CLEAN WATER ACT
The Clean Water Act of 1972 was the first federal legislation to address pollution caused by stormwater runoff from the landscape. Over half of the pollution in this nation's water bodies is caused by agriculture, forestry, mining, urban and construction activities (nonpoint source pollution). The Act also identified the need to protect wetlands from unwarranted human disturbance.
Two sections of the Clean Water Act establishing the legal framework for nonpoint source pollution control are Section 208 and Section 404. Section 208 required all states to assess damages to water quality from nonpoint source pollution and to develop either regulatory or non-regulatory programs to control them. The state's Section 208 program must meet U.S. Environmental Protection Agency's (EPA) approval. The lead agency for developing these programs in South Carolina is the Department of Health and Environmental Control (DHEC). Section 404 established a regulatory program for the disposal of dredged or fill material in the waters or wetlands of the United States. Section 404 is regulated by the U.S. Army Corps of Engineers, with oversight by EPA.
In establishing non-regulatory nonpoint source pollution programs as required under Section 208, states were required to develop Best Management Practices (BMPs) for the major land uses, as well as an implementation schedule. The South Carolina Forestry Commission was assigned the responsibility of developing the forestry portion of the Section 208 Plan.
The Water Quality Act of 1987 reemphasized the control of nonpoint source pollution. Section 319 of this act required states to identify waterbodies in which their Section 208 Plan and programs were unsuccessful in controlling these pollutants. State's plans were required to identify and categorize sources of these pollutants and to describe regulatory or non-regulatory control methods.
South Carolina passed the Pollution Control Act which defines pollution in its broadest sense. This could allow regulation of forestry activities for water quality violations based on sediment, organic, toxic chemicals, pesticides, or thermal pollution. DHEC can take enforcement action against forestry operations in South Carolina for degrading water quality through improper harvesting activities.
As mentioned earlier, Section 404 of the Clean Water Act established a regulatory program for the disposal of dredged or fill materials in the waters and wetlands of the United States. This section is regulated by the U.S. Army Corps of Engineers with EPA oversight. Much debate and litigation has occurred over what constitutes "waters and wetlands of the United States". The following definition is used to administer the Section 404 permit program:
"...those areas that are inundated or saturated by surface or groundwater at a frequency and duration sufficient to support, and that under normal circumstances do support, a prevalence of vegetation typically adapted for life in saturated soil conditions. Wetlands generally include swamps, marshes, bogs, and similar areas."
Under Section 404, an exemption exists for silvicultural (i.e. timber management), farming or ranching activities. In order to meet the silvicultural exemption, the activity must be a normal, ongoing silvicultural activity that will not convert a wetlands to an upland site. The activity must also comply with best management practices guidelines for forested wetlands. A written management plan or evidence of historical use will help to demonstrate if it is an ongoing activity.
The EPA has a very narrow definition of normal silviculture. EPA and the U.S. Army Corps of Engineers consider only timber management as silviculture. If the activity is for wildlife management, recreation, etc., it will not qualify under this exemption.
Landowners who wish to implement practices in jurisdictional wetlands that are not for timber management, need to contact the U.S. Army Corps of Engineers to see if a permit may be required. Even if the practice is for timber management and it is going to impact a jurisdictional wetlands, it MUST be performed in compliance with best management practices to remain exempt.
Non-exempt activities may qualify under U.S. Army Corps of Engineers' nationwide permits. These permits have been established for a number of activities that have minimal impacts on wetlands. Nationwide permits were designed to regulate these activities with little, if any, delay or paperwork. If the activity does not qualify for authorization under a nationwide permit, it may still be authorized by the U.S. Army Corps of Engineers by an individual or regional general permit.