For more than 40 years the nation has used section 404 of the Clean Water Act (CWA) as the federal regulatory program to protect wetlands. However, the relationship between the statute and agriculture is perhaps more uncertain than at any time in the past. As a result, there is an enhanced potential for federal scrutiny and potentially enforcement of activities the farmer perceives as normal business. Further, a general understanding of the CWA is becoming another of the myriad of skills that a successful farmer or rancher and their attorneys must have access to. This presentation will address the history of the CWA regulatory methods as well as practical aspects of how to navigate the CWA wetlands regulatory program. It will also provide an update of the current status of 404(f) and the federal courts, including the recent United States Supreme Court decision in Hawkes v. United States Army Corps of Engineers and the WOTUS final rule.
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