There are several permit exemptions under the Clean Water Act for certain activities that involve the discharge of dredged or fill material into waters of the U.S. In order to qualify for the exemptions listed below the following two criteria must first be met: (1) The discharge of dredged or fill material must not contain any toxic pollutant listed under Section 307 of the CWA, (2) The discharged material must not be part of an activity whose purpose is to convert an area of waters of the U.S. into a use to which it was not previously subject, where the flow or circulation of waters of the United States may be impaired or the reach of such waters reduced. Where the proposed discharge will result in significant discernible alterations to flow or circulation, the presumption is that flow or circulation may be impaired by such alteration. If these two criteria are not met, then the project is not eligible for an exemption and a Section 404 permit will be required.
To avoid a potential violation, please contact your local USACE Office to help you determine if your project is exempt before you perform any work. If we determine that your project is exempt, we will provide you written documentation verifying that the work is exempt. Certain exemptions have specific criteria and require best management practices that must be followed. The following is a list summarizing the exemptions available under the Clean Water Act (33 CFR 323.4.):
- Normal farming, silviculture, and ranching activities such as plowing, seeding, cultivating, minor drainage, and harvesting.
- Maintenance or emergency repair of a currently serviceable structure such as dams, riprap, abutments, and levees. The original design may not be changed.
- Maintenance or construction of stock ponds or irrigation ditches. Maintenance (not construction) of drainage ditches. Discharges associated with irrigation facilities are included.
- Construction of temporary sedimentation basins at construction sites if fill material is not placed in waters of the United States.
- Activities for which a state has an approved program under Section 208 of the Clean Water Act for non-point pollution sources.
- Construction or maintenance of farm roads, forest roads, or temporary mining roads. Best management practices must be followed to reduce flow pattern impairment and aquatic impacts (see 33 CFR 323.4 for more information).
*Please note that these exemptions only apply to certain activities occurring in waters of the U.S. under the Clean Water Act. If your construction work will occur within a Section 10 Navigable Water, then you will still need a Section 10 permit authorization under the Rivers and Harbors Act of 1899. The Rivers and Harbors Act is a separate law and does not have any exemptions.