Federal Rules for Building a Pond

The federal permits and reviews that can apply to a pond in any state, and where the law stands after Sackett v. EPA.

Sources checked September 28, 2026
Federal rules at a glance
Section 404 trigger
Corps regulations require a Department of the Army permit to discharge dredged or fill material into waters of the United States unless the discharge is exempt. Building a dam, dike or other impoundment in those waters with rock, sand, dirt or other material generally counts as a discharge of fill material, and the Corps says excavation in those waters that results in more than incidental fallback needs Section 404 authorization unless exempted under Section 404(f). Work outside waters of the United States, or work that involves no discharge, needs no Section 404 permit. [2][21]
Farm and stock ponds
The Clean Water Act exempts discharges of dredged or fill material for the construction or maintenance of farm or stock ponds, but under Corps regulations a permit is still required if the discharge contains a toxic pollutant listed under section 307, or if it is recaptured: part of an activity whose purpose is to convert an area of waters of the United States to a use to which it was not previously subject, where flow or circulation may be impaired or reach reduced. Nationwide Permit 40 (in effect March 15, 2026 to March 15, 2031) can authorize farm ponds that lose the exemption because of recapture if, among other conditions, the pond is in non-tidal waters (excluding perennial streams) and is used solely for agricultural purposes, the discharge causes the loss of no more than 1/2 acre of non-tidal waters of the United States, and a pre-construction notification is submitted to the Corps district engineer before work starts. [1][2][21]
Which WOTUS rule applies
As of EPA's Rule Status page (last updated September 9, 2026), EPA and the Army implement the amended 2023 rule in 24 states, the District of Columbia and the U.S. Territories, and apply the pre-2015 regulatory regime, interpreted consistent with Sackett, in the 26 states covered by two 2023 preliminary injunctions. EPA says its state map is for informational purposes only and cannot be relied on for specific determinations, and directs questions about a pending jurisdictional determination or permit to a local Corps district office or EPA. The November 2025 proposal and September 2026 supplemental proposal to redefine "waters of the United States" are proposed rules only; no final rule had been published as of September 28, 2026. [12][13][14]
Construction stormwater
EPA says a Clean Water Act permit is required for stormwater discharges from construction activity, including clearing, grading and excavating, that disturbs 1 acre or more, or less than 1 acre as part of a common plan of development or sale that will ultimately disturb 1 acre or more; EPA's Frequent Questions on its 2022 Construction General Permit say no permit is needed if all stormwater is captured on site and not discharged to a receiving water, with controls effective under any size storm. EPA's own 2022 Construction General Permit covers only areas where EPA is the permitting authority, including Massachusetts, New Hampshire, New Mexico, most Indian country lands and the District of Columbia; the permit states that it expires at 11:59 pm on February 16, 2027. [3][65][66][67][68][70]
Floodplains
FEMA says a permit is required before construction or development begins in any Special Flood Hazard Area (land with a 1 percent or greater chance of flooding in any given year), and the National Flood Insurance Program's definition of development names excavation, filling and grading. Inside an adopted regulatory floodway the community must prohibit encroachments, including fill, unless hydrologic and hydraulic analyses show no increase in flood levels during the base flood discharge. FEMA's Flood Map Service Center (msc.fema.gov) is the official public source for National Flood Insurance Program flood hazard information, including official flood maps. [4][5][17][31]

Clean Water Act Section 404 authorizes the U.S. Army Corps of Engineers to issue permits, after notice and opportunity for public hearings, for discharging dredged or fill material into the navigable waters at specified disposal sites. Corps regulations require a Department of the Army permit for such a discharge into waters of the United States unless it is exempt, and a discharge of fill generally includes building dams, dikes and any impoundment requiring rock, sand, dirt or other material. Other federal programs can reach the same project. EPA says a Clean Water Act permit is required for stormwater discharges from construction activity that disturbs 1 acre or more of land (or less than 1 acre, if it is part of a common plan of development or sale that will ultimately disturb 1 acre or more). FEMA says a permit is required before construction or development begins in any Special Flood Hazard Area, and the National Flood Insurance Program's definition of development includes excavation, filling and grading. Under USDA's Swampbuster rules, a person who, after November 28, 1990, converts a wetland for the purpose, or to have the effect, of making production of an agricultural commodity possible becomes ineligible for all or a portion of listed USDA program benefits, unless an exception applies. When a federal agency permits or funds a project, that agency has its own duties under Endangered Species Act section 7 (to insure the action is not likely to jeopardize listed species or destroy or adversely modify designated critical habitat) and National Historic Preservation Act section 106 (to take into account the effect on historic properties). [1][2][3][4][5][6][7][8][9]

Whether these Clean Water Act programs reach a pond site depends on what counts as "waters of the United States." EPA says many Clean Water Act programs apply only to "waters of the United States," and that programs including sections 402 and 404 address "navigable waters," which the statute defines as the waters of the United States, including the territorial seas. In Sackett v. EPA, 598 U.S. 651 (decided May 25, 2023), the Supreme Court held that the Act's "waters" are only relatively permanent, standing or continuously flowing bodies of water forming geographic features described in ordinary parlance as streams, oceans, rivers and lakes, and that a wetland is covered only when it is as a practical matter indistinguishable from waters of the United States: it must have a continuous surface connection with a relatively permanent water connected to traditional interstate navigable waters, making it difficult to tell where the water ends and the wetland begins. Which regulatory definition applies after Sackett depends on the state. As of EPA's Rule Status page (last updated September 9, 2026), EPA and the Army implement the amended 2023 rule in 24 states, the District of Columbia and the U.S. Territories, and in the other 26 states, where federal courts preliminarily enjoined the 2023 rule in 2023, they interpret the term consistent with the pre-2015 regulatory regime and Sackett. A November 2025 proposal and a September 9, 2026 supplemental proposal to redefine the term are proposed rules only; no final rule had been published as of September 28, 2026. [10][11][12][13][14]

State and local rules can apply alongside the federal ones. Section 404 does not preclude any state from controlling the discharge of dredged or fill material in the navigable waters within its jurisdiction, and EPA says Michigan and New Jersey run their own Section 404 programs for assumable waters (page last updated August 14, 2026). A federal permit for an activity that may result in a discharge into the navigable waters also needs a Section 401 certification from the state where the discharge originates (in some cases from an interstate agency or EPA), or a waiver, and the certification becomes a condition of the federal permit. FEMA's floodplain criteria are minimum standards for the floodplain management regulations that communities adopt and that state and local governments enforce, and more restrictive state or community rules take precedence. For dams, USACE says most dams in the National Inventory of Dams are regulated by state agencies through construction permits, inspections and/or enforcement, and FEMA's Federal Guidelines for Dam Safety are not intended to supplant or conflict with state, tribal or local responsibilities for the safety of dams under their jurisdiction. [1][15][16][17][18][19][20]

Clean Water Act Section 404 and the farm-pond exemption

Section 404 of the Clean Water Act authorizes the Secretary of the Army, acting through the Chief of Engineers (the U.S. Army Corps of Engineers), to issue permits, after notice and opportunity for public hearings, for the discharge of dredged or fill material into the navigable waters at specified disposal sites. Corps regulations require a Department of the Army permit for the discharge of dredged or fill material into waters of the United States, except discharges exempted by 33 CFR 323.4. Certain discharges are permitted by nationwide permits and others may be authorized by regional permits; a discharge that is neither exempt nor covered by a nationwide permit needs an individual or regional Section 404 permit. [1][2]

An activity that takes place outside waters of the United States, or that does not involve a discharge, does not need a Section 404 permit, whether or not it is part of an established farming, silviculture, or ranching operation. Within those waters, building dams, dikes, or any impoundment requiring rock, sand, dirt, or other material generally counts as a "discharge of fill material", and the Corps said in its 2026 nationwide permit rule that, unless exempted under Section 404(f), excavation in those waters that results in more than incidental fallback requires Section 404 authorization. [2][21]

The statute exempts discharges of dredged or fill material for the construction or maintenance of farm or stock ponds from regulation under Section 404 (except for effluent standards or prohibitions under 33 U.S.C. 1317), except as provided in its recapture paragraph, 404(f)(2). Under the Corps regulation, a permit is still required if the discharge contains any toxic pollutant listed under CWA section 307, or if it is "recaptured": part of an activity whose purpose is to convert an area of waters of the United States into a use to which it was not previously subject, where flow or circulation may be impaired or reach reduced. [1][2]

  • RequirementSection 404 of the Clean Water Act authorizes the Secretary of the Army to issue permits, after notice and opportunity for public hearings, for the discharge of dredged or fill material into the navigable waters at specified disposal sites. The statute defines 'Secretary' as the Secretary of the Army acting through the Chief of Engineers (i.e., the U.S. Army Corps of Engineers).

    33 U.S.C. 1344(a), (d) [1]
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    The Secretary may issue permits, after notice and opportunity for public hearings for the discharge of dredged or fill material into the navigable waters at specified disposal sites. ... The term "Secretary" as used in this section means the Secretary of the Army, acting through the Chief of Engineers.
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  • RequirementCorps regulations require a Department of the Army (DA) permit for the discharge of dredged or fill material into waters of the United States, except for discharges exempted by 33 CFR 323.4. Some discharges are authorized by nationwide permits (33 CFR part 330) or by regional permits issued by district or division engineers; a discharge that is neither exempt nor covered by a nationwide permit needs an individual or regional section 404 permit.

    33 CFR 323.3(a) [2]
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    Except as provided in § 323.4 of this part, DA permits will be required for the discharge of dredged or fill material into waters of the United States. Certain discharges specified in 33 CFR part 330 are permitted by that regulation (“nationwide permits”). Other discharges may be authorized by district or division engineers on a regional basis (“regional permits”). If a discharge of dredged or fill material is not exempted by § 323.4 of this part or permitted by 33 CFR part 330, an individual or regional section 404 permit will be required
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  • ExemptionIf an activity takes place outside the waters of the United States, or if it does not involve a discharge, it does not need a section 404 permit, whether or not it is part of an established farming, silviculture, or ranching operation.

    Applies when: Ponds dug or built entirely on dry land (uplands) with no discharge into waters of the United States 33 CFR 323.4(a)(1)(ii) [2]
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    If an activity takes place outside the waters of the United States, or if it does not involve a discharge, it does not need a section 404 permit, whether or not it is part of an established farming, silviculture, or ranching operation.
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  • Definition'Fill material' is material placed in waters of the United States that has the effect of replacing any portion of a water of the United States with dry land or changing the bottom elevation of any portion of a water of the United States. 'Discharge of fill material' means the addition of fill material into waters of the United States, and the term generally includes, without limitation, the building of any structure, infrastructure, or impoundment requiring rock, sand, dirt, or other material, and 'dams and dikes'.

    Applies when: Embankment (dam) ponds built across a stream, wetland or other water of the United States 33 CFR 323.2(e)(1), (f) [2]
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    the term fill material means material placed in waters of the United States where the material has the effect of: (i) Replacing any portion of a water of the United States with dry land; or (ii) Changing the bottom elevation of any portion of a water of the United States. ... The term discharge of fill material means the addition of fill material into waters of the United States. The term generally includes, without limitation, the following activities: ... the building of any structure, infrastructure, or impoundment requiring rock, sand, dirt, or other material ... dams and dikes
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  • ExemptionThe Clean Water Act exempts the discharge of dredged or fill material 'for the purpose of construction or maintenance of farm or stock ponds or irrigation ditches, or the maintenance of drainage ditches'. Except as provided in 404(f)(2), such a discharge is not prohibited by or otherwise subject to regulation under section 404 or sections 1311(a) or 1342 (except for effluent standards or prohibitions under section 1317).

    Applies when: Farm or stock ponds; subject to the recapture provision in 1344(f)(2) and the toxic pollutant exception 33 U.S.C. 1344(f)(1)(C) [1]
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    (1) Except as provided in paragraph (2) of this subsection, the discharge of dredged or fill material- ... (C) for the purpose of construction or maintenance of farm or stock ponds or irrigation ditches, or the maintenance of drainage ditches; ... is not prohibited by or otherwise subject to regulation under this section or section 1311(a) or 1342 of this title (except for effluent standards or prohibitions under section 1317 of this title).
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Full detail: 110 verified statements

Waters of the United States: which rule applies in your state

EPA says many Clean Water Act programs apply only to "waters of the United States"; programs including sections 311, 402 and 404, Water Quality Standards and Total Maximum Daily Loads (TMDLs) address "navigable waters," which the statute defines as the waters of the United States, including the territorial seas. So the definition decides which waters those federal programs reach; state programs may still apply. [10]

Which federal definition applies depends on the state. As of EPA's Rule Status page (last updated Sept. 9, 2026), EPA and the Army implement the January 2023 Rule as amended by the September 2023 conforming rule (the "Amended 2023 Rule," 33 CFR 328.3 / 40 CFR 120.2) in 24 states, including Pennsylvania, plus the District of Columbia and the U.S. Territories. In the other 26 states, where federal courts preliminarily enjoined the 2023 Rule in 2023, the agencies interpret the term consistent with the pre-2015 regulatory regime and Sackett "until further notice"; the table below lists every state. [12]

Both regimes are tied to the Supreme Court's May 2023 Sackett decision: the September 2023 conforming rule amended the 2023 Rule to conform to it, and in the other 26 states the agencies interpret the pre-2015 regime consistent with it. Sackett holds that the Clean Water Act's "waters" are only relatively permanent, standing or continuously flowing bodies of water that form geographic features described in ordinary parlance as streams, oceans, rivers and lakes, and that the Act covers only wetlands that are "as a practical matter indistinguishable from waters of the United States." Whoever asserts jurisdiction over an adjacent wetland must show that the adjacent water is itself a water of the United States (a relatively permanent body of water connected to traditional interstate navigable waters) and that the wetland has a continuous surface connection with it, making it difficult to tell where the water ends and the wetland begins. [11][12][22]

  • Why the definition matters: EPA says many Clean Water Act programs apply only to 'waters of the United States,' and that CWA programs including Water Quality Standards, Total Maximum Daily Loads (TMDLs), and sections 311, 402 and 404 address 'navigable waters,' which the statute defines as 'the waters of the United States, including the territorial seas.' So whether a pond site contains WOTUS decides whether these federal programs reach it. State programs may still apply.

    EPA, About Waters of the United States (web page); CWA sec. 502(7) [10]
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    Many Clean Water Act programs apply only to "waters of the United States." ... Clean Water Act programs, including Water Quality Standards, Total Maximum Daily Loads (TMDLs), and sections 311, 402, and 404 address "navigable waters," defined in the statute as "the waters of the United States, including the territorial seas."
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  • StatusFINAL / IN FORCE (as of EPA's page last updated September 9, 2026): Because of litigation over the January 2023 Rule, EPA and the Army are implementing the January 2023 Rule as amended by the September 2023 conforming rule (the 'Amended 2023 Rule', 33 CFR 328.3 / 40 CFR 120.2) in 24 states, the District of Columbia, and the U.S. Territories. In the other 26 states they interpret 'waters of the United States' consistent with the pre-2015 regulatory regime and the Supreme Court's Sackett decision 'until further notice.' So the federal definition a pond builder faces depends on the state the pond is in.

    Applies when: Any project in any U.S. state, DC, or territory that may discharge dredged or fill material or other pollutants into a water EPA, Definition of "Waters of the United States": Rule Status and Litigation Update (web page) [12]
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    As a result of ongoing litigation on the January 2023 Rule, the agencies are implementing the January 2023 Rule, as amended by the conforming rule, in 24 states, the District of Columbia, and the U.S. Territories. In the other 26 states, the agencies are interpreting "waters of the United States" consistent with the pre-2015 regulatory regime and the Supreme Court's decision in Sackett until further notice.
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  • StatusFINAL / IN FORCE: The 26 states where the pre-2015 regulatory regime (interpreted consistent with Sackett) is applied are the two states covered by the S.D. Texas injunction of March 19, 2023 (Idaho and Texas) plus the 24 states covered by the D. North Dakota injunction of April 12, 2023: Alabama, Alaska, Arkansas, Florida, Georgia, Iowa, Indiana, Kansas, Louisiana, Mississippi, Missouri, Montana, Nebraska, New Hampshire, North Dakota, Ohio, Oklahoma, South Carolina, South Dakota, Tennessee, Utah, Virginia, West Virginia and Wyoming. Full pre-2015 list (26): AL, AK, AR, FL, GA, ID, IN, IA, KS, LA, MS, MO, MT, NE, NH, ND, OH, OK, SC, SD, TN, TX, UT, VA, WV, WY.

    Applies when: Pond sites located in one of these 26 states EPA, Rule Status and Litigation Update (web page), Background [12]
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    On March 19, 2023, a district court judge for the Southern District of Texas issued an order preliminarily enjoining in Idaho and Texas the January 2023 Rule. Subsequently, on April 12, 2023, a district court judge in North Dakota issued an order preliminarily enjoining in 24 states the January 2023 Rule ... These states include Alabama, Alaska, Arkansas, Florida, Georgia, Iowa, Indiana, Kansas, Louisiana, Mississippi, Missouri, Montana, Nebraska, New Hampshire, North Dakota, Ohio, Oklahoma, South Carolina, South Dakota, Tennessee, Utah, Virginia, West Virginia and Wyoming.
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  • StatusFINAL / IN FORCE: The 24 states where the Amended 2023 Rule (current 33 CFR 328.3 / 40 CFR 120.2) is operative, plus DC and the U.S. Territories, are the states not named in either injunction: Arizona, California, Colorado, Connecticut, Delaware, Hawaii, Illinois, Kentucky, Maine, Maryland, Massachusetts, Michigan, Minnesota, Nevada, New Jersey, New Mexico, New York, North Carolina, Oregon, Pennsylvania, Rhode Island, Vermont, Washington, Wisconsin. EPA says its state map is informational only and cannot be relied on for specific determinations.

    Applies when: Pond sites located in one of these 24 states, DC, or a U.S. territory EPA, Rule Status and Litigation Update (web page), map note [12]
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    As a result of ongoing litigation on the January 2023 Rule, the agencies are implementing the January 2023 Rule, as amended by the conforming rule, in 24 states, the District of Columbia, and the U.S. Territories. ... EPA is providing the below map for informational purposes only to illustrate which definition of "waters of the United States" is generally operative in each state across the country as a result of litigation challenging the 2023 Rule, and it cannot be relied on for specific determinations or other legal purposes.
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  • StatusFINAL / IN FORCE: Kentucky. On May 10, 2023, in separate litigation (Commonwealth of Kentucky v. EPA, No. 23-5343; Kentucky Chamber of Commerce v. EPA, No. 23-5345), the Sixth Circuit granted the motions of Kentucky and the business plaintiffs-appellants for a stay pending their appeal of a district court decision. While that stay was in effect, the agencies applied the pre-2015 regime in Kentucky and to those plaintiffs and their members. On September 23, 2024 the Sixth Circuit issued a mandate lifting its stay order. As of that date the Amended 2023 Rule is operative in Kentucky and for those plaintiffs and their members, except in jurisdictions where the rule is preliminarily enjoined under court orders in other litigation.

    Applies when: Projects in Kentucky, or by members of the listed business plaintiffs EPA, Rule Status and Litigation Update (web page); Commonwealth of Kentucky v. EPA (6th Cir. No. 23-5343) and Kentucky Chamber of Commerce v. EPA (6th Cir. No. 23-5345) [12]
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    On May 10, 2023, the U.S. Court of Appeals for the Sixth Circuit issued an order granting the motions of Kentucky and plaintiffs-appellants for a stay pending appeal ... While the stay was in effect, the agencies interpreted "waters of the United States" consistent with the pre-2015 regulatory regime in Kentucky ... On September 23, 2024, the Sixth Circuit issued a mandate lifting its stay order, and as of that date, the amended 2023 rule is operative in Kentucky and for the plaintiffs-appellants and their members (except in jurisdictions where the rule is preliminary enjoined
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Full detail: 48 verified statements

Where the WOTUS lawsuits stand

Because of lawsuits over the January 2023 Rule, the federal definition of "waters of the United States" a pond builder faces depends on the state the pond is in. EPA says many Clean Water Act programs apply only to those waters, and that programs including sections 402 and 404 address "navigable waters," which the statute defines as "the waters of the United States, including the territorial seas." As of EPA's Rule Status page (last updated Sept. 9, 2026), EPA and the Army implement the January 2023 Rule as amended by the September 2023 conforming rule (the "Amended 2023 Rule") in 24 states, the District of Columbia and the U.S. Territories, and in the other 26 states interpret the term consistent with the pre-2015 regulatory regime and the Supreme Court's Sackett decision "until further notice." [10][12][23]

EPA's page ties that split to two 2023 preliminary injunctions: a March 19, 2023 order of the U.S. District Court for the Southern District of Texas covering Idaho and Texas (Texas v. EPA), and an April 12, 2023 order of a North Dakota district court covering 24 states (West Virginia v. EPA). Pennsylvania, Kentucky and North Carolina are not named in either injunction and are among the states where the Amended 2023 Rule is operative. [12][25][26]

EPA says its state map is provided for informational purposes only to show which definition is "generally operative" in each state, and "cannot be relied on for specific determinations or other legal purposes." For specific questions about a pending jurisdictional determination or permit, EPA directs states, Tribes and other entities to a local U.S. Army Corps of Engineers District office or EPA. [12]

  • StatusIN FORCE (as of EPA's page last updated September 9, 2026): Because of the ongoing litigation over the January 2023 Rule, EPA and the Army are implementing the January 2023 Rule as amended by the September 2023 conforming rule in 24 states, the District of Columbia and the U.S. Territories. In the other 26 states they interpret 'waters of the United States' consistent with the pre-2015 regulatory regime and the Supreme Court's Sackett decision 'until further notice.'

    Applies when: All states; which regime applies depends on the state. EPA, Definition of "Waters of the United States": Rule Status and Litigation Update (web page, last updated Sept. 9, 2026) [12]
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    As a result of ongoing litigation on the January 2023 Rule, the agencies are implementing the January 2023 Rule, as amended by the conforming rule, in 24 states, the District of Columbia, and the U.S. Territories. In the other 26 states, the agencies are interpreting "waters of the United States" consistent with the pre-2015 regulatory regime and the Supreme Court's decision in Sackett until further notice. ... Last updated on September 9, 2026
    Open U.S. Environmental Protection Agency (opens in a new tab)

  • StatusEPA's 'Current Implementation of Waters of the United States' page (last updated September 9, 2026) says the January 2023 Rule 'is not currently operative in certain states due to ongoing litigation'. Where it is not enjoined, the agencies implement it as amended by the conforming rule; where it is enjoined, they interpret 'waters of the United States' consistent with the pre-2015 regulatory regime and Sackett. The page refers readers to the Rule Status page for litigation status.

    EPA, Current Implementation of Waters of the United States (web page, last updated Sept. 9, 2026) [23]
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    the January 2023 Rule is not currently operative in certain states due to ongoing litigation. Where the January 2023 Rule is not enjoined, the agencies are implementing the January 2023 Rule, as amended by the conforming rule. In the jurisdictions where the January 2023 Rule is enjoined, the agencies are interpreting "waters of the United States" consistent with the pre-2015 regulatory regime and the Supreme Court's decision in Sackett. Please visit the Rule Status page for additional information ... Last updated on September 9, 2026
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  • StatusEPA's rule-status page names the two preliminary injunctions behind the split: a March 19, 2023 order of the U.S. District Court for the Southern District of Texas enjoining the January 2023 Rule in Idaho and Texas, and an April 12, 2023 order of a North Dakota district court enjoining it in 24 states: Alabama, Alaska, Arkansas, Florida, Georgia, Iowa, Indiana, Kansas, Louisiana, Mississippi, Missouri, Montana, Nebraska, New Hampshire, North Dakota, Ohio, Oklahoma, South Carolina, South Dakota, Tennessee, Utah, Virginia, West Virginia and Wyoming.

    Applies when: Idaho, Texas and the 24 listed states. EPA, Rule Status and Litigation Update (last updated Sept. 9, 2026), "Background" [12]
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    On March 19, 2023, a district court judge for the Southern District of Texas issued an order preliminarily enjoining in Idaho and Texas the January 2023 Rule. Subsequently, on April 12, 2023, a district court judge in North Dakota issued an order preliminarily enjoining in 24 states the January 2023 Rule ... These states include Alabama, Alaska, Arkansas, Florida, Georgia, Iowa, Indiana, Kansas, Louisiana, Mississippi, Missouri, Montana, Nebraska, New Hampshire, North Dakota, Ohio, Oklahoma, South Carolina, South Dakota, Tennessee, Utah, Virginia, West Virginia and Wyoming.
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  • StatusPROPOSED-rule preamble, footnote 39 (the agencies' own litigation summary): States and business groups challenged the 2023 Rule in three courts. Two district courts (in Texas v. EPA and West Virginia v. EPA) preliminarily enjoined it as to the plaintiff states. The Eastern District of Kentucky dismissed on standing and ripeness grounds. The Sixth Circuit then granted Kentucky and the business plaintiffs an injunction pending appeal, which dissolved when its mandate issued on September 23, 2024 after it vacated and remanded the dismissal (opinion July 29, 2024).

    90 FR 52498 (Nov. 20, 2025), preamble footnote 39 [24]
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    States and business groups challenged the 2023 Rule in three courts. Two district courts preliminarily enjoined the 2023 Rule as to the plaintiff-States. ... The Eastern District of Kentucky dismissed on standing and ripeness grounds. ... Subsequently, the Sixth Circuit granted an injunction pending appeal of the Eastern District of Kentucky's order to Kentucky and business plaintiffs, which dissolved when the Sixth Circuit's mandate issued on September 23, 2024, following the Sixth Circuit's ruling vacating and remanding the district court's dismissal.
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  • StatusPROPOSED-rule preamble, footnote 39 (continued): after the Conforming Rule issued, plaintiffs challenging the 2023 Rule amended their complaints to challenge the Amended 2023 Rule and parts of the Conforming Rule and 2023 Rule. The agencies also cite White v. EPA, No. 24-00013 (E.D.N.C.) and No. 24-1635 (4th Cir.). As of the proposal's signature date 'this ongoing litigation is in abeyance.' Footnote 40 points to EPA's Rule Status and Litigation Update page for the latest status.

    90 FR 52498 (Nov. 20, 2025), preamble footnotes 39-40 [24]
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    After the agencies issued the Conforming Rule, plaintiffs challenging the 2023 Rule amended their complaints to challenge the Amended 2023 Rule and certain aspects of the Conforming Rule and 2023 Rule. See also White v. EPA, No. 24-00013 (E.D.N.C.); White v. EPA, No. 24-1635 (4th Cir.). As of the signature date of this proposed rule, this ongoing litigation is in abeyance. ... The latest information on the status of this litigation can be found on the EPA's Rule Status and Litigation Update web page
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Full detail: 35 verified statements

Section 401 water quality certification

Under Clean Water Act section 401, anyone applying for a federal license or permit for an activity that may result in any discharge into the navigable waters must give the permitting agency a certification that the discharge will comply with the Clean Water Act sections listed in the statute. The certification must come from the state where the discharge originates or will originate, or, if appropriate, from the interstate water pollution control agency with jurisdiction at the discharge point. [16]

EPA's current rule, 40 CFR part 121, requires certification or waiver for any federal license or permit that authorizes any activity which may result in any discharge from a point source into waters of the United States. The Corps' 2026 Nationwide Permits final rule lists Nationwide Permit 40, which can authorize certain farm ponds used solely for agricultural purposes, among the nationwide permits that require certification or waiver. [21][27]

EPA's Section 401 page (last updated July 29, 2026) says the Clean Water Act gives states and authorized Tribes the authority to grant, deny, or waive certification of proposed federal licenses or permits that may discharge into waters of the United States. Where no state, Tribe, or interstate agency has authority to certify, EPA's rule requires certification or waiver by EPA. EPA says it acts as the certifying authority in two situations: on behalf of Tribes without "treatment in a similar manner as a state" (TAS) status, and on lands of exclusive federal jurisdiction. In those situations, EPA says submissions should be made to the EPA Region where the project is located. [27][28][30]

  • AgencyUnder Clean Water Act section 401(a)(1), anyone applying for a Federal license or permit for an activity (including construction or operation of facilities) that may result in any discharge into the navigable waters must give the permitting agency a certification from the State where the discharge originates or will originate (or, if appropriate, from the interstate water pollution control agency with jurisdiction at the discharge point) that the discharge will comply with the listed Clean Water Act sections. The State or interstate agency must establish public-notice procedures for all certification applications. Where a State or interstate agency has no authority to certify, the certification comes from the EPA Administrator.

    Applies when: Any Federal license or permit for an activity that may result in a discharge into navigable waters (for example, a Corps Section 404 permit for a discharge of dredged or fill material, such as fill for a pond dam, in a regulated water) 33 U.S.C. 1341(a)(1) (CWA section 401(a)(1)) [16]
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    Any applicant for a Federal license or permit to conduct any activity including, but not limited to, the construction or operation of facilities, which may result in any discharge into the navigable waters, shall provide the licensing or permitting agency a certification from the State in which the discharge originates or will originate...shall establish procedures for public notice in the case of all applications for certification...In any case where a State or interstate agency has no authority to give such a certification, such certification shall be from the Administrator.
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  • RequirementCurrent 40 CFR part 121 (eCFR source note: 88 FR 66661, Sept. 27, 2023, i.e., the 2023 Rule) requires certification or waiver for any Federal license or permit that authorizes any activity which may result in any discharge from a point source into waters of the United States. The certifying authority's review is limited to the water quality-related impacts from the activity subject to the Federal license or permit, including the activity's construction and operation. EPA (the Administrator) certifies or waives where no state, Tribe, or interstate agency has authority to certify.

    Applies when: Any Federal license or permit (e.g., Corps Section 404 individual permit or NWP) for an activity that may discharge from a point source into waters of the United States 40 CFR 121.2; 40 CFR 121.3(a); 40 CFR 121.16(a) [27]
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    Source: 88 FR 66661, Sept. 27, 2023, unless otherwise noted...Certification or waiver is required for any Federal license or permit that authorizes any activity which may result in any discharge from a point source into waters of the United States...The certifying authority's evaluation is limited to the water quality-related impacts from the activity subject to the Federal license or permit, including the activity's construction and operation...Certification or waiver by the Administrator is required where no state, Tribe, or interstate agency has authority to give such a certification.
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  • StatusPROPOSED ONLY (not in effect): EPA's Section 401 web page (last updated July 29, 2026) says EPA announced proposed revisions to the existing section 401 water quality certification regulations on January 13, 2026, and that the public comment period closed February 17, 2026. The page also states that the Clean Water Act gives states and authorized Tribes authority to grant, deny, or waive certification of proposed federal licenses or permits that may discharge into waters of the United States.

    EPA, Section 401 of the Clean Water Act (web page) [28]
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    The Clean Water Act gives states and authorized Tribes the authority to grant, deny, or waive certification of proposed federal licenses or permits that may discharge into waters of the United States...On January 13, 2026, the EPA announced proposed revisions to the existing Section 401 water quality certification regulations. The public comment period closed on February 17, 2026...Last updated on July 29, 2026
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  • TimelineIf the State, interstate agency, or EPA fails or refuses to act on a certification request within a 'reasonable period of time (which shall not exceed one year)' after receiving it, the certification requirement is waived for that Federal application. No Federal license or permit may be granted until certification has been obtained or waived, and none may be granted if certification has been denied. Under section 401(d), a certification must set forth the effluent limitations, other limitations, and monitoring requirements necessary to assure that the applicant will comply with the applicable limitations and standards, and the certification becomes a condition on the Federal license or permit.

    Applies when: Any Federal license or permit subject to CWA section 401 33 U.S.C. 1341(a)(1); 33 U.S.C. 1341(d) [16]
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    fails or refuses to act on a request for certification, within a reasonable period of time (which shall not exceed one year) after receipt of such request, the certification requirements of this subsection shall be waived with respect to such Federal application. No license or permit shall be granted until the certification required by this section has been obtained or has been waived as provided in the preceding sentence. No license or permit shall be granted if certification has been denied...Any certification provided under this section shall set forth any effluent limitations and other limitations, and monitoring requirements necessary to assure that any applicant for a Federal license or permit will comply...and shall become a condition on any Federal license or permit subject to the provisions of this section.
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  • StatusFINAL / IN FORCE: EPA's 'Clean Water Act Section 401 Water Quality Certification Improvement Rule' (the 2023 Rule, 88 FR 66558, published September 27, 2023) revised and replaced the 2020 section 401 regulations and took effect November 27, 2023. (fed-401-006 shows the current eCFR text of 40 CFR part 121 is sourced to this rule; fed-401-004 and fed-401-005 cover the pending 2026 proposal.)

    Applies when: All section 401 certification requests nationwide 88 FR 66558 (Sept. 27, 2023), FR Doc. 2023-20219, DATES and SUMMARY [29]
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    the Agency is finalizing a rule revising and replacing the 2020 regulatory requirements for water quality certification under Clean Water Act (CWA) section 401...DATES: This action is effective on November 27, 2023.
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Full detail: 14 verified statements

FEMA floodplain rules and federal dam-safety context

The National Flood Insurance Program (NFIP) regulations define "development" as any man-made change to improved or unimproved real estate, and the definition names dredging, filling, grading and excavation, the earthwork used to dig a pond or build an embankment. FEMA says a permit is required before construction or development begins within any Special Flood Hazard Area (SFHA): the land in the floodplain within a community subject to a 1 percent or greater chance of flooding in any given year, usually shown on the Flood Insurance Rate Map (FIRM) as zones such as A, AE, AH, AO and VE. [4][5]

For screening a site, FEMA's Flood Map Service Center (msc.fema.gov) is the official public source for NFIP flood hazard information; entering an address, a place or longitude/latitude coordinates there brings up the official flood map. FEMA warns that effective information downloaded or printed from the site may change or be superseded by new maps over time. FEMA's Community Status Book shows whether a community participates in the NFIP, does not participate, or is suspended or sanctioned; participation is voluntary, and FEMA's local officials page (last updated Aug. 28, 2024) says more than 22,000 communities have agreed to adopt and enforce floodplain management ordinances. Where FEMA has not defined the special flood hazard areas, has not provided water surface elevation data and has not provided enough data to identify the floodway, but the community has applied to participate in the NFIP, the community must require permits for all proposed construction or other development anywhere in the community so it can determine whether the work is in a flood-prone area. [17][31][32][33]

FEMA says State and local governments enforce the NFIP floodplain management regulations; the NFIP rules define these as State or local zoning ordinances, subdivision regulations, building codes, health regulations, special purpose ordinances (such as a floodplain ordinance, grading ordinance and erosion control ordinance) and other applications of police power, in any combination. FEMA's Part 60 criteria are minimum standards: any community may exceed them, and more restrictive State or community regulations are encouraged and take precedence. Every participating community has a floodplain administrator, and the community must review proposed development (development in the mapped special flood hazard area zones, or all development in a community FEMA has not yet mapped) to make sure that all permits required by Federal or State law, including Clean Water Act Section 404, have been received. [5][17][18][34]

  • DefinitionUnder the National Flood Insurance Program (NFIP) regulations, "development" means any man-made change to improved or unimproved real estate, including but not limited to buildings or other structures, mining, dredging, filling, grading, paving, excavation or drilling operations, or storage of equipment or materials. Excavation, filling, grading and dredging, the earthwork used to dig a pond or build an embankment, are all named in the definition.

    Applies when: Any NFIP floodplain question; the NFIP permit requirements attach to "development" 44 CFR 59.1 ("Development") [5]
    Show the source text
    Development means any man-made change to improved or unimproved real estate, including but not limited to buildings or other structures, mining, dredging, filling, grading, paving, excavation or drilling operations or storage of equipment or materials.
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  • DefinitionThe "area of special flood hazard" is the land in the flood plain within a community subject to a 1 percent or greater chance of flooding in any given year. It may be shown as Zone A on a Flood Hazard Boundary Map and is usually refined on the Flood Insurance Rate Map (FIRM) into Zones A, AO, AH, A1-30, AE, A99, AR (and AR combinations), VO, V1-30, VE or V. "Special flood hazard area" (SFHA) means the same thing.

    44 CFR 59.1 ("Area of special flood hazard"; "Special flood hazard area") [5]
    Show the source text
    Area of special flood hazard is the land in the flood plain within a community subject to a 1 percent or greater chance of flooding in any given year. The area may be designated as Zone A on the FHBM. After detailed ratemaking has been completed in preparation for publication of the flood insurance rate map, Zone A usually is refined into Zones A, AO, AH, A1-30, AE, A99, AR, AR/A1-30, AR/AE, AR/AO, AR/AH, AR/A, VO, or V1-30, VE, or V. For purposes of these regulations, the term "special flood hazard area" is synonymous in meaning with the phrase "area of special flood hazard".
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  • RequirementFEMA guidance: a permit is required before construction or development begins within any Special Flood Hazard Area. Where FEMA has not defined the SFHA, the community must require permits for all proposed construction or other development. Permits make sure projects meet NFIP requirements and the community's floodplain management ordinance.

    Applies when: Pond excavation, embankment, fill or grading on land inside a mapped Special Flood Hazard Area in a community that participates in the NFIP FEMA, "Permit for Floodplain Development" (glossary; citing 44 CFR 60.3(a)(1), (a)(3)) [4]
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    A permit is required before construction or development begins within any Special Flood Hazard Area (SFHA). If FEMA has not defined the SFHA within a community, the community shall require permits for all proposed construction or other development in the community including the placement of manufactured homes, so that it may determine whether such construction or other development is proposed within flood-prone areas. Permits are required to ensure that proposed development projects meet the requirements of the NFIP and the community's floodplain management ordinance.
    Open FEMA (opens in a new tab)

  • RequirementWhere FEMA has not defined the special flood hazard areas in a community, has not provided water surface elevation data, and has not provided sufficient data to identify the floodway, but the community has applied to participate in the NFIP, the community must require permits for all proposed construction or other development anywhere in the community, so that it can determine whether the work is proposed within flood-prone areas.

    Applies when: NFIP applicant community for which FEMA has not yet defined special flood hazard areas or provided flood elevation or floodway data 44 CFR 60.3(a)(1) [17]
    Show the source text
    (a) When the Federal Insurance Administrator has not defined the special flood hazard areas within a community, has not provided water surface elevation data, and has not provided sufficient data to identify the floodway...but the community has indicated the presence of such hazards by submitting an application to participate in the Program, the community shall: (1) Require permits for all proposed construction or other development in the community...so that it may determine whether such construction or other development is proposed within flood-prone areas
    Open eCFR (Office of the Federal Register / GPO) (opens in a new tab)

  • Definition"Flood plain management regulations" are the State or local zoning ordinances, subdivision regulations, building codes, health regulations, special purpose ordinances (such as a flood plain ordinance, grading ordinance and erosion control ordinance) and other applications of police power that provide standards for flood damage prevention and reduction, in any combination. The local floodplain permit may therefore sit in a zoning, grading or special floodplain ordinance.

    44 CFR 59.1 ("Flood plain management regulations") [5]
    Show the source text
    Flood plain management regulations means zoning ordinances, subdivision regulations, building codes, health regulations, special purpose ordinances (such as a flood plain ordinance, grading ordinance and erosion control ordinance) and other applications of police power. The term describes such state or local regulations, in any combination thereof, which provide standards for the purpose of flood damage prevention and reduction.
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Full detail: 73 verified statements

USDA farm programs: Swampbuster and NRCS wetland determinations

Swampbuster, the wetland conservation provisions of the Food Security Act, is a condition on USDA benefits, not a permit. Under 7 CFR 12.4, unless an exception in 7 CFR 12.5 or 12.13 applies, a person is ineligible for all or a portion of the USDA program benefits listed in that section if the person, after November 28, 1990, converts a wetland by draining, dredging, filling, leveling, removing woody vegetation, or other means for the purpose, or to have the effect, of making production of an agricultural commodity possible; or if the person produces an agricultural commodity on a wetland converted after December 23, 1985. [6][35][37]

Whether a pond project is a conversion depends on whether it makes production of an agricultural commodity possible; the regulation defines 'agricultural commodity' as any crop planted and produced by annual tilling of the soil, including tilling by one-trip planters, or sugarcane. The statute says no person becomes ineligible for converting an artificial lake or pond created by excavating or diking land that is not a wetland to collect and retain water, used primarily for livestock watering, fish production, irrigation, wildlife, fire control, flood control, cranberry growing, rice production, or as a settling pond. For work in a wetland, 7 CFR 12.5(b)(1)(iv) says a person is not ineligible if NRCS determines the conversion is for a purpose that does not make commodity production possible, such as fish production or livestock ponds, and no agricultural commodity is produced on the land. [6][36]

The statute gives the Secretary of Agriculture authority to decide whether a person has complied and bars delegating that authority to any private person or entity, so a private consultant's delineation cannot substitute for USDA's compliance decision. NRCS says a certified wetland determination for a planned project can be requested at the local FSA office by completing or updating Form AD-1026 for the area to be assessed, or through NRCS on Form NRCS-CPA-38, and that an existing determination can be obtained from FSA. NRCS guidance says a new activity that fills, clears land, or conducts excavation will prompt an update to Form AD-1026. [35][38][39]

  • RequirementFINAL / IN FORCE (statute): Swampbuster is a condition on USDA benefits, not a permit. Any person who, in any crop year beginning after November 28, 1990, converts a wetland by draining, dredging, filling, leveling, or any other means for the purpose, or to have the effect, of making production of an agricultural commodity possible on the converted wetland is ineligible for the payments, loans, and programs listed in 16 U.S.C. 3821(b) for that crop year and all subsequent crop years, unless a section 3822 exemption applies.

    Applies when: Landowner or operator (or an affiliated person) participates in, or wants to remain eligible for, USDA programs (e.g., FSA commodity programs and loans, NRCS EQIP/CSP, federal crop insurance premium subsidy); Pond excavation, dam/embankment fill, or spoil placement would occur in an area that is a wetland under the Food Security Act 16 U.S.C. 3821(d)(1) [35]
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    Except as provided in section 3822 of this title and notwithstanding any other provision of law, any person who in any crop year beginning after November 28, 1990, converts a wetland by draining, dredging, filling, leveling, or any other means for the purpose, or to have the effect, of making the production of an agricultural commodity possible on such converted wetland shall be ineligible for those payments, loans, or programs specified in subsection (b) for that crop year and all subsequent crop years.
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  • RequirementFINAL / IN FORCE (regulation): Under 7 CFR 12.4, a person is ineligible for USDA program benefits if, after November 28, 1990, the person converts a wetland by draining, dredging, filling, leveling, removing woody vegetation, or other means for the purpose, or to have the effect, of making production of an agricultural commodity possible, or produces an agricultural commodity on a wetland converted after December 23, 1985 (exceptions in 7 CFR 12.5 and 12.13).

    Applies when: Landowner or operator (or an affiliated person) participates in, or wants to remain eligible for, USDA programs (e.g., FSA commodity programs and loans, NRCS EQIP/CSP, federal crop insurance premium subsidy); Pond excavation, dam/embankment fill, or spoil placement would occur in an area that is a wetland under the Food Security Act 7 CFR 12.4(a)(2)-(3) [6]
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    Except as provided in §§ 12.5 or 12.13, a person shall be ineligible for all or a portion of USDA program benefits listed in this section if: ... (2) The person produces an agricultural commodity on a wetland that was converted after December 23, 1985; or (3) After November 28, 1990, the person converts a wetland by draining, dredging, filling, leveling, removing woody vegetation, or other means for the purpose, or to have the effect, of making the production of an agricultural commodity possible.
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  • DefinitionFINAL / IN FORCE (regulation): 'Agricultural commodity' means any crop planted and produced by annual tilling of the soil, including tilling by one-trip planters, or sugarcane. Whether a pond project is a Swampbuster 'conversion' depends on whether it makes production of such a crop possible.

    7 CFR 12.2(a) (definition of 'Agricultural commodity'); see also 16 U.S.C. 3801(a)(1) [6]
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    Agricultural commodity means any crop planted and produced by annual tilling of the soil, including tilling by one-trip planters, or sugarcane.
    Open eCFR / Office of the Federal Register (opens in a new tab)

  • ExemptionFINAL / IN FORCE (statute): No person becomes ineligible for the conversion of an artificial lake or pond created by excavating or diking land that is not a wetland to collect and retain water, used primarily for livestock watering, fish production, irrigation, wildlife, fire control, flood control, cranberry growing, rice production, or as a settling pond.

    Applies when: Pond excavated or diked on land that was not a wetland 16 U.S.C. 3822(b)(2)(A); see also 3822(b)(1)(E) [36]
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    No person shall become ineligible under section 3821 of this title for program loans or payments under the following circumstances: ... (2) For the conversion of the following: (A) An artificial lake or pond created by excavating or diking land that is not a wetland to collect and retain water and that is used primarily for livestock watering, fish production, irrigation, wildlife, fire control, flood control, cranberry growing, rice production, or as a settling pond.
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  • ExemptionFINAL / IN FORCE (regulation): A person is not ineligible for a wetland conversion if NRCS determines the conversion is for a purpose that does not make production of an agricultural commodity possible, such as conversions for fish production, trees, vineyards, shrubs, cranberries, agricultural waste management structures, livestock ponds, fire control, or building and road construction, and no agricultural commodity is produced on the land.

    Applies when: Pond excavation, dam/embankment fill, or spoil placement would occur in an area that is a wetland under the Food Security Act; pond is for livestock, fish production or another non-commodity purpose 7 CFR 12.5(b)(1)(iv) [6]
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    (iv) NRCS has determined that the conversion if for a purpose that does not make the production of an agricultural commodity possible, such as conversions for fish production, trees, vineyards, shrubs, cranberries, agricultural waste management structures, livestock ponds, fire control, or building and road construction and no agricultural commodity is produced on such land;
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Full detail: 67 verified statements

Other federal reviews that can apply

Endangered Species Act (ESA) section 7 and National Historic Preservation Act (NHPA) section 106 place duties on federal agencies, and they reach a private pond project through a federal nexus: a federal permit, license, or approval, or federal financial assistance. [7][8][9][40]

For example, the Corps of Engineers reviews individual permit applications for effects on listed species under section 7, and the Natural Resources Conservation Service (NRCS) says all of its projects must go through section 106. [41][44]

The section 7 regulations say section 7 applies to all actions in which there is discretionary federal involvement or control. [40]

  • Size cutoffUnder the ESA section 7 regulations, section 7 and the requirements of 50 CFR part 402 apply to all actions in which there is discretionary Federal involvement or control.

    Applies when: Pond project has a federal nexus: it needs a Corps permit (individual permit or Nationwide Permit) or receives federal funding/assistance such as NRCS financial assistance 50 CFR 402.03 [40]
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    Section 7 and the requirements of this part apply to all actions in which there is discretionary Federal involvement or control.
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  • DefinitionUnder the ACHP's section 106 regulations, an 'undertaking' is a project, activity, or program funded in whole or in part under the direct or indirect jurisdiction of a federal agency, including those carried out by or on behalf of a federal agency, those carried out with federal financial assistance, and those requiring a federal permit, license, or approval. If the undertaking is a type of activity that does not have the potential to cause effects on historic properties, assuming such properties were present, the agency has no further obligations under section 106.

    Applies when: Pond project has a federal nexus: it needs a Corps permit (individual permit or Nationwide Permit) or receives federal funding/assistance such as NRCS financial assistance 36 CFR 800.3(a)(1), 800.16(y) [9]
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    (1) No potential to cause effects. If the undertaking is a type of activity that does not have the potential to cause effects on historic properties, assuming such historic properties were present, the agency official has no further obligations under section 106 or this part. ... Undertaking means a project, activity, or program funded in whole or in part under the direct or indirect jurisdiction of a Federal agency, including those carried out by or on behalf of a Federal agency; those carried out with Federal financial assistance; and those requiring a Federal permit, license or approval.
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  • AgencyNRCS states that a section 106 'undertaking' includes projects carried out with federal financial assistance and those requiring a federal permit, license or approval, so all NRCS projects must go through section 106, and that section 106 review must be complete before a federal decision is issued. NRCS directs questions about required section 106 documentation, studies, or consultation to the Cultural Resources Specialist (CRS) in each state, and uses a Prototype Programmatic Agreement (PPA) authorized by the ACHP in 2014.

    Applies when: Pond receives NRCS financial or technical assistance (e.g., EQIP cost-share for a pond built to the NRCS 378 standard) USDA NRCS, 'Cultural Resources' web page [41]
    Show the source text
    those carried out with Federal financial assistance; and those requiring a Federal permit, license or approval. At NRCS, that means that all of our projects must go through Section 106 so the agency is compliant with this law. ... Questions about what documentation, studies, or consultation requirements are required for NRCS to comply with Section 106 of the NHPA should be directed to the CRS in each state. ... In 2014 the ACHP signed an authorization designating a PPA for use by NRCS. ... Section 106 review must be complete prior to issuance of a federal decision
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  • RequirementExcept as provided in 16 U.S.C. 1535(g)(2) and 1539, ESA section 9 makes it unlawful for any person subject to U.S. jurisdiction to take any endangered species of fish or wildlife within the United States or the territorial sea, or to violate any regulation pertaining to such species or to any threatened species of fish or wildlife promulgated under the ESA. The prohibition is addressed to 'any person subject to the jurisdiction of the United States'; its text contains no requirement that the activity be federally permitted or funded.

    Applies when: Always (no federal nexus needed); relevant when a pond site holds listed fish, wildlife, or plants 16 U.S.C. 1538(a)(1)(B), (a)(1)(G) [42]
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    Except as provided in sections 1535(g)(2) and 1539 of this title, with respect to any endangered species of fish or wildlife listed pursuant to section 1533 of this title it is unlawful for any person subject to the jurisdiction of the United States to- ... (B) take any such species within the United States or the territorial sea of the United States; ... (G) violate any regulation pertaining to such species or to any threatened species of fish or wildlife listed pursuant to section 1533 of this title and promulgated by the Secretary pursuant to authority provided by this chapter.
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  • RequirementMigratory Bird Treaty Act section 2: unless permitted by regulations, it is unlawful at any time, by any means or in any manner, to pursue, hunt, take, capture, kill, or attempt to take, capture, or kill any migratory bird, or any part, nest, or egg of such a bird, covered by the migratory bird conventions. The Act applies only to migratory bird species native to the United States or its territories.

    Applies when: Clearing, grading, excavation, dam building or water impoundment that could kill migratory birds or destroy active nests, or disturb bald or golden eagles 16 U.S.C. 703(a), (b)(1) [43]
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    Unless and except as permitted by regulations made as hereinafter provided in this subchapter, it shall be unlawful at any time, by any means or in any manner, to pursue, hunt, take, capture, kill, attempt to take, capture, or kill, possess, offer for sale, sell, offer to barter, barter, offer to purchase, purchase, deliver for shipment, ... any migratory bird, any part, nest, or egg of any such bird ... (1) In general This subchapter applies only to migratory bird species that are native to the United States or its territories.
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Full detail: 81 verified statements

Repairing, sealing or draining an existing pond: federal rules and NRCS sealing standards

EPA says many Clean Water Act programs apply only to "waters of the United States." The Act makes the discharge of any pollutant unlawful except in compliance with its listed sections, including section 402 (NPDES) and section 404 (dredged or fill material), and defines a "discharge of a pollutant" as any addition of any pollutant to navigable waters (defined as the waters of the United States, including the territorial seas) from any point source. Corps regulations require a Department of the Army permit for discharges of dredged or fill material into waters of the United States except those exempted by 33 CFR 323.4. Certain discharges are permitted by nationwide permits, others may be authorized by regional permits, and a discharge that is neither exempt nor covered by a nationwide permit needs an individual or regional section 404 permit. [2][10][47][48]

As of EPA's page last updated September 9, 2026, the agencies implement the January 2023 rule defining "waters of the United States", as amended by the conforming rule, in 24 states, the District of Columbia and the U.S. Territories, and in the other 26 states interpret the term consistent with the pre-2015 regulatory regime and the Supreme Court's Sackett decision; an updated definition has only been proposed (November 2025, supplemented September 9, 2026). Where the amended 2023 rule applies, artificial ponds created by excavating or diking dry land to collect and retain water and used exclusively for such purposes as stock watering, irrigation, settling basins or rice growing are not waters of the United States, but the exclusion does not cover impoundments of waters of the United States, such as a pond made by damming a jurisdictional stream. Describing the pre-2015 regulatory regime, which the agencies apply consistent with Sackett in the other 26 states, the 2023 preamble says such ponds were "generally not considered" waters of the United States, but that the Corps reserved the right to decide case by case that a particular one is. [10][45][46]

The agencies' 2023 preamble addresses such a pond that is initially used exclusively for one of those purposes and later used for a different purpose: a previously excluded feature that no longer meets the terms of the exclusion is no longer excluded, and it would be jurisdictional if it otherwise meets the definition. The same preamble notes that artificial lakes and ponds are often used for more than one purpose and can have other beneficial purposes, such as animal habitat, water retention or recreation, and says the agencies' historic practice, which they intend to continue, is to treat these ponds as excluded even when there is another incidental beneficial use. [46]

  • ProcessEPA says many Clean Water Act programs apply only to 'waters of the United States'. As of its page last updated September 9, 2026, EPA says the agencies are implementing the January 2023 rule, as amended by the conforming rule, in 24 states, the District of Columbia, and the U.S. Territories, and in the other 26 states are interpreting 'waters of the United States' consistent with the pre-2015 regulatory regime and the Supreme Court's decision in Sackett. On September 9, 2026 the agencies published a supplemental notice of proposed rulemaking for an updated definition of 'waters of the United States', supplementing their November 2025 proposal (proposed only; not in effect).

    EPA, About Waters of the United States (last updated Sept. 9, 2026), introductory notice and 'What are' / 'Current Implementation' sections [10]
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    On September 9, 2026, ... published a supplemental notice of proposed rulemaking for the Updated Definition of "Waters of the United States." The notice supplements the agencies' November 2025 proposal. ... Many Clean Water Act programs apply only to “waters of the United States.” ... implementing the January 2023 Rule, as amended by the conforming rule, in 24 states, the District of Columbia, and the U.S. Territories. In the other 26 states, the agencies are interpreting "waters of the United States" consistent with the pre-2015 regulatory regime and the Supreme Court's decision in Sackett
    Open U.S. EPA (opens in a new tab)

  • ExemptionWhere the Amended 2023 Rule applies, 'artificial lakes or ponds created by excavating or diking dry land to collect and retain water and which are used exclusively for such purposes as stock watering, irrigation, settling basins, or rice growing' are not waters of the United States even if they would otherwise meet paragraphs (a)(2) through (a)(5) of the definition. Also excluded are artificial reflecting or swimming pools or other small ornamental bodies of water created by excavating or diking dry land to retain water for primarily aesthetic reasons.

    Applies when: States where the agencies implement the Amended 2023 Rule (24 states, the District of Columbia and the U.S. Territories per EPA's About WOTUS page, claim 051); in the other 26 states the agencies interpret 'waters of the United States' consistent with the pre-2015 regime and Sackett. 33 CFR 328.3(b)(5)-(6) (88 FR 3142, Jan. 18, 2023, as amended 88 FR 61968, Sept. 8, 2023) [45]
    Show the source text
    (b) The following are not “waters of the United States” even where they otherwise meet the terms of paragraphs (a)(2) through (5) of this section: ... (5) Artificial lakes or ponds created by excavating or diking dry land to collect and retain water and which are used exclusively for such purposes as stock watering, irrigation, settling basins, or rice growing; (6) Artificial reflecting or swimming pools or other small ornamental bodies of water created by excavating or diking dry land to retain water for primarily aesthetic reasons;
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  • The artificial lakes and ponds exclusion applies only to features excavated in dry land or diked in dry land; paragraph (a)(2) impoundments of waters of the United States (e.g., a pond made by damming a jurisdictional stream) are not covered. Ponds that satisfy the exclusion are not jurisdictional even if they have a hydrologic surface connection to waters of the United States, and non-jurisdictional conveyances created in dry land that are physically connected to and part of the excluded feature remain excluded.

    Applies when: Relevant to embankment ponds built across a drainage: an on-stream impoundment of a jurisdictional water is not an excluded artificial pond. 88 FR 3004, 3116 (Jan. 18, 2023) (preamble) [46]
    Show the source text
    Paragraph (a)(2) impoundments are not covered under this exclusion. This exclusion only applies to features that were excavated in dry land or were diked in dry land. Paragraph (a)(2) impoundments are not excavated in dry land or diked in dry land. ... Artificial lakes and ponds that satisfy the terms of the exclusion would not be jurisdictional under this rule even if they have a hydrologic surface connection to ``waters of the United States.'' Non-jurisdictional conveyances created in dry land that are physically connected to and are a part of the excluded feature remain excluded.
    Open Federal Register (govinfo) (opens in a new tab)

  • StatusThe 2023 preamble says that under the pre-2015 regulatory regime, the features it lists, including artificial ponds dug or diked in dry land and used exclusively for stock watering, irrigation, settling basins or rice growing, were 'generally not considered' waters of the United States, but the Corps reserved the right to decide on a case-by-case basis that a particular waterbody in these categories is a water of the United States. The 2023 rule codified the exclusions and removed that case-by-case possibility (only where the 2023 rule is operative).

    Applies when: Background for the 26 states where the agencies interpret 'waters of the United States' consistent with the pre-2015 regime and Sackett (EPA's About WOTUS page, claim 051); the removal of case-by-case review applies only where the 2023 rule is implemented. 88 FR 3004, 3111 (Jan. 18, 2023) (preamble, describing 51 FR 41217, Nov. 13, 1986) [46]
    Show the source text
    artificial lakes or ponds created by excavating or diking dry land ... used exclusively for such purposes as stock watering, irrigation, settling basins, or rice growing; ... Under the pre-2015 regulatory regime, the features listed above were generally not considered ``waters of the United States'' ... the Corps reserves the right on a case-by-case basis to determine that a particular waterbody within these categories of waters is a water of the United States. ... removing the possibility that these waters could be found jurisdictional on a case-by-case basis.
    Open Federal Register (govinfo) (opens in a new tab)

  • StatusWhen excluded status ends: the agencies' 2023 rule preamble says that if an artificial pond excavated to collect and retain water is initially used exclusively for stock watering, irrigation, settling basins, or rice growing but is later used for a different purpose, then, consistent with longstanding practice, a previously excluded feature that no longer meets the terms of the exclusion is no longer excluded, and it would be jurisdictional if it otherwise meets the definition of 'waters of the United States'.

    88 FR 3004, 3116 (Jan. 18, 2023) (preamble, sec. IV.C.7.b(3) Implementation) [46]
    Show the source text
    if an artificial pond created by excavating land to collect and retain water is initially used exclusively for stock watering, irrigation, settling basins, or rice growing but is subsequently used for a different purpose, ... Consistent with the agencies' longstanding practice, if a previously excluded feature no longer meets the terms of the exclusion, it is no longer excluded. If it no longer satisfies the terms of an exclusion, it would be jurisdictional if it otherwise meets the definition of ``waters of the United States'' under this rule.
    Open Federal Register (govinfo) (opens in a new tab)

Full detail: 142 verified statements

Enforcement: what happens when pond work goes unpermitted

EPA says section 404 violations fall into two categories: discharging dredged or fill material into waters of the United States without a permit, and failing to comply with the terms or conditions of a section 404 permit. Compliance with a section 404 permit, including any activity carried out under a general permit such as a nationwide permit, is deemed compliance with 33 U.S.C. 1311 (Clean Water Act section 301), 1317 and 1343 for purposes of both government enforcement and citizen suits (33 U.S.C. 1344(p)). [1][47][49]

Where the Corps is the permitting authority, EPA and the Corps share section 404 enforcement. Under their 1989 enforcement agreement, EPA leads on unpermitted activities involving repeat violators, flagrant violations, cases or classes of cases EPA requests, or cases where the Corps recommends that an EPA administrative penalty action may be warranted; the Corps leads on all other unpermitted cases and on violations of Corps-issued permits. [49][50]

Corps rules say that when unauthorized work is not complete, the notice of the violation should be a cease-and-desist order prohibiting any further work pending resolution of the violation. EPA says it can issue administrative compliance orders requiring a violator to stop any ongoing illegal discharge and, where appropriate, remove the illegal discharge and restore the site; under the 1989 agreement, both agencies' policy is to avoid permanent environmental harm by requiring remedial actions or ordering removal and restoration, and where a complete remedy or removal is not appropriate the violator may be required to provide compensatory mitigation. [49][50][51]

  • AgencyEPA explains that where the Corps is the permitting authority, EPA and the Corps share section 404 enforcement (and that where a state or tribe administers 404, EPA may still act in certain cases). Violations fall into two categories: failure to comply with a section 404 permit, and discharging dredged or fill material into waters of the United States without a permit. Under the 1989 EPA-Army MOA the Corps leads on Corps-issued permit violations; for unpermitted discharges the agencies pick the lead agency using the MOA's criteria.

    EPA, Enforcement under CWA Section 404 (web page, last updated Feb. 18, 2026) [49]
    Show the source text
    When the U.S. Army Corps of Engineers (Corps) is the permitting authority, EPA and the Corps share Section 404 enforcement authority. ... in certain cases, EPA may also take enforcement action. ... failure to comply with the terms or conditions of a Section 404 permit, or ... discharging dredged or fill material to waters of the United States without a permit. ... has the lead on ... Corp-issued permit violation cases. For unpermitted discharges, EPA and the Corps determine the appropriate lead agency based on criteria in the MOA.
    Open U.S. Environmental Protection Agency (opens in a new tab)

  • ExemptionA section 404 permit is a shield: compliance with a section 404 permit - including any activity carried out under a general permit (e.g., a nationwide permit) - is deemed compliance with sections 1311, 1317 and 1343 for purposes of both government enforcement (section 1319) and citizen suits (section 1365).

    Applies when: Pond or dam work done under and in compliance with an individual or general (nationwide) section 404 permit. 33 U.S.C. 1344(p) (CWA section 404(p)) [1]
    Show the source text
    Compliance with a permit issued pursuant to this section, including any activity carried out pursuant to a general permit issued under this section, shall be deemed compliance, for purposes of sections 1319 and 1365 of this title, with sections 1311, 1317, and 1343 of this title.
    Open Office of the Law Revision Counsel, U.S. House of Representatives (opens in a new tab)

  • AgencyThe 1989 Army-EPA enforcement MOA assigns the lead: using its criteria, the investigating agency decides which agency completes the case. EPA leads on unpermitted activities involving (a) repeat violators, (b) flagrant violations, (c) cases or classes of cases EPA requests, or (d) cases where the Corps recommends an EPA administrative penalty action may be warranted. The Corps leads on all other unpermitted cases and on all violations of Corps-issued permits. A lead agency's decision on any issue in a case, including a decision to take no enforcement action, is final for that case, but this does not preclude the lead agency from referring the matter to the other agency.

    Army-EPA MOA, Federal Enforcement for the Section 404 Program (Jan. 19, 1989), secs. II.D, III.D [50]
    Show the source text
    including a decision that no enforcement action be taken, is final for that case. ... does not preclude the lead enforcement agency from referring the matter to the other agency ... EPA will act as the lead enforcement agency when an unpermitted activity involves ... Repeat Violator(s) ... Flagrant Violation(s) ... Where EPA requests a class of cases or a particular case ... The Corps recommends that an EPA administrative penalty action may be warranted. ... The Corps will act as the lead enforcement agency in all other unpermitted cases ... for Corps-issued permit condition violations.
    Open U.S. Environmental Protection Agency (web text of the 1989 Army-EPA MOA) (opens in a new tab)

  • ProcessUnder the MOA, the investigating or lead agency should tell the responsible parties about the violation and that all illegal activity should stop pending further federal action. The agencies' policy is to avoid permanent environmental harm by requiring remedial actions or ordering removal and restoration; where complete removal is not appropriate, the violator may be required to provide compensatory mitigation.

    Army-EPA MOA (Jan. 19, 1989), secs. II.E, III.C [50]
    Show the source text
    It is the policy of both agencies to avoid permanent environmental harm caused by the violator's activities by requiring remedial actions or ordering removal and restoration. In those cases where a complete remedy/removal is not appropriate, the ... violator may be required ... to provide compensatory mitigation ... The investigating or lead enforcement agency should inform the responsible parties of the violation and inform them that all illegal activity should cease pending further federal action.
    Open U.S. Environmental Protection Agency (web text of the 1989 Army-EPA MOA) (opens in a new tab)

  • AgencyCorps enforcement policy is to discourage unauthorized activities and to require corrective measures where appropriate. Because EPA has independent Clean Water Act enforcement authority over unauthorized discharges, the district engineer should normally coordinate with EPA on how to resolve a section 404 violation, and where he knows EPA is considering enforcement he should coordinate to avoid conflict or duplication.

    33 CFR 326.2; 33 CFR 326.3(g) [51]
    Show the source text
    based on a policy of regulating the waters of the United States by discouraging activities that have not been properly authorized and by requiring corrective measures ... As EPA has independent enforcement authority under the Clean Water Act for unauthorized discharges, the district engineer should normally coordinate with EPA ... In all cases where the district engineer is aware that EPA is considering enforcement action, he should coordinate with EPA to attempt to avoid conflict or duplication.
    Open eCFR (Office of the Federal Register / GPO) (opens in a new tab)

Full detail: 90 verified statements

Key court decisions

In Sackett v. EPA, 598 U.S. 651 (May 25, 2023), the Supreme Court held that the Clean Water Act's use of "waters" covers only relatively permanent, standing or continuously flowing bodies of water forming geographic features described in ordinary parlance as streams, oceans, rivers and lakes, and that the Act extends only to wetlands that are "as a practical matter indistinguishable from waters of the United States." Whoever asserts jurisdiction over an adjacent wetland must show that the adjacent body of water is itself a water of the United States (a relatively permanent body of water connected to traditional interstate navigable waters) and that the wetland has a continuous surface connection with that water, making it difficult to tell where the water ends and the wetland begins. [11]

Two earlier Supreme Court decisions addressed ponds. SWANCC (Jan. 9, 2001), over an abandoned sand and gravel pit whose old excavation trenches had become permanent and seasonal ponds, held that the Corps' regulation, as applied to that site through the "Migratory Bird Rule," exceeded the Corps' authority under section 404(a). In Rapanos (June 19, 2006) the plurality said isolated ponds were not "waters of the United States" in their own right. [52][53]

Federal appeals courts have described the section 404(f) exemptions, which include discharges "for the purpose of construction or maintenance of farm or stock ponds," as narrow (Akers, 9th Cir. 1986, noting the Fifth and Seventh Circuits' view; Brace, 3d Cir. 1994), and have put the burden on the person claiming an exemption to show both that the activity fits section 404(f)(1) and that it avoids the section 404(f)(2) "recapture" provision (Akers; Brace; Greenfield Mills, 7th Cir. 2004). [54][55][56]

Full detail: 160 verified statements

Federal contacts and tools

EPA directs states, Tribes and other entities with specific questions about a pending jurisdictional determination or permit to a local U.S. Army Corps of Engineers District office or to EPA. Under 33 CFR 320.1(a)(6), the Corps has authorized its district engineers to issue formal determinations on whether the Clean Water Act or the Rivers and Harbors Act of 1899 applies to activities or tracts of land, and whether general permits or statutory exemptions apply to proposed activities; such a determination constitutes a Corps final agency action. [12][58]

The Corps' Regulatory Boundaries locator (regulatory.ops.usace.army.mil/offices) gives the name, address, phone number and website of the local Corps Regulatory office when a person enters an address or clicks on the map. The Corps' Regulatory Request System (RRS) is an online application portal that lets the public submit permit applications and other information. [57][59]

EPA's Rule Status and Litigation Update page (last updated Sept. 9, 2026) has a state map showing which definition of "waters of the United States" is generally operative in each state because of ongoing litigation. EPA says the map is for informational purposes only and "cannot be relied on for specific determinations or other legal purposes," and that it will update the map, when possible, as the litigation continues. [12]

  • ContactEPA directs states, Tribes, or entities with specific questions about a pending jurisdictional determination or permit to contact the local U.S. Army Corps of Engineers District office or EPA.

    EPA, Rule Status and Litigation Update (web page) [12]
    Show the source text
    If a state, Tribe, or an entity has specific questions about a pending jurisdictional determination or permit, please contact a local U.S. Army Corps of Engineers District office or the EPA.
    Open U.S. Environmental Protection Agency (opens in a new tab)

  • ContactThe Corps' Regulatory Boundaries locator lets a person enter an address or click on a map to display the contact information (name, address, phone number, and website) for their local Corps Regulatory office.

    USACE Regulatory Boundaries, https://regulatory.ops.usace.army.mil/offices/ [57]
    Show the source text
    Please either enter an address or click on the map to display the contact information for your local Corps Regulatory office. The name, address, phone number, and website address will be provided.
    Open U.S. Army Corps of Engineers (opens in a new tab)

  • ContactEPA says its state map is provided for informational purposes only to show which definition is 'generally operative' in each state because of the litigation, and 'cannot be relied on for specific determinations or other legal purposes'; EPA will update the map, when possible, as the litigation continues. For specific questions about a pending jurisdictional determination or permit, EPA directs states, Tribes and other entities to a local U.S. Army Corps of Engineers District office or EPA.

    EPA, Rule Status and Litigation Update (last updated Sept. 9, 2026) [12]
    Show the source text
    If a state, Tribe, or an entity has specific questions about a pending jurisdictional determination or permit, please contact a local U.S. Army Corps of Engineers District office or the EPA. EPA is providing the below map for informational purposes only to illustrate which definition of "waters of the United States" is generally operative in each state ... and it cannot be relied on for specific determinations or other legal purposes. As the litigation continues, EPA will update the map, when possible
    Open U.S. Environmental Protection Agency (opens in a new tab)

  • ContactTo check whether a site is in a mapped flood zone, the FEMA Flood Map Service Center (MSC) at msc.fema.gov is the official public source for NFIP flood hazard information. A user can enter an address, a place, or longitude/latitude coordinates to find the official flood map. FEMA warns that effective maps downloaded or printed from the site may change or be superseded by new maps over time.

    Applies when: Any pond site; first step in screening for NFIP floodplain requirements FEMA Flood Map Service Center home page [31]
    Show the source text
    The FEMA Flood Map Service Center (MSC) is the official public source for flood hazard information produced in support of the National Flood Insurance Program (NFIP). Use the MSC to find your official flood map...Enter an address, a place, or longitude/latitude coordinates...Effective information that you download or print from this site may change or become superseded by new maps over time.
    Open FEMA (opens in a new tab)

  • ContactFEMA's NFIP Community Status Book shows whether a community participates in the NFIP, does not participate, or is suspended or sanctioned. Participating communities agree to adopt and implement local floodplain management regulations.

    Applies when: Determining whether NFIP floodplain permitting applies in a given municipality or county FEMA, "Community Status Book" [32]
    Show the source text
    In return, communities agree to adopt and implement local floodplain management regulations that contribute to protecting lives and reducing the risk of new construction and substantial improvements from future flooding....The "NFIP status" can be that a community either: Participates in the NFIP Does not participate in the NFIP Is suspended or sanctioned
    Open FEMA (opens in a new tab)

Full detail: 6 verified statements

Frequently asked questions

Do I need an Army Corps permit to build a pond?

It depends on where the pond is built and how. Corps regulations require a Department of the Army permit to discharge dredged or fill material into waters of the United States unless the discharge is exempt, while an activity outside those waters, or one that involves no discharge, needs no Section 404 permit. Building a dam or other impoundment in those waters generally counts as a discharge of fill material, and the Corps says excavation there that results in more than incidental fallback needs Section 404 authorization unless exempted under Section 404(f). Where the amended 2023 rule applies, an artificial pond created by excavating or diking dry land to collect and retain water, and used exclusively for purposes such as stock watering, irrigation, settling basins or rice growing, is not a water of the United States; the 2023 rule's preamble says that exclusion does not cover an impoundment of a water of the United States, such as a dam across a jurisdictional stream. EPA says to contact the local Corps district office or EPA regional office to find out whether specific activities are exempt, and Corps district engineers can issue formal determinations on whether the Clean Water Act, a general permit or a statutory exemption applies. [2][21][45][46][58][60]

Are farm ponds exempt?

The Clean Water Act says discharges of dredged or fill material for the construction or maintenance of farm or stock ponds are not prohibited by or otherwise subject to regulation under Section 404, section 301(a) or section 402, except for section 307 effluent standards or prohibitions and except where the recapture provision applies (see the next question). Corps regulations also require a Section 404 permit if the discharge contains a toxic pollutant listed under section 307. In Akers (1986) the Ninth Circuit, noting that the Fifth and Seventh Circuits construe the 404(f) exemptions narrowly, held that the person claiming one must show both that the activity fits the exemption and that it avoids recapture, and the Third Circuit in Brace (1994) likewise put that burden on the landowner. As an example of one district's approach, the Corps' Savannah District guide for Georgia (February 2024) says a farm pond may not be larger than needed to supply the calculated volume of water (water budget) the producer needs for agricultural or livestock production, and that it cannot be used for commercial fish production; it may be used for recreational fishing, but neither recreational nor commercial fishing can be a purpose for building it. The guide also says a producer is not required by law to ask the Corps to confirm an exemption but may voluntarily request written verification. [1][2][54][55][61]

What is recapture?

Recapture is Clean Water Act section 404(f)(2). It requires a Section 404 permit for a discharge of dredged or fill material incidental to an activity whose purpose is bringing an area of the navigable waters into a use to which it was not previously subject, where the flow or circulation of those waters may be impaired or their reach reduced, even if the activity (such as farm pond construction) would otherwise be exempt. EPA says both conditions must be met for an exempt activity to lose the exemption: a new use of the water, and a reduction in reach or impairment of flow or circulation of regulated waters, including wetlands. Corps regulations presume flow or circulation may be impaired where a discharge will cause significant discernible alterations to it, and say converting a Section 404 wetland to a non-wetland is a change in use. Among its examples, an NRCS New Mexico reference (as of January 2014) says a pond dug within a shallow, emergent wetland, and excess dirt from pond construction or maintenance placed in a low, wet spot (wetland), are recaptured and need a Section 404 permit. [1][2][60][62]

Which WOTUS rule applies in my state?

As of EPA's Rule Status page (last updated September 9, 2026), EPA and the Army implement the January 2023 rule as amended by the September 2023 conforming rule in 24 states, the District of Columbia and the U.S. Territories: Arizona, California, Colorado, Connecticut, Delaware, Hawaii, Illinois, Kentucky, Maine, Maryland, Massachusetts, Michigan, Minnesota, Nevada, New Jersey, New Mexico, New York, North Carolina, Oregon, Pennsylvania, Rhode Island, Vermont, Washington and Wisconsin. In the other 26 states, covered by a March 19, 2023 Southern District of Texas preliminary injunction (Idaho and Texas) and an April 12, 2023 North Dakota district court preliminary injunction (24 states), the agencies interpret "waters of the United States" consistent with the pre-2015 regulatory regime and Sackett: Alabama, Alaska, Arkansas, Florida, Georgia, Idaho, Indiana, Iowa, Kansas, Louisiana, Mississippi, Missouri, Montana, Nebraska, New Hampshire, North Dakota, Ohio, Oklahoma, South Carolina, South Dakota, Tennessee, Texas, Utah, Virginia, West Virginia and Wyoming. EPA says its map is informational only and cannot be relied on for specific determinations, and directs questions about a pending jurisdictional determination or permit to a local Corps district office or EPA. For ponds, the amended 2023 rule codifies an exclusion for artificial ponds created by excavating or diking dry land and used exclusively for purposes such as stock watering or irrigation; the pre-2015 text has no codified exclusion, and the agencies say such ponds were generally not considered waters of the United States but could be found jurisdictional case by case. [12][45][46][63]

What is Nationwide Permit 40?

Nationwide Permit 40 (Agricultural Activities) is one of the 57 nationwide permits the Corps published on January 8, 2026; they took effect March 15, 2026 and expire March 15, 2031. NWP 40 authorizes construction of farm ponds in non-tidal waters of the United States, excluding perennial streams, if the pond is used solely for agricultural purposes; it does not authorize aquaculture ponds. The discharge must not cause the loss of more than 1/2 acre of non-tidal waters of the United States, a pre-construction notification to the Corps district engineer is required before work starts, and the permit's note says it covers farm ponds that do not qualify for the farm-pond exemption because of recapture. Under general condition 32, the applicant may not begin until notified in writing that the activity may proceed, or until 45 calendar days have passed after the district receives a complete notification without written notice from the Corps. A non-federal applicant who has identified listed species or critical habitat that might be affected or is in the vicinity, or who has notified the Corps of historic properties that might be affected, must still wait for the Corps' notification even if 45 days pass. The Corps lists NWP 40 among the nationwide permits that need Section 401 water quality certification or a waiver, and an activity is authorized only if it and the permittee meet all of the permit's terms and conditions. [21][64]

Do I need an NPDES permit to build a pond?

EPA says a Clean Water Act permit is required for stormwater discharges from construction activity, including clearing, grading and excavating land, that disturbs 1 acre or more, or less than 1 acre if it is part of a common plan of development or sale that will ultimately disturb 1 acre or more. EPA's Construction General Permit FAQ says no permit is needed if all stormwater from the construction activity is captured on site and not discharged to a receiving water, with on-site controls effective under any size storm. The same FAQ says the earth disturbance must be part of a project to build, demolish or replace a structure to trigger permit coverage; its examples are a building, road, pad, pipeline or transmission line. EPA's own 2022 Construction General Permit applies only where EPA is the permitting authority, including Massachusetts, New Hampshire, New Mexico, most Indian country lands and the District of Columbia; the permit states that it expires at 11:59 pm on February 16, 2027. On August 3, 2026, EPA published a draft 2027 permit for comment and later extended the comment deadline to September 17, 2026, which has passed; the 2027 permit is only proposed, and EPA says it will replace the 2022 permit once it is finalized. The Clean Water Act excludes agricultural stormwater discharges from its "point source" definition, and section 404(f)(1)(C) exempts dredged or fill discharges for farm or stock pond construction from section 402, subject to recapture. This guide has not confirmed whether building a pond or dam counts as building a structure under EPA's test, or whether either of those provisions covers stormwater running off a pond construction site. [1][3][48][65][66][67][68][69][70]

Do I need a FEMA permit to build a pond in a floodplain?

FEMA says state and local governments enforce floodplain management regulations, which National Flood Insurance Program rules define as state or local zoning ordinances, subdivision regulations, building codes, special-purpose ordinances (such as floodplain, grading and erosion control ordinances) and other applications of police power. FEMA says a permit is required before construction or development begins within any Special Flood Hazard Area, to make sure the project meets program requirements and the community's floodplain management ordinance, and the program's definition of development includes excavation, filling and grading. FEMA's study guide for local officials advises communities not to issue their local floodplain permit until they are certain other federal and state agencies' permit requirements are met (some communities issue it on the condition that the other permits are obtained, which FEMA calls less effective). Inside an adopted regulatory floodway, the community must prohibit encroachments, including fill, unless hydrologic and hydraulic analyses show no increase in flood levels during the base flood discharge. Because FEMA map revisions cannot be based on proposed projects, a community, or an individual through the community, can ask FEMA to comment on whether a proposed project, if built as proposed, would justify a map revision; FEMA answers with a Conditional Letter of Map Revision. FEMA's Flood Map Service Center (msc.fema.gov) is the official public source for National Flood Insurance Program flood hazard information, including official flood maps, and every community that participates in the program has a floodplain administrator. [4][5][17][18][31][34][71][72]

Can building a pond affect my USDA farm program benefits?

It can if the work converts a wetland. Under USDA's Swampbuster rules, a person becomes ineligible for all or a portion of listed USDA program benefits if, after November 28, 1990, the person converts a wetland by draining, dredging, filling, leveling or other means for the purpose, or to have the effect, of making production of an agricultural commodity possible, unless an exception applies. The statute says no one becomes ineligible for converting an artificial lake or pond created by excavating or diking land that is not a wetland to collect and retain water, and used primarily for livestock watering, fish production, irrigation, wildlife, fire control, flood control, cranberry growing, rice production or as a settling pond. The regulation also exempts a wetland conversion that NRCS determines is for a purpose that does not make commodity production possible, such as fish production or livestock ponds, where no agricultural commodity is produced on the land. The Secretary of Agriculture decides compliance and may not delegate that authority to any private person or entity, and NRCS says a certified wetland determination can be requested by completing or updating Form AD-1026 at the local FSA office, or through NRCS on Form NRCS-CPA-38. Swampbuster is separate from Section 404: EPA advises checking with the local Corps district about Section 404 and with NRCS before clearing, draining or manipulating any wet areas. To be eligible for EQIP, an applicant must also be in compliance with the highly erodible land and wetland conservation provisions of 7 CFR part 12. [6][35][36][37][38][73]

What happens if I build without a required federal permit?

Where the Corps is the permitting authority, EPA and the Corps share Section 404 enforcement. If unauthorized work is not complete, Corps rules say the district engineer's notice should be a cease-and-desist order prohibiting further work pending resolution, and EPA can issue compliance orders requiring a violator to stop an ongoing illegal discharge and, where appropriate, remove it and restore the site. After any required initial corrective measures, the Corps will accept an after-the-fact permit application unless an exception applies, and the applicant must sign a statute-of-limitations tolling agreement in exchange for the Corps accepting the application. For violations after November 2, 2015, EPA's inflation table sets the maximum court-imposed civil penalty under section 309(d) at $68,445 per day for each violation (for penalties assessed on or after January 8, 2025), and the Corps' table sets a court-imposed maximum of $68,446 per day for each violation of a Corps permit condition or Corps compliance order (for penalties assessed on or after August 8, 2025); negligent or knowing violations can also bring criminal fines, imprisonment or both. EPA says that in most instances the agencies prefer voluntary compliance or administrative enforcement and reserve criminal enforcement for the most flagrant and egregious violations. Separately, subject to limits in the statute, a person whose interest is or may be adversely affected can bring a citizen suit against someone alleged to be violating a Clean Water Act "effluent standard or limitation." Read with section 301(a), which makes a discharge of pollutants unlawful except in compliance with listed sections including Section 404, that term reaches a discharge of dredged or fill material into waters of the United States that does not comply with Section 404. Such a suit generally cannot begin until 60 days after notice to EPA, the state and the alleged violator. [1][47][49][51][74][75][76]

What did Sackett v. EPA change?

In Sackett v. EPA, 598 U.S. 651 (decided May 25, 2023), the Supreme Court adopted the Rapanos plurality's reading: the Clean Water Act's "waters" are only relatively permanent, standing or continuously flowing bodies of water forming geographic features described in ordinary parlance as streams, oceans, rivers and lakes. It held that the Act covers only wetlands that are as a practical matter indistinguishable from waters of the United States, which requires a continuous surface connection with a relatively permanent water connected to traditional interstate navigable waters, and it rejected EPA's "significant nexus" test. The agencies' conforming rule, effective September 8, 2023, revised the codified definition to conform to Sackett. As of EPA's status page (last updated September 9, 2026), that amended 2023 rule is implemented in 24 states, the District of Columbia and the U.S. Territories; because of litigation over the 2023 rule, the agencies interpret the term in the other 26 states consistent with the pre-2015 regime and Sackett. Under both regimes, EPA and Army field guidance of March 12, 2025 (not legally binding) treats only wetlands that directly abut the jurisdictional water as having a continuous surface connection, so wetlands separated by uplands, a berm, a dike or a similar feature do not qualify. The Court said a barrier separating a wetland from a water of the United States would ordinarily remove that wetland from federal jurisdiction, but a landowner cannot carve wetlands out of federal jurisdiction by illegally building a barrier on covered wetlands. [11][12][22][77]

Do I need a federal permit to drain or seal a pond?

It depends on the pond and the work. For draining, the Corps' Regulatory Guidance Letter 05-04 (August 19, 2005) says that, as a general rule, discharging substantial quantities of accumulated bottom sediment from or through a dam into downstream waters is a discharge of dredged material that requires a Section 404 permit and will rarely, if ever, qualify for the 404(f) exemption, while lowering a lake or pond in a way that releases only de minimis amounts of sediment is not usually considered a regulated discharge; the RGL sets no specific de minimis amount. For sealing or lining, Corps regulations define fill material by its effect, including changing the bottom elevation of any portion of a water of the United States, with examples that include soil, clay and plastics, but the definition of "discharge of fill material" mentions a liner only for solid waste landfills. This guide has not confirmed whether sealing or lining a pond is a Section 404 discharge or whether it counts as exempt farm-pond maintenance; EPA directs people to their local Corps district office or EPA regional office to find out whether specific activities are exempt. [2][60][78]

How do I find out whether my site has federal waters?

A landowner can ask the Corps for an approved jurisdictional determination, a Corps document stating whether waters of the United States are present on a parcel or mapping their limits; an approved determination can be appealed, while a preliminary one is advisory only. Under existing Corps policy an approved determination is generally valid for five years unless new information warrants revision, and the definition in effect when the Corps completes it governs, not the one in effect when it was requested. In Hawkes (May 31, 2016) the Supreme Court held that an approved determination is final agency action reviewable in court, and explained that a "negative" one, stating that the property has no jurisdictional waters, creates a five-year safe harbor from civil enforcement proceedings brought by the Government. The Corps' Regulatory Boundaries locator gives the name, address, phone number and website of the local Corps Regulatory office for an address or a point on a map. [23][57][79][80]

Sources

Every statement above links to one of these official sources. Expand “Show the source text” under any statement to read the exact passage it rests on.

  1. 33 U.S.C. 1344 - Permits for dredged or fill material (CWA section 404) (opens in a new tab) — Office of the Law Revision Counsel, U.S. House of Representatives, document date Text contains laws in effect on September 27, 2026, retrieved September 28, 2026
  2. 33 CFR Part 323 - Permits for Discharges of Dredged or Fill Material into Waters of the United States (opens in a new tab) — eCFR (Office of the Federal Register), document date current eCFR text; 323.2 last amended 73 FR 79645, Dec. 30, 2008, retrieved September 28, 2026
  3. Stormwater Discharges from Construction Activities (opens in a new tab) — U.S. EPA, document date Last updated August 10, 2026, retrieved September 28, 2026
  4. Permit for Floodplain Development (FEMA glossary) (opens in a new tab) — FEMA, document date Last updated July 8, 2020, retrieved September 28, 2026
  5. 44 CFR Part 59 - General Provisions (NFIP) (opens in a new tab) — eCFR (Office of the Federal Register / GPO), document date eCFR current text; Title 44 up to date as of 2026-09-24; § 59.1 source 41 FR 46968 (Oct. 26, 1976), as amended, retrieved September 28, 2026
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  22. Revised Definition of "Waters of the United States"; Conforming - Final rule, 88 FR 61964 (FR Doc. 2023-18929) (opens in a new tab) — EPA and Department of the Army (Federal Register via GPO govinfo), document date 2023-09-08, retrieved September 28, 2026
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  25. Texas v. EPA, No. 3:23-cv-17 (S.D. Tex. Mar. 19, 2023), Memorandum Opinion and Order Granting Preliminary Injunction (opens in a new tab) — U.S. Government Publishing Office (govinfo), U.S. Courts Opinions, document date 2023-03-19, retrieved September 28, 2026
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  27. 40 CFR Part 121 - State Certification of Activities Requiring a Federal License or Permit (opens in a new tab) — eCFR (Office of the Federal Register / GPO), document date Source 88 FR 66661 (Sept. 27, 2023); effective 2023-11-27, retrieved September 28, 2026
  28. Section 401 of the Clean Water Act (opens in a new tab) — U.S. EPA, document date Last updated July 29, 2026, retrieved September 28, 2026
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  30. Resources for When EPA Acts as the Certifying Authority under Section 401 (opens in a new tab) — U.S. EPA, document date Last updated May 19, 2026, retrieved September 28, 2026
  31. FEMA Flood Map Service Center: Welcome! (opens in a new tab) — FEMA, retrieved September 28, 2026
  32. Community Status Book (opens in a new tab) — FEMA, document date Last updated April 8, 2026, retrieved September 28, 2026
  33. Local Government Officials - Floodplain Management Resources (opens in a new tab) — FEMA, document date Last updated August 28, 2024, retrieved September 28, 2026
  34. Flood Maps (opens in a new tab) — FEMA, document date Last updated January 22, 2024, retrieved September 28, 2026
  35. 16 U.S.C. 3821 - Program ineligibility (Food Security Act sec. 1221) (opens in a new tab) — Office of the Law Revision Counsel, U.S. House of Representatives, document date Text contains those laws in effect on September 27, 2026, retrieved September 28, 2026
  36. 16 U.S.C. 3822 - Delineation of wetlands; exemptions (Food Security Act sec. 1222) (opens in a new tab) — Office of the Law Revision Counsel, U.S. House of Representatives, document date Text contains those laws in effect on September 27, 2026, retrieved September 28, 2026
  37. CWA Section 404 and Swampbuster: Wetlands on Agricultural Lands (opens in a new tab) — U.S. Environmental Protection Agency, document date Last updated on July 24, 2026, retrieved September 28, 2026
  38. Certified Wetlands Determination (FAQ page) (opens in a new tab) — USDA Natural Resources Conservation Service, document date no date shown; retrieved 2026-09-28, retrieved September 28, 2026
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  73. 7 CFR part 1466 - Environmental Quality Incentives Program (eCFR current) (opens in a new tab) — eCFR / Office of the Federal Register, document date current eCFR text; 84 FR 69280 (Dec. 17, 2019), as amended 85 FR 67647 (Oct. 26, 2020), retrieved September 28, 2026
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  76. 33 U.S.C. 1365 - Citizen suits (CWA section 505) (opens in a new tab) — Office of the Law Revision Counsel, U.S. House of Representatives, document date Laws in effect on September 27, 2026 (last amended Pub. L. 115-282, Dec. 4, 2018), retrieved September 28, 2026
  77. Memorandum to the Field ... Concerning the Proper Implementation of "Continuous Surface Connection" Under the Definition of "Waters of the United States" (2025 Continuous Surface Connection Guidance) (opens in a new tab) — Department of the Army / U.S. Army Corps of Engineers and U.S. EPA, document date 2025-03-12, retrieved September 28, 2026
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This is not legal advice. It is a plain-English summary of official sources, checked September 28, 2026. Laws, permits and agency practice change, and how they apply depends on your exact site. Confirm with the agencies named here, and with a licensed professional engineer for any dam, before you build.

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