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MEMORANDUM OF UNDERSTANDING 

Among the U.S. Department of Agriculture, 

The U.S. Environmental Protection Agency, and the U.S. Department of the Army 

Concerning Implementation of the 404(f)(1)(A) Exemption for 

Certain Agricultural Conservation Practice Standards 

I. Purpose and Scope 

The Environmental Protection Agency (EPA) and the Department of the Army (the Army) 

issued, in March 2014, an interpretive rule clarifying the applicability of the exemption from 

Clean Water Act (CWA) section 404 permitting provided by CWA section 404(f)(1)(A) for 

discharges to waters of the United States associated with certain conservation practice standards 

where they are undertaken as part of an established farming operation. This Memorandum of 

Understanding (MOU) describes how the three agencies will work together to implement the 

interpretive rule, to protect and enhance water quality and ensure consistency and predictability 

for the public. This MOU also identifies the procedures for coordinating to maintain the list of 

conservation practice standards exempt from section 404 permitting, including revisions to the 

list. This list is included as Attachment A to this MOU. 

II. Authorities 

EPA and the Army enter into this MOU pursuant to their responsibilities and authorities under 

the Clean Water Act, and specifically section 404. 33 U.S.C. § 1251, et seq. NRCS enters into 

this MOU pursuant to its responsibilities and authorities under the Soil Conservation and 

Domestic Allotment Act. 16 U.S.C. §590 a-f. 

III. Background 

CWA section 404(f) provides that the discharge of dredged or fill material into waters of the 

United States in connection with certain activities is exempt from CWA section 404 permitting 

requirements. 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.” CWA section 404(f)(1)(A). 

EPA and the Army issued, in March 2014, an interpretive rule clarifying that certain NRCS 

conservation practice standards designed and implemented to protect and enhance water quality 
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are considered “normal farming” activities when conducted as part of an established farming 

operation, and are discharges therefore exempt under CWA section 404(f)(1)(A) from CWA 

section 404 permitting requirements. The CWA section 404(f) exemptions also have been 

previously addressed by agency regulations. 40 C.F.R. §232.3; 33 C.F.R. §323.4. The 

interpretive rule does not change the agencies’ regulations, including those addressing CWA 

section 404(f)(2)1. 

NRCS works with partners and private landowners and managers on conservation planning and 

assistance designed to result in productive lands and healthy ecosystems. The foundation for this 

assistance is science-based conservation practice standards that guide the design and 

implementation of measures to address natural resource concerns, including water quality and 

quantity. These standards provide technical requirements, which are tailored to state and local 

conditions and provide specifications for installation of conservation measures. NRCS worked 

with the EPA and the Army to evaluate its list of conservation practice standards and identify 

those designed and implemented to protect and enhance water quality when implemented in 

waters of the United States. 

 

 The NRCS conservation practices standards considered as of the date of this MOU to be 

“normal farming” when conducted as part of an ongoing operation and thus exempt from 

permitting under CWA section 404(f)(1)(A) are listed in Attachment A to this MOU. Note that 

the agencies expect this list to evolve over time as NRCS modifies or develops new conservation 

practice standards. The agencies intend periodically to update the list consistent with section V. 

of this MOU. 

IV. Agricultural Conservation Practice Standards Considered Exempt as “Normal 

Farming” under CWA §404(f)(1)(A). 

The Army, the EPA, and NRCS have examined NRCS’ conservation practice standards, and 

identified those being designed and implemented to protect and enhance water quality that, when 

they involve a discharge of dredged or fill material to waters of the United States and are 

conducted as part of an ongoing farming operation, are exempt from permitting under CWA 

section 404(f)(1)(A). The current list of identified conservation practice standards that are 

exempt can be found on the EPA’s website at 

http://water.epa.gov/lawsregs/guidance/wetlands/agriculture.cfm. EPA will update the list on its 

website to reflect any future changes made as a result of the process in Section V. below. The 

agencies agree that the list on EPA’s website will guide their implementation of the interpretive 

rule. Details regarding conservation practice standards are available on NRCS’ website at 

http://www.nrcs.usda.gov/wps/portal/nrcs/detailfull/national/technical/cp/ncps/?cid=nrcs143_02

6849

 

1

 CWA Section 404(f)(2) is the so-called “recapture” provision. Section 404(f)(2) requires that activities are not 

exempt where they have certain effects on waters, including wetlands. For example, a proposed discharge to waters 

of the U.S. is not exempt where it is associated with an activity that would convert waters to non-waters. 
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V. Management of the List of Exempt Practice Standards 

NRCS reviews its existing conservation practice standards every five years on a rolling schedule, 

and through a public process, modifying the practice standards where appropriate, and also 

develops new conservation practice standards as needed. 

The agencies will manage the list of NRCS conservation practice standards considered as 

“normal farming,” as needed. Revisions may become necessary because, for example, NRCS 

has modified an existing conservation practice standard to enhance its water quality benefits in a 

way that makes it appropriate for the agencies to add the conservation practice standard to the list 

of those considered as “normal farming.” Similarly, it may be appropriate to remove a 

conservation practice standard from the list if the agencies observe implementation of the 

practice standard is not resulting in anticipated water quality benefits. 

The Army, the EPA, and NRCS intend to meet and discuss appropriate changes to the list of 

practice standards exempt from permitting at a frequency agreed upon by the agencies, but at 

least annually. The discussion will consider potential addition to this list of practice standards of 

new or revised NRCS conservation practice standards as well as potential deletion of 

conservation practice standards based on available data regarding water quality effects or other 

relevant implementation information. To ensure effective implementation of the interpretive 

rule, the agencies will regularly share information, as appropriate, regarding the use of exempt 

conservation practices in aquatic areas. The agencies will reach out to other interested entities, 

including states, as the list of exempt practices is regularly reviewed. 

The agencies will coordinate to seek consensus on any modifications to the list of exempted 

agricultural conservation practice standards, consistent with agency responsibilities established 

under Federal statutes and regulations.

VI. Other Roles and Responsibilities 

A. Working with Landowners and Land Managers -- NRCS retains the primary federal role 

of working with landowners and land managers, state agencies, private organizations, etc., 

regarding the use of conservation practices. Where NRCS is the technical assistance provider, 

the agency has the responsibility to appropriately identify and implement conservation practices 

in a manner consistent with the applicable conservation practice standards. Landowners not 

relying on NRCS for technical assistance have the responsibility to ensure that implementation 

of the conservation practice is in accordance with the applicable NRCS conservation practice 

standard. It is important to emphasize that practices are exempt only where they meet 

conservation practice standards. 

B. Applicability of the Exemption to a Particular Project-- Discharges in waters of the U.S. 

are exempt only when they are conducted in accordance with NRCS practice standards. 

Landowners are not required, however, to obtain preapproval from the Corps or EPA for the 

exemption to apply to implementation of a practice standard identified in the list of exempt 

practices. Where NRCS is supplying the technical assistance for a particular conservation 

activity, the agency has the lead responsibility to work with landowners and managers to ensure 

that practices are applied in accordance with standards and to address and correct issues that may 
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arise regarding the consistency of a particular project with conservation practice standards. 

 Where NRCS is not providing technical assistance, the landowner has the responsibility to 

ensure that implementation of the conservation practice is in accordance with the applicable 

NRCS conservation practice standard. Even where NRCS is not providing technical assistance, 

the agency plays an important role in helping to respond to issues that may arise regarding 

project specific conformance with conservation practice standards. EPA and the Corps are 

responsible for responding to project specific issues that may arise associated with compliance 

with section 404(f), including concerns that are raised by states or federally recognized tribes. 

C. Development of New Conservation Practice Standards -- NRCS remains solely 

responsible under its authority for developing agricultural conservation practice standards. 

However, if NRCS anticipates a new or modified practice standard could be a candidate for the 

list of “normal farming” practices exempt from permitting, NRCS will coordinate with the Army 

and the EPA as the conservation practice standard is being developed to help facilitate agreement 

among the agencies to add the practice to the list of conservation practice standards exempt from 

permitting as described in section V above. 

D. Outreach and Training -- Although the interpretive rule is effective immediately, 

Headquarters offices will work with field offices to educate and train their staffs on the 

implementation of the interpretive rule. The agencies will use their best efforts to accomplish 

this education and training in the most efficient and timely manner. To the extent funds and 

staffing allow, the three agencies will work together to develop any fact sheets, bulletins, and 

webinars for agencies’ staff and agricultural producers, explaining the CWA section 404(f) 

exemption, the March 2014 interpretive rule and its application to conservation practice 

standards. Where appropriate and feasible, the agencies will conduct joint training on these 

provisions. 

E. CWA Responsibilities -- Nothing in this MOU affects the authorities of the EPA, Army, 

or authorized states, or federally recognized tribes to implement or enforce CWA provisions. 

VII. Additional Provisions 

A. The policies and procedures contained within this MOU do not create any rights, either 

substantive or procedural, enforceable by any party regarding an enforcement action brought by 

the United States. Deviation or variance from the administrative procedures included in this 

MOU will not constitute a defense for violators or others concerned with any Section 404 action. 

B. This MOU does not create any right, benefit, or trust responsibility, substantive or 

procedural, enforceable at law or equity, by a party against the United States, its agencies, its 

officers, or any person. 

C. Nothing in this MOU is intended to diminish, modify, or otherwise affect statutory or 

regulatory authorities of any of the signatory agencies. The agencies will handle their own 

activities and utilize their own resources, including the expenditure of their own funds, in 

pursuing these objectives. Each agency will carry out its separate activities in a coordinated and 

mutually beneficial manner. 
D. As required by the Antideficiency Act, 31 U.S.C. 1341 and 1342, all commitments made 

by the EPA, NRCS or the Army in this MOU are subject to the availability of appropriated funds 

and budget priorities. Nothing in this MOU, in and of itself, obligates the EPA, NRCS or the 

Army to expend appropriations or to enter into any contract, assistance agreement, interagency 

agreement, or incur other financial obligations. Any activities that involve the transfer of funds, 

services, or property among the agencies will require execution of separate agreements and be 

contingent upon the availability of appropriated funds. Such activities must be independently 

authorized by appropriate statutory authority. This MOU does not provide such authority. 

Negotiation, execution, and administration of each such agreement must comply with all 

applicable statutes and regulations. 

VIII. Effective date and Modification of the MOU 

A. This MOU will take effect on the date of the last signature below and will continue in 

effect until modified or revoked by agreement of all signatory agencies, or until revoked by any 

of the signatory agencies alone upon 90 days written notice. 

B. Modifications of this MOU may be made by mutual agreement and Headquarters-level 

approval by all the signatory agencies. Such modifications will take effect thirty (30) days from 

the last signature of the modified document by all the signatory agencies. 

Robert Bonnie 

Under Secretary for Natural Resources and Environment 

U.S. Department of Agriculture 

Nancy K. Sto er 

Acting Assist nt Administrator for Water 

U.S. Environmental Protection Agency 

- lien Darcy 

As istant Secretary (Civil W 

U .. Department of the Arm 

MAR 2 5 2Gi4 

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Attachment A

NRCS CONSERVATION PRACTICE STANDARDS

EXEMPT FROM PERMITTING UNDER CLEAN WATER ACT SECTION 404(f)(1)(A)

Practice # Practice Name Creation

Date

314 Brush Management Sep‐09

315 Herbaceous Weed control Apr‐10

320 Irrigation Canal or Lateral Sep‐10

326 Clearing and Snagging Jul‐10

327 Conservation Cover Sep‐10

338 Prescribed Burning Sep‐10

342 Critical Area Planting Dec‐13

353 Monitoring Well Sep‐10

380 Windbreak/Shelterbelt Establishment May‐11

382 Fence Apr‐13

383 Fuel Break Apr‐05

386 Field Border Dec‐13

388 Irrigation Field Ditch Apr‐11

390 Riparian Herbaceous Cover Sep‐10

391 Riparian Forest buffer Jul‐10

393 Filter Strip Dec‐ 13

394 Firebreak Sep‐10

395 Stream Habitat Improvement and Management Sep‐10

396 Aquatic Organism passage Apr‐11

398 Fish Raceway or Tank Sep‐09

399 Fishpond Management Sep‐11

400 Bivalve Aquaculture Gear and Biofouling Control Apr‐11

Notes

412 Grassed Waterway Apr‐10 activities that convert waters to

non‐waters are not exempt

422 Hedgerow Planting Sep‐10

423 Hillside Ditch May‐08

453 Land Reclamation, Landslide Treatment Feb‐05

455 Land Reclamation, Toxic Discharge Control May‐05

460 Land Clearing Sep‐11

484 Mulching May‐11

490 Tree/Shrub Site Preparation Jan‐06

500 Obstruction Removal Jan‐10

511 Forage Harvest Management Apr‐10
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512 Forage and Biomass Planting Jan‐10

528 Prescribed Grazing Sep‐10

533 Pumping Plant May‐11

543 Land Reclamation, Abandoned Mined Land Aug‐06

544 Land Reclamation, Currently Mined Land Aug‐06

548 Grazing Land Mechanical Treatment Sep‐10 chiseling or deep ripping in

wetlandsis not exempt

550 Range Planting Apr‐10

568 Trails and Walkways Jan‐10

575 Animal Trails and Walkways Apr‐10

578 Stream Crossing Sep‐11

587 Structure for Water Control Apr‐10

601 Vegetative Barrier Jan‐10

612 Tree/Shrub Establishment May‐11

643 Restoration and Management of Rare and

Declining Habitats

Sep‐10

644 Wetland Wildlife Habitat Management Sep‐10

646 Shallow Water Development and Management Sep‐10

647 Early Successional Habitat Development/

Management

Sep‐10

650 Windbreak/Shelterbelt Renovation Jul‐10

654 Road/Trail/Landing Closure and Treatment Nov‐08

655 Forest Trails and Landings Sep‐11

657 Wetland Restoration Sep‐10

659 Wetland Enhancement Sep‐10

660 Tree/Shrub Pruning Jan‐06

666 Forest Stand Improvement May‐11