Wetlands and Agriculture:
Section 404 of the Clean Water Act
and
Swampbuster in the Food Security Act
What are wetlands?
Wetlands are areas that are inundated or saturated by surface or ground water 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.
Agricultural lands
are lands intensively used and managed for the
production of food or fiber to the extent that the natural vegetation has been removed and
cannot be used to determine whether the area meets applicable hydrophytic vegetation
criteria in making a wetland delineation. Areas that meet this definition may include
intensively used and managed cropland, hayland, pasture land, orchards, vineyards, and
areas which support wetland crops (eg., cranberries, taro, watercress, rice). Agricultural
lands do not include range lands, forest lands, wood lots, or tree farms.
What is the Swampbuster provision?
The Wetland Conservation provision (Swampbuster) of the 1985 and 1990 farm bills requires
all agricultural producers to protect the wetlands on the farms they own or operate if
they want to be eligible for USDA farm program benefits. Producers will not be eligible if
they plant an agricultural commodity on a converted wetland that was converted by
drainage, leveling, or any other means after December 23, 1985, or convert a wetland for
the purpose of or to make agricultural commodity production possible after November 28,
1990.
What does Section 404 require?
Section 404 of the Clean Water Act (CWA) requires a landowner to obtain a permit from the
US Army Corps of Engineers (Corps) prior to beginning any non-exempt activity involving
the placement of dredged or fill material in waters of the e United States, including
wetlands. Certain ongoing, normal farming practices in wetlands are exempt and do not
require a permit (see list of exempted activities). In order to be exempt, the activities
cannot be associated with bringing a wetland into agricultural production or converting an
agricultural wetland to a non-wetland area.
Types of Section 404 Permits Issued by the Corps
Individual permits are issued to a single entity (individuals or
companies) to authorize specific activities. Once a complete permit application is
received by the Corps, a public notice is issued which describes the proposed project. The
Corps evaluates all comments received and makes a final permit decision.
General permits are issued to the public-at-large to authorize
specific activities that have minimal environmental impacts such as bank stabilization
activities or construction of farm buildings. A general permit can be issued on a State,
regional, or nationwide basis. Activities authorized by a general permit require less
review than an individual permit would require.
How does the Swampbuster program relate to CWA Section 404?
Generally, areas subject to regulation under Swampbuster and CWA Section 404 are the same,
but there are differences. Some activities that are exempted under Swampbuster may require
a CWA Section 404 permit while some Section 404 permitted activities may be subject to
Swampbuster. Before beginning any activity affecting a wetland, contact your local Corps
district or NRCS office.
What is prior converted cropland?
Prior converted croplands (PC) are wetlands that were drained, dredged, filled, leveled,
or otherwise manipulated, including the removal of woody vegetation, before December 23,
1985, to make production of an agricultural commodity possible, and that (1) do not meet
specific hydrologic criteria, (2) have had an agricultural commodity planted or produced
at least once prior to December 23, 1985, and (3) have not since been abandoned.
Activities in prior converted cropland are not regulated under Swampbuster or CWA Section
404.
What happens if I don't farm my prior converted cropland and wetland conditions
return?
If prior converted cropland is not planted to an agricultural commodity for more than five
consecutive years and wetland characteristics return, the cropland is considered abandoned
and then becomes a wetland subject to regulation under Swampbuster and CWA Section 404.
What are farmed wetlands?
Farmed wetlands (FW) are similar to prior converted cropland in that they were drained,
dredged, filled, leveled, or otherwise manipulated before December 23, 1985, to make
production of an agricultural commodity possible, but are often wet enough to still be
valuable wetland habitat subject to Swampbuster and CWA Section 404. Farmed wetlands
include potholes, playas, pocosins, and other manipulated and cropped areas that meet
specific hydrologic criteria.
Farming Activities that are Exempt from Section 404
Contact the Corps before undertaking these activities in wetlands and other waters of the
United States to verify applicability of the exemptions.
Questions to Answer Before Starting a New Activity
|
Are you a USDA program participant?
(USDA program participants are required to document their intent to
manipulate wet areas on Form AD-1026 at the local USDA Consolidated Farm Service Agency
office.) |
YES
Do you have a "certified wetland determination"? |
NO
Is the activity you plan on agricultural land? |
| YES |
NO |
YES |
NO
Contact the Corps of Engineers for a wetland delineation |
| |
Contact NRCS for a wetland delineation; then |
|
| Is the area prior converted cropland (PC) or non-wetland (NW)? |
YES
No 404 permit required - verify that the planned activity will maintain your USDA program
eligibility. |
NO
Is the activity exempt from the permit requirement under CWA 404(f)? Most normal farming
activities are exempt. |
| |
YES
No 404 permit required - verify with the Corps of Engineers. Consult with NRCS to assure
compliance with Swampbuster. |
NO
Section 404 permit required; consult with the Corps of Engineers as to whether a general
or individual permit applies. Consult with NRCS to assure compliance with Swampbuster. |
