to but not abutting an RPW
New England Farmers Union (12/12/2014)
Post-Rapanos Guidance
December 2, 2008
The agencies generally will not assert jurisdiction over the
following features:
• Swales or erosional features
– e.g. gullies, small washes characterized by low volume, infrequent,
or short duration flow
• Ditches (including roadside ditches) excavated wholly in
and draining only uplands and that do not carry a relatively
permanent flow
New England Farmers Union (12/12/2014)
Post-Rapanos Guidance
Traditional Navigable Waters
Includes all waters described in 40 CFR 230.3(s)(1):
All waters which are currently used, or were used in the past,
or may be susceptible to use in interstate or foreign
commerce, including all waters which are subject to the ebb
and flow of the tide
TRADITIONAL NAVIGABLE WATERS (TNW)
New England Farmers Union (12/12/2014)
Post-Rapanos Guidance
Wetlands Adjacent to TNWs
• 40 CFR 230.3(b) The term adjacent means bordering,
contiguous, or neighboring.
• Wetlands separated from other waters of the United States
by man-made dikes or barriers, natural river berms, beach
dunes, and the like are “adjacent wetlands.”
• Do not need a continuous surface connection to TNW
New England Farmers Union (12/12/2014)
Post-Rapanos Guidance
Non-navigable tributaries and
abutting wetlands
• Tributary: defined in guidance (not in regulation) as:
– A tributary includes natural, man-altered, or man-made
water bodies that carry flow directly or indirectly into a
traditional navigable water.
• RPW = flows year-round OR has continuous flow at least
seasonally
• Wetlands with a continuous surface connection to RPW are
jurisdictional
New England Farmers Union (12/12/2014)
Post-Rapanos Guidance
Significant Nexus
Justice Kennedy: “A significant nexus exists where a wetland,
either alone or in combination with similarly situated lands in
the region, significantly affects the chemical, physical, and
biological integrity of waters more readily understood as
navigable.”
Significant = not speculative or insubstantial
Similarly situated = all wetlands adjacent to the same tributary
New England Farmers Union (12/12/2014)
Post-Rapanos Guidance
Significant Nexus
Significant nexus analysis
• Will assess the flow characteristics and functions of the
tributary itself AND the functions performed by all wetlands
adjacent to the tributary to determine if in combination they
significantly affect the chemical, physical and biological
integrity of downstream waters
• Includes consideration of hydrologic and ecologic factors
New England Farmers Union (12/12/2014)
Post-Rapanos Guidance
Significant Nexus
Hydrologic Factors include:
• Volume, duration, and frequency of flow, including
consideration of certain physical characteristics of the
tributary
• Proximity to TNW
• Size of the watershed
• Average annual rainfall
• Average annual winter snow pack
New England Farmers Union (12/12/2014)
Post-Rapanos Guidance
Significant Nexus
Ecological Factors include:
• Potential of tributaries to carry pollutants and flood waters
to TNWs
• Provision of aquatic habitat that supports a TNW
• Potential of wetlands to trap and filter pollutants or store
flood waters
• Maintenance of water quality in TNWs
New England Farmers Union (12/12/2014)
Post-Rapanos Guidance
Significant Nexus
Required for the following resources:
• Non-navigable tributaries that are not relatively permanent
• Wetlands adjacent to non-RPWs
• Wetlands adjacent to but not abutting an RPW
TIME CONSUMING and RESOURCE INTENSIVE ANALYSIS
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Clean Water Act
Regulated Activities
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CWA – Discharge of Pollutants
• SEC. 301. (a) Except as in compliance with
this section and sections 302, 306, 307, 318,
402, and 404 of this Act, the discharge of any
pollutant by any person shall be unlawful.
New England Farmers Union (12/12/2014)
CWA – Discharge of Pollutants
Sec 502 - Definitions
(12) The term ‘‘discharge of a pollutant’’ and the
term ‘‘discharge of pollutants’’ each means
(A) any addition of any pollutant to
navigable waters from any point source
New England Farmers Union (12/12/2014)
CWA – Discharge of Pollutants
Sec 502 - Definitions
(6) The term ‘‘pollutant’’ means dredged spoil, solid
waste, incinerator residue, sewage, garbage,
sewage sludge, munitions, chemical wastes,
biological materials, radioactive materials, heat,
wrecked or discarded equipment, rock, sand,
cellar dirt and industrial, municipal, and
agricultural waste discharged into water.
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Sec. 402 – NPDES
• NDPES = NATIONAL POLLUTANT
DISCHARGE ELIMINATION SYSTEM
• SEC. 402. (a)(1) Except as provided in sections
318 and 404 of this Act, the Administrator may,
after opportunity for public hearing, issue a
permit for the discharge of any pollutant, or
combination of pollutants, notwithstanding
section 301(a)
• SEC. 318 = Aquaculture
New England Farmers Union (12/12/2014)
Sec. 404 – Dredge and Fill
• SEC. 404. (a) The Secretary may issue
permits, after notice and opportunity for public
hearings for the discharge of dredged or fill
material into the navigable waters at specified
disposal sites.
• Permits are issued by the Army Corps
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Clean Water Act Sec. 404
Exempt Activities
Including Agricultural Exemptions
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Section 404 (f)
Statutory Exemptions
• SEC 404(f)(1) Except as provided in paragraph (2) of this
subsection, the discharge of dredge or fill material [from the
listed activities] is not prohibited by or otherwise subject to
regulation under this section or section 301(a) or 402 of this
Act (except for effluent standards or prohibitions under
section 307).
ACTIVITIES LISTED UNDER 404(f)(1) DO NOT
REQUIRE A PERMIT EVEN IF THEY OCCUR IN A
WATER OF THE U.S.
New England Farmers Union (12/12/2014)
Section 404 (f)
Statutory Exemptions
• SEC 404(f)(2) Any discharge of dredged or fill material into
the navigable waters incidental to any activity having as its
purpose bringing an area of the navigable waters into a use
to which it was not previously subject, where the flow or
circulation of navigable waters may be impaired or the
reach of such waters be reduced, shall be required to have
a permit under this section.
= RECAPTURE PROVISION (REQUIRES PERMIT)
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Section 404(f)(1)
Statutory Exemptions
(A) Normal farming, silviculture, and ranching activities
(B) Maintenance of currently serviceable structures
(C) Construction or maintenance of farm or stock ponds or
irrigation ditches, or the maintenance of drainage ditches
(D) Construction of temporary sedimentation basins on a
construction site
(E) Construction or maintenance of farm roads or forest roads
(F) Resulting from any activity with respect to which a State
has an approved program under section 208(b)(4)
New England Farmers Union (12/12/2014)
404(f) Agricultural Exemptions
40 CFR Part 232.3(c)
(1)(i) Normal farming, silviculture and ranching
activities such as plowing, seeding, cultivating,
minor drainage, and harvesting for the
production of food, fiber, and forest products, or
upland soil and water conservation practices, as
defined in paragraph (d) of this section.
New England Farmers Union (12/12/2014)
404(f)(1)(A) Agricultural Exemption
for Normal Farming, Silviculture and Ranching Activities
• Plowing
• Seeding
• Cultivating
• Minor drainage
• Harvesting
For the production
of food, fiber and
forest products
OR
• Upland soil and water conservation practices
New England Farmers Union (12/12/2014)
404(f)(1)(A) Agricultural Exemptions
for Normal Farming, Silviculture and Ranching Activities
as defined in Regulations at 40 CFR 232.3(c)(1)(ii)
(A) Must be part of an established (i.e., ongoing)
farming, silviculture, or ranching operation, and
must be in accordance with definitions in
paragraph (d) of this section.
• Activities on areas lying fallow as part of a conventional
rotational cycle are part of an established operation.
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404(f)(1)(A) Agricultural Exemptions
for Normal Farming, Silviculture and Ranching Activities
as defined in Regulations at 40 CFR 232.3(c)(1)(ii)
(B) Activities which bring an area into farming,
silviculture or ranching use are not part of an
established operation.
• An operation ceases to be established when the area in
which it was conducted has been converted to another
use or has lain idle so long that modifications to the
hydrological regime are necessary to resume operation.
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404(f)(1)(A) Agricultural Exemption
for Normal Farming, Silviculture and Ranching Activities
• Plowing
• Seeding
• Cultivating
• Minor drainage
• Harvesting
For the production
of food, fiber and
forest products
OR
• Upland soil and water conservation practices
New England Farmers Union (12/12/2014)
404(f)(1)(A) Agricultural Exemptions
Definitions for Normal Farming Practices
40 CFR 232.3(d)
(d) For purpose of paragraph (c)(1) of this section, cultivating,
harvesting, minor drainage, plowing, and seeding are defined
(1) Cultivating means physical methods of soil treatment employed within
established farming, ranching and silviculture lands on farm, ranch, or
forest crops to aid and improve their growth, quality, or yield.
(2) Harvesting means physical measures employed directly upon farm,
forest, or ranch crops within established agricultural and silvicultural lands
to bring about their removal from farm, forest, or ranch land, but does not
include the construction of farm, forest, or ranch roads.
New England Farmers Union (12/12/2014)
404(f)(1)(A) Agricultural Exemptions
Definitions for Normal Farming Practices
40 CFR 232.3(d)
(3)(i) Minor drainage means: the discharge of dredged or fill material
(A) Incidental to connecting upland drainage facilities to WOUS, adequate to
effect the removal of excess soil moisture from upland croplands;
(B) For the purpose of installing ditching or other water control facilities
incidental to planting, cultivating, protecting, or harvesting of rice, cranberries
or other wetland crop species;
(C) For the purpose of manipulating the water levels of, or regulating the flow
or distribution of water within, existing impoundments which have been
constructed in accordance with applicable requirements of the Act, and
which are in established use for the production or rice, cranberries, or other
wetland crop species. New England Farmers Union (12/12/2014)
404(f)(1)(A) Agricultural Exemptions
Definitions for Normal Farming Practices
40 CFR 232.3(d)
(3)(i) Minor drainage means: the discharge of dredged or fill material
(D) Incidental to the emergency removal of sandbars, gravel bars, or other
similar blockages which are formed during flood flows or other events, where
such blockages close or constrict previously existing drainageways and, if
not promptly removed, would result in damage to or loss of existing crops or
would impair or prevent the plowing, seeding, harvesting or cultivating of
crops on land in established use for crop production. Such removal does not
include enlarging or extending the dimensions of, or changing the bottom
elevations of, the affected drainageway as it existed prior to the formation of
the blockage. Removal must be accomplished within one year after such
blockages are discovered in order to be eligible for exemption.
New England Farmers Union (12/12/2014)
404(f)(1)(A) Agricultural Exemptions
Definitions for Normal Farming Practices
40 CFR 232.3(d)
(4) Plowing means all forms of primary tillage, including moldboard, chisel,
or wide-blade plowing, discing, harrowing, and similar physical means used
on farm, forest or ranch land for the breaking up, cutting, turning over, or
stirring of soil to prepare it for the planting of crops. Plowing does not
include the redistribution of soil, rock, sand, or other surficial materials in a
manner which changes any area of the waters of the United States to
dryland.
(5) Seeding means the sowing of seed and placement of seedlings to
produce farm, ranch, or forest crops and includes the placement of soil
beds for seeds or seedlings on established farm and forest lands.
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404(f) Agricultural Exemptions
40 CFR Part 232.3(c)
(2) Maintenance, including emergency reconstruction of
recently damaged parts, of currently serviceable structures
such as dikes, dams, levees, groins, riprap, breakwaters,
cause-ways, bridge abutments or approaches, -and
transportation structures. Maintenance does not include any
modification that changes the character, scope, or size of the
original fill design. Emergency reconstruction must occur
within a reasonable period of time after damage occurs in
order to qualify for this exemption.
New England Farmers Union (12/12/2014)
404(f) Agricultural Exemptions
40 CFR Part 232.3(c)
(3) Construction or maintenance of farm or stock ponds or
irrigation ditches or the maintenance (but not construction) of
drainage ditches. 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.
New England Farmers Union (12/12/2014)
404(f) Agricultural Exemptions
40 CFR Part 232.3(c)
(4) Construction of temporary sedimentation basins on a
construction site which does not include placement of fill
material into waters of the United States. The term”
construction site'' refers to any site involving the erection of
buildings, roads, and other discrete structures and the
installation of support facilities necessary for construction and
utilization of such structures.
New England Farmers Union (12/12/2014)
404(f) Agricultural Exemptions
40 CFR Part 232.3(c)
(6) Construction or maintenance of farm roads, forest roads,
or temporary roads for moving mining equipment, where such
roads are constructed and maintained in accordance with best
management practices (BMPs) to assure that flow and
circulation patterns and chemical and biological
characteristics of waters of the United States are not impaired,
that the reach of the waters of the United States is not
reduced, and that any adverse effect on the aquatic
environment will be otherwise minimized.
New England Farmers Union (12/12/2014)
404(f) Agricultural Exemptions
40 CFR Part 232.3(c)
BMPS for farm roads include:
•
•
•
•
•
•
•
•
Minimum number, length and width
Bridged/culverted to prevent the flow restriction
Properly stabilized and maintained to prevent erosion
Construction minimizes the encroachment of trucks, tractors,
bulldozers, or other heavy equipment into WOUS
Minimize vegetative disturbance and aquatic life movement
Avoid endangered species and breeding and nesting areas
Avoid public water supply intake areas
Avoid areas of concentrated shellfish production
New England Farmers Union (12/12/2014)
404(f)(2) Recapture
Any 404(f)(1) activity will NOT be exempt if
1. Represents a new use of the wetland
AND
2. Activity would result in a reduction in reach or impairment
of flow or circulation of regulated waters, including
wetlands
3. Both conditions must be met for recapture
New England Farmers Union (12/12/2014)
Questions?
Erica Sachs Lambert
U.S. EPA – Region 1
Wetlands Protection
617-918-1741
Sachs.Erica@epa.gov
New England Farmers Union (12/12/2014)