***[ [Documentation Guide for]{.smallcaps}]{.underline}:* CLEAN WATER
ACT SECTION 404**

**[BACKGROUND/POLICY:]{.underline}**

Section 404 of the Clean Water Act (CWA) establishes a program to
regulate the discharge of dredged and fill material into waters of the
United States (U.S.), including wetlands. Activities in waters that are
typically regulated under Section 404 include fills for development,
water resource projects (e.g., dams and levees), infrastructure
development (e.g., highways and airports), and conversion of wetlands to
uplands for farming and forestry.

The 404 program is administered by the U.S. Army Corps of Engineers
(Corps) with the oversight of the Environmental Protection Agency (EPA).

Discharge of dredged or fill material into waters of the U.S. is
prohibited unless the action is exempted or is covered by a permit
issued by the Corps.

**[Agricultural Activities in Waters of the U.S. Exempt from Section 404
of the CWA]{.underline}**

Exemptions include 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. In order to be exempted, the
activities must be part of an established farming, silviculture, or
ranching operation. An operation ceases to be established when the area
has been converted to another use or has lain idle so long that
modifications to the hydrologic regime are necessary to resume
operations. Any discharge of dredged or fill material into waters of the
U.S. incidental to any of the following exemptions whose purpose is to
convert any area of the waters of the U.S. into a use to which it was
not previously subject and any dredged or fill material that contains
toxic pollutants, must have a permit.

**Plowing**-

All forms of primary tillage, including moldboard, chisel, or wide-blade
plowing, discing, harrowing and similar means utilized 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 surface materials to fill in wet areas.

**Seeding-**

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.

**Cultivating**-

Physical methods of soil treatment to aid and improve growth and quality
of agricultural crops.

**Minor drainage-**

Discharge of dredged or fill material into waters of the U.S. that
is: 1) incidental to connecting upland drainage facilities to waters of
the U.S. to effect the removal of excess soil moisture from upland
croplands, 2) for the purpose of installing ditching or other water
control facilities incidental to planting, cultivating, protecting, or
harvesting wetland crops which are established for wetland crop
production, 3) 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 the
requirements of the CWA and are established for wetland crop production,
4) incidental to the emergency removal of sandbars, gravelbars, or other
similar blockages which are formed during flood flows or other events,
where existing drainage ways are constricted and will result in damage
or impair farming of existing crops. Such removal does not include
changes to the original limits of the affected drainageway as it existed
prior to the blockage. Removal must be completed within 12 months of
discovery of blockage.

**Harvesting**-

Physical measures employed for the removal of crops**,** but does not
include the construction of roads.

**Maintenance**-

Emergency reconstruction of recently damaged parts, of currently
serviceable structures such as dikes, dams, levees, groins, riprap,
bridge abutments or approaches, and transportation structures.
Reconstruction must occur within a reasonable amount of time and does
not include changes of the original fill design.

**Construction or Maintenance of Ponds or Ditches**-

Construction or maintenance of farm or stock ponds or irrigation
ditches, or the maintenance (but not construction) of drainage ditches.
Includes discharges associated with siphons, pumps, headgates,
wingwalls, weirs, diversion structures, and other such facilities, which
are appurtenant and functionally related to irrigation ditches.

**Construction of Temporary Sediment Basins**-

On a construction site which does not include placement of fill
materials into waters of the U.S.

**Construction or Maintenance of Roads**-

Farm, forest, or temporary roads for moving mining equipment, where such
roads are constructed and maintained in accordance with best management
practices (BMPs) to assure waters of the U.S. are not impaired and the
reach of the waters of the U.S. are not reduced. Complete listing of
requirements is available from the Corps.

*Prior notification to the Corps for exempted activities is not
required*.

**[Activities in Waters of the U.S. Requiring Permits]{.underline}**

For projects involving potentially significant impacts, authorization
must be sought through the issuance of an "individual permit." However,
for the great majority of discharges, i.e., those activities that will
have only minimal adverse environmental effects, authorization is often
granted up-front through the use of a "general permit." General permits
may be issued by the Corps on a nationwide or regional basis. Following
is a partial listing of nationwide permits, which may pertain to NRCS
activities:

**NWP #3 -- Maintenance -** The repair, rehabilitation, or replacement
of any previously authorized, currently serviceable, structure or fill.

**NWP #5 - Scientific Measurement Devices -** Installation of staff
gages, water recording devices, water quality testing and improvement
devices and similar structures. Small weirs and flumes constructed
primarily to record water quantity and velocity are also authorized
provided the discharge is limited to 25 cubic yards. For discharges of
10 to 25 cubic yards, notification is required.

**NWP #13 - Bank Stabilization -** Bank Stabilization activities
necessary for erosion prevention.

**NWP #14 -- Linear Transportation Crossings -** Fills for roads
crossing waters of the U.S. (including wetlands and other special
aquatic sites). Fill placed in the waters of the U.S. is limited to a
filled area of no more than 1/3 acre.

**NWP #18 -** **Minor discharges -** Minor discharges of dredged or fill
material into all waters of the U. S. provided: discharge does not
exceed 25 cubic yards, discharge will not cause the loss of no more than
1/10 acre of a special aquatic site, including wetlands. If the
discharge exceeds 10 cubic yards or the discharge is in a special
aquatic site, including wetlands, notification is required.

**NWP #19 - Minor Dredging** - Dredging of no more than 25 cubic yards
below the plane of the ordinary high watermark or the mean high
watermark from navigable waters of the U.S. as part of a single and
complete project.

**NWP #24 - State Administered Section 404 Program -** Any activity
permitted by a state administering its own section 404 permit program.

**NWP #27 -- Stream and Wetland Restoration Activities -** Activities in
waters of the U.S. associated with the restoration and enhancement of
altered and degraded non-tidal wetlands on private lands. These
activities must be in accordance with the terms and conditions of a
binding wetland restoration agreement between the landowner and the
USFWS or NRCS. Activities associated with the restoration of altered and
degraded non-tidal wetlands and riparian areas on USFS, BLM, and Federal
surplus lands; and RECD and RTC inventory properties may also apply.
This permit does not authorize the conversion of natural wetlands to
another aquatic use.

**NWP #33 - Temporary Construction, Access and Dewatering -** Temporary
structures and discharges, including, cofferdams, necessary for
construction activities or access fills or dewatering of construction
sites.

**NWP #37 - Emergency Watershed Protection and Rehabilitation-** Work
done or funded by the NRCS qualifying under its Emergency Watershed
Protection Program.

**NWP #40 -- Agricultural Activities --** Includes discharges of dredged
or fill material into jurisdictional wetlands **(but not including
prairie potholes, playa lakes)** that were in agricultural production
prior to December 23, 1985 (i.e., farmed wetlands) for foundations,
building pads for buildings or agricultural related structures necessary
for farming activities, which do not exceed one-half acre per farm
tract. The discharge will be limited to the minimum necessary but will
in no case exceed one-half acre. A pre-construction notification to the
Corps of Engineers is required.

*NRCS personnel should contact the appropriate Regional Corps Office for
a complete listing of nationwide and regional general permit
requirements as well as the New Mexico State Engineers Office, which
administers state water resource concerns and permits*. See web site:
<http://www.spa.usace.army.mil/reg/waters>.

**[Definitions:]{.underline}**

**Waters of the United States-**

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 tide; all interstate
waters including interstate wetlands; 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; all impoundments of
waters; tributaries to all previously described waters; and wetlands
adjacent to all previously described waters.

**Headwaters**-

Non-tidal rivers, streams, and their lakes and impoundments, including
adjacent wetlands, that are part of a surface tributary system to an
interstate or navigable water of the U.S. upstream of the point on the
river or stream at which the average annual flow is less than 5 cubic
feet per second.

**Isolated waters**-

Non-tidal waters of the U.S. that are not part of a surface tributary
system to interstate or navigable waters of the U.S. and are not
adjacent to such tributary waterbodies.

**Navigable Waters**-

Waters that are subject to the ebb and flow of the tide and/or are
presently used, have been used in the past, or may be susceptible for
use to transport interstate or foreign commerce.

**Ordinary High Water Mark**-

That line on the shore established by the fluctuations of water and
indicated by physical characteristics such as clear, natural line
impresses on the bank, shelving, changes in the character of soil,
destruction of terrestrial vegetation, the presence of litter and
debris, or other appropriate means that consider the characteristics of
the surrounding areas.

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  **Project:**                                           

  **Date:**                                              

  **Planner:**                                           
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***[[Casefile Documentation]{.smallcaps}:]{.underline}* CWA Section
404**

When correctly and completely evaluated this will provide adequate
documentation for compliance with the National Environmental Policy Act
(NEPA). Attach to NM-ENV-1 when completed.

**STEP 1.** Is the proposed action or activity involve the discharge of
dredged or fill material into a Waters of the United States?

NO YES

a.  If your answer is "No", indicate activity is "not present" on *the
    NRCS Environmental Evaluation and Resource Inventory Checklist
    (NM-ENV-1)* proceed with planning.

b.  If your answer is "Yes", indicate activity is "present" on the
    NM-ENV-1 and proceed to step 2.

> *If you are uncertain about the status of discharges in your planning
> unit, consult State Conservation Engineer or State Biologist.*

**STEP 2.** Is the proposed action or activity exempted from 404?

NO Yes

a.  If your answer is "Yes", document the exemption then proceed with
    planning.

b.  If your answer is \"no\", indicate special actions are required on
    the NM-ENV-1 and go to step 3.

> If you are uncertain about the status of discharges in your planning
> unit, consult your State Resource Engineer, or the US Army Corp of
> Engineers.

**STEP 3.** Refer the producer to the Corps to determine if a general
nationwide, regional; or individual permit applies to the proposed
activity. When a decision and/or necessary permits have been obtained
from the Corps, document decision and/or permits on *Environmental
Evaluation and Resource Inventory Checklist* (NM-ENV-1) or this
documentation guide.

**Documentation Notes:**

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*New Mexico State Engineers Office*:
<http://www.spa.usace.army.mil/reg/waters>.