CWA Section 404 "Dredge and Fill" Regulations and Exemptions for Agriculture
As a wrap-up to our ag water focused webinar series during the winter of 2022, Colorado Cattlemen's Ag Water NetWORK created a series of short videos focused on Section 404 “dredge and fill” exemptions and permits for agriculture. The videos were created from a recent recorded presentation given by Tucker Feyder, Project Manager, U.S. Army Corps of Engineers, Grand Junction, CO office.
The short videos focus on non-regulated activities, specific exemptions for agricultural irrigation and farming practices, and the new Regional General Permit #5, which was created to cover jurisdictional ditch lining and piping, and other related activities.
Descriptions and links to the videos are bulleted below. Colorado Association of Conservation Districts and the Natural Resources Conservation Service also sponsored the videos.
This video covers non-regulated activities under Section 404 and what thresholds have to be met to trigger a 404 permit requirement. Other topics covered include the differences between wetland delineation versus wetland determination.
In July, 2020, the US EPA and US Army Corps of Engineers issued a memorandum indicating that when a jurisdictional irrigation ditch is lined, converted to a pipe, relocated or reconstructed, it triggers the "recapture provision" and a 404 permit is required. Regional General Permit #5 was created to accommodate ditch to pipe conversions in Colorado. If the project involves a government agency such as NRCS, typically no pre-construction notification is required.
Section 404(f) of the Clean Water Act provides exemptions for common agricultural practices. Exempt activities include common farming practices, as well as the construction and maintenance of stock ponds, farm and forest roads and irrigation ditches including appurtenant and functionally related features such as diversion dams, flumes, weirs, headgates, wingwalls, etc. The big exception to the exemption is the ditch lining, piping or relocating requirement for jurisdictional ditches. Speaker Tucker Feyder also explains the “recapture provision,” which triggers a 404 permit requirement.
This is the full presentation, edited for length. It provides additional details on Section 404 of the Clean Water Act (CWA) and contains both regulations and exemptions for agriculture. Also covered are the jurisdictional boundaries of Section 404, and the exemptions for farming, ranching and agricultural irrigation activities. The types of national permits relevant to agriculture irrigation in Colorado - including NWP #3 and #13 are also covered – along with Regional General Permit #5.
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