Special Topics in Environmental Management

Getting Exempt from Federal Wetlands Permitting

Understanding ‘Established Operation’

Activities on areas lying fallow as part of a conventional rotational cycle are considered to be part of an established operation.

An operation ceases to be established when the area in which it was conducted has been converted to another use or has been idle for so long that modifications to the hydrological regime are necessary to resume operation.

Activities that bring an area into farming, silviculture, or ranching use are not considered to be part of an established operation.

If an activity takes place outside the waters of the United States, or if it does not involve a discharge, it does not need a Section 404 permit regardless of whether it was part of an established farming, silviculture, or ranching operation.


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Other Exempt Activities

  • Maintenance, including emergency reconstruction of recently damaged parts, of currently serviceable structures such as dikes, dams, levees, groins, riprap, breakwaters, causeways, bridge abutments or approaches, and transportation structures. Maintenance does not include any modification that changes the character, scope, or size of the original fill design. Emergency reconstruction must occur within a reasonable period of time after damage occurs in order to qualify for the exemption.
  • Construction or maintenance of farm or stock ponds or irrigation ditches or the maintenance (but not construction) of drainage ditches. Discharge associated with siphons, pumps, headgates, wingwalls, weirs, diversion structures, and other related facilities as are appurtenant and functionally related to irrigation ditches are included in the exemption.
  • Construction of temporary sedimentation basins on a construction site that does not include placement of fill material into waters of the United States. The term "construction site" refers to any site involving the erection of buildings, roads, and other discrete structures and the installation of support facilities necessary for construction and utilization of such structures. The term also includes any other land areas that involve land-disturbing excavation activities, including quarrying or other mining activities, where an increase in the runoff of sediment is controlled through the use of temporary sedimentation basins.
  • Any activity with respect to which a state has an approved wetlands program.
  • Construction or maintenance of farm roads, forest roads, or temporary roads for moving mining equipment, where the roads are constructed and maintained in accordance with best management practices (BMPs). The implementation of the BMPs must ensure that flow and circulation patterns and chemical and biological characteristics of waters of the United States are not impaired, that the reach of the waters of the United States is not reduced, and that any adverse effect on the aquatic environment will be otherwise minimized. BMPs must contain specific baseline requirements, including provisions that:
    • Permanent roads, temporary access roads, and skid trails (for logging) in waters of the United States must be held to the minimum feasible number, width, and total length.
    • All roads, temporary or permanent, must be located sufficiently far from streams or other water bodies to minimize discharges of dredged or fill material.
    • The road fill must be bridged, culverted, or otherwise designed to prevent the restriction of expected flood flows.
    • The fill must be properly stabilized and maintained to prevent erosion during and following construction.
    • Discharges of dredged or fill material in order to construct a road must be made in a manner that minimizes the encroachment of trucks, tractors, bulldozers, or other heavy equipment within the waters of the United States.
    • The disturbance of vegetation in waters of the United States must be kept to a minimum when designing, constructing, and maintaining roads.

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    • Road crossings must not disrupt the migration or other movement of any species of aquatic life inhabiting the water body.Borrow material must be taken from upland sources whenever feasible.
    • The discharge may not take, or jeopardize the continued existence of, a threatened or endangered species or adversely modify or destroy the critical habitat of the species.
    • Discharges into breeding and nesting areas for migratory waterfowl, spawning areas, and wetlands must be avoided if practical alternatives exist.
    • The discharge is not located in the proximity of a public water supply intake.
    • The discharge will not occur in areas of concentrated shellfish production.
    • The discharge will not occur in a component of the National Wild and Scenic River System.
    • The discharge of material must consist of suitable material free from toxic pollutants in toxic amounts.
    • All temporary fills will be removed in their entirety and the area restored to its original elevation.

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