Clean Water Act Section 404 and Agriculture
Wetland and water resources are found on many farms. These resources include streams, ponds, bogs, marshes, swamps, and wet meadows, among others. Healthy wetlands provide people with drinking water purification, groundwater recharge, flood control and pollution control, among other benefits.
Under Section 404 of the Clean Water Act, it is unlawful to discharge dredged or fill material into waters of the United States without first receiving authorization from the U.S. Army Corps of Engineers or approved state, unless the discharge is covered under an exemption. A discharge of dredged or fill material involves the physical placement of soil, sand, gravel, dredged material or other such materials into the waters of the United States.
National conservation programs offered by the U.S. Department of Agriculture (USDA) help farmers reduce soil erosion, enhance water supplies, improve water quality, increase wildlife habitat, and reduce damages caused by floods and other natural disasters. These longstanding programs promote water quality and broader environmental goals identified in both the Agriculture Act of 2014 and the Clean Water Act. The agencies believe working together to improve the consistency and integration of these goals promotes the mutual objectives of our regulations and statutes, and increases clarity and predictability for the agriculture community. The result is good for the nation's waters and for farmers and foresters who want to protect the resources on their lands.
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 in wetlands, streams, rivers, and other waters that are waters of the United States. Farming activities do not require Section 404 permits when they do not occur in waters of the United States, including wetlands, or do not involve dredged or fill material.
Many "normal" farming, silviculture, and ranching activities do not require a permit even where they involve discharges of dredged or fill materials into waters of the United States. 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.
Finally, 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.
- 1990 Memorandum to the Field - explains the applicability of the Clean Water Act section 404 program to agriculture and clarifies agricultural exemptions under section 404(f).
- Regulatory Guidance Letter 96-02 (PDF) (4 pp, 128K) - joint Army Corps/EPA RGL on the applicability of exemptions under section 404(f) to "Deep-Ripping" Activities in Wetlands.
- Clean Water Act Section 404(f) Statutory Language
- 2014 Interpretive Rule Regarding the Applicability of Clean Water Act Section 404 (PDF) (3 pp, 619 K)
- Notice of Availability and Public Comment (PDF) (2 pp, 310 K)
- EPA and the Corps accepted public comment until July 7, 2014 on the implementation of the interpretive rule. Public comments are posted on the Docket (EPA-HQ-OW-2013-0820) at regulations.gov.
- Common questions and answers on the interpretive rule (PDF) (4 pp, 93K)
- 2014 Memorandum of Understanding Among the USDA, the EPA, and the Army Concerning Implementation of the 404(f)(1)(A) Exemption for Certain Agricultural Conservation Practice Standards (PDF) (7 pp, 387 K)
- List of NRCS Conservation Practice Standards Considered "Normal" Farming Under Clean Water Act Section 404(f)(1)(A) (PDF) (2 pp, 256 K)
Additional Information about the Clean Water Act and Agriculture
- Exemptions to Permit Requirements under Section 404(f)
- Fact Sheet: How the Proposed Waters of the U.S. Rule Benefits Agriculture (PDF) (2 pp, 289 K)
- Section 404 and Swampbuster: Wetlands on Agricultural Lands
- Clean Water Act and Agriculture webpages
- Nonpoint Source Pollution and Agriculture
- Oil Spills and Agriculture
- Section 402 and Agriculture