### U.S. Environmental Protection Agency and U.S. Department of the Army Interpretive Rule Regarding the Applicability of Clean Water Act Section 404(f)(l)(A)

SUBJECT: Interpretive Rule Regarding Applicability of the Exemption from Permitting under section 404(f)(l)(A) of th e Clean Water Act to Certain Agricultural C on servatio n Practices.

PURPOSE: The purpose of this interpretive rule i s to clarify the applicability of the exemption from permitting provided und er sect i on 404(f)(l)(A ) ofthe Cle an Water Act (CWA) to discharges of dredged or fill material associated with certain agricultural conservation practices based on the Natural Resource s Conservation Service (NRCS) conservation practice standards that are designed and implemented to protect and enhance water quality. 1

BACKGROUND:
Section 404(f)(l)(A) of the CWA exempts from permit requirements certain discharges associated with normal farming, silviculture, and ranching activities in waters of the United States, including wetlands. It is important to emphasize that this interpretiv e rul e identifies additiona l activities considered exempt from permitting und er section 404(f)(l)(A), but does not affect, in any manner, the scope of agriculture, silviculture, and ran c hing activities currently exempt from permitting under section 404(t)(l)(A) includin g, for exampl e, plowing, seeding, cultivation, minor drainage, etc.
Section 404(t)(l )(A) does not provide an automatic exe mption for all discharges related to farming, si lvicultural or ranching practices. Rather, Section 404( t)( 1) exempts only those discharges associated with activities speci fically i dentified in subparagraphs (A) through (F), and "ot her activities of essentially the same character as named" (44 FR 34264). Section 404(f)(l )(A) li sts discharges of dredged or fill materi a l from " normal farming, silviculture and ranching activities, such as plowing, seeding , cultivating, minor drainage, harve sting for the produc tion of food, fiber, and forest products, or upland soil and water conservation practices." This interpretive rule further clarifies the scope of this statutory exemption.

1 As this interpretati on addresses primarily agricultural-related activities, characterizations of such practices have been developed in consu lt ation with the U.S. Department of Agriculture (USDA). 1Section 404(f)( l)(A) is limite d to discharge s a ssociated with activities listed in the s tatute and defined by the age ncies' regulations and that are part of an "established (i.e., ongoing) farming, s ilviculture , or ranching operation" (40 CFR 232 .3(c)(l)(ii) (A); 33 CFR 323.4(a)(l)(ii)). This "es tabli shed " requirement reconc ile s th e dual intent reflecte d in the leg is lative hi story that although sec tion 4 04 s hould n ot unnecessarily restrict farming , s il v icultu re, or ranching fro m continuing at a particular site, discharge activities which could destroy wetland s or other waters should b e su bject to re gulat ion

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The U.S. Env ironmental Protection Agency (EPA ) a nd the U.S. Army Co rps of Engineers' (Corps) regulations (40 CFR 23 0 and 33 CF R 320) and preamble to th ese regulations provide additional detail on " normal " activitie s listed in sect ion 404(f)(l)(A ). The words "such as" have been consistently interpreted as meanin g the sec tion app li es " to the activities named in the statute and other activities of essentially the same c haracter as named ," and "preclude[s] the extension of the exemption

... to activities that are unlike tho se named ." (44 FR 34264).

INTERPRETATION FOR CERTAIN CONSERVATION PRACTICES:
US DA and NRCS ' s natural resources cons ervati on programs help pe op le reduce so il erosion, enhance water supplies, improve water quality, increase wildlife habi tat, and reduce dama ges caused by floods and other natural disa sters. These long standing USDA program s are effective i n promoting the water quality and broader en v ironmental goals identified in both the Food Sec urity Act and C lean Water Act. The agencies believe working to gether to improve th e consistency and integration of programs like these is fully consistent with the law, promote s the mutual o bj ectives of our regu l atio ns and statutes, and increases clari ty and pre dictability for the agricu lture co mmuni ty. Th e res ult i s goo d for the nation 's waters and fo r farm ers and fore s ters who want to protec t the re sources on th e ir lands.
In light of the longstanding adoption ofthese agricultural co nserva tion practices and their goal of protectin g and enhancing water quality, the section 404(f)( l )(A) exemption is interp reted t o cover certain agricultural con se rvation practices as " normal farm ing " activitie s. Normal fa rming necessarily includes conservati on and protection o f so il , water and related re source s in order to s u stain agric ultural producti v ity , along wi th other benefits to en v ironmental quality and continued economic development. "Upland soil and water conservation practices" are expli ci tly identifi e d in the s tatute a s "normal" farming activi t ies, and conservation activities within the water s of the U.S. that include discharges in waters of the U.S. and that are d es ign e d to protect a

nd enhance the waters of the U.S. have been determined to be of esse ntiall y the same character. As the statute doe s not limit the exemption to only tho se activities explicitly li ste d , it is reasonabl e to conclude that agricultural conserva ti on pract ices that are associated with waters an d wh ere w ater quality b enefits accrue are similar enou gh to al so be exe mpt from the sec ti on 404 permitting req uirements. This interpretation preserves cong res sional intent by ensur in g that benefi c ia l agricul tural conservation practices will not be unnecessarily restricted so lo ng as those activities are de sig n ed and imp lemented to protect and enhance water quality and do not destroy wate r s.

2 T hi s in terpretive rule does not affect section 404(f)(2) of the CWA.
2Specific NRCS agricultural conservation practices, identified by the EPA, the Army, and USDA, that could include the discharge of dredged or fill material in a waters of the U.S. for the purposes of benefitting those waters are appropriately considered "normal farming" activities and exempt from permitting under Section 404(t){l)(A). To qualify for this exemption , the activities must be part of an "established ( i.e ., ongo i ng) farming, silv iculture , o r ranching operation," consistent with the statute and regulations. The activities must also be implemented in conformance with NRCS technical standards. So long as these activities are implemented in conformance with NRCS technical standards, there is no need for a determination of whether the discharges associated with these activities are in "waters of the United States" nor is site-specific pre-approval from either the Corps or th e EPA necessary before implementing these specified agricultural conservation practices. The EPA, the Army, and USDA will enter into a Memorandum of Agreement to develop and implement a process for identifying , re v iewing and updating NRCS agricultural conservation practices and activities that may include discharge s in waters of the United States that would qualify under the exemption establi shed by section 404(t)( 1 )(A).

Acting Assistant Administrator for Water U.S. Environmental Protection Agency 

## MAR 2 5 £Gl4**-~:........:::::~~~~~::::::q L-_** **(Date)**

o- El en Darcy Ass· tant Secretary ofthe y (Civil Works) U.S. Department ofthe Army

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