CWA Section 404 and Swampbuster: Wetlands on Agricultural Lands
Farmers who own or manage wetlands are directly affected by two important Federal programs:
(1) Section 404 of the Clean Water Act, which requires individuals to obtain a permit before discharging dredged or fill material into "waters of the United States," including wetlands, and (2) the Wetland Conservation (also known as "Swampbuster") provisions of the Food Security Act (FSA), which withholds certain Federal farm program benefits from farmers who convert or modify wetlands. Together, these two programs have helped to reduce the rate at which wetlands are converted to agriculture and other uses.
Check with your local U.S. Army Corps of Engineers (USACE) district office if you are unsure whether your ongoing or planned activities occurring in wetlands are regulated under the Section 404 program.
Check with the U.S. Department of Agriculture (USDA) Natural Resources Conservation Service (NRCS; formerly the Soil Conservation Service) before clearing, draining, or manipulating any wet areas on your land to make sure you maintain your farm program benefits.
The Federal agencies involved in Section 404 and FSA (EPA, the USACE, and the USDA) are actively seeking to coordinate their activities and to clarify the relationship between the programs. For example, "prior converted cropland" has been excluded from the definition of "waters of the United States," including for Section 404, to be consistent with Swampbuster, and one wetland identification can be used for both the Section 404 program and the Swampbuster program. In addition, EPA, the U.S. Department of the Army, and USDA signed a memorandum in 2022 to minimize duplication of efforts pursuant to the Section 404 program and Swampbuster and to facilitate the agencies’ efforts to ensure that federal wetland programs, including those that identify prior converted cropland, are administered in an efficient and effective manner. Read the 2022 Ag Memo (pdf) .
Section 404 Provisions
Most routine ongoing farming activities do not require Section 404 permits. This is perhaps the most important information for farmers regarding the Section 404 program. Section 404 permitting requirements apply only to discharges of dredged or fill materials into wetlands, streams, rivers, and other types of waters that meet the definition of "waters of the United States." In general, farming activities that do not occur in wetlands or other types of waters that are "waters of the United States" or do not involve dredged or fill material do not require Section 404 permits.
In addition, many normal farming, silviculture, and ranching activities that involve discharges of dredged or fill materials into waters of the United States are exempt from Section 404; that is, they do not require a permit. In order to be exempt, the farming activity must be part of an ongoing farming operation and cannot be associated with bringing a wetland into agricultural production or converting an agricultural wetland to a non-wetland area.
Similar to the Section 404 program, the Swampbuster program generally allows the continuation of most farming practices so long as wetlands are not converted or wetland drainage increased. However, certain activities such as clearing, draining, or otherwise converting a wetland are activities addressed by the Swampbuster program. The program discourages farmers from altering wetlands by withholding Federal farm program benefits from any person who
plants an agricultural commodity on a converted wetland that was converted by drainage, dredging, leveling, or any other means (after December 23, 1985)
converts a wetland for the purpose of or to make agricultural commodity production possible (after November 28, 1990).