Agricultural conservation practices designed and implemented to protect and enhance water quality are exempt from permitting under Clean Water Act (CWA) Section 404, according to an interpretive rule jointly issued by the EPA and the U.S. Army Corps of Engineers (Corps).  The agencies have also issued a memorandum of understanding (MOU) to guide future coordination on the exemption. 

According to the rule and MOU, the specific activities contemplated for exemption are those that have been identified by the Natural Resources Conservation Service (NRCS), a division of the U.S. Department of Agriculture that provides a range of services to assist farmers undertaking practices that both conserve land and water and improve productivity. 

Ongoing normal farming

Section 404 regulates discharges of dredged and/or fill material into waters of the United States; Section 404(f)(1) includes a list of activities that are exempt from regulation.  The exemption applies to discharges of dredged and/or fill material from “established (i.e., ongoing) and 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.  The interpretive rule clarifies that certain NRCS conservation practices that are designed and implemented to protect and enhance water quality are included under “normal farming, silviculture, and ranching activities.”

The MOU notes that “normal farming” necessarily includes conservation and protection of soil, water, and related resources to sustain agricultural productivity, along with other benefits to environmental quality and continued economic development.  “‘Upland soil and water conservation practices’ are explicitly identified in the statute as ‘normal’ farming activities,” state the agencies in the MOU, “and conservation practices within the waters of the U.S. that include discharges in waters of the U.S. and that are designed to protect and enhance the waters of the U.S. have been determined to be of essentially the same character.”

NRCS technical standards

In addition to being ongoing normal farming, silviculture, and ranching activities, the activities must also be implemented in conformance with NRCS’s technical standards.  According to the MOU, if these conditions are met, 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 preapproval from either the Corps or the EPA necessary before implementing the specified agricultural conservation practices.

The agencies provide a list of 56 NRCS conservation practices that are exempt from Section 404 permitting.  These include brush management, prescribed burning, land clearing, mulching, obstruction removal, and wetland restoration and enhancement. 

The interpretative rule, MOU, and list of exempt NRCS conservation practices