Any Corps folks out there that could put a lid on this for me, I would appreciate it.

I am trying to answer this question for a utility that is constructing an over head power line ROW. Is the chipping and deposition of wood/plant debris chips considered fill?

I said No, that that kind of depostion is OK since they are not clearing the plants mechanically. As you often have with forestry operations they leave tons of sticks, limbs and other unmarketable debris scattered everywhere, the chips are Ok, unregulated and no problem. In our state's "critical areas" (salt marshes) its a different story - you cant deposit chips, or even cut vegetation down.

I just want to get clarification that chipping in FW wetlands is OK, in case there is some written rule out there that I haven't read.

Here is the definition(s) I found. I am not a Corp Person, but here is what I work by:

The existing Army definition defines ``fill
material'' as any material used for the primary purpose of replacing an aquatic area with dry land or of changing the bottom elevation of a
water body, and specifically excludes from that definition any material discharged into the water primarily to dispose of waste, as that
activity is regulated under section 402 of the CWA.

I don't see how wood chips would apply.

Don't be too hasty in your assumption that wood chips would not be considered a fill material. A response from a Corps regulator "at large" is not what you want or need. You need to remember that in 1993, the Corps and EPA published a regulation that defined many things as a discharge of dredged or fill material. This was known as the Tulloch Rule. One aspect of that regulation defined excavation as a discharge. Subsequent litigation in the Federal Appeals Court overturned this part of the regulation, but there are other aspects of that rule that were not discussed in the litigation. And without any definitive direction from Washington, you will most likely find that there are at least 38 different interpretations of the term fill material. As I see it, you have two choices. You can develop your own rational that it is not a discharge subject to Section 404 and proceed with the work without asking the Corps. Or you can ask the Corps district what they think and try to get a jurisdictional determination. In some Corps districts you might receive a response that it is not regulated. However, in other Corps districts, this could be a mistake since it may take forever to get an answer that neither you nor the Corps can understand and explain. In an ideal world you should be able to ask a government agency a simple question and get a simple answer. Unfortunately in our modern government, particularly in the environmental programs, reasoned thinking has been replaced by process, and process begets process not answers.

Good Luck!

Under 33 CFR Part 323.2(d)(2)(ii), the term "discharge of dredged material" does not include the following:

"...activities that involve only the cutting or removing of vegetation above the ground (e.g., mowing, rotary cutting, and chainsawing) where the activity neither substantially disturbs the root system nor involves mechanized pushing, dragging, or other similar activities that redeposit excavated soil material..."

As Ed correctly noted, this is not a good question to ask a regulator. Cutting and mowing vegetation is not a discharge of "dredged material" but vegetation may still be classified as "fill material."

Mr. Bonner is right. Getting an approved JD is the way to go. You should also look up the federal register Vol. 67 No. 90, page 31132. Section B.1. Definition of "Fill Material."

Also see 33 CFR Part 323.2(e)(2)

EPA definition (as of 11/2003) -

"Examples of such fill material include, but are not limited to: rock, sand, soil, clay plastics, construction debris, wood chips, overburden from mining or other excavation activities, and materials used to create any structure or infrastructure in the waters of the United States." Same thing as in Mike Burgan's email. See hyperlink...

http://www.usace.army.mil/inet/functions/cw/cecwo/reg/definfil.pdf

In the origninal post, Eric asked:

"I am trying to answer this question for a utility that is constructing an over head power line ROW. Is the chipping and deposition of wood/plant debris chips considered fill?"

Given that the definition of 'waters of the United States' may be very broad depending on adjacency, hydrology, soils, relevant court decisions, etc., is it a good idea to consult with the Corps before proceeding with chipping wood, mowing grass, trimming trees, removing weeds, or otherwise disturbing vegetation, and possibly violating the Clean Water Act?

It is often difficult and time consuming to deal with the Corps. Is there a safe way to legally perform vegetation disturbing activities without first consulting with the Corps?

Being from Michigan I don't have to deal with the Corps as much as others, but I don't think mowing or trimming trees in wetlands are activities regulated by the Corps. At least we've never had the Corps issue a violation for these activities, as long as we don't disturb the soil and remove all of the by-product. Removing weeds might technically be a regulated activity if you disturb the soil.

And to weigh in, though it seems the question has been answered, the Corps considers wood chips to be fill in my neck of the woods.

Here in Minnesota, the interpretation I have received from the Corps is that if you cut brush or trim trees in wetlands, you have to either leave the material where it falls or haul it to upland. If you pile the cuttings up in the wetland, then that is considered fill.

I'm a glutton for getting into this, but here goes. Let's get back to Mr. McClanahan's question: "Is the chipping and deposition of wood/plant debris chips considered fill?"

Part one: Is the chipping of wood/plant debris....considered fill? For my money, the answer here is clearly, "no".

Part two: Is the deposition of wood/plant debris chips considered (404) fill? That depends. If the "primary purpose" of the deposition is that described in the official definition that Wes Rogers cited and the deposition occurs in a waters of the United States, then the answer, it would seem, is, "yes". If the "primary purpose" is something other, say disposal, then the deposition is not "fill" but "waste" and potentially the subject of 402 regulation.

But it's anyone's guess what the Corps will say in any given district on any given day.

Matt Reed said:

"Let's get back to Mr. McClanahan's question: "Is the chipping and deposition of wood/plant debris chips considered fill?"


While the Corps may not routinely regulate the chipping and deposition of plant debris, it does regulate live vegetation (in addition to fill material). In the Corps’ permit process, the status of all vegetation on the subject property is evaluated to determine if endangered and threatened species may be impacted. Non-endangered plant communities may be regulated based on functional values and ecological criteria. The Corps has very detailed and comprehensive technical requirements for mitigation vegetation. Some might argue that the Corp regulates live vegetation more than fill material.

Water is fill.

The following questions were posed by a consultant. The answers were provided by a Corps employee.

1) Since the project appears to involve dredging to prepare a marina, if the dredged material is not placed in waters of the United States, but placed in uplands how will the Corps view this "non-fill" activity?

2) Would only the installation of pilings be viewed as fill?


"At this point, I would look at the project under Section 10 of the Rivers and Harbors Act and well as Section 404 CWA. Essentially, I will assert Section 10 with the xxx River by the fact that the marina will be below the OHW of the the xxx. In regards to Question 2, the pilings themselves will most likely be viewed as structure rather than fill, which would be looked at under Section 10. The marina itself also would be reviewed under Section 10 as potentially affectting navigation on the xxx. In regards to the fill question, the permenant filling of the wetland area with water will be received as a filling activity, along with the pemenant inudation of the stream, as well as any associated feactues such ramps, roads, paths, buildings, and so on that occur within these waters."

So, there you have it. Water is fill.

Mr. Spencer,
We need to find that regulator and make him Chief of the Corps' regulatory program. He obviiously has the ability to simplify what has become an overly complicated issue. Water is fill. And when you think about it he is absolutely correct. You can fill a glass with it; you can fill a hole in the ground with it if you wait long enough. Freeze it and you can build on it, in it, or under it, and you can stack it to change elevations. I like it! And it will certainly keep a lot of regulators and consultants fully employed.

Thank you all for your responses, I had already decided that it is not fill, but I did recommend to the utility that they disperse the chips as much as possible. A JD had been conducted a long time ago, and was not going to be an issue.

The Corps in my area usually overlooks this type of activity. Our state coastal agency wouldn't in state critical areas.

By the way water isn't fill - all uplands are though - unless you can prove that no groundwater exists in that portion of the lithosphere.