40. Agricultural Activities: In the July 21, 1999, Federal Register notice, we proposed to modify NWP 40 to authorize discharges of dredged or fill material into non-tidal waters of the United States, excluding non-tidal wetlands adjacent to tidal waters, to improve agricultural production.
A large number of commenters expressed opposition to the proposed modification of this NWP. Many commenters said that the use of this NWP will result in substantial losses of wetlands and some commenters stated that the activities authorized by this NWP will result in more than minimal adverse effects on the aquatic environment. Numerous commenters said that the proposed modification of NWP 40 violates the Clean Water Act because it authorizes discharges of dredged or fill material that result in the loss of agricultural wetlands. Some commenters stated that the proposed modification is unnecessary because on-going farming activities are exempt from Section 404 permit requirements. One commenter said that the proposed modification is contrary to other Federal programs, such as the Wetlands Reserve Program and the Conservation Reserve Program. One commenter indicated that the text of this NWP should reference the wetland conservation provisions of the "Food Security Act of 1985, as amended."
NRCS will review those activities authorized by paragraph (a) and district engineers will review most activities authorized by paragraphs (b), (c), and (d) to ensure that the activities authorized by this NWP do not result in more than minimal adverse effects on the aquatic environment. The use of this NWP will not result in substantial losses of wetlands. Compensatory mitigation will be required for most activities authorized by this NWP to offset losses of waters of the United States and ensure that the authorized work results in minimal adverse effects on the aquatic environment.
The modification of NWP 40 does not violate the Clean Water Act, because the Clean Water Act does not prohibit discharges of dredged or fill material into waters of the United States to increase agricultural production. The Clean Water Act merely requires a permit for such activities. The conversion of wetlands to increase agricultural production is not exempt from Section 404 permit requirements. The proposed modification of NWP 40 is not contrary to the Wetlands Reserve Program or the Conservation Reserve Program. We have modified the text of the NWP to refer to the "Food Security Act of 1985, as amended."
One commenter said that the proposed modification of NWP 40 should authorize activities in non-tidal wetlands adjacent to tidal waters to increase the utility of this NWP in coastal areas. Several commenters stated that this NWP should be restricted to frequently cropped wetlands. Many commenters stated that this NWP should not authorize activities in playas, prairie potholes, and vernal pools. Three commenters indicated that this NWP should not authorize activities within 100 feet of playas, prairie potholes, and vernal pools. Another commenter said that this NWP will authorize the destruction of streams.
We do not agree that this NWP should authorize discharges of dredged or fill material into non-tidal wetlands adjacent to tidal waters. In addition, this NWP should not be restricted to frequently cropped wetlands. Division engineers can regionally condition paragraph (b) or (c) of this NWP to prohibit or limit its use in playas, prairie potholes, and vernal pools. This NWP does not authorize the destruction of streams. The only stream impacts authorized by this NWP are discharges of dredged or fill material into waters of the United States to relocate drainage ditches constructed in non-tidal streams.
One commenter stated that a separate NWP should be developed for the installation of drainage ditches or drainage tile. Another commenter asked if this NWP authorizes silvicultural or ranching activities.
This NWP can be used to authorize discharges of dredged or fill material into non-tidal wetlands to construct drainage ditches or install drainage tile, provided the work meets the terms and conditions of this NWP and does not result in the loss of greater than 1/2 acre of non-tidal waters of the United States. This NWP authorizes silvicultural and ranching activities, because they are considered agricultural activities.
One commenter opposed the proposed indexed acreage limit for this NWP and several commenters supported the use of an indexed acreage limit. One commenter said that the activities authorized by paragraphs (c) and (d) should be included in the indexed acreage limit for this NWP. Two commenters supported the maximum 2 acre limit. Many commenters said that this NWP should have a 1/4 acre limit. Other commenters suggested 1/10, 1/3, and 1 acre limits. One commenter supported the 1 acre limit for discharges of dredged or fill material into playas, prairie potholes, and vernal pools. Other commenters said that the acreage limit for discharges into these types of waters should be lower, and one commenter recommended a 1/3 acre limit. Several commenters stated that this NWP should have a linear foot limit for stream impacts. Some commenters suggested a 250 linear foot limit and another commenter recommended a 500 linear foot limit.
Based upon our review of the comments received in response to the July 21, 1999, Federal Register notice, we have established a 1/2 acre limit for discharges of dredged or fill material into non-tidal wetlands (including playas, prairie potholes, and vernal pools) to increase agricultural production. This acreage limit will ensure that the activities authorized by this NWP result in minimal adverse effects on the aquatic environment. We have withdrawn the indexed acreage limit for discharges of dredged or fill material into playas, prairie potholes, and vernal pools to increase agricultural production. We have added a 300 linear foot limit for the relocation of existing drainage ditches constructed in non-tidal streams.
One commenter supported the use of farm tracts to identify single and complete projects under NWP 40. This commenter also said that using farm tracts to define single and complete projects for this NWP is problematic, especially when a farmer leases land to other farms. This commenter stated that landowners would need to request tract numbers and boundary determinations for certain areas, such as range land, where tract numbers or boundary determinations have not yet been designated. Several commenters indicated that the acreage limit for this NWP should be based on farms, not farm tracts. Some of these commenters said that basing the acreage limit on farm tracts will allow more than one use of this NWP for a single agricultural operation. One commenter remarked that the use farm tracts in this NWP does not satisfy the definition of independent utility because the majority of farm tracts are not economically self-supporting.
We maintain our position that single and complete projects for this NWP should be based on farm tracts, not farms. Utilizing farm tracts will make this NWP easier to implement for the regulated public, NRCS personnel, and Corps personnel. In addition, the use of farm tracts will avoid the difficulties associated with the leasing of farm tracts. Data from the Farm Service Agency shows that there is an average of 1.5 farm tracts per farm nationwide. Therefore, the use of farm tracts to determine single and complete projects will not result in substantial losses of wetlands. Since NRCS supports the use of farm tracts for this NWP and the national average is 1.5 farm tracts per farm, we cannot agree with the comment that the majority of farm tracts are not economically self-supporting.
Many commenters objected to the terms of paragraph (a) of the proposed modification of NWP 40, stating that the Corps, not NRCS, should review these activities and determine if they can be authorized by NWP 40. One commenter opposed paragraph (a), stating that it does not provide the district engineer with the opportunity to exercise discretionary authority. Two commenters said that the Clean Water Act does not allow the Corps to delegate portions of the Section 404 permit program to NRCS. One of these commenters also stated that there should be a Memorandum of Agreement between the Corps and NRCS to track the use of this NWP. Two commenters said that NRCS does not have the authority under the Clean Water Act to evaluate the indirect or cumulative impacts of activities authorized by this NWP. One commenter remarked that the provisions of paragraph (a) will increase the workload of District Conservationists at local NRCS offices. Many commenters objected to paragraph (a) because division engineers cannot impose regional conditions on this provision of NWP 40.
These terms and conditions of NWP 40, in conjunction with the requirements of NRCS, will ensure that the activities authorized by paragraph (a) will result in minimal adverse effects on the aquatic environment, without oversight by the Corps. The provisions of paragraph (a) do not delegate the Section 404 program to NRCS. The reporting requirements of subparagraph (a)(5) will allow district engineers to monitor the use of this NWP and assess cumulative adverse effects. The comments we received from NRCS do not indicate that the workload increase imposed on District Conservationists will be unmanageable. To assist in the effective implementation of paragraph (a), division engineers cannot impose regional conditions on this term of NWP 40.
One commenter supported the requirement for USDA program participants to be in compliance with the minimal effects criteria of NRCS. One commenter said that subparagraph (a)(1) of NWP 40 should include the terms "categorical minimal effects exemption, minimal effect exemptions, and mitigation exemptions," which are more accurate than the proposed language. This commenter recommended that the phrase "if required" should be included in subparagraph (a)(5) of the proposed modification of NWP 40 because not all activities will require compensatory mitigation. One commenter said that mitigation requirements should be coordinated between NRCS and the Corps to ensure that the mitigation requirements of the Food Security Act and the Clean Water Act are satisfied.
We have modified the text of subparagraph (a)(1) to make it consistent with the terminology utilized in NRCS regulations. We also concur with the third comment in the previous paragraph, and have revised subparagraph (a)(4) accordingly. For activities authorized by paragraph (a), the Corps will accept the compensatory mitigation requirements of NRCS.
One commenter suggested that NRCS should determine if proposed activities authorized by paragraph (a) will result in unacceptable impact to 100-year floodplains because NRCS must consider impacts to flood storage and flood flowage when determining whether an activity qualifies for a USDA exemption. This commenter also said that if proposed General Condition 27 is not modified to allow NRCS to determine the impacts to 100-year floodplains, then the text of NWP 40 should be revised to include the prohibitions imposed by this general condition.
Since we have modified the proposed General Condition 27 (now designated as General Condition 26) for fills within 100-year floodplains, we have added paragraph (e) to NWP 40. This paragraph states that the permittee must comply with General Condition 26 if the NWP 40 activity is in a 100-year floodplain identified by FEMA's Flood Insurance Rate Maps or FEMA-approved local floodplain maps. We believe that it is adequate to refer the permittee to General Condition 26, instead of incorporating the provisions of this general condition into the text of NWP 40. The Corps, as available, will identify the limits of headwaters for the purposes of General Condition 26.
One commenter said that the PCN threshold for this NWP should be 1/3 acre and another commenter stated that the PCN threshold should be 1/10 acre. A commenter said that the prospective permittee should not be required to disclose past use of NWP 40 with a NWP 40 PCN for additional discharges of dredged or fill material into waters of the United States on the property. Another commenter said that a mitigation plan should be submitted with all NWP 40 PCNs. One commenter said that the phrase "if required" should be included in paragraph (b)(5) because not all activities authorized by NWP 40 will require compensatory mitigation. Another commenter objected to paragraph (b) because it contains no provisions for the Corps to verify wetland determinations.
We have adopted a 1/10 acre PCN threshold for activities authorized by paragraph (b) of this NWP. There is no provision in NWP 40 that requires the permittee to notify the Corps of the past use of NWP 40. Subparagraph (b)(4) of NWP 40 requires the submission of a mitigation plan with the PCN. We do not agree with the fourth comment in the previous paragraph, because we are only requiring the submission of a compensatory mitigation proposal with the PCN. District engineers can determine, on a case-by-case basis, that compensatory mitigation is not necessary to ensure that the authorized activity results in minimal adverse effects on the aquatic environment. Verification of wetland determinations and wetland delineations on agricultural land that will remain in agricultural use is the responsibility of NRCS, not the Corps.
One commenter stated that there should be a separate NWP to authorize discharges of dredged or fill material into waters of the United States for the construction of farm buildings. Several commenters objected to this provision, stating that building pads for farm buildings can be constructed outside of waters of the United States. A commenter remarked that the terms for the construction of farm buildings should be the same as the terms for NWP 29. One commenter said that the use of farm buildings constructed near wetlands and streams will contaminate these waters.
We do not agree that a separate NWP for the construction of farm buildings is necessary. We have reduced the acreage limit from 1 acre to 1/2 acre to ensure that this NWP authorizes discharges of dredged or fill material for the construction of farm buildings that have minimal adverse effects on the aquatic environment. We disagree with the comment that all farm buildings can be constructed outside of wetlands. Farm buildings serve different purposes and are typically larger than single family residences. Therefore, farm buildings should not be subject to the same terms and conditions as NWP 29. The pollution of streams and other waters from agricultural operations are addressed by other Federal, state, and local programs.
Several commenters stated that this NWP should not authorize the relocation of streams or ditches. One commenter said that there should be a limit on the length of ditch that can be relocated, to ensure that the NWP authorizes only activities with minimal adverse effects. Another commenter indicated that the impacts due to ditch relocations should be included in the 2 acre limit for this NWP.
The relocation of drainage ditches is often necessary to increase agricultural production on the farm tract. We have imposed a 300 linear foot limit for the relocation of existing drainage ditches constructed in non-tidal streams. We do not agree that the relocation of drainage ditches constructed in non-tidal waters of the United States should be included in the 1/2 acre limit of paragraph (a) or (b) because these relocation activities typically do not result in a net loss of aquatic resource functions and values.
One commenter objected to the proposed NWP, stating that it treats USDA program participants and non-participants differently. Another commenter said that the terms and conditions of NWP 40 should not be established to provide equity between developers and agricultural producers, but instead should be based on activities that are similar in nature that have minimal adverse effects on the aquatic environment. One commenter stated that NWP 40 should be subject to the same terms and conditions as NWP 39.
The terms of paragraphs (a) and (b) do not treat USDA program participants and non-participants differently. These two groups are subject to the same acreage limits and mitigation requirements. The only differences between paragraphs (a) and (b) are the agencies reviewing the proposed work and the reporting requirement for USDA program participants. The terms of NWPs 39 and 40 are established to ensure that these NWPs authorize activities with minimal adverse effects on the aquatic environment. Both NWPs 39 and 40 are subject to the 1/2 acre limit, but different terms and conditions are necessary because these NWPs authorize different types of activities.
Two commenters expressed concern that NWP 40 will be used by land developers to prepare sites for future development by filling wetlands and keep the land in agricultural production for a few years, and then request authorization under NWP 39 for additional discharges of dredged or fill material into waters of the United States to construct a development. One commenter supported the provision proposed in the July 1, 1998, Federal Register notice that allowed the use of this NWP each time it was reissued. Another commenter opposed this NWP, indicating that it can be used repeatedly on a single farm over time. One commenter said that discharges of dredged or fill material into waters of the United States for the construction of compensatory mitigation sites should be calculated in the acreage loss of waters of the United States.
NWP 40 contains provisions that prevent land developers from filling wetlands on agricultural land to increase the amount of non-wetland area on the site for future developments. If NWP 40 was used to authorize discharges of dredged or fill material into non-tidal waters on the farm tract to increase agricultural production and the current landowner wants to use NWP 39 to authorize the construction of a residential, commercial, or institutional development, the combined acreage loss of waters of the United States authorized by NWPs 39 and 40 cannot exceed 1/2 acre. NWP 40 cannot be used repeatedly on a single farm tract to exceed the 1/2 acre limit for a single and complete project. Discharges of dredged or fill material into waters of the United States to construct compensatory mitigation sites should not be calculated in the acreage loss of waters of the United States.
In response to a PCN, district engineers can require special conditions on a case-by-case basis to ensure that the adverse effects on the aquatic environment are minimal or exercise discretionary authority to require an individual permit for the work. The issuance of this NWP, as with any NWP, provides for the use of discretionary authority when valuable or unique aquatic areas may be affected by these activities. This NWP is subject to General Condition 25, which restricts its use in designated critical resource waters. For NWP 40 activities resulting in discharges of dredged or fill material into waters of the United States within 100-year floodplains, General Condition 26 requires the permittee to notify the district engineer and demonstrate that the proposed work complies with FEMA or FEMA-approved local floodplain construction requirements. Furthermore, General Condition 26 prohibits any above-grade fill under NWP 40 within regulatory floodways above the headwaters. NWP 40 is reissued with the modifications discussed above.
Top of Page I Previous Page I Front Page