Clean Water Act Permitting and Agricultural Activities in Minnesota

1. Clean Water Act Permitting and Agricultural Activities in • Minnesota By: Desiree Morningstar Acting Chief, Northwest Section St. Paul District U.S. Army Corps of Engineers June 27, 2014

2. Presentation Topics Section 404 of the Clean Water Act Permitting Exempt Activities Points of Contact

3. Section 404 of the Clean Water Act • A section 404 permit is required for the discharge of dredged or fill material into waters of the United States • The mission of our Regulatory Program is to ensure protection of the Nation’s aquatic resources while allowing reasonable development through fair and balanced decisions.

4. Section 404 of the Clean Water Act • Discharges of Dredged Material • Dredged material is defined as “material that is excavated or dredged from waters of the U.S.” • A discharge of dredged material means “any addition of dredged material into, including redeposit of dredged material other than incidental fallback within, the waters of the U.S.” • Discharges of Fill Material • Fill material is defined as “material placed in waters of the United States where the material has the effect of (1) replacing any portion of a water of the U.S. with dry land or (2) changing the bottom elevation of any portion of a water of the U.S.” • A discharge of fill material means “the addition of fill • material into waters of the U.S.”

5. Section 404 of the Clean Water Act Under Section 404 of the Clean Water Act the Corps requires permits for discharges of dredged or fill material into waters of the United States in association with many types of activities

6. Section 404 of the Clean Water Act

7. Section 404 of the Clean Water Act

9. Section 404 Permitting The Bottom Line…….. Every permit application we evaluate follows a predictableevaluation process The rigor of the analysis is dependent on the type of resource being impacted, the degree and magnitude of the impact, the extent of the overall project that is subject to Federal control, and the extent of the effects to the public interest It is our job to objectively evaluate the application and determine if the activitycomplies with the Section 404(b)(1) guidelines and is not contrary to the public interest

10. Section 404 Permitting How we conduct our evaluations Our permit evaluation process has three primary components: a NEPA evaluation, public interest determination, and a Section 404(b)(1) compliance determination NEPA is a procedural requirement, the public interest review and Section 404(b)(1) compliance determination are substantive

11. Section 404 Permitting Public Interest Review NEPA Evaluation Section 404(b)(1) Guidelines Combined Decision Document Permit Decision

12. Section 404 Permitting General Permits Developed for similaractivitiesthat individually and cumulatively have minimal effects GPs include nationwide permits and regional general permits Use of GPs provides for efficient and effective decision making Letters of Permission An individual permit evaluated consistent with abbreviated processing procedures established by the district for impacts that are not controversial but do not comply with any available GP Standard Individual Permits An individual permit with public comment opportunity and project-specific evaluation including Guidelines analysis, NEPA documentation and public interest review

13. RGP-002-MN • Recognized Need • Increase in potentially regulated activities on agricultural lands • Increased workload associated with regulated activities on agricultural lands • Trailing NRCS and state processes, resulting in time delays for producers • Timeframes associated with proposed work • Complexities associated with jurisdictional determinations/resource evaluations on agricultural lands

14. RGP-002-MN • Issued in August 2013 and expires in August 2018. • Provides a predictable permit review time frame for activities that have been determined to have individually and cumulatively minimal effects on the environment. • To extent possible, aligns with NRCS and state Wetland Conservation Act programs • Gives MN producers a permit process similar to neighboring states, which have access to Nationwide Permit 40

15. RGP-002-MN • Three primary categories of activities covered • Linear tile and culvert installation projects • Farmed wetland drainage projects • Installation of non-perforated drain tile in wetlands • Structured to mimic the process in the nationwide permits • Relies on a well-established process used across the country • Corps must request more info within 30 days of application, and make a decision within 45 days from receipt of a complete application

16. Clean Water Act Exemptions • Section 404(f)(1)(A) of the CWA exempts certain agricultural activities from the permitting requirements of the Clean Water Act. • 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.”

17. Interpretive Rule • On April 21, 2014, the U.S. EPA and Army Civil Works published in the Federal Register an interpretive rule • This interpretive rule clarifies the permitting exemption provided under section 404(f)(1)(A) of the CWA to discharges of dredged or fill material associated with certain agricultural conservation practices based on Natural Resources Conservation Service conservation practice standards designed and implemented to protect and enhance water quality. • The IR became effective on April 3, 2014

18. Interpretive Rule • The interpretive rule clarifies that 56 specific NRCS agricultural conservation practices are considered “normal farming” activities and are exempt from permitting under 404(f)(1)(A). • To qualify for this exemption, the activities must be part of an “established (i.e., ongoing) farming, silviculture or ranching operation” and the activities must be implemented in conformance with NRCS technical conservation practice standards.

19. Interpretive Rule • Landowners do not need to determine whether discharges associated with these conservation practices are in waters of the United States and they do not need to obtain site-specific pre-approval from either the Corps or the EPA before implementation of these specified agricultural conservation practices. • CWA section 404(f)(2) is not affected by the interpretive rule and continues to apply. • The EPA, the Corps, and the USDA also have entered into a Memorandum of Understanding (MOU) to guide future coordination on the exemption.

20. Interpretive Rule • The interpretive rule was first published in the Federal Register on April 21, 2014 • Comments were requested by June 5th • The comment period was re-opened on June 10th • Comments are being accepted on the interpretive rule until July 7th • Docket ID No. for submitting comments: EPA-HQ-OW-2013-0820

21. Clean Water Act Exemptions Specific Conservation Practices Listed as Exempt under 404(f)(1)(A) (http://water.epa.gov/lawsregs/guidance/wetlands/CWAwaters.cfm)

22. Clean Water Act Exemptions

23. Clean Water Act Exemptions

24. Clean Water Act Exemptions

25. Clean Water Act Exemptions

26. Clean Water Act Exemptions

27. Clean Water Act Exemptions

28. Corps Points of Contact

29. Points of Contact Corps Project Managers currently are assigned by geographic area.

30. Points of Contact

31. Questions?