(xiii) The discharge shall not occur in a component of the National Wild and Scenic River System; (xiv) The discharge of material shall consist of suitable material free from toxic pollutants in toxic amounts; and (xv) All temporary fills shall be removed in their entirety and the area restored to its original elevation. (d) For purpose of paragraph (c)(1) of this section, cultivating, harvesting, minor drainage, plowing, and seeding are defined as follows: (1) Cultivating means physical methods of soil treatment employed within established farming, ranching and silviculture lands on farm, ranch, or forest crops to aid and improve their growth, quality, or yield. (2) Harvesting means physical measures employed directly upon farm, forest, or ranch crops within established agricultural and silvicultural lands to bring about their removal from farm, forest, or ranch land, but does not include the construction of farm, forest, or ranch roads. (3)(i) Minor drainage means: (A) The discharge of dredged or fill material incidental to connecting upland drainage facilities to waters of the United States, adequate to effect the removal of excess soil moisture from upland croplands. Construction and maintenance of upland (dryland) facilities, such as ditching and tiling, incidental to the planting, cultivating, protecting, or harvesting of crops, involve no discharge of dredged or fill material into waters of the United States, and as such never require a section 404 permit; (B) The discharge of dredged or fill material for the purpose of installing ditching or other water control facilities incidental to planting, cultivating, protecting, or harvesting of rice, cranberries or other wetland crop species, where these activities and the discharge occur in waters of the United States which are in established use for such agricultural and silvicultural wetland crop production; (C) The discharge of dredged or fill material for the purpose of manipulating the water levels of, or regulating the flow or distribution of water with- NOTE: The provisions of paragraphs (d)(3)(i) (B) and (C) of this section apply to areas that are in established use exclusively for wetland crop production as well as areas in established use for conventional wetland/nonwetland crop rotation (e.g., the rotations of rice and soybeans) where such rotation results in the cyclical or intermittent temporary dewatering of such areas. (D) The discharge of dredged or fill material incidental to the emergency removal of sandbars, gravel bars, or other similar blockages which are formed during flood flows or other events, where such blockages close or constrict previously existing drainageways and, if not promptly removed, would result in damage to or loss of existing crops or would impair or prevent the plowing, seeding, harvesting or cultivating of crops on land in established use for crop production. Such removal does not include enlarging or extending the dimensions of, or changing the botthe affected of, elevations drainageway as it existed prior to the formation of the blockage. Removal must be accomplished within one year after such blockages are discovered in order to be eligible for exemption. tom (ii) Minor drainage in waters of the United States is limited to drainage within areas that are part of an established farming or silviculture operation. It does not include drainage as sociated with the immediate or gradual conversion of a wetland to a non-wetland (e.g., wetland species to upland species not typically adequate to life in saturated soil conditions), or conver sion from one wetland use to another (for example, silviculture to farming). In addition, minor drainage does not include the construction of any canal, ditch, dike or other waterway or structure which drains or otherwise significantly modifies a stream, lake, swamp, bog or any other wetland or aquatic area constituting waters of the United States. Any discharge of dredged or fill material into the waters of the United States incidental to the construction of any such structure or waterway requires a permit. (4) Plowing means all forms of primary tillage, including moldboard, chisel, or wide-blade plowing, discing, harrowing, and similar physical means used on farm, forest or ranch land for the breaking up, cutting, turning over, or stirring of soil to prepare it for the planting of crops. Plowing does not include the redistribution of soil, rock, sand, or other surficial materials in a manner which changes any area of the waters of the United States to dryland. For example, the redistribution of surface materials by blading, grading, or = other means to fill in wetland areas is not plowing. Rock crushing activities which result in the loss of natural drainage characteristics, the reduction of water storage and recharge capabilities, or the overburden of natural water filtration capacities do not constitute plowing. Plowing, as described above, will never involve a discharge of dredged or fill material. (5) Seeding means the sowing of seed and placement of seedlings to produce farm, ranch, or forest crops and includes the placement of soil beds for seeds or seedlings on established farm and forest lands. (e) Federal projects which qualify under the criteria contained in section 404(r) of the Act are exempt from section 404 permit requirements, but may be subject to other State or Federal requirements. Subpart G-Eligible Indian Tribes 233.60 Requirements for eligibility. 233.61 Determination of Tribal eligibility. 233.62 Procedure for processing an Indian Tribe's application. Subpart H-Approved State Programs 233.70 Michigan. 233.71 New Jersey. AUTHORITY: 33 U.S.C. 1251 et seq. SOURCE: 53 FR 20776, June 1, 1988, unless otherwise noted. Subpart A-General § 233.1 Purpose and scope. (a) This part specifies the procedures EPA will follow, and the criteria EPA will apply, in approving, reviewing, and withdrawing approval of State programs under section 404 of the Act. (b) Except as provided in §232.3, a State program must regulate all discharges of dredged or fill material into waters regulated by the State under section 404(g)-(1). Partial State programs are not approvable under section 404. A State's decision not to assume existing Corps' general permits does not constitute a partial program. The discharges previously authorized by general permit will be regulated by State individual permits. However, in many cases, States other than Indian Tribes will lack authority to regulate activities on Indian lands. This lack of authority does not impair that State's ability to obtain full program approval in accordance with this part, i.e., inability of a State which is not an Indian Tribe to regulate activities on Indian lands does not constitute a partial program. The Secretary of the Army acting through the Corps of Engineers will continue to administer the program on Indian lands if a State which is not an Indian Tribe does not seek and have authority to regulate activities on Indian lands. (c) Nothing in this part precludes a State from adopting or enforcing requirements which are more stringent or from operating a program with greater scope, than required under this part. Where an approved State program has a greater scope than required by Federal law, the additional coverage is not part of the Federally approved program and is not subject to Federal oversight or enforcement. NOTE: State assumption of the section 404 program is limited to certain waters, as provided in section 404(g)(1). The Federal program operated by the Corps of Engineers continues to apply to the remaining waters in the State even after program approval. However, this does not restrict States from regulating discharges of dredged or fill material into those waters over which the Secretary retains section 404 jurisdiction. (d) Any approved State Program shall, at all times, be conducted in accordance with the requirements of the Act and of this part. While States may impose more stringent requirements, they may not impose any less stringent requirements for any purpose. [53 FR 20776, June 1, 1988, as amended at 58 FR 8183, Feb. 11, 1993] §233.2 Definitions. The definitions in parts 230 and 232 as well as the following definitions apply to this part. Act means the Clean Water Act (33 U.S.C. 1251 et seq.). Corps means the U.S. Army Corps of Engineers. Federal Indian reservation means all land within the limits of any Indian reservation under the jurisdiction of the United States Government, notwithstanding the issuance of any patent, and including rights-of-way running through the reservation. FWS means the U.S. Fish and Wildlife Service. Indian Tribe means any Indian Tribe, band, group, or community recognized by the Secretary of the Interior and exercising governmental authority over a Federal Indian reservation. Interstate agency means an agency of two or more States established by or under an agreement or compact ap proved by the Congress, or any other agency of two or more States having substantial powers or duties pertaining to the control of pollution. NMFS means the National Marine Fisheries Service. State means any of the 50 States, the District of Columbia, Guam, the Com monwealth of Puerto Rico, the Virgin Islands, American Samoa, the Commonwealth of the Northern Mariana Is lands, the Trust Territory of the Pacific Islands, or an Indian Tribe, as defined in this part, which meet the requirements of $233.60. For purposes of this part, the word State also includes any interstate agency requesting program approval or administering an approved program. State Director (Director) means the chief administrative officer of any State or interstate agency operating an approved program, or the delegated representative of the Director. If responsibility is divided among two of more State or interstate agencies, Director means the chief administrative officer of the State or interstate agency authorized to perform the particular procedure or function to which ref erence is made. State 404 program or State program means a State program which has been approved by EPA under section 404 of the Act to regulate the discharge of dredged or fill material into certain waters as defined in § 232.2(p). [53 FR 20776, June 1, 1988, as amended at 58 FR 8183, Feb. 11, 1993] §233.3 Confidentiality of information. (a) Any information submitted to EPA pursuant to these regulations may be claimed as confidential by the I submitter at the time of submittal and E a final determination as to that claim I will be made in accordance with the procedures of 40 CFR part 2 and paragraph (c) of this section. (b) Any information submitted to the Director may be claimed as confidenEtial in accordance with State law, subject to paragraphs (a) and (c) of this section. (c) Claims of confidentiality for the following information will be denied: (1) The name and address of any permit applicant or permittee, (2) Effluent data, (3) Permit application, and (4) Issued permit. $233.4 Conflict of interest. Any public officer or employee who has a direct personal or pecuniary interest in any matter that is subject to decision by the agency shall make known such interest in the official records of the agency and shall refrain from participating in any manner in such decision. Subpart B-Program Approval $233.10 Elements of a program submission. Any State that seeks to administer a 04 program under this part shall subnit to the Regional Administrator at east three copies of the following: (a) A letter from the Governor of the tate requesting program approval. (b) A complete program description, s set forth in § 233.11. (c) An Attorney General's statement, s set forth in § 233.12. (d) A Memorandum of Agreement with the Regional Administrator, as et forth in §233.13. (e) A Memorandum of Agreement vith the Secretary, as set forth in 233.14. (f) Copies of all applicable State statutes and regulations, including those governing applicable State administrative procedures. § 233.11 Program description. The program description as required under § 233.10 shall include: (a) A description of the scope and structure of the State's program. The description should include extent of State's jurisdiction, scope of activities regulated, anticipated coordination, scope of permit exemptions if any, and permit review criteria; (b) A description of the State's permitting, administrative, judicial review, and other applicable procedures; (c) A description of the basic organization and structure of the State agency (agencies) which will have responsibility for administering the program. If more than one State agency is responsible for the administration of the program, the description shall address the responsibilities of each agency and how the agencies intend to coordinate administration and evaluation of the program; (d) A description of the funding and manpower which will be available for program administration; (e) An estimate of the anticipated workload, e.g., number of discharges. (f) Copies of permit application forms, permit forms, and reporting forms; (g) A description of the State's compliance evaluation and enforcement programs, including a description of how the State will coordinate its enforcement strategy with that of the Corps and EPA; (h) A description of the waters of the United States within a State over which the State assumes jurisdiction under the approved program; a description of the waters of the United States within a State over which the Secretary retains jurisdiction subsequent to program approval; and a comparison of the State and Federal definitions of wetlands. NOTE: States should obtain from the Secretary an identification of those waters of the U.S. within the State over which the Corps retains authority under section 404(g) of the Act. (i) A description of the specific best management practices proposed to be used to satisfy the exemption provisions of section 404(f)(1)(E) of the Act for construction or maintenance of farm roads, forest roads, or temporary roads for moving mining equipment. § 233.12 Attorney General's statement. (a) Any State that seeks to administer a program under this part shall submit a statement from the State Attorney General (or the attorney for those State or interstate agencies which have independence legal counsel), that the laws and regulations of the State, or an interstate compact, provide adequate authority to carry out the program and meet the applicable requirements of this part. This statement shall cite specific statutes and administrative regulations which are lawfully adopted at the time the statement is signed and which shall be fully effective by the time the program is approved, and, where appropriate, judicial decisions which demonstrate adequate authority. The attorney signing the statement required by this section must have authority to represent the State agency in court on all matters pertaining to the State program. (b) If a State seeks approval of a program covering activities on Indian lands, the statement shall contain an analysis of the State's authority over such activities. (c) The State Attorney General's statement shall contain a legal analysis of the effect of State law regarding the prohibition on taking private property without just compensation on the successful implementation of the State's program. (d) In those States where more than one agency has responsibility for administering the State program, the statement must include certification that each agency has full authority to administer the program within its category of jurisdiction and that the State, as a whole, has full authority to administer a complete State section 404 program. § 233.13 Memorandum of Agreement with Regional Administrator. (a) Any State that seeks to administer a program under this part shall submit a Memorandum of Agreement executed by the Director and the Regional Administrator. The Memorandum of Agreement shall become effective upon approval of the State program. When more than one agency within a State has responsibility for administering the State program, Directors of each of the responsible State agencies shall be parties to the Memorandum of Agreement. (b) The Memorandum of Agreement shall set out the State and Federal responsibilities for program administration and enforcement. These shall include, but not be limited to: (1) Provisions specifying classes and categories of permit applications for which EPA will waive Federal review (as specified in § 233.51). (2) Provisions specifying the frequency and content of reports, documents and other information which the State may be required to submit to EPA in addition to the annual report, as well as a provision establishing the submission date for the annual report. The State shall also allow EPA routinely to review State records, reports and files relevant to the administration and enforcement of the approved program. (3) Provisions addressing EPA and State roles and coordination with re spect to compliance monitoring and enforcement activities. (4) Provisions addressing modifica tion of the Memorandum of Agreement. § 233.14 Memorandum of Agreement with the Secretary. (a) Before a State program is approved under this part, the Director shall enter into a Memorandum of Agreement with the Secretary. When more than one agency within a State has responsibility for administering the State program, Directors of each of the responsible agencies shall be par ties of the Memorandum of Agreement. (b) The Memorandum of Agreement shall include: (1) A description of waters of the United States within the State over I which the Secretary retains jurisdiction, as identified by the Secretary. (2) Procedures whereby the Secretary will, upon program approval, transfer to the State pending 404 permit appli |