The Clean Water Act’s 404(f) Exemptions

The Clean Water Act’s geographic scope has demanded much attention recently, with high profile efforts by EPA to rewrite the prior administration’s regulations defining “navigable waters” and the Supreme Court issuing a decision this January holding that suits challenging this definition must be filed in federal district rather than circuit courts.

The Clean Water Act also presents important questions of operational scope: its operative terms prohibit discharges of pollutants from point sources to navigable waters without a federal permit. However, section 404(f) of the Act lists several categories of actions which are neither prohibited nor require permits from the Army Corps, including normal farming, ranching and forestry practices, maintenance of existing structures, and construction and maintenance of stock ponds and irrigation ditches, along with several others. While the text of the statute indicates broad exemptions for these categories of activities, agency regulations and practice significantly narrow them.

This teleforum examines three recent Clean Water Act enforcement actions involving the scope of the 404(f) exemptions for farming, stock ponds, and maintenance of rip rap bank protection structures.

Featuring:

Peter Prows, Attorney, Briscoe Ivester & Bazel 

Tyler Welti, Attorney, Venable, LLP

Jonathan Wood, Attorney, Pacific Legal Foundation

ModeratorTony Francois, Senior Attorney, Pacific Legal Foundation 

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