Presentation on theme: "Clean Water Act Permitting and Agricultural Activities in Minnesota"— Presentation transcript:
1 Clean Water Act Permitting and Agricultural Activities in Minnesota By:Desiree MorningstarActing Chief, Northwest SectionSt. Paul DistrictU.S. Army Corps of EngineersJune 27, 2014
2 Presentation Topics Section 404 of the Clean Water Act Permitting Exempt ActivitiesPoints of Contact
3 Section 404 of the Clean Water Act A section 404 permit is required for the discharge of dredged or fill material into waters of the United StatesThe mission of our Regulatory Program is to ensure protection of the Nation’s aquatic resources while allowing reasonable development through fair and balanced decisions.
4 Section 404 of the Clean Water Act Discharges of Dredged MaterialDredged material is defined as “material that is excavated or dredged from waters of the U.S.”A discharge of dredged material means “any addition of dredged material into, including redeposit of dredged material other than incidental fallback within, the waters of the U.S.”Discharges of Fill MaterialFill material is defined as “material placed in waters of the United States where the material has the effect of (1) replacing any portion of a water of the U.S. with dry land or (2) changing the bottom elevation of any portion of a water of the U.S.”A discharge of fill material means “the addition of fillmaterial into waters of the U.S.”
5 Section 404 of the Clean Water Act Under Section 404 of the Clean Water Act the Corps requires permits for discharges of dredged or fill material into waters of the United States in association with many types of activities
9 Section 404 PermittingThe Bottom Line…….. Every permit application we evaluate follows a predictable evaluation process The rigor of the analysis is dependent on the type of resource being impacted, the degree and magnitude of the impact, the extent of the overall project that is subject to Federal control, and the extent of the effects to the public interest It is our job to objectively evaluate the application and determine if the activity complies with the Section 404(b)(1) guidelines and is not contrary to the public interest
10 Section 404 Permitting How we conduct our evaluations Our permit evaluation process has three primary components: a NEPA evaluation, public interest determination, and a Section 404(b)(1) compliance determinationNEPA is a procedural requirement, the public interest review and Section 404(b)(1) compliance determination are substantive
12 Section 404 Permitting General Permits Letters of Permission Developed for similar activities that individually and cumulatively have minimal effectsGPs include nationwide permits and regional general permitsUse of GPs provides for efficient and effective decision makingLetters of PermissionAn individual permit evaluated consistent with abbreviated processing procedures established by the district for impacts that are not controversial but do not comply with any available GPStandard Individual PermitsAn individual permit with public comment opportunity and project-specific evaluation including Guidelines analysis, NEPA documentation and public interest reviewprocedures established by the District
13 RGP-002-MN Recognized Need Increase in potentially regulated activities on agricultural landsIncreased workload associated with regulated activities on agricultural landsTrailing NRCS and state processes, resulting in time delays for producersTimeframes associated with proposed workComplexities associated with jurisdictional determinations/resource evaluations on agricultural lands
14 RGP-002-MN Issued in August 2013 and expires in August 2018. Provides a predictable permit review time frame for activities that have been determined to have individually and cumulatively minimal effects on the environment.To extent possible, aligns with NRCS and state Wetland Conservation Act programsGives MN producers a permit process similar to neighboring states, which have access to Nationwide Permit 40
15 RGP-002-MN Three primary categories of activities covered Linear tile and culvert installation projectsFarmed wetland drainage projectsInstallation of non-perforated drain tile in wetlandsStructured to mimic the process in the nationwide permitsRelies on a well-established process used across the countryCorps must request more info within 30 days of application, and make a decision within 45 days from receipt of a complete application
16 Clean Water Act Exemptions Section 404(f)(1)(A) of the CWA exempts certain agricultural activities from the permitting requirements of the Clean Water Act.These activities include “normal farming, silviculture, and ranching activities such as plowing, seeding, cultivating, minor drainage, harvesting for the production of food, fiber, and forest products, or upland soil and water conservation practices.”
17 Interpretive RuleOn April 21, 2014, the U.S. EPA and Army Civil Works published in the Federal Register an interpretive ruleThis interpretive rule clarifies the permitting exemption provided under section 404(f)(1)(A) of the CWA to discharges of dredged or fill material associated with certain agricultural conservation practices based on Natural Resources Conservation Service conservation practice standards designed and implemented to protect and enhance water quality.The IR became effective on April 3, 201410 June The comment period for the interpretative rule regarding CWA exemptions, also announced on 21 April 2014 has been extended for 30 days until 7 July Please click here for the Public Notice. 21 April The U.S. Environmental Protection Agency (EPA) and the Department of the Army Civil Works (Army) published in the Federal Register a Notice of Availability for a 45-day public comment period their interpretive rule for the 404(f)(1)(A) exemption under the Clean Water Act. The public comment period ends on June 05, Click here for the interpretive rule. This interpretative rule became effective on April 3, Click here for the Public Notice announcing the Federal Register publication and how to submit comments on the implementation and to inform future revision of the interpretive rule. For additional information regarding the applicability of the exemptions click here or for the Memorandum of Understanding between the Department of Agriculture, EPA, and the Army click here which includes the list of conservation practice standards click here.
18 Interpretive RuleThe interpretive rule clarifies that 56 specific NRCS agricultural conservation practices are considered “normal farming” activities and are exempt from permitting under 404(f)(1)(A).To qualify for this exemption, the activities must be part of an “established (i.e., ongoing) farming, silviculture or ranching operation” and the activities must be implemented in conformance with NRCS technical conservation practice standards.
19 Interpretive RuleLandowners do not need to determine whether discharges associated with these conservation practices are in waters of the United States and they do not need to obtain site-specific pre-approval from either the Corps or the EPA before implementation of these specified agricultural conservation practices.CWA section 404(f)(2) is not affected by the interpretive rule and continues to apply.The EPA, the Corps, and the USDA also have entered into a Memorandum of Understanding (MOU) to guide future coordination on the exemption.
20 Interpretive RuleThe interpretive rule was first published in the Federal Register on April 21, 2014Comments were requested by June 5thThe comment period was re-opened on June 10thComments are being accepted on the interpretive rule until July 7thDocket ID No. for submitting comments: EPA-HQ-OW
21 Clean Water Act Exemptions Specific Conservation Practices Listed as Exempt under 404(f)(1)(A)(http://water.epa.gov/lawsregs/guidance/wetlands/CWAwaters.cfm)
22 Clean Water Act Exemptions Practice #Practice NameCreation DateNotes314Brush ManagementSep-09315Herbaceous Weed controlApr-10320Irrigation Canal or LateralSep-20326Clearing and SnaggingSep-10327Conservation Cover338Prescribed Burning342Critical Area Planting353Monitoring Well380Windbreak/Shelterbelt EstablishmentMay-11
23 Clean Water Act Exemptions Practice #Practice NameCreation DateNotes382FenceApr-13383Fuel BreakApr-05386Field BorderSep-10388Irrigation Field DitchApr-11390Riparian Herbaceous Cover391Riparian Forest bufferJul-10393Filter Strip394Firebreak395Stream Habitat Improvement and Management396Aquatic Organism passage
24 Clean Water Act Exemptions Practice #Practice NameCreation DateNotes398Fish Raceway or TankSep-09399Fishpond ManagementSep-11400Bivalve Aquaculture Gear and Biofouling ControlApr-11412Grassed WaterwayApr-10activities that convert waters to non-waters are not exempt422Hedgerow PlantingSep-10423Hillside DitchMay-08453Land Reclamation, Landslide TreatmentFeb-05455Land Reclamation, Toxic Discharge ControlApr-05460Land Clearing484Mulching
25 Clean Water Act Exemptions Practice #Practice NameCreation DateNotes490Tree/Shrub Site PreparationJan-06500Obstruction RemovalJan-10511Forage Harvest ManagementApr-10512Forage and Biomass Planting528Prescribed GrazingSep-10533Pumping PlantMay-11544Land Reclamation, Abandoned Mined landAug-06Land Reclamation, Currently Mined Land548Grazing Land Mechanical Treatmentchiseling or deep ripping in wetlands is not exempt550Range Planting
26 Clean Water Act Exemptions Practice #Practice NameCreation DateNotes568Trails and WalkwaysJan-10575Animal Trails and WalkwaysApr-10578Stream CrossingSep-11587Structure for Water Control601Vegetative Barrier612Tree/Shrub EstablishmentMay-11643Restoration and Management of Rare and Declining HabitatsSep-10644Wetland Wildlife Habitat Management646Shallow Water Development and Management647Early Successional Habitat Development / Management
27 Clean Water Act Exemptions Practice #Practice NameCreation DateNotes650Windbreak/Shelterbelt RenovationJul-10654Road/Trail/Landing Closure and TreatmentNov-08655Forest Trails and LandingsSep-11657Wetland RestorationSep-10659Wetland Enhancement660Tree/Shrub PruningJan-06666Forest Stand ImprovementMay-11