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Land Use

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Agricultural operations sometimes involve activities that are regulated by laws designed to protect water supplies, threatened or endangered plants and animals, or wetland areas. Click on the topics below for information about land use restrictions and incentive programs that could affect your business.

Dredge and Fill Activities

Section 404 of the Clean Water Act establishes a permit program to regulate the discharge of dredged or fill material into the waters of the U.S., including wetlands. Clean Water Act Section 404(f) exempts from regulation discharges associated with certain specified activities, provided the discharges do not convert an area of waters of the U.S. to a new use, and do not impair the flow or circulation of waters of the U.S. or reduce the reach of waters of the U.S. For example, a permit generally is not needed for discharges of dredged or fill material associated with normal farming, ranching, and forestry activities, such as plowing, cultivating, minor drainage, and harvesting for the production of food, fiber, and forest products or upland soil and water conservation practices. This exemption pertains to normal farming and harvesting activities that are part of established, ongoing farming or forestry operations.

Activities Exempt under the Clean Water Act, Section 404(f):
Established (ongoing) farming, ranching, and forestry activities, such as:

Activities Not Exempt:
If an activity involving a discharge of dredged or fill material represents a new use of the wetland, and the activity would result in a reduction in reach or impairment of flow or circulation of regulated waters, including wetlands, the activity is not exempt. Both conditions must be met in order for the activity to be considered non-exempt. In general, any discharge of dredged or fill material associated with an activity that results in the destruction of the wetlands character of an area (e.g., converts a wetland to upland due to new or expanded drainage) is considered a change in the waters of the U.S., and by definition, a reduction in reach and is not exempt; however, discharges that are not exempt are not necessarily prohibited. Non-exempted discharges must first be authorized either through a general or individual Section 404 permit before they are initiated. Examples:

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For regulatory purposes under the Clean Water Act, the term wetlands means "those 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. Wetlands generally include swamps, marshes, bogs, and similar areas." Wetlands vary widely because of regional and local differences in soils, topography, climate, hydrology, water chemistry, vegetation, and other factors, including human disturbance. Indeed, wetlands are found from the tundra to the tropics and on every continent except Antarctica.

Farmers who own or manage wetlands are directly affected by two important federal programs: 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 most wetlands; and the Swampbuster provisions of the Food Security Act, 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.

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:

Agricultural establishments and other agribusinesses should check with the local Corps office if they have questions regarding whether ongoing or planned activities in wetlands are regulated under the Clean Water Act Section 404 program. They should also check with the Natural Resource Conservation Service (NRCS) before clearing, draining, or manipulating any wet areas to make sure their eligibility for farm benefits is maintained.

Related publications from the Ag Center

Related environmental requirements
Wetlands Regulatory Authority Fact Sheet (PDF) (2 pp, 687K)
Clean Water Act 404 -- Text
40 CFR Parts 230-233 (PDF) (40 pp, 109K)
Clean Water Act Section 404 Regulations
Policy and Technical Guidance Documents
Executive Orders

More information from EPA
Wetlands Fact Sheets
State and Tribal Wetland Program Plans
National Management Measures To Protect and Restore Wetlands and Riparian Areas for the Abatement of Nonpoint Source Pollution
Section 404 and Swampbuster: Wetlands on Agricultural Lands

More information from USDA
USDA NRCS - Wetland Conservation Provisions (Swampbuster)

Wetlands Compensatory Mitigation
Final Compensatory Mitigation Rule - Issued March 31, 2008
Compensatory Mitigation - updates and background information regarding Clean Water Act Section 404 Compensatory Mitigation Requirements.
National Wetlands Mitigation Action Plan - a list of 17 tasks that the partner agencies will complete by the end of 2005 to improve the ecological performance and results of compensatory mitigation. As of February 2006, nine of the 17 tasks are complete. Four of the remaining eight tasks are drafted and are currently under review.

Telephone assistance from EPA
Wetlands Hotline is 1-800-832-7828

More information from the states Exit EPA
Wetlands Information Resource Locator - state agencies responsible for wetlands protection, an overview of the state rules, and links to wetlands regulations and compliance resources
A Farmer's Guide To Agriculture and Water Quality Issues - Wetlands and Riparian Protection - an educational resource for agricultural producers and agricultural service professionals
Montana State University - Stream Channel & Riparian Area Monitoring Guide (PDF) (6 pp, 222K) - a monitoring guide that includes a table of stream channel characteristics, monitoring instructions, supplies for monitoring, and how to interpret monitoring data

Success Stories
National Wetlands Awards Exit EPA

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