June 14, 2011

Dredge and Fill Farming Exemption

There are a number of types of activities that are conducted in or affect regulated surface water or wetlands, which are exempt from the requirement to obtain individual or general permit coverage under Section 404 of the CWA. Probably the exemption most often relied on by business applies to normal farming activities. Of course, one farmer’s definition of “normal” may differ from that of another farmer, and both may be outside the definition used by regulatory agencies that provide permits and enforce violations. How then do regulators define “normal farming activities”?

The exemption in fact applies to normal farming, ranching, and forestry activities such as plowing, cultivating, minor drainage, and harvesting for the production of food, fiber, and forest products, or upland soil and water conservation practices.

To be exempt, these activities must be part of an established, ongoing operation. If a farmer has been plowing, planting, and harvesting in wetlands, he can continue to do so without the need for a Section 404 permit as long as he does not convert the wetlands to dry land. Activities that convert a wetland that has not been used for farming or forestry into such uses are not considered part of an established operation and are not exempt.

For example, the conversion of a bottomland hardwood wetland to crop production is not exempt.

According to EPA, several points need to be considered in determining whether an activity is part of an established operation.

First, the specific farming activity need not itself have been ongoing as long as it is introduced as part of an ongoing farming operation. For example, if crops have been grown and harvested on a regular basis, the mere addition or change of a cultivation technique (e.g., discing between crop rows to control weeds rather than using herbicides) is considered to be part of the established farming operation.

Second, the planting of different agricultural crops as part of an established rotation (e.g., soybeans to rice) is exempt. Similarly, the rotation of rice and crawfish production are also exempt.

Third, the resumption of agricultural production in areas laying fallow as part of a normal rotation cycle are considered to be part of an established operation and exempt. However, if a wetland area has not been used for farming for so long that it would require hydrological modification (modification to the surface or groundwater flow) that would result in a discharge of dredged or fill material, the farming operation would no longer be established or ongoing.

Also, while terms such as cultivating, harvesting, minor drainage, plowing, and seeding have common, everyday definitions, they also carry specific regulatory meanings in relation to exemptions. For example:

Plowing that is exempt means all mechanical means of manipulating soil, including land leveling, to prepare it for the planting of crops. However, grading activities that would change any area of waters of the United States, including wetlands, into dry land are not exempt.

Minor drainage that is exempt is limited to discharges associated with the continuation of established wetland crop production (e.g., building rice levees) or the connection of upland crop drainage facilities to waters of the United States. Minor drainage also refers to the emergency removal of blockages that close or constrict existing drainageways used as part of established crop production. “Minor drainage” is defined such that it does not include discharges associated with the construction of ditches that drain or significantly modify any wetlands or aquatic areas considered waters of the United States.

Seeding that is exempt includes both the placement of seeds themselves and the placement of soil beds for seeds or seedlings on established farm or forest lands.

Cultivating includes physical methods of soil treatment to aid and improve the growth, quality, or yield of established crops.

In general, an activity is not exempt if it passes a two-part test: (1) does the activity represent a new use of the wetland, and (2) would the activity result in a reduction in reach/impairment of flow or circulation of waters of the United States? Consequently, any discharge of dredged or fill material that results in the destruction of the wetlands character of an area (e.g., conversion to uplands due to new or expanded drainage) is considered a change in the waters of the United States, and by definition, a reduction of their reach and is not exempt. In addition, discharges that contain toxic pollutants listed under CWA Section 307 are not exempt and must be permitted.

Finally, discharges that are not exempt are not necessarily prohibited. Nonexempted discharges can be authorized either through a general or individual Section 404 permit before they are initiated.

An EPA memo that discusses the agricultural exemption is at http://water.epa.gov/lawsregs/guidance/wetlands/cwaag.cfm.