mitigation decisions based on its evaluation. It is not appropriate, however, for the Corps to consider indirect impacts that are beyond the action area in its regulatory decisionmaking, where those impacts would have occurred regardless of the Corps decision on the permit (e.g., habitat fragmentation, increases in traffic and noise could be judged as these types of impacts).
- 33 CFR Parts 323, 328, and 329
- Corps determines exemptions (if no special case)
- Exemptions do not allow waters conversions
Not every area that looks like a wetland or other waters of the United States is jurisdictional, and not all activities in jurisdictional waters are subject to regulation. Guidance on jurisdiction is found in the preamble to the 1986 consolidated regulation, 33 CFR Part 328 and in Parts 323.3, 328.3, and 329. Part 329 only addresses Section 10 navigable waters. These regulations provide guidance on jurisdictional determinations, as well as, on areas that are not regulated and on activities that are exempt from regulation. The preamble to 33 CFR Part 328 states that features excavated from uplands are not considered waters of the United States. For example, a drainage ditch excavated in the uplands, and/or located along a roadway, runway, or railroad that only carries water from upland areas, is not considered jurisdictional, even if it supports hydrophytic vegetation. Other common examples of non-jurisdictional areas excavated from uplands include stormwater or other treatment ponds, detention basins, retention ponds, sediment basins, artificial reflecting pools, and golf course ponds. Gravel pits excavated from uplands are not considered jurisdictional, so long as the areas in question have not been abandoned (i.e., the area is under some sort of management plan related to the gravel operation, including use as a water supply or water storage area). Wetlands that form on top of a landfill are not subject to Corps jurisdiction.
Some activities taking place in jurisdictional waters of the United States are exempt from regulation. Definitions of discharges not requiring permits (i.e., exempt activities) are found in 33 CFR 323.4. Many of the exempt activities listed in this section are related to agriculture, forestry, or mining. For example, the list includes normal farming, siliviculture, and ranching activities that include plowing, seeding, cultivating, minor drainage, and harvesting for the production of food, fiber, and forest products. As long as these activities are part of an established farming, silviculture, or ranching operation they are exempt from regulation under