[Federal Register Volume 62, Number 10 (Wednesday, January 15, 1997)]
[Notices]
[Pages 2139-2141]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-915]


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DEPARTMENT OF DEFENSE
Corps of Engineers


Regulatory Guidance Letter 96-2

AGENCY: U.S. Army Corps of Engineers, DoD.

ACTION: Notice.

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SUMMARY: The purpose of this notice is to notify the public of the 
issuance of the U.S. Army Corps of Engineers (Corps) Regulatory 
Guidance Letter (RGL) regarding the joint U.S. Environmental Protection 
Agency (EPA) and Corps memorandum to the field clarifying the 
applicability of exemptions under Section 404(f) of the Clean Water Act 
to ``deep-ripping'' activities in wetlands.

DATES: Effective date December 12, 1996.

FOR FURTHER INFORMATION CONTACT:
Mr. Victor Cole, Regulatory Branch, Office of the Chief of Engineers at 
(202) 761-0201 or Mr. Michael Boots, Office of Wetlands, Oceans and 
Watersheds, U.S. Environmental Protection Agency at (202) 260-2315.

SUPPLEMENTARY INFORMATION: Regulatory Guidance Letter 96-2 was issued 
on December 12, 1996. The memorandum

[[Page 2140]]

attached with RGL 96-2 was developed jointly between the Corps and EPA 
to provide written guidance for our field offices. EPA is responsible 
for determining and/or interpreting which activities are exempt under 
Section 404(f) of the Clean Water Act. Questions have been raised 
involving ``deep-ripping'' and related activities in wetlands, 
including whether discharges associated with these actions fall within 
the exemption found at Section 404(f)(1)(A). Furthermore, the question 
has been raised whether such activities falling under that exemption 
would be recaptured under Section 404(f)(2). The memorandum enclosed 
with RGL 96-2 clarifies this issue.

    Dated: December 12, 1996.
Daniel R. Burns,
 Chief, Operations, Construction, and Readiness Division, Directorate 
of Civil Works.

RGL 96-2, Date: 12 Dec. 1996, Expires: 31 December 2001

    Subject: Applicability of Exemptions under Section 404(f) to 
``Deep-Ripping'' Activities in Wetlands.
    1. Enclosed is a memorandum to the field jointly signed by the U.S. 
Environmental Protection Agency and U.S. Army Corps of Engineers. The 
memorandum provides guidance clarifying when ``deep-ripping'' 
activities within wetlands require Department of the Army 
authorization.
    2. This guidance expires 31 December 2001, unless sooner revised or 
rescinded.

    For the Director of Civil Works.
Daniel R. Burns,
Chief, Operations, Construction, and Readiness Division, Directorate of 
Civil Works.
12 Dec 1996.

 Memorandum to the Field

    Subject: Applicability of Exemptions under Section 404(f) to 
``Deep-Ripping'' Activities in Wetlands.
    Purpose: The purpose of this memorandum is to clarify the 
applicability of exemptions provided under Section 404(f) of the Clean 
Water Act (CWA) to discharges associated with ``deep-ripping'' and 
related activities in wetlands.\1\
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    \1\ As this guidance addresses primarily agricultural-related 
activities, characterizations of such practices have been developed 
in consultation with experts at the U.S. Department of Agriculture 
(USDA), Natural Resources Conservation Service.
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Background

    1. Section 404(f)(1) of the CWA exempts from the permit requirement 
certain discharges associated with normal farming, forestry, and 
ranching practices in waters of the United States, including wetlands. 
Discharges into waters subject to the Act associated with farming, 
forestry, and ranching practices identified under Section 404(f)(1) do 
not require a permit except as provided under Section 404(f)(2).
    2. Section 404(f)(1) does not provide a total, automatic exemption 
for all activities related to agricultural, silvicultural, or ranching 
practices. Rather, Section 404(f)(1) exempts only those activities 
specifically identified in paragraphs (A) through (F), and ``other 
activities of essentially the same character as named'' [44 FR 34264]. 
For example, Section 404(f)(1)(A) lists discharges of dredged or fill 
material from ``normal farming, silvicultural, 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.''
    3. Section 404(f)(1)(A) is limited to activities that are part of 
an ``established (i.e., ongoing) farming, silviculture, or ranching 
operation.'' This ``established'' requirement is intended to reconcile 
the dual intent reflected in the legislative history that although 
Section 404 should not unnecessarily restrict farming, forestry, or 
ranching from continuing at a particular site, discharge activities 
which could destroy wetlands or other waters should be subject to 
regulation.
    4. EPA and Corps regulations [40 CFR 230 and 33 CFR 320] and 
preamble define in some detail the specific ``normal'' activities 
listed in Section 404(f)(1)(A). Three points may be useful in the 
current context:
    a. As explained in the preamble to the 1979 proposed regulations, 
the words ``such as'' have been consistently interpreted as restricting 
the section ``to the activities named in the statute and other 
activities of essentially the same character as named,'' and ``preclude 
the extension of the exemption * * * to activities that are unlike 
those named.'' [44 FR 34264].
    b. Plowing is specifically defined in the regulations not to 
include the redistribution of surface material in a manner which 
converts wetlands areas to uplands [See 40 CFR 233.35(a)(1)(iii)(D)].
    c. Discharges associated with activities that establish an 
agricultural operation in wetlands where previously ranching had been 
conducted, represents a ``change in use'' within the meaning of Section 
404(f)(2). Similarly, discharges that establish forestry practices in 
wetlands historically subject to agriculture also represent a change in 
use of the site [See 40 CFR 233.35(c)].
    5. The statute includes a provision at Section 404(f)(2) that 
``recaptures'' or reestablishes the permit requirement for those 
otherwise exempt discharges which:
    a. convert an area of the waters of the U.S. to a new use, and
    b. impair the flow or circulation of waters of the U.S. or reduce 
the reach of waters of the U.S.

Conversion of an area of waters of the U.S. to uplands triggers both 
provisions (a) and (b) above. Thus, at a minimum, any otherwise exempt 
discharge that results in the conversion of waters of the U.S. to 
upland is recaptured under Section 404(f)92) and requires a permit. It 
should be noted that in order to trigger the recapture provisions of 
Section 404(f)(2), the discharges themselves need not be the sole cause 
of the destruction of the wetland or other change in use or sole cause 
of the reduction or impairment of reach, flow, or circulation of waters 
of the U.S. Rather, the discharges need only be ``incidental to'' or 
``part of'' an activity which is intended to or will forseeably bring 
about that result. Thus, in applying Section 404(f)(2), one must 
consider discharges in context, rather than isolation.

Issue

    1. Questions have been raised involving ``deep-ripping'' and 
related activities in wetlands and whether discharges associated with 
these actions fall within the exemptions at Section 404(f)(1)(A). In 
addition, the issue has been raised whether, if such activities fall 
within the exemption, they would be recaptured under Section 404(f)(2).
    2. ``Deep-ripping'' is defined as the mechanical manipulation of 
the soil to break up or pierce highly compacted, impermeable or slowly 
permeable subsurface soil layers, or other similar kinds of restrictive 
soil layers. These practices are typically used to break up these 
subsoil layers (e.g., impermeable soil layer, hardpan) as part of the 
initial preparation of the soil to establish an agricultural or 
silvicultural operation. Deep-ripping and related activities are also 
used in established farming operations to break up highly compacted 
soil. Although deep-ripping and related activities may be required more 
than once, the activity is typically not an annual practice. Deep-
ripping and related activities are undertaken to improve site drainage 
and facilitate deep root growth, and often occur to depths greater than 
16 inches and, in some cases, exceeding 4 feet below the surface. As 
such, it requires the use of

[[Page 2141]]

heavy equipment, including bulldozers, equipped with ripper-blades, 
shanks, or chisels often several feet in length. Deep-ripping and 
related activities involve extending the blades to appropriate depths 
and dragging them through the soil to break up the restrictive layer.
    3. Conversely, plowing is defined in EPA and Corps regulations [40 
CFR 230 and 33 CFR 320] as ``all forms of primary tillage * * * used * 
* * for the breaking up, cutting, turning over, or stirring of soil to 
prepare it for the planting of crops'' [40 CFR 232.3(d)(4)]. As a 
general matter, normal plowing activities involve the annual, or at 
least regular, preparation of soil prior to seeding or other planting 
activities. According to USDA, plowing generally involves the use of a 
blade, chisel, or series of blades, chisels, or discs, usually 8-10 
inches in length, pulled behind a farm vehicle to prepare the soil for 
the planting of annual crops or to support an ongoing farming practice. 
Plowing is commonly used to break up the surface of the soil to 
maintain soil tilth and to facilitate infiltration throughout the upper 
root zone.

Discussion

    1. Plowing in wetlands is exempt from regulation consistent with 
the following circumstances:
    a. it is conducted as part of an ongoing, established agricultural, 
silvicultural, or ranching operation; and
    b. the activity is consistent with the definition of plowing in EPA 
and Corps regulations [40 CFR 230 and 33 CFR 320]; and
    c. the plowing is not incidental to an activity that results in the 
immediate or gradual conversion of wetlands to non-waters.
    2. Deep-ripping and related activities are distinguishable from 
plowing and similar practices (e.g., discing, harrowing) with regard to 
the purposes and circumstances under which it is conducted, the nature 
of the equipment that is used, and its effect, including in particular 
the impacts to the hydrology of the site.
    a. Deep-ripping and related activities are commonly conducted to 
depths exceeding 16 inches, and as deep as 6-8 feet below the soil 
surface to break restrictive soil layers and improve water drainage at 
sites that have not supported deeper rooting crops. Plowing depths, 
according to USDA, rarely exceed one foot into the soil and not deeper 
than 16 inches without the use of special equipment involving special 
circumstances. As such, deep-ripping and related activities typically 
involve the use of specialized equipment, including heavy mechanized 
equipment and bulldozers, equipped with elongated ripping blades, 
shanks, or chisels often several feet in length. Moreover, while 
plowing is generally associated with ongoing operations, deep-ripping 
and related activities are typically conducted to prepare a site for 
establishing crops not previously planted at the site. Although deep-
ripping may have to be redone at regular intervals in some 
circumstances to maintain proper soil drainage, the activity is 
typically not an annual or routine practice.
    b. Frequently, deep-ripping and related activities are conducted as 
a preliminary step for converting a ``natural'' system or for preparing 
rangeland for a new use such as farming or silviculture. In those 
instances, deep ripping and related activities are often required to 
break up naturally-occurring impermeable or slowly permeable subsurface 
soil layers to facilitate proper root growth. For example, for certain 
depressional wetlands types such as vernal pools, the silica-cemented 
hardpan (durapan) or other restrictive layer traps precipitation and 
seasonal runoff creating ponding and saturation conditions at the soil 
surface. The presence of these impermeable or slowly permeable subsoil 
layers is essential to support the hydrology of the system. Once these 
layers are disturbed by activities such as deep-ripping, the hydrology 
of the system is disturbed and the wetland is often destroyed.
    c. In contrast, there are other circumstances where activities such 
as deep-ripping and related activities are a standard practice of an 
established on-going farming operation. For example, in parts of the 
Southeast, where there are deep soils having a high clay content, 
mechanized farming practices can lead to the compaction of the soil 
below the soil surface. It may be necessary to break up, on a regular 
although not annual basis, these restrictive layers in order to allow 
for normal root development and infiltration. Such activities may 
require special equipment and can sometimes occur to depths greater 
than 16 inches. However, because of particular physical conditions, 
including the presence of a water table at or near the surface for part 
of the growing season, the activity typically does not have the effect 
of impairing the hydrology of the system or otherwise altering the 
wetland characteristics of the site.

Conclusion

    1. When deep-ripping and related activities are undertaken as part 
of an established, ongoing agricultural, silvicultural, or ranching 
operation, to break up compacted soil layers and where the hydrology of 
the site will not be altered such that it would result in conversion of 
waters of the U.S. to upland, such activities are exempt under Section 
404(f)(1)(A).
    2. Deep-ripping and related activities in wetlands are not part of 
a normal, ongoing activity, and therefore not exempt, when such 
practices are conducted in association with efforts to establish for 
the first time (or when a previously established operation was 
abandoned) an agricultural, silvicultural or ranching operation. In 
addition, deep-ripping and related activities are not exempt in 
circumstances where such practices would trigger the ``recapture'' 
provision of Section 404(f)(2):

    (a) Deep-ripping to establish a farming operation at a site 
where a ranching or forestry operation was in place is a change in 
use of such a site. Deep-ripping and related activities that also 
have the effect of altering or removing the wetland hydrology of the 
site would trigger Section 404(f)(2) and such ripping would require 
a permit.
    (b) Deep-ripping a site that has the effect of converting 
wetlands to non-waters would also trigger Section 404(f)(2) and such 
ripping would require a permit.

    3. It is the agencies' experience that certain wetland types are 
particularly vulnerable to hydrological alteration as a result of deep-
ripping and related activities. Depressional wetland systems such as 
prairie potholes, vernal pools and playas whose hydrology is critically 
dependent upon the presence of an impermeable or slowly permeable 
subsoil layer are particularly sensitive to disturbance or alteration 
of this subsoil layer. Based upon this experience, the agencies have 
concluded that, as a general matter, deep-ripping and similar 
practices, consistent with the descriptions above, conducted in prairie 
potholes, vernal pools, playas and similar depressional wetlands 
destroy the hydrological integrity of these wetlands. In these 
circumstances, deep-ripping in prairie potholes, vernal pools, and 
playas is recaptured under Section 404(f)(2) and requires a permit 
under the Clean Water Act.
Robert H. Wayland III,
Director, Office of Wetlands, Oceans and Watersheds, U.S. Environmental 
Protection Agency.

Daniel R. Burns,
Chief, Operations, Construction and Readiness Division, Directorate of 
Civil Works U.S. Army Corps of Engineers.
[FR Doc. 97-915 Filed 1-14-97; 8:45 am]
BILLING CODE 3710-92-M