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 Describe the areas over which federal agencies have regulatory authority = JURISDICTIONAL RESOURCE 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 New England Farmers Union (12/12/2014)

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)

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)

New England Farmers Union (12/12/2014) JURISDICTIONAL RESOURCE Regulatory Definition Title 40 CFR Part 230.3(s) and 33 CFR Part 328.3 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 Interstate waters, including interstate wetlands New England Farmers Union (12/12/2014)

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)

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; New England Farmers Union (12/12/2014)

New England Farmers Union (12/12/2014) 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)

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 Riverside Bayview (1985): Wetlands adjacent to traditional navigable waters are covered by the CWA SWANCC (2001): Use of “isolated” ponds by migratory birds does not confer jurisdiction 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 New England Farmers Union (12/12/2014)

Clean Water Act Regulated Activities New England Farmers Union (12/12/2014)

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. New England Farmers Union (12/12/2014)

New England Farmers Union (12/12/2014) 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)

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 New England Farmers Union (12/12/2014)

Clean Water Act Sec. 404 Exempt Activities Including Agricultural Exemptions New England Farmers Union (12/12/2014)

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) New England Farmers Union (12/12/2014)

Section 404(f)(1) Statutory Exemptions Normal farming, silviculture, and ranching activities Maintenance of currently serviceable structures Construction or maintenance of farm or stock ponds or irrigation ditches, or the maintenance of drainage ditches Construction of temporary sedimentation basins on a construction site Construction or maintenance of farm roads or forest roads 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 OR Upland soil and water conservation practices For the production of food, fiber and forest products New England Farmers Union (12/12/2014)

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) 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. New England Farmers Union (12/12/2014)

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) (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. 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 OR Upland soil and water conservation practices For the production of food, fiber and forest products New England Farmers Union (12/12/2014)

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)

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)

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)

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. New England Farmers Union (12/12/2014)

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 Represents a new use of the wetland AND Activity would result in a reduction in reach or impairment of flow or circulation of regulated waters, including wetlands Both conditions must be met for recapture New England Farmers Union (12/12/2014)

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)