Agricultural Irrigation and the Corps Regulatory Program Jean Gibby Thomas Brown

Overview - Regulatory Authorities - Jurisdiction-Streams and Wetlands - Types of Corps Permits - Exemptions - Excavated Ponds - Embankment Ponds - Permitting of Ponds not eligible for Exemption BUILDING STRONG®

Authority and Jurisdiction – Section 10 of the Rivers and Harbors Act of 1899 Regulated Activities: All work or structures in, over, under, or affecting navigable waters that affect course, condition or capacity of navigation. Examples include docks, navigational aids, aerial transmission lines, dredging, shore protection devices, etc. BUILDING STRONG®

The Clean Water Act (1972) Section 101.(a) The objective of this Act is to restore and maintain the chemical, physical, and biological integrity of the Nation’s waters. Section 404 established a permit program to be administered by the U.S. Army Corps of Engineers. BUILDING STRONG®

Authorities – Section 404 Waters of the US 33 CFR 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. - All interstate waters including interstate wetlands. - All waters which the use, degradation or destruction of could affect interstate or foreign commerce. (recreation, travel, shellfish, industrial purposes) - All tributaries to these waters. - All impoundments of these waters. - All Wetlands adjacent to these waters. BUILDING STRONG®

Authorities – Section 404 All waters of the U.S., including wetlands streams-ephemeral, intermittent, perennial rivers, ponds and lakes Regulate the discharge of dredged or fill material and mechanized landclearing if there is a discharge of fill material BUILDING STRONG®

Jurisdiction – Section 404 Clean Water Act Definitions: Ordinary High Water –shoreward limit of jurisdiction for all non-tidal waters; line on the shore established by normal fluctuations in the water level BUILDING STRONG®

Wetland Definitions Corps/EPA definition - for Clean Water Act Section 404 purposes: 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-33 CFR 328.3(b) BUILDING STRONG®

COE Manual Designed to Identify and Delineate Wetlands 1987 Corps of Engineers Wetlands Delineation Manual As amended by: Implementation Guidance dated 27 Aug 1991 Q & A dated 7 Oct 1991 Clarification Guidance dated 6 Mar 1992 Regional Supplements Rapanos Supreme Court Case “Jurisdiction” depends on law, regulations, and policy. Not all areas that meet wetland criteria are regulated. BUILDING STRONG®

Diagnostic Characteristics Hydrophytic Vegetation Dominated by species that are tolerant of prolonged inundation or soil saturation Hydric Soils Exhibit characteristics that develop under permanent or periodic soil saturation Wetland Hydrology Evidence of ongoing wetland conditions Key features of these definitions include vegetation, soils, and hydrology, which have become the basis for the 3-parameter or multiparameter approach for wetland identification. 1. Vegetation -- the plant community is dominated by species that are tolerant of saturated soil conditions. Hydrophytic species exhibit a variety of adaptations that allow them to grow, compete, and reproduce in standing water or in waterlogged, anaerobic soils. 2. Soils -- there is morphological evidence (e.g., color) that the soils developed under permanently or periodically saturated conditions. 3. Hydrology -- there is evidence of an ongoing hydrologic regime sufficient to produce anaerobic soils and promote the development of a hydrophytic plant community. BUILDING STRONG®

Wetland Values Wetlands provide benefits to society out of proportion to their extent on the landscape. … water quality … flood control Recognized wetland functions and benefits include: a. Water-quality improvement due to sediment retention and nutrient removal and transformation b. Reduction of flood hazard by reducing wave energy and storm surges along coastlines, and short-term retention and storage of surface and groundwater c. Organic carbon export that supports aquatic and terrestrial food webs down-gradient d. Providing essential habitat for fish, wildlife, and invertebrate communities … habitat BUILDING STRONG®

Are these Wetlands? Some wetlands are easy to identify . . . Some wetlands are easily recognizable (e.g., marshes and flooded swamps), because the presence and influence of water is obvious. Tidal marsh, coastal Connecticut (left). Cattail fringe around a lake (top). Baldcypress swamp in the Southeast (bottom). BUILDING STRONG®

Are these Wetlands? . . . others can be difficult and controversial. However, many wetlands are subject to only seasonal flooding. During the wet season, the hydrology is obvious, but for much of the year surface water is lacking. At these times, other evidence is needed to recognize them as wetlands. Still other wetlands develop in areas where the soil is saturated for long periods, but never floods. Wetland identification becomes more difficult and controversial. Bottomland hardwood forest during the dry season, Arkansas (upper left). Mountain meadow, Sawtooth Mtns, Idaho (upper right). Western riparian scene, Zion National Park, Utah (lower left). Wet pine savanna, gulf coastal plain, Mississippi (lower right). BUILDING STRONG®

Wetland Definitions Food Security Act (Swampbuster) Versus COE Wetland Delineations under 87 Manual: On properties which involve annual planted commodities where either the owner or tenant is a program participant for cost share, crop insurance, etc.,-activities within the fields is Natural Resources Conservation Service’s (NRCS) call versus once in the woods and not for agricultural purposes is subject to COE delineation. NRCS doesn’t look at stream impacts as violating Food Security Act provisions-entirely COE call BUILDING STRONG®

Types of Permits Standard Individual Permit (SIP) Project-specific evaluation and authorization Substantial process steps public notice public involvement Letters of permission Less controversial activities Minor impacts, coordinate with agencies BUILDING STRONG®

Types of Permits General permits Types of general permits May have project-specific evaluation and verification Non-reporting general permits Reporting general permits Similar activities resulting in minimal adverse effects to aquatic environment May require mitigation for minimal effects Developed and issued with same process as individual permits Cannot be issued for more than five years Types of general permits Nationwide permits Regional general permits Programmatic general permits BUILDING STRONG®

33 CFR 323.4 Discharges Not Requiring Permits Normal farming, silviculture and ranching activities such as plowing, seeding, cultivating, minor drainage and harvesting for the production of food, fiber and forest products COE does not consider certain activities that may be considered agricultural by NRCS, such as christmas tree farms, ornamental nursery plants, horses (this is not an inclusive listing) BUILDING STRONG®

33 CFR 323.4 (a)(2) Maintenance of Existing Structures 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. 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. BUILDING STRONG®

33 CFR 323.4 (a)(3) Discharges Not Requiring Permits Construction or maintenance of farm or stock ponds or irrigation ditches, or the maintenance (but not construction) of drainage ditches. Discharges associated with siphons, pumps, headgates, wingwalls, weirs, diversion structures, and such other facilities as are appurtenant and functionally related to irrigation ditches are included in this exemption. BUILDING STRONG®

33 CFR 323.4 (c) Discharges Not Requiring Permits Any discharge of dredged or fill material into waters of the United States incidental to such exempt activities must have a permit if it is part of an activity whose purpose is to convert an area of 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 discernible alterations to flow or circulation, the presumption is that flow or circulation may be impaired by such alternation. BUILDING STRONG®

Construction and Maintenance of Farm Ponds and Irrigation Ditches Size appropriate based upon demonstrated agricultural needs. Cannot convert an area of waters of the United States to a use to which it was not previously subject; Must be able to provide a water budget, including projected irrigation amounts per acre. (Inches/acre)

Excavated Ponds Excavated ponds may be exempt provided: Excavated material placed on high ground where available; If material placed in wetlands, it must be discharged into discontinuous piles to maintain the reach of the surface waters. BUILDING STRONG®

Old Pond, Probably Excavated in Wetlands.

Pond excavated in high ground. No permit or exemption required.

Embankment Ponds Can not impair the flow or circulation of waters of the United States or reduce the reach of such waters; Embankment ponds with dams across streams have potential to impair/reduce flows, especially during periods of low rainfall and irrigation use. Accordingly, a Low Flow Device may be required in order to meet the requirements for obtaining exemption concurrence from the COE. BUILDING STRONG®

Low Flow Device Examples

Low Flow Device Allows water to continue flowing downstream, even when inflows are low. Only way an embankment pond can meet the exemption. BUILDING STRONG®

Will a Low Flow Device Be Required Corps of Engineers determines whether a low flow device is needed on a case by case basis. Corps will perform an on site review to determine stream quality. BUILDING STRONG®

Stream Assessment Assessing quality of stream by evaluating aquatic life, stability, riparian buffers, etc. Type and quality of stream dictates which permits are available and any mitigation requirements. Quality of stream and flow (perennial vs. Intermittent) determine the need for a Low Flow Device. BUILDING STRONG®

Pond Under Construction

Completed

Removed

Exemption Forms BUILDING STRONG®

Suggested Steps for Agricultural Pond Evaluation & Approval to Build Contact your local USDA-NRCS or County Soil & Water office to complete a “Preliminary Site Assessment for New Ponds” 2. Review the potential alternatives for your agricultural water needs. BUILDING STRONG®

Suggested Steps for Agricultural Pond Evaluation & Approval to Build 3. Review potential regulatory requirements. US Army Corps of Engineers Farm Pond or other Irrigation Exemption Request should be completed and placed in the file unless requesting a Department of Army permit. Note: exemptions will only be granted when the size of the pond does not exceed agricultural water needs. 4. Consult with your local USDA-NRCS or County Soil & Water office to determine if technical and / or financial assistance is available. 5. After consultation with your local USDA-NRCS or County Soil & Water office, have a preliminary pond layout developed. Preliminary layout may be either from a local grading company who may be used to build the pond or from a professional civil, agricultural, or environmental engineer. Owner may contact the NC Division of Land Resources to determine dam permit requirements.

Suggested Steps for Agricultural Pond Evaluation & Approval to Build 6. If the building site of the pond is on a USDA-FSA Farm Serial Number review and sign a “Confidentiality Agreement” that will allow USDA-NRCS to discuss your potential pond site with various federal and state agencies. After signing the “Confidentiality Agreement”, consult with USDA-NRCS to determine if the Swampbuster “WX” exemption applies. Following that determination, the USDA-NRCS can provide guidance to whether you need to contact the Army Corps of Engineers, NC Division of Land Resources-Dam Safety Program and/ or North Carolina Division of Water Quality for regulatory requirements.

Suggested Steps for Agricultural Pond Evaluation & Approval to Build 7. If the proposed pond site does not have a USDA-FSA Farm Serial Number, the landowner should take a copy of the “Preliminary Site Assessment for New Ponds” and a preliminary pond layout to the appropriate Army Corps of Engineers office, NC Division of Land Resources-Dam Safety Program and North Carolina Division of Water Quality for a preliminary assessment of regulatory requirements.

Suggested Steps for Agricultural Pond Evaluation & Approval to Build 8. Begin the pond construction only after determining and securing the required permits or exemptions based upon completion of the above recommended steps.

Permitting Options Nationwide Permit (NWP) 40 - Agricultural Activities-Authorizes the construction of farm ponds that do not qualify for the Clean Water Act Section 404(f)(1)(C) exemption because of the recapture provision at Section 404(f)(2).

Permitting Options Nationwide Permit 18 - Minor Discharges – Minor discharges of dredged or fill material into all waters of the United States. Nationwide Permit 29 – Residential Developments - Discharges of dredged or fill material into non-tidal waters of the United States for the construction of a single residence, a multiple unit residential development, or a residential subdivision.

Permitting Options Standard Permit - Individual Permit - Project Specific - Still Required to Avoid and minimize impacts, along with providing alternatives and mitigation. - Required if jurisdictional impacts exceed 0.5 acre of wetlands and/or 300 linear feet of stream channel which exhibits important aquatic functions and are not eligible for nationwide permit authorization.

Questions?