69-3-130 - Ditch construction.
69-3-130. Ditch construction.
(a) (1) Ditch construction, the purpose of which is either to:
(A) Restore swamped-out bottomland hardwoods to bottomland hardwoods; or
(B) Restore swamped-out cropland to cropland or to bottomland hardwoods;
is permitted in any waters of this state, under general permit and without requirement of an individual permit; provided, that it is done in accordance with all terms and conditions of this section.
(2) The following conditions apply to all ditch construction conducted under this section:
(A) Written notification to the department shall be made at least thirty (30) days prior to beginning construction, and shall include:
(i) Aerial photographs showing existing conditions, or in the case of land used for pasture, documentation from a state or federal agency establishing prior usage as pasture;
(ii) A simple sketch showing approximate dimensions of the proposed ditch and anticipated affected area; and
(iii) Documentation that the area is either swamped-out hardwoods or swamped-out cropland;
(B) All construction shall be accomplished during periods of dry weather;
(C) Construction shall be by blasting, if feasible, although construction by other means is permissible if blasting is not practicable under the circumstances; and
(D) Construction may commence after thirty (30) days notification to the department unless the commissioner notifies the applicant that:
(i) The documentation regarding the qualification of the property as swamped-out bottomland hardwoods or swamped-out cropland is inadequate;
(ii) The proposed ditch will drain adjacent wetlands beyond the swamped-out cropland or swamped-out bottomland; or
(iii) The department's review of the proposal will require an additional time period not to exceed sixty (60) days.
(b) (1) As used in this subsection (b), ditch maintenance means the physical maintenance of the original, as built, configuration of a ditch, including the removal of sediment, debris or obstruction, the purpose of which is to:
(A) Maintain bottomland hardwoods or cropland;
(B) Restore swamped-out bottomland hardwoods to bottomland hardwoods; or
(C) Restore swamped-out croplands to cropland or to bottomland hardwoods.
(2) Ditch maintenance is permitted under general permit and without requirement of an individual permit in any water of the state under the following conditions:
(A) All construction shall be accomplished during periods of dry weather;
(B) The ditch maintenance activity shall not alter any other waters of the state; and
(C) The ditch maintenance activity shall not result in the extension of the ditch in length, width or depth from its original dimensions.
(c) Ditch construction that is for the purpose of maintaining existing bottomland hardwoods or cropland, and that requires a permit under § 404 of the Federal Clean Water Act is permitted under general permit and without requirement of individual permit in any water of the state under the following conditions:
(1) Written notification to the department shall be made at least thirty (30) days prior to beginning construction, and shall include:
(A) A copy of the § 404 permit; and
(B) A simple sketch showing approximate dimensions of the proposed ditch and anticipated affected area;
(2) All construction shall be accomplished during periods of dry weather;
(3) Construction should be by blasting, if feasible, although construction by other means is permissible if blasting is not practicable under the circumstances; and
(4) Construction may commence after thirty (30) days notification to the department unless the commissioner notifies the applicant that:
(A) The documentation is inadequate;
(B) The proposed ditch will drain adjacent wetlands beyond the affected cropland or bottomland; or
(C) The department's review of the proposed construction will require an additional time period not to exceed sixty (60) days.
(d) If ditch construction or ditch maintenance exceeds the permit specifications, then the owner of the property upon which the ditch is constructed shall be required to restore the ditch to the specifications of the permit. The owner of the property upon which the ditch is constructed shall be required to pay all costs of ditch restoration.
(e) The general permits granted by this section shall not be subject to the durational limit set forth in § 69-3-108.
(f) The establishment of the general permit granted by this section shall not preclude application for individual permit for ditch construction or ditch maintenance in cropland or bottomland hardwoods swamped-out prior to 1970.
(g) This section shall not be construed as requiring a permit for any activity not requiring a permit under the Federal Clean Water Act or the Federal Water Pollution Control Act.
[Acts 1991, ch. 123, § 2.]