Clean Water Act Section 404 and the Farm Pond Exemption

Key points

• 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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• RequirementRecapture (Corps regulation): a discharge incidental to an exempt activity (including farm or stock pond construction) must have a permit if it is 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. Where the discharge will result in significant discernible alterations to flow or circulation, the presumption is that flow or circulation may be impaired.

  Applies when: Farm/stock ponds built in streams or wetlands 33 CFR 323.4(c) [2]
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  incidental to any of the activities identified in paragraphs (a) (1) through (6) of this section must have a permit if it is part of an activity whose purpose is to convert an area of the waters of the United States into a use to which it was not previously subject, where the flow or circulation of waters of the United States may be impaired or the reach of such waters reduced. Where the proposed discharge will result in significant discernible alterations to flow or circulation, the presumption is that flow or circulation may be impaired

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• A note to NWP 40 states that some agricultural discharges may qualify for the Section 404(f) exemption (33 CFR 323.4) and that NWP 40 authorizes construction of farm ponds that do not qualify for the section 404(f)(1)(C) exemption because of the recapture provision at section 404(f)(2).

  NWP 40 (2026), Note, 91 FR 868 [3]
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  Note: Some discharges of dredged or fill material into waters of the United States for agricultural activities may qualify for an exemption under Section 404(f) of the Clean Water Act (see 33 CFR 323.4). This NWP authorizes the construction of farm ponds that do not qualify for the Clean Water Act section 404(f)(1)(C) exemption because of the recapture provision at section 404(f)(2).

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• AgencyOnly two states - Michigan and New Jersey - currently implement Section 404 programs for assumable waters within their jurisdiction; the Corps is primarily responsible for issuing Section 404 permits in the rest of the United States, including in non-assumable waters in Michigan and New Jersey.

  EPA, 'Tribal and State Section 404 Assumption Efforts' [5]
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  there are only two states -- Michigan and New Jersey -- that currently implement Section 404 programs for assumable waters within their jurisdiction. The state program annual reports and other information is below. The U.S. Army Corps of Engineers is primarily responsible for issuing Section 404 dredged and fill permits in the remaining regions of the United States, including in non-assumable waters in Michigan and New Jersey.

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• StatusFlorida: on February 15, 2024 the U.S. District Court for the District of Columbia vacated EPA's approval of Florida's section 404 program on Endangered Species Act grounds; EPA states the Corps is currently the permitting authority for all discharges of dredged or fill material into waters of the United States in Florida.

  EPA, 'Tribal and State Section 404 Assumption Efforts' - Florida [5]
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  On February 15, 2024, the U.S. District Court for the District of Columbia vacated the Fish and Wildlife Services' Biological Opinion and Incidental Take Statement for the EPA's Approval of Florida's section 404 Program and vacated the EPA's approval of Florida's program on Environmental Species Act grounds. Currently the U.S. Army Corps of Engineers is the permitting authority for all discharges of dredged or fill material into waters of the United States in Florida.

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• AgencySection 404 does not preclude any State from controlling the discharge of dredged or fill material in any portion of the navigable waters within its jurisdiction.

  33 U.S.C. 1344(t) [1]
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  Nothing in this section shall preclude or deny the right of any State or interstate agency to control the discharge of dredged or fill material in any portion of the navigable waters within the jurisdiction of such State

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• StatusThe definition of 'waters of the United States' is under active rulemaking: EPA and the Army published a proposed rule on November 20, 2025 and a supplemental notice of proposed rulemaking on September 9, 2026, with comments due on or before October 9, 2026. These are PROPOSED rules only.

  91 FR 57284 (Sept. 9, 2026), FR Doc. 2026-18317 (supplemental proposed rule) [7]
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  ACTION: Supplemental notice of proposed rulemaking. ... SUMMARY: The purpose of this supplemental notice of proposed rulemaking is for the U.S. Environmental Protection Agency (EPA) and the Department of the Army (``the agencies'') to supplement and seek additional comment on certain aspects of an earlier proposal, published on November 20, 2025, to revise the regulations defining the scope of waters federally covered under the Clean Water Act ... DATES: Comments must be received on or before October 9, 2026.

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What triggers a Section 404 permit

Corps regulations define fill material as material placed in waters of the United States that has the effect of replacing any portion of them with dry land or changing the bottom elevation of any portion of them. The "discharge of fill material" generally includes, without limitation, building any structure, infrastructure, or impoundment requiring rock, sand, dirt, or other material, and dams and dikes. [2]

Corps regulations define the "discharge of dredged material" to include any addition of dredged material, including excavated material, into waters of the United States that is incidental to any activity, including mechanized landclearing, ditching, channelization, or other excavation. That includes redeposit, but not incidental fallback, which the regulations exclude from the term. In the 2026 nationwide permit rule the Corps said that, unless exempted under Section 404(f), excavation in waters of the United States that results in more than incidental fallback requires Section 404 authorization. [2][3]

The regulations' exception for incidental additions of dredged material that do not destroy or degrade waters of the United States does not apply to a person preparing to undertake mechanized landclearing, ditching, channelization or other excavation in those waters that would redeposit dredged material, unless, before starting, that person demonstrates to the satisfaction of the Corps (or EPA, as appropriate) that the activity would not destroy or degrade any area of those waters. The person proposing the excavation bears the burden of that demonstration. [2]

Under the codified definition (which EPA says is not currently operative in certain states because of litigation), "waters of the United States" include impoundments of waters otherwise defined as waters of the United States (other than impoundments of the lakes and ponds covered by paragraph (a)(5)), and intrastate lakes and ponds that are relatively permanent, standing or continuously flowing bodies of water with a continuous surface connection to the waters listed in paragraph (a)(1) or (a)(3) of the definition. EPA and the Army's March 12, 2025 field guidance says the agencies will implement "continuous surface connection" to mean "abutting (or touching)" under both regulatory regimes now operative. [6][8]

• Definition'Discharge of dredged material' includes any addition, including redeposit other than incidental fallback, of dredged material, including excavated material, into waters of the United States which is incidental to any activity, including mechanized landclearing, ditching, channelization, or other excavation. Incidental fallback is excluded from the term.

  Applies when: Excavated (dug-out) ponds dug in a stream, wetland or other water of the United States 33 CFR 323.2(d)(1)(iii), (d)(2)(iii) [2]
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  (iii) Any addition, including redeposit other than incidential fallback, of dredged material, including excavated material, into waters of the United States which is incidental to any activity, including mechanized landclearing, ditching, channelization, or other excavation. (2) The term discharge of dredged material does not include the following: ... (iii) Incidental fallback.

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• RequirementIn the 2026 Nationwide Permits final action the Corps stated that excavation activities may result in discharges of dredged or fill material that require Section 404 permits, and that, unless exempted under Section 404(f), excavation activities in waters of the United States that result in more than incidental fallback require Section 404 authorization.

  Applies when: Excavated (dug-out) ponds dug in waters of the United States 91 FR 768 (Jan. 8, 2026), preamble discussion of NWP 18 [3]
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  Excavation activities may result in discharges of dredged or fill material into waters of the United States that require Section 404 permits (see 33 CFR 323.2(d)). Therefore, it is not appropriate to remove references to excavation from this NWP. Unless exempted under Section 404(f) of the CWA, excavation activities in waters of the United States that result in more than incidental fallback require Section 404 authorization.

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• RequirementThe exception for incidental additions of dredged material that do not destroy or degrade waters of the United States does not apply to a person preparing to undertake mechanized landclearing, ditching, channelization or other excavation in a water of the United States that would result in a redeposit of dredged material unless, before starting, the person demonstrates to the satisfaction of the Corps (or EPA) that the activity would not destroy or degrade any area of waters of the United States; the person proposing the excavation bears the burden of that demonstration.

  33 CFR 323.2(d)(3)(i) [2]
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  this exception does not apply to any person preparing to undertake mechanized landclearing, ditching, channelization and other excavation activity in a water of the United States, which would result in a redeposit of dredged material, unless the person demonstrates to the satisfaction of the Corps, or EPA as appropriate, prior to commencing the activity involving the discharge, that the activity would not have the effect of destroying or degrading any area of waters of the United States ... bears the burden of demonstrating that such activity would not destroy or degrade

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• DefinitionUnder the current codified definition, 'waters of the United States' include impoundments of waters otherwise defined as waters of the United States (other than impoundments of paragraph (a)(5) lakes and ponds), and intrastate lakes and ponds that are relatively permanent, standing or continuously flowing bodies of water with a continuous surface connection to the waters identified in paragraph (a)(1) or (a)(3). 'Adjacent' is defined as having a continuous surface connection.

  Applies when: Damming a stream or building in/next to a wetland or existing pond 33 CFR 328.3(a)(2), (a)(5), (c)(2) [8]
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  (2) Impoundments of waters otherwise defined as waters of the United States under this definition, other than impoundments of waters identified under paragraph (a)(5) of this section; ... (5) Intrastate lakes and ponds not identified in paragraphs (a)(1) through (4) of this section that are relatively permanent, standing or continuously flowing bodies of water with a continuous surface connection to the waters identified in paragraph (a)(1) or (a)(3) of this section. ... (2) Adjacent means having a continuous surface connection.

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• StatusEPA and the Army's March 12, 2025 field guidance states that the agencies will implement 'continuous surface connection' to mean 'abutting (or touching)' under both regulatory regimes currently operative across the country.

  EPA, 'Current Implementation of Waters of the United States' (2025 Continuous Surface Connection Guidance) [6]
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  The purpose of this memo is to clarify that the agencies will implement “continuous surface connection” to mean “abutting (or touching)” under both regulatory regimes that are currently operative across the country.

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Ponds that are not waters of the United States

Among its exclusions, the codified definition at 33 CFR 328.3(b) says two kinds of water bodies are not "waters of the United States", even where they would otherwise meet paragraphs (a)(2) through (a)(5): artificial lakes or 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; and 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. [8]

Both exclusions are limited to water bodies created by excavating or diking dry land, and the first also requires that the pond be used exclusively for purposes like those listed. [8]

Separately, the Corps' Part 323 definition of "lake" includes a standing body of open water created by artificially blocking or restricting the flow of a river, stream, or tidal area, but not artificial lakes or ponds created by excavating and/or diking dry land to collect and retain water for such purposes as stock watering, irrigation, settling basins, cooling, or rice growing. [2]

These exclusions are part of the codified January 2023 rule, as amended, which EPA says is not currently operative in certain states because of litigation; where it is enjoined, the agencies interpret "waters of the United States" consistent with the pre-2015 regulatory regime and Sackett. EPA's Rule Status page (last updated September 9, 2026) says the agencies are implementing the amended 2023 rule in 24 states, the District of Columbia and the U.S. Territories, and its state map shows Pennsylvania among those 24 states; EPA says the map is for informational purposes only and cannot be relied on for specific determinations or other legal purposes. [6][8][9]

• DefinitionThe codified definition in 33 CFR 328.3(b) (January 2023 rule as amended by the September 2023 conforming rule) excludes from 'waters of the United States', even where they would otherwise meet paragraphs (a)(2) through (a)(5): (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; and (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. EPA states that this codified rule is not currently operative in certain states because of litigation (see fed-cwa404-011).

  Applies when: Existing or planned ponds created on dry land 33 CFR 328.3(b)(5)-(6) [8]
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  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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• DefinitionFor Part 323 purposes, the Corps defines 'lake' to include a standing body of open water created by artificially blocking or restricting the flow of a river, stream, or tidal area, but not artificial lakes or ponds created by excavating and/or diking dry land to collect and retain water for such purposes as stock watering, irrigation, settling basins, cooling, or rice growing.

  33 CFR 323.2(b) [2]
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  The term also includes a standing body of open water created by artificially blocking or restricting the flow of a river, stream, or tidal area. As used in this regulation, the term does not include artificial lakes or ponds created by excavating and/or diking dry land to collect and retain water for such purposes as stock watering, irrigation, settling basins, cooling, or rice growing.

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• StatusEPA states that the January 2023 'waters of the United States' rule, as amended by the September 2023 conforming rule, is not currently operative in certain states due to ongoing litigation. Where it is not enjoined, EPA and the Army implement the January 2023 rule as amended; where it is enjoined, the agencies interpret 'waters of the United States' consistent with the pre-2015 regulatory regime and the Supreme Court's Sackett decision.

  EPA, 'Current Implementation of Waters of the United States' [6]
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  In addition, 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.

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The farm and stock pond exemption

The 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 the recapture paragraph, 404(f)(2), such a discharge is not prohibited by or otherwise subject to regulation under section 404 or 33 U.S.C. 1311(a) or 1342 (the NPDES permit section), except for effluent standards or prohibitions under 33 U.S.C. 1317. Corps (33 CFR 323.4(a)(3)) and EPA (40 CFR 232.3(c)(3)) regulations repeat the exemption, subject to their toxic-pollutant and recapture provisions. [1][2][10]

The Corps regulation makes the exemption subject to two exceptions, in 33 CFR 323.4(b) and (c). A discharge that contains any toxic pollutant listed under CWA section 307 is subject to any applicable toxic effluent standard or prohibition and requires a Section 404 permit. Under recapture, a discharge must have a permit if it is 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; where the discharge will result in significant discernible alterations to flow or circulation, the regulation presumes flow or circulation may be impaired. [1][2]

EPA says both conditions must be met for a listed activity to be non-exempt: it represents a new use of the water, and it would result in a reduction in reach or impairment of flow or circulation of regulated waters, including wetlands. EPA adds that, in general, any discharge associated with an activity that converts a wetland to upland is not exempt and requires a Section 404 permit, and the Corps regulation says conversion of a section 404 wetland to a non-wetland is a change in use. The 1990 EPA/Army memo treats any discharge that destroys the wetland character of an area as a reduction of reach that is not exempt under 404(f). [2][11][12]

Among its examples of recapture, an NRCS New Mexico reference (as of January 2014) says a Section 404 permit is required for a pond dug within a shallow, emergent wetland, because it changes the use from wetland to open water and alters the wetland's flow and circulation, and for excess dirt from construction or maintenance, such as pond sediment removal, placed in a low, wet spot (wetland). [13]

The 1990 EPA/Army memo also says that using a 404(f) exemption does not affect Section 404 jurisdiction: for example, an activity in wetlands exempt as normal farming does not authorize filling the wetland to build buildings without a Section 404 permit. In discussing fish ponds under the normal farming exemption, the memo also described a general permit then being developed by the Corps' Vicksburg District for levees and ditches to build fish ponds in wetlands that were in agricultural crop production before December 23, 1985. [12]

The Corps regulation separately exempts maintenance, including emergency reconstruction of recently damaged parts, of currently serviceable structures such as dikes and dams, subject to the same toxic-pollutant and recapture exceptions. Emergency reconstruction must occur within a reasonable period of time after the damage to qualify, and maintenance does not include any modification that changes the character, scope, or size of the original fill design. [2]

• ExemptionCorps regulation: except as specified in 33 CFR 323.4(b) and (c), a discharge of dredged or fill material that may result from 'construction or maintenance of farm or stock ponds or irrigation ditches, or the maintenance (but not construction) of drainage ditches' is not prohibited by or otherwise subject to regulation under section 404. Discharges associated with siphons, pumps, headgates, wingwalls, weirs, diversion structures, and other facilities appurtenant and functionally related to irrigation ditches are included.

  Applies when: Farm or stock ponds, unless 323.4(b) (toxic pollutants) or 323.4(c) (recapture) applies 33 CFR 323.4(a)(3) [2]
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  Except as specified in paragraphs (b) and (c) of this section, any discharge of dredged or fill material that may result from any of the following activities is not prohibited by or otherwise subject to regulation under section 404: ... (3) Construction or maintenance of farm or stock ponds or irrigation ditches, or the maintenance (but not construction) of drainage ditches. Discharges associated with siphons, pumps, headgates, wingwalls, weirs, diversion structures, and such other facilities as are appurtenant and functionally related to irrigation ditches are included in this exemption.

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• RequirementA discharge from an otherwise-exempt activity (including farm or stock pond construction) that contains any toxic pollutant listed under CWA section 307 is subject to any applicable toxic effluent standard or prohibition and requires a section 404 permit.

  33 CFR 323.4(b) [2]
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  (b) If any discharge of dredged or fill material resulting from the activities listed in paragraphs (a) (1) through (6) of this section contains any toxic pollutant listed under section 307 of the CWA such discharge shall be subject to any applicable toxic effluent standard or prohibition, and shall require a section 404 permit.

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• RequirementRecapture (statute): any discharge of dredged or fill material into the navigable waters incidental to any activity having as its purpose bringing an area of the navigable waters into a use to which it was not previously subject, where the flow or circulation of navigable waters may be impaired or the reach of such waters be reduced, must have a section 404 permit.

  Applies when: Applies to all 404(f)(1) exemptions, including farm/stock ponds 33 U.S.C. 1344(f)(2) [1]
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  (2) Any discharge of dredged or fill material into the navigable waters incidental to any activity having as its purpose bringing an area of the navigable waters into a use to which it was not previously subject, where the flow or circulation of navigable waters may be impaired or the reach of such waters be reduced, shall be required to have a permit under this section.

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• RequirementEPA says that if an activity listed as exempt (including construction and maintenance of farm or stock ponds) is a new use of the water and would reduce the reach or impair the flow or circulation of regulated waters, including wetlands, it is not exempt; both conditions must be met. In general, any discharge of dredged or fill material associated with an activity that converts a wetland to upland is not exempt and requires a section 404 permit.

  EPA, Exemptions to Permit Requirements under CWA Section 404 [11]
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  Construction and maintenance of farm or stock ponds ... If an activity listed above as exempt represents a new use of the water, and the activity would result in a reduction in reach or impairment of flow or circulation of regulated waters, including wetlands, the activity is not exempt. Both conditions must be met in order for the activity to be considered non-exempt. In general, any discharge of dredged or fill material associated with an activity that converts a wetland to upland is not exempt and requires a Section 404 permit.

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• RequirementThe recapture regulation adds that a permit is required, for example, for converting a wetland from silvicultural to agricultural use when dredged or fill material is discharged in conjunction with construction of dikes, drainage ditches or other works or structures used to effect the conversion; that conversion of a section 404 wetland to a non-wetland is a change in use; and that a discharge which elevates the bottom of waters of the United States without converting it to dry land does not thereby reduce their reach but may alter their flow or circulation.

  Applies when: Farm/stock ponds built in streams or wetlands 33 CFR 323.4(c) [2]
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  the conversion of a wetland from silvicultural to agricultural use ... in conjunction with construction of dikes, drainage ditches or other works or structures used to effect such conversion. A conversion of a section 404 wetland to a non-wetland is a change in use of an area of waters of the United States. A discharge which elevates the bottom of waters of the United States without converting it to dry land does not thereby reduce the reach of, but may alter the flow or circulation of, waters of the United States.

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• ExemptionEPA's exemptions page lists 'Construction and maintenance of farm or stock ponds' among activities exempt under Section 404(f)(1), but states that if an exempt activity represents a new use of the water and would result in a reduction in reach or impairment of flow or circulation of regulated waters, including wetlands, it is not exempt (both conditions must be met). EPA directs people to contact their local Corps District office or EPA regional office to find out whether specific activities are exempt.

  EPA, 'Exemptions to Permit Requirements under CWA Section 404' [11]
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  Construction and maintenance of farm or stock ponds ... If an activity listed above as exempt represents a new use of the water, and the activity would result in a reduction in reach or impairment of flow or circulation of regulated waters, including wetlands, the activity is not exempt. Both conditions must be met in order for the activity to be considered non-exempt. ... To find out whether specific activities are exempt, contact your local U.S. Army Corps District office or EPA regional office.

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• The 1990 EPA/Army memorandum states that construction of fish ponds is not an exempt activity (in the context of the normal farming exemption), and that the 404(f) 'normal farming' exemption and a fish-pond general permit then being developed apply only to wetlands already in use for agricultural crop production.

  EPA/Department of the Army, Memorandum: CWA Section 404 Regulatory Program and Agricultural Activities (May 3, 1990), Fish ponds [12]
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  Similarly, the rotation of rice and crawfish production is also exempt (construction of fish ponds is not an exempt activity and is addressed below). ... It should be made clear, however, that the Section 404(f) exemption for "normal farming activities" and the General Permit being developed for fish ponds apply only to the use of wetlands which are already in use for agricultural crop production.

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• The 1990 EPA/Army memorandum states that use of the Section 404(f) exemptions does not affect Section 404 jurisdiction: for example, an activity exempt as normal farming does not authorize filling the wetland to construct buildings without a Section 404 permit, and a permit is required for discharges associated with draining a wetland and converting it to dry land.

  EPA/Department of the Army, Memorandum (May 3, 1990), Limitations of the Section 404(f) exemptions [12]
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  It should be emphasized that the use of Section 404(f) exemptions does not affect Section 404 jurisdiction. For example, the fact that an activity in wetlands is exempted as normal farming practices does not authorize the filling of the wetland for the construction of buildings without a Section 404 permit. Similarly, a Section 404 permit would be required for the discharge of dredged or fill material associated with draining a wetland and converting it to dry land.

  Open U.S. Environmental Protection Agency (opens in a new tab)

• ExemptionSeparately exempt (except as specified in 33 CFR 323.4(b) and (c), i.e., the toxic-pollutant and recapture provisions): maintenance, including emergency reconstruction of recently damaged parts, of currently serviceable structures such as dikes and dams. Maintenance does not include any modification that changes the character, scope, or size of the original fill design, and emergency reconstruction must occur within a reasonable period of time after damage occurs in order to qualify.

  Applies when: Repair of an existing, currently serviceable pond dam/embankment located in waters of the United States 33 CFR 323.4(a)(2); see also 33 U.S.C. 1344(f)(1)(B) [2]
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  Except as specified in paragraphs (b) and (c) of this section, any discharge of dredged or fill material ... is not prohibited by or otherwise subject to regulation under section 404: ... (2) Maintenance, including emergency reconstruction of recently damaged parts, of currently serviceable structures such as dikes, dams, levees ... Maintenance does not include any modification that changes the character, scope, or size of the original fill design. Emergency reconstruction must occur within a reasonable period of time after damage occurs in order to qualify for this exemption.

  Open eCFR (Office of the Federal Register) (opens in a new tab)

• ExemptionNRCS New Mexico examples of recapture: a pond dug within a shallow emergent wetland changes the use (wetland to open water) and alters the wetland's flow and circulation, so a section 404 permit is required; and excess dirt from pond construction or maintenance (such as pond sediment removal) placed in a low wet spot (wetland) is recaptured and requires a section 404 permit.

  Applies when: Excavated (dug-out) pond in a wetland; spoil disposal in wetlands NRCS New Mexico, Clean Water Act, Section 404(f) Exemptions as of January 2014, item 3, Examples 1 and 4 [13]
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  Example 1: a pond dug within a shallow, emergent wetland. The Recapture Provision applies because it changes the use (wetland to open water) and alters the flow/circulation of the wetland; therefore a Section 404 Permit is required. ... Example 4: excess dirt from construction or maintenance (such ditch/pond sediment removal) is placed in a low, wet spot (wetland). The Recapture Provision applies; therefore a Section 404 Permit is required.

  Open USDA NRCS (New Mexico), eFOTG (opens in a new tab)

Confirming an exemption, and what still applies

EPA's exemptions page tells people to contact their local Corps district office or EPA regional office to find out whether specific activities are exempt. Corps district engineers are authorized to issue formal determinations on whether a statutory exemption applies to a proposed activity, and such a determination is a Corps final agency action. [11][15]

Under the 1989 Army-EPA memorandum of agreement (MOA), the Corps performs the majority of 404(f) exemption determinations and must fully implement EPA guidance on them, while EPA makes the final determination in designated "special 404(f) matters"; outside those matters the Corps district engineer decides without a requirement to consult EPA first. All final determinations must be in writing and signed, and they are binding on the Government and represent its position in any later federal action or litigation about that determination. [16]

By its terms the MOA, signed January 19, 1989, was to continue in effect for five years unless extended, modified, or revoked. EPA's Section 404 policy page (last updated January 13, 2026) still lists it as allocating responsibilities between EPA and the Corps for determining the applicability of 404(f) exemptions. [16][17]

The statutory exemption does not extend to effluent standards or prohibitions under 33 U.S.C. 1317, and Section 404 does not preclude a state from controlling the discharge of dredged or fill material in the navigable waters within its jurisdiction. The Corps' Sacramento District says the 404(f) exemptions do not apply to any activity within a navigable water of the United States that requires a Rivers and Harbors Act Section 10 permit (see the Rivers and Harbors Act subsection below). [1][18]

Under EPA's 2023 section 401 rule (in effect since November 27, 2023), state or tribal water quality certification (or a waiver) is required for any federal license or permit that authorizes an activity that may result in a discharge from a point source into waters of the United States. EPA published proposed revisions to that rule on January 15, 2026; that is a proposal only, and no final rule was found as of September 28, 2026. [19][20][21]

EPA's NPDES rules exclude return flows from irrigated agriculture and agricultural storm water runoff from the definition of "point source". They also exclude from NPDES permitting any introduction of pollutants from nonpoint-source agricultural and silvicultural activities, including storm water runoff from orchards, cultivated crops, pastures, range lands and forest lands (but not discharges from concentrated animal feeding operations or concentrated aquatic animal production facilities, discharges to aquaculture projects, or discharges from silvicultural point sources). [22][23]

The same rules define "construction activity" as clearing, grading and excavation that disturbs five acres or more, or less than five acres that is part of a larger common plan of development or sale that will ultimately disturb five acres or more; and "small construction activity" as disturbance of at least one and less than five acres, or of less than one acre that is part of a larger common plan that will ultimately disturb at least one and less than five acres. Small construction activity does not include routine maintenance performed to maintain the original line and grade, hydraulic capacity, or original purpose of the facility. [24]

• ProcessCorps district engineers are authorized to issue formal determinations on whether the Clean Water Act applies to activities or tracts of land and whether statutory exemptions apply to proposed activities; such a determination is a Corps final agency action.

  Applies when: Landowner wants written confirmation that the farm/stock pond exemption applies 33 CFR 320.1(a)(6) [15]
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  The Corps has authorized its district engineers to issue formal determinations concerning the applicability of the Clean Water Act or the Rivers and Harbors Act of 1899 to activities or tracts of land and the applicability of general permits or statutory exemptions to proposed activities. A determination pursuant to this authorization shall constitute a Corps final agency action.

  Open eCFR (Office of the Federal Register) (opens in a new tab)

• AgencyUnder the 1989 Army-EPA memorandum of agreement, the Corps performs the majority of determinations of whether the section 404(f) exemptions apply, and must fully implement EPA guidance on applying the 404(f) exemptions. EPA develops future programmatic guidance and interpretations with input from the Corps and makes the final decision if the agencies disagree.

  EPA/Army MOA on Geographic Jurisdiction and Section 404(f) Exemptions (Jan. 19, 1989), secs. I-II [16]
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  for the Corps to continue to perform the majority of the geographic jurisdictional determinations and determinations of the applicability of the exemptions under section 404(f) ... the Corps shall fully implement EPA guidance on determining the geographic extent of section 404 jurisdiction and applicability of the 404(f) exemptions. ... All future programmatic guidance, interpretations, and exemptions shall be developed by EPA with input from the Corps; however, EPA will be considered the lead agency and will make the final decision if the agencies disagree.

  Open U.S. EPA / Department of the Army (opens in a new tab)

• AgencyThe 1989 MOA creates "special 404(f) matters", in which EPA makes the final determination of whether a 404(f) exemption applies; for such projects the Corps district engineer asks the EPA Regional Administrator to make the final determination, subject to discretionary review by EPA Headquarters. Special 404(f) matters may be designated for a specific project or generically by political or geographic area (township, county, parish, state, EPA region, or Corps district or division) and by specific exemption, and each EPA Regional Administrator is to keep a regional list of current designations.

  EPA/Army MOA (Jan. 19, 1989), secs. III.B, IV.A, IV.C(1) [16]
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  A special 404(f) matter is a circumstance where EPA makes the final determination of the applicability of exemptions under section 404(f) ... may be designated in generic or project-specific situations ... Generic special 404(f) matters will be designated by easily identifiable political or geographic subdivisions such as township, county, parish, state, EPA region, or Corps division or district and by specific 404(f) exemption ... Each regional administrator (RA) shall maintain a regional list ... The RA shall make the final determination, subject to, discretionary review by EPA Headquarters

  Open U.S. EPA / Department of the Army (opens in a new tab)

• ProcessUnder the 1989 MOA, all final determinations must be in writing and signed by either the Corps district engineer or the EPA Regional Administrator, and final determinations made under the MOA are binding on the Government and represent its position in any later federal action or litigation about that determination.

  EPA/Army MOA (Jan. 19, 1989), sec. VI.A [16]
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  All final determinations must be in writing and singed by either the DE or RA. Final determinations of the DE or RA made pursuant to this MOA or the 1980 Memorandum of Understanding on Geographic Jurisdiction of the Section 404 Program, will be binding on the Government and represent the Government's position in any subsequent Federal action or litigation concerning that final determination.

  Open U.S. EPA / Department of the Army (opens in a new tab)

• StatusEPA's current Section 404 policy and guidance page (last updated January 13, 2026) still lists the 1989 memorandum of agreement as allocating responsibilities between EPA and the Corps for determining the applicability of exemptions from regulation under section 404(f), and lists the 1979 Civiletti opinion on EPA's ultimate authority over the meaning of section 404(f).

  EPA, Policy and Guidance Documents under CWA Section 404, "Section 404 Jurisdiction - General" [17]
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  1979 "Civiletti" Memorandum - US Attorney General opinion on ultimate administrative authority under Section 404 to determine the reach of navigable waters and the meaning of Section 404(f). 1989 Memorandum of Agreement - allocates responsibilities between EPA and the Corps for determining the geographic scope of the Section 404 program and the applicability of exemptions from regulation under Section 404(f).

  Open U.S. EPA (opens in a new tab)

• RequirementUnder EPA's section 401 regulation, state or tribal water quality certification (or waiver) is required for any Federal license or permit that authorizes an activity that may result in a discharge from a point source into waters of the United States; "license or permit" means one issued or granted by a federal agency.

  40 CFR 121.1(f), 121.2 [19]
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  (f) License or permit means any license or permit issued or granted by an agency of the Federal Government to conduct any activity which may result in any discharge into waters of the United States. ... 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.

  Open eCFR (Office of the Federal Register / GPO) (opens in a new tab)

• ExemptionEPA's NPDES regulation excludes from NPDES permitting any introduction of pollutants from nonpoint-source agricultural and silvicultural activities, including storm water runoff from orchards, cultivated crops, pastures, range lands and forest lands (but not concentrated animal feeding operations, concentrated aquatic animal production facilities, aquaculture projects or silvicultural point sources).

  40 CFR 122.3(e) [23]
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  (e) Any introduction of pollutants from non point-source agricultural and silvicultural activities, including storm water runoff from orchards, cultivated crops, pastures, range lands, and forest lands, but not discharges from concentrated animal feeding operations as defined in § 122.23, discharges from concentrated aquatic animal production facilities as defined in § 122.24, discharges to aquaculture projects as defined in § 122.25, and discharges from silvicultural point sources

  Open eCFR (opens in a new tab)

• DefinitionThe NPDES definition of "point source" excludes return flows from irrigated agriculture and agricultural storm water runoff.

  40 CFR 122.2 ("Point source") [22]
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  This term does not include return flows from irrigated agriculture or agricultural storm water runoff.

  Open eCFR (opens in a new tab)

• DefinitionConstruction stormwater thresholds: "construction activity" includes clearing, grading and excavation, except operations disturbing less than five acres of total land area, and also includes disturbance of less than five acres that is part of a larger common plan of development or sale that will ultimately disturb five acres or more. "Small construction activity" covers clearing, grading and excavating that disturb at least one and less than five acres, plus disturbance of less than one acre that is part of a larger common plan that will ultimately disturb at least one and less than five acres; it does not include routine maintenance performed to maintain the original line and grade, hydraulic capacity, or original purpose of the facility.

  40 CFR 122.26(b)(14)(x), (b)(15)(i) [24]
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  except operations that result in the disturbance of less than five acres of total land area. Construction activity also includes the disturbance of less than five acres ... part of a larger common plan of development or sale if the larger common plan will ultimately disturb five acres or more ... equal to or greater than one acre and less than five acres ... less than one acre of total land area that is part of a larger common plan ... does not include routine maintenance that is performed to maintain the original line and grade, hydraulic capacity, or original purpose of the facility

  Open eCFR (opens in a new tab)

How one Corps district applies the exemption: Savannah District (Georgia)

The Corps' Savannah District Farm Pond Guide (February 2024) is district guidance for Georgia, not a national rule. This page's summary of it comes from the copy Georgia EPD posts, because the official Savannah District copy could not be retrieved, and the guide itself tells readers not to rely on out-of-date versions or on copies found on websites other than the official Savannah District website. [14]

Savannah District says a producer is not required by law to ask the Corps to confirm a farm-pond exemption, but may voluntarily request written verification that building or maintaining a farm pond in waters of the United States is exempt; a complete request must include everything listed in the guide's Appendix A. The guide defines a farm pond as a water source created by building a dam or excavating a pit in a stream, wetland or other water of the U.S., to be used by a producer (an entity involved with an ongoing farming, ranching and/or silvicultural operation) for agricultural or livestock production. [14]

The guide says a farm pond may not be larger than needed to supply the calculated water volume (water budget) the producer needs for agricultural or livestock production, and that requests, such as those for larger ponds, may be referred to EPA for review and confirmation that the pond is exempt. It also says an exempt farm pond may be built to water livestock (noting that 50 head of beef cattle would need only about a 3/4-acre pond) and may be used for recreational fishing, but it cannot be used for commercial fish production, and neither recreational nor commercial fishing can be a purpose for building it. [14]

The guide says fill placed in streams, wetlands or other waters for an exempt farm pond is limited to the area needed for the dam or berm, and mechanized land clearing (tree and stump removal) in waters is limited to the dam or berm, the auxiliary spillway entry and exit sections, and the normal pool. Fill placed in waters next to the pond for any other purpose is not exempt, and the district's model verification letter adds that no dredged or fill material may be placed in wetlands or streams to build up areas around the pond. The letter says the exemption is valid only if the pond is built in accordance with its criteria, including that pond size and storage capacity not exceed the water need in the water budget and that adverse effects from accelerating or restricting the passage of water be minimized to the maximum extent practicable; it adds that the outfall should be built so that normal pre-construction flows are maintained even during dry weather. [14]

The guide says that if a pond is built before the agricultural need exists, the designated crops or livestock, with the equipment to use the water, must be in place within a reasonable period of time, and the Corps and/or EPA may inspect. It says subdividing the land around an exempt pond into residential lots is a change in use that ends the exemption, and the Corps may require removal and restoration or an after-the-fact permit application. The guide also states that farm ponds built before the CWA was implemented are grandfathered. [14]

The model letter says the exemption determination may not be valid for the wetland conservation provisions of the Food Security Act of 1985, says current or prospective USDA program participants should contact their local NRCS office before starting work, and says it does not remove any state or local assent required by law. If application information is falsified, the project or its intended use is revised, or the pond is converted to a non-agricultural use after construction, the verification may be invalid and the owner may no longer qualify for the exemption; a Department of the Army permit application would then likely need an alternatives analysis and mitigation. [14]

• StatusThe Savannah District guide (dated February 2024) tells readers not to rely on out-of-date versions, or on copies of the guide found on websites other than the official Savannah District website.

  Applies when: Georgia (Savannah District) USACE Savannah District, Farm Pond Guide (Feb. 2024), para. 9 [14]
  Show the source text

  Do not rely on out-of-date versions of this Guide as they may be obsolete. Do not rely on versions of this Guide or any related guidance found on the websites other than the official US Army Corps of Engineers, Savannah District website.

  Open U.S. Army Corps of Engineers, Savannah District (hosted on epd.georgia.gov) (opens in a new tab)

• ProcessSavannah District (Georgia): a producer is not required by law to ask the Corps to confirm a farm-pond exemption, but may voluntarily request written verification that constructing or maintaining a farm pond in waters of the United States is exempt. To be complete for Corps review, a request must include everything listed in the guide's Appendix A, and the Corps may request more information.

  Applies when: Farm pond in a stream, wetland or other water of the United States in Georgia (Savannah District) USACE Savannah District, Farm Pond Guide (Feb. 2024), para. 2 [14]
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  Therefore, a producer is not required, under the law, to request confirmation of an exemption from the Corps. However, a producer may voluntarily request verification from the Corps that maintenance or construction of a farm pond in waters of the U.S. is exempt from the CWA (i.e., no permit required). To be considered complete for Corps review, such requests must include all information outlined in Appendix A; the Corps may request additional information as needed to complete the review.

  Open U.S. Army Corps of Engineers, Savannah District (hosted on epd.georgia.gov) (opens in a new tab)

• DefinitionSavannah District definitions: a "farm pond" is a water source created by building a dam or excavating a pit in a stream, wetland or other water of the U.S., to be used by a producer for agricultural or livestock production. A "producer" is an entity involved with an ongoing farming, ranching and/or silvicultural operation (for example, an individual or company that grows crops or breeds livestock to sell food or fiber).

  Applies when: Georgia (Savannah District) USACE Savannah District, Farm Pond Guide (Feb. 2024), para. 5 [14]
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  Farm Pond - A water source created by constructing a dam or excavating a pit in a stream, wetland or other water of the U.S., which is to be used by a producer for agricultural or livestock production. ... a producer is defined as an entity involved with an ongoing farming, ranching and/or silvicultural operation (e.g. an individual or company that grows agricultural crops or breeds livestock for the purpose of selling food or fiber).

  Open U.S. Army Corps of Engineers, Savannah District (hosted on epd.georgia.gov) (opens in a new tab)

• Size cutoffSavannah District: a farm pond may not be larger than needed to supply the calculated water volume (water budget) a producer needs for agricultural or livestock production. Requests, such as those for larger ponds, may be referred to EPA for review and confirmation that the pond is exempt.

  Applies when: Georgia (Savannah District) USACE Savannah District, Farm Pond Guide (Feb. 2024), para. 3 [14]
  Show the source text

  A farm pond shall not be larger than required to provide the calculated volume of the water (water budget) needed by a producer for a farm or ranch operation involving agricultural or livestock production. ... Farm pond requests, such as those for larger ponds, may be referred to the U.S. Environmental Protection Agency for their review and confirmation that the proposed farm pond is exempt from the permit requirements of the CWA.

  Open U.S. Army Corps of Engineers, Savannah District (hosted on epd.georgia.gov) (opens in a new tab)

• ExemptionSavannah District FAQ on qualifying uses: an exempt farm pond may be built to water livestock (the guide notes 50 head of beef cattle would need only about a 3/4-acre pond). It cannot be used for commercial fish production, because fish production is not considered an agricultural or livestock commodity crop. It may be used for recreational fishing, but neither recreational nor commercial fishing can be a purpose for building an exempt farm pond.

  Applies when: Georgia (Savannah District) USACE Savannah District, Farm Pond Guide (Feb. 2024), App. D, Q1-Q3 [14]
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  1. Can an exempt farm pond be constructed for the purpose of watering livestock (cows, swine, goats, etc.)? Answer. Yes. However, 50 head of beef cattle would only need an approximately ¾ acre pond ... Answer. No. ... Since fish production is not considered agricultural or livestock commodity crop, an exempt farm pond cannot be used for commercial fish production. ... Answer. Yes. A farm pond can be used for recreational fishing, but neither recreational nor commercial fishing can be a purpose for the construction of an exempt farm pond.

  Open U.S. Army Corps of Engineers, Savannah District (hosted on epd.georgia.gov) (opens in a new tab)

• RequirementSavannah District: fill placed in streams, wetlands or other waters for an exempt farm pond is limited to the area needed for the dam or berm. Mechanized land clearing (tree and stump removal) in waters is limited to the dam or berm area, auxiliary spillway entry/exit sections and the normal pool. Fill placed in waters next to a farm pond for any other purpose is not exempt.

  Applies when: Georgia (Savannah District) USACE Savannah District, Farm Pond Guide (Feb. 2024), para. 4 [14]
  Show the source text

  The placement of fill material in streams, wetlands or other waters of the United States associated with the construction or maintenance of an exempt farm pond is limited to the area required for dam or berm construction. Mechanized land clearing (i.e., tree and stump removal) in waters ... is limited to the area required for dam or berm construction, auxiliary spillway entry/exit sections and the area of the normal pool of the farm pond. ... located adjacent to a farm pond for any purpose other than the construction or maintenance of a farm pond is not considered exempt

  Open U.S. Army Corps of Engineers, Savannah District (hosted on epd.georgia.gov) (opens in a new tab)

• RequirementThe Savannah District's model exemption-verification letter says the exemption is valid only if the pond is built in accordance with listed criteria, including: (a) pond size and storage capacity must not exceed the water need in the water budget; and (b) adverse effects from accelerating or restricting the passage of water must be minimized to the maximum extent practicable, and the outfall should be built so that normal pre-construction flows are maintained even in dry weather.

  Applies when: Georgia (Savannah District) verification letter; dam on a stream USACE Savannah District, Farm Pond Guide (Feb. 2024), App. E (example Farm Pond Exemption Determination letter), criteria a-b [14]
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  This agriculture exemption ... is valid only if construction of the pond is accomplished in accordance with the following criteria: a. The size of the pond and the resulting storage capacity must not exceed the water need calculated in the above referenced water budget. b. Adverse effects to the aquatic system due to accelerating or restricting the passage of water must be minimized to the maximum extent practicable and the outfall should be constructed in such a way that normal pre-construction flows are maintained even during periods of dry weather.

  Open U.S. Army Corps of Engineers, Savannah District (hosted on epd.georgia.gov) (opens in a new tab)

• RequirementSavannah District model letter criteria c-e: in wetlands or streams, mechanized land clearing (stump removal) is limited to the area needed for the normal pool, the dam and/or berm, and any auxiliary spillway entry and exit section; dredged or fill material is limited to what is needed for the dam, berm and/or spillway, and none may be placed in wetlands or streams to build up areas around the pond; and a stream buffer variance must be obtained if required.

  Applies when: Georgia (Savannah District) verification letter USACE Savannah District, Farm Pond Guide (Feb. 2024), App. E, criteria c-e [14]
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  c. In wetlands or streams, mechanized land clearing (stump removal) must be limited to the area necessary for construction of the normal pool of the pond, the associated dam and/or berm, and an auxiliary spillway entry and exit section, if required. d. In wetlands or streams, the placement of dredged or fill material is limited to that necessary for dam, berm and/or spillway construction. No dredged or fill material shall be placed in wetlands or streams to build up areas around the pond. e. You must obtain a stream buffer variance, if required.

  Open U.S. Army Corps of Engineers, Savannah District (hosted on epd.georgia.gov) (opens in a new tab)

• TimelineSavannah District on time to use: if a farm pond is built before the agricultural need exists, the designated crops or livestock must be present, with the equipment to use the water, within a reasonable period of time. The Corps and/or EPA may inspect the site. If the pond is found to be used for something other than producing crops or livestock, it may lose the exemption, and the owner may be asked to remove it and restore the area or to obtain a Department of the Army permit.

  Applies when: Georgia (Savannah District) USACE Savannah District, Farm Pond Guide (Feb. 2024), App. D, Q5 [14]
  Show the source text

  Should a pond be constructed prior to the agricultural need, the designated crops or livestock must be present with proper equipment in place to use that water for the stated purpose within a reasonable period of time. The U.S. Army Corps of Engineers and/or U.S. Environmental Protection Agency may inspect the site ... If the pond is found to be for a use other than producing crops [or livestock], it may no longer qualify for an exemption, and you may be asked to remove the pond and restore the affected area or obtain a Department of the Army permit.

  Open U.S. Army Corps of Engineers, Savannah District (hosted on epd.georgia.gov) (opens in a new tab)

• RequirementSavannah District on change of use: subdividing the property around an exempt farm pond into residential lots is a change in use; the pond is then no longer exempt, and the Corps may require removal and restoration or an after-the-fact permit application. The guide states that farm ponds built before the CWA was implemented are grandfathered.

  Applies when: Exempt farm pond later converted to residential/commercial use (Georgia, Savannah District) USACE Savannah District, Farm Pond Guide (Feb. 2024), App. D, Q10 [14]
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  if a farmer subdivides the property surrounding an exempt farm pond into residential lots, this would be considered a change in the use of the pond under the CWA. Therefore, the pond would no longer be exempt from CWA permit requirements ... The Corps may require the farmer to remove the pond and restore aquatic areas to their original condition, or to submit an application for an after the fact permit. ... Farm ponds constructed prior to implementation of the CWA are grandfathered and authorized under the CWA.

  Open U.S. Army Corps of Engineers, Savannah District (hosted on epd.georgia.gov) (opens in a new tab)

• RequirementWhat still applies to an exempt pond (Savannah District model letter): the Corps determination may not be valid for the wetland conservation provisions of the Food Security Act of 1985, as amended, so current or prospective USDA program participants should contact the local NRCS office before starting work; and the letter does not remove the need for state or local assent required by law, including under the Georgia Erosion and Sedimentation Control Act of 1975.

  Applies when: Any exempt farm pond; Georgia-specific reference to the Erosion and Sedimentation Control Act USACE Savannah District, Farm Pond Guide (Feb. 2024), App. E [14]
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  This determination may not be valid for the wetland conservation provisions of the Food Security Act of 1985, as amended. If you or your tenant are U.S. Department of Agriculture (USDA) program participants, or anticipate participation in USDA programs, ... you should contact the local office of the NRCS prior to starting work and confirm that construction of the farm pond will not negatively impact USDA farm program benefits. ... It does not obviate the requirement to obtain state or local assent required by law, including the Georgia Erosion and Sedimentation Control Act of 1975, as amended.

  Open U.S. Army Corps of Engineers, Savannah District (hosted on epd.georgia.gov) (opens in a new tab)

• RequirementThe Savannah District model letter warns that if application information is falsified, the project or its intended use is revised, or the pond is converted to a non-agricultural use after construction, the verification may be invalid and the owner may no longer qualify for the exemption; a Department of the Army permit application would then likely need an alternatives analysis and mitigation, and if no permit is obtained the site may have to be restored to pre-construction conditions.

  Applies when: Georgia (Savannah District) USACE Savannah District, Farm Pond Guide (Feb. 2024), App. E [14]
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  If any of the information in your application is found to be falsified in any manner, you make any revisions to the proposed project or its intended use, or if the pond is converted to a non-agricultural use after construction, this verification may be invalid and you may no longer qualify for an exemption under 33 C.FR. § 323.4(a)(3). ... Any Department of the Army permit application would likely need to include an alternatives analysis and mitigation. Should a permit not be obtained, it may be necessary to restore the site to pre-construction conditions

  Open U.S. Army Corps of Engineers, Savannah District (hosted on epd.georgia.gov) (opens in a new tab)

Nationwide Permits 40 and 43

By statute the Corps may issue general permits on a state, regional, or nationwide basis for categories of activities that are similar in nature and will cause only minimal adverse environmental effects, separately and cumulatively, and no general permit may last more than five years after issuance. The current 57 NWPs (56 reissued and one new), published January 8, 2026, took effect March 15, 2026 and expire March 15, 2031. The 2021 NWPs expired March 14, 2026: work authorized under them that had started or was under contract to start by that date has until March 14, 2027 to be completed, and work that had not started or was not under contract by March 14, 2026, or will not be completed by March 14, 2027, needs reauthorization under the 2026 NWPs. [1][3]

NWP 40 (Agricultural Activities) authorizes construction of farm ponds in non-tidal waters of the United States, excluding perennial streams, provided the pond is used solely for agricultural purposes; it does not authorize construction of 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 (PCN) to the district engineer is required before work starts, and the permit's note says it covers farm ponds that do not qualify for the 404(f)(1)(C) exemption because of recapture. [3]

In the 2026 rule the Corps left NWP 40's 1/2-acre limit unchanged, declined to extend it to Section 10 navigable waters (which another NWP, a regional general permit, or an individual permit may cover), and said the district engineer will decide on receiving the PCN whether a proposed activity is agricultural. The acreage limits measure "loss of waters of the United States": waters permanently adversely affected by filling, flooding, excavation, or drainage because of the regulated activity, counted without netting out compensatory mitigation and without impacts from activities that need no Corps authorization, such as 404(f)-exempt activities. [3]

NWP 43 (Stormwater Management Facilities) authorizes discharges into non-tidal waters of the United States for stormwater detention basins, retention basins and other stormwater management facilities, and for water control structures, outfall structures and emergency spillways, with the same 1/2-acre loss limit; it does not authorize new stormwater management facilities in perennial streams. A PCN is required for new or expanded facilities, but not for maintenance limited to restoring the original design capacities. [3]

Among the NWP general conditions (GCs), GC 8 requires that, if the activity creates an impoundment, adverse effects to the aquatic system due to accelerating the passage of water and/or restricting its flow be minimized to the maximum extent practicable, and GC 24 lets the district engineer require non-federal applicants to show that impoundment structures comply with established state or federal dam safety criteria or were designed by qualified persons. GC 23 requires compensatory mitigation at a minimum one-for-one ratio for wetland losses over 1/10 acre that require a PCN, unless the district engineer determines in writing that some other form of mitigation would be more environmentally appropriate or that the adverse environmental effects are no more than minimal, and provides an activity-specific waiver; it likewise requires compensatory mitigation at a minimum one-for-one ratio for stream bed losses over 3/100 acre that require a PCN. [3]

Under general condition 32, the district engineer must decide within 30 calendar days whether a PCN is complete. The applicant may not begin until notified in writing that the activity may proceed, or until 45 calendar days have passed after the district's receipt of a complete PCN without written notice. [3]

Every NWP activity must also comply with regional conditions added by the Corps division engineer and any case-specific conditions added by the Corps, by the state, Tribe or EPA in its section 401 certification, or by the state in its Coastal Zone Management Act consistency determination. If a state denies 401 certification for an NWP, that NWP's authorization for those activities in the state is denied without prejudice until the state issues an individual certification or waives. Ohio's 401 conditions for the 2026 NWP 40 (Corps public notice, March 11, 2026), for example, allow the certification to be used only once per farm and do not authorize construction of farm ponds in streams or wetlands. [3][4][25]

An activity is authorized under an NWP only if the activity and the permittee satisfy all of the NWP's terms and conditions; the Corps considers unauthorized any activity requiring Corps authorization that is under construction or completed and does not comply with all terms and conditions of an NWP, regional general permit, or individual permit, and evaluates such activities for enforcement under 33 CFR part 326. On March 16, 2026 the Corps asked for input on making the nationwide permit program more efficient (comments were due May 15, 2026), to be considered in future NWP rulemaking. [4][26]

• StatusCURRENT NWP STATUS: The Corps reissued 56 existing nationwide permits and issued one new NWP in a final action published January 8, 2026 (91 FR 768). The 57 NWPs, general conditions, and definitions went into effect on March 15, 2026 and will expire on March 15, 2031.

  91 FR 768 (Jan. 8, 2026), FR Doc. 2026-00121, DATES [3]
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  In this final action, the U.S. Army Corps of Engineers (Corps) is reissuing 56 existing nationwide permits (NWPs), general conditions, and definitions, with some modifications. The Corps is also issuing one new NWP. DATES: The 57 NWPs, the general conditions, and the associated definitions will go into effect on March 15, 2026. The NWPs will expire on March 15, 2031.

  Open Federal Register / U.S. Army Corps of Engineers (opens in a new tab)

• StatusThe 2021 NWPs (effective March 15, 2021 and February 25, 2022) expired March 14, 2026. Activities authorized by a 2021 NWP that had commenced or were under contract to commence by March 14, 2026 have until March 14, 2027 to be completed; activities that had not commenced (or were not under contract) by March 14, 2026, or will not be completed by March 14, 2027, require reauthorization under the 2026 NWPs.

  91 FR 768, 772-773 (Jan. 8, 2026), Section I.D Status of Existing Permits; 33 CFR 330.6(b) [3]
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  The expiration date of the 57 NWPs that went into effect on March 15, 2021, and February 25, 2022, is March 14, 2026. ... Activities authorized by the 2021 NWPs that have commenced or are under contract to commence by March 14, 2026, will have one year (i.e., until March 14, 2027) to complete those activities ... Activities previously authorized by the 2021 NWPs that have not commenced or are not under contract to commence by March 14, 2026, or that will not be completed by March 14, 2027, will require reauthorization under the 2026 NWPs

  Open Federal Register / U.S. Army Corps of Engineers (opens in a new tab)

• Size cutoffNWP 40 (Agricultural Activities) authorizes the construction of farm ponds in non-tidal waters of the United States, excluding perennial streams, provided the farm pond is used solely for agricultural purposes; it does not authorize construction of aquaculture ponds. The discharge must not cause the loss of greater than 1/2-acre of non-tidal waters of the United States, and it requires a pre-construction notification (PCN) to the district engineer before starting. NWP 40's authority is Section 404 only.

  Applies when: Farm ponds in non-tidal waters (not perennial streams) that do not qualify for the 404(f) exemption NWP 40 (2026), 91 FR 868 [3]
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  This NWP also authorizes the construction of farm ponds in non-tidal waters of the United States, excluding perennial streams, provided the farm pond is used solely for agricultural purposes. This NWP does not authorize the construction of aquaculture ponds. ... The discharge must not cause the loss of greater than\1/2\-acre of non-tidal waters of the United States. ... Notification: The permittee must submit a pre-construction notification to the district engineer prior to commencing the activity. (See general condition 32.) (Authority: Section 404)

  Open Federal Register / U.S. Army Corps of Engineers (opens in a new tab)

• In the 2026 NWP rule the Corps kept NWP 40's 1/2-acre limit unchanged, declined to modify NWP 40 to authorize activities in Section 10 navigable waters (those may be authorized by another NWP, a regional general permit, or an individual permit), and stated that on receipt of a PCN the district engineer will determine whether a proposed activity is an agricultural activity.

  91 FR 808-809 (Jan. 8, 2026), FR Doc. 2026-00121, preamble discussion of NWP 40 [3]
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  The Corps has made no change to the \1/2\-acre impact limit in this NWP. ... The Corps declines to modify this NWP to authorize activities in navigable waters of the United States, such activities may be authorized by another NWP, a regional general permit, or an individual permit. ... This NWP requires that prospective permittees submit a PCN. Upon receipt of the PCN, district engineers will determine if a proposed activity is an agricultural activity.

  Open Federal Register / U.S. Army Corps of Engineers (opens in a new tab)

• DefinitionFor NWP thresholds, 'loss of waters of the United States' means waters permanently adversely affected by filling, flooding, excavation, or drainage because of the regulated activity; permanent adverse effects include discharges that change an aquatic area to dry land, increase the bottom elevation of a waterbody, or change the use of a waterbody. The loss acreage is a threshold measurement for deciding whether a project may qualify for an NWP.

  NWP Definitions (2026), 91 FR 884 [3]
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  Loss of waters of the United States: Waters of the United States that are permanently adversely affected by filling, flooding, excavation, or drainage because of the regulated activity. ... Permanent adverse effects include permanent discharges of dredged or fill material that change an aquatic area to dry land, increase the bottom elevation of a waterbody, or change the use of a waterbody. The acreage of loss of waters of the United States is a threshold measurement of the impact to jurisdictional waters or wetlands for determining whether a project may qualify for an NWP

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• Size cutoffNWP 43 (Stormwater Management Facilities) authorizes discharges into non-tidal waters of the United States for construction of stormwater management facilities, including stormwater detention basins and retention basins, and construction of water control structures, outfall structures and emergency spillways. The discharge must not cause the loss of greater than 1/2-acre of non-tidal waters of the United States, and NWP 43 does not authorize construction of new stormwater management facilities in perennial streams.

  Applies when: Stormwater detention/retention ponds NWP 43 (2026), 91 FR 768 [3]
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  Discharges of dredged or fill material into non-tidal waters of the United States for the construction of stormwater management facilities, including stormwater detention basins and retention basins and other stormwater management facilities; the construction of water control structures, outfall structures and emergency spillways; ... The discharge must not cause the loss of greater than \1/2\-acre of non-tidal waters of the United States. ... This NWP does not authorize discharges of dredged or fill material for the construction of new stormwater management facilities in perennial streams.

  Open Federal Register / U.S. Army Corps of Engineers (opens in a new tab)

• RequirementNWP 43 requires a pre-construction notification for construction of new stormwater management facilities (or nature-based solutions) or expansion of existing ones; maintenance activities do not require a PCN if limited to restoring the facility's original design capacities.

  Applies when: Stormwater detention/retention ponds NWP 43 (2026), Notification [3]
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  Notification: For discharges of dredged or fill material into non-tidal waters of the United States for the construction of new stormwater management facilities or nature-based solutions, or the expansion of existing stormwater management facilities or nature-based solutions, the permittee must submit a pre-construction notification to the district engineer prior to commencing the activity. ... Maintenance activities do not require pre-construction notification if they are limited to restoring the original design capacities of the stormwater management facility or nature-based solution.

  Open Federal Register / U.S. Army Corps of Engineers (opens in a new tab)

• RequirementNWP general condition 8 (Adverse Effects From Impoundments): if the activity creates an impoundment of water, adverse effects to the aquatic system due to accelerating the passage of water and/or restricting its flow must be minimized to the maximum extent practicable.

  Applies when: Any NWP activity that creates a pond/impoundment NWP General Condition 8 (2026) [3]
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  8. Adverse Effects From Impoundments. If the activity creates an impoundment of water, adverse effects to the aquatic system due to accelerating the passage of water, and/or restricting its flow must be minimized to the maximum extent practicable.

  Open Federal Register / U.S. Army Corps of Engineers (opens in a new tab)

• RequirementNWP general condition 24 (Safety of Impoundment Structures): the district engineer may require non-federal applicants to demonstrate that impoundment structures comply with established state or federal dam safety criteria or have been designed by qualified persons, and may require documentation that the design was independently reviewed by similarly qualified persons.

  Applies when: Embankment ponds/dams authorized under an NWP NWP General Condition 24 (2026) [3]
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  24. Safety of Impoundment Structures. To ensure that all impoundment structures are safely designed, the district engineer may require non-federal applicants to demonstrate that the structures comply with established state or federal, dam safety criteria or have been designed by qualified persons. The district engineer may also require documentation that the design has been independently reviewed by similarly qualified persons, and appropriate modifications made to ensure safety.

  Open Federal Register / U.S. Army Corps of Engineers (opens in a new tab)

• Size cutoffNWP general condition 23 (Mitigation): compensatory mitigation at a minimum one-for-one ratio is required for all wetland losses that exceed 1/10-acre and require a PCN, unless the district engineer determines in writing that either some other form of mitigation would be more environmentally appropriate or the adverse environmental effects are no more than minimal, and provides an activity-specific waiver; compensatory mitigation at a minimum one-for-one ratio is likewise required for all losses of stream bed that exceed 3/100-acre and require a PCN.

  NWP General Condition 23(c)-(d) (2026) [3]
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  Compensatory mitigation at a minimum one-for-one ratio will be required for all wetland losses that exceed \1/10\-acre and require pre-construction notification, unless the district engineer determines in writing that either some other form of mitigation would be more environmentally appropriate or the adverse environmental effects ... are no more than minimal, and provides an activity-specific waiver of this requirement. ... Compensatory mitigation at a minimum one-for-one ratio will be required for all losses of stream bed that exceed \3/100\-acre and require pre-construction notification

  Open Federal Register / U.S. Army Corps of Engineers (opens in a new tab)

• TimelineNWP general condition 32 (Pre-Construction Notification): the district engineer must determine within 30 calendar days whether a PCN is complete. The prospective permittee may not begin until either notified in writing that the activity may proceed, or 45 calendar days have passed after the district's receipt of a complete PCN without written notice.

  NWP General Condition 32(a) (2026) [3]
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  The district engineer must determine if the PCN is complete within 30 calendar days of the date of receipt ... The prospective permittee shall not begin the activity until either: (1) He or she is notified in writing by the district engineer that the activity may proceed under the NWP ... or (2) 45 calendar days have passed from the district engineer's receipt of the complete PCN and the prospective permittee has not received written notice from the district or division engineer.

  Open Federal Register / U.S. Army Corps of Engineers (opens in a new tab)

• RequirementNWP general condition 27 requires every NWP activity to comply with any regional conditions added by the Corps division engineer and with any case-specific conditions added by the Corps, or by the state, Tribe, or EPA in its CWA section 401 water quality certification, or by the state in its Coastal Zone Management Act consistency determination.

  NWP General Condition 27 (2026) [3]
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  27. Regional and Case-By-Case Conditions. The activity must comply with any regional conditions that may have been added by the division engineer (see 33 CFR 330.4(e)) and with any case specific conditions added by the Corps or by the state, Indian Tribe, or U.S. EPA in its CWA section 401 Water Quality Certification, or by the state in its Coastal Zone Management Act consistency determination.

  Open Federal Register / U.S. Army Corps of Engineers (opens in a new tab)

• RequirementOhio example for ponds that lose the exemption: the Corps' March 11, 2026 public notice for Ohio reproduces the 2026 NWP 40 (Agricultural Activities) note that NWP 40 authorizes the construction of farm ponds that do not qualify for the section 404(f)(1)(C) exemption because of the recapture provision. Ohio's section 401 certification conditions for NWP 40 state that the certification may be used only once per farm and does not authorize the construction of farm ponds in streams or wetlands.

  Applies when: Recaptured (non-exempt) farm pond in Ohio relying on NWP 40 USACE Buffalo, Huntington, Louisville and Pittsburgh Districts, Public Notice (Mar. 11, 2026), NWP 40 - Ohio 401 Certification Special Limitations and Conditions 4-5 [25]
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  This NWP authorizes the construction of farm ponds that do not qualify for the Clean Water Act section 404(f)(1)(C) exemption because of the recapture provision at section 404(f)(2). Ohio 401 Certification Special Limitations and Conditions: ... 4. This certification shall be used only once per farm. ... 5. This certification does not authorize the construction of farm ponds in streams or wetlands (i.e., non-tidal waters of the United States).

  Open U.S. Army Corps of Engineers (USACE library) (opens in a new tab)

Individual and regional permits, and fees

When no exemption or nationwide permit applies, a discharge needs an individual or regional Section 404 permit. An individual permit is issued after a case-by-case evaluation of the specific project and a determination that the discharge is in the public interest under 33 CFR part 320. [2]

Regional permits are general permits issued by a Corps division or district engineer for no more than five years, and the issuing authority may override one case by case and require an individual application when concerns for the aquatic environment so indicate. Programmatic permits are general permits founded on an existing state, local or other federal agency program and designed to avoid duplicating it. [27]

As one example of regional permits for ponds, the Charleston District's SAC-RGP 24 (South Carolina) covers non-commercial private recreational ponds with a full-pool surface area under 5 acres, with impacts not to exceed 1,000 linear feet of tributaries and/or 2 acres of wetlands and other jurisdictional waters. The Charleston District's SAC-RGP 24 through 26 (effective July 8, 2022, expiring July 8, 2027) do not authorize irrigation ponds, aesthetic ponds for residential or commercial development, stormwater management ponds, sediment ponds, or commercial aquaculture ponds. [28]

Letters of permission are permits issued through an abbreviated procedure that includes coordination with federal and state fish and wildlife agencies and a public interest evaluation, but no individual public notice. For Section 404 discharges they may be used only for categories of activities the district engineer has listed through agency consultation and public notice, and only after 401 certification has been issued or waived. [27]

For individual permits, the regulations set these timelines: the district engineer will determine within 15 days of receipt whether an application is complete; the public notice comment period should be not more than 30 days nor less than 15 days (extendable by up to 30 more days if warranted); and district engineers will decide on all applications within 60 days of receiving a complete application, unless an exception in 33 CFR 325.2(d)(3) applies. [27]

Under EPA's 404(b)(1) Guidelines, except as provided under section 404(b)(2), no discharge is permitted if there is a practicable alternative with less adverse impact on the aquatic ecosystem, so long as the alternative does not have other significant adverse environmental consequences. For an activity that is not water dependent proposed in a special aquatic site (as defined in 40 CFR part 230 subpart E), practicable alternatives that do not involve special aquatic sites are presumed available, and presumed to have less adverse impact, unless clearly demonstrated otherwise. [29]

Under the current regulation, the Corps permit fee is $100 when the planned or ultimate purpose of the project is commercial or industrial and in support of operations that charge for the production, distribution or sale of goods or services, and $10 when the work is non-commercial and would provide personal benefits with no connection to a commercial enterprise. No fee is charged for general permits, letters of permission, or time extensions. [27]

The Corps' online Regulatory Request System (RRS) lets the public submit permit applications and other information. By statute, a person who violates a condition or limitation in a Corps-issued Section 404 permit, or a Corps compliance order issued under 33 U.S.C. 1344(s)(1), is subject to a civil penalty not to exceed $25,000 per day for each violation. The Corps' current inflation-adjusted table in 33 CFR 326.6 sets the maximum judicially imposed penalty under Section 404(s)(4) at $68,446 per day for each violation, for violations after November 2, 2015 with penalties assessed on or after August 8, 2025. [1][30][31][32]

• DefinitionAn individual permit is a DA authorization issued after case-by-case evaluation of a specific project and a determination that the discharge is in the public interest under 33 CFR part 320. A general permit is a DA authorization issued on a nationwide or regional basis for categories of activities that are substantially similar in nature and cause only minimal individual and cumulative environmental impacts (or that avoid unnecessary duplication of another agency's regulatory control).

  33 CFR 323.2(g)-(h) [2]
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  (g) The term individual permit means a Department of the Army authorization that is issued following a case-by-case evaluation of a specific project ... and a determination that the proposed discharge is in the public interest pursuant to 33 CFR part 320. (h) The term general permit means a Department of the Army authorization that is issued on a nationwide or regional basis for a category or categories of activities when: (1) Those activities are substantially similar in nature and cause only minimal individual and cumulative environmental impacts

  Open eCFR (Office of the Federal Register) (opens in a new tab)

• ProcessRegional permits are a type of general permit issued by a division or district engineer. When the issuing authority determines on a case-by-case basis that concerns for the aquatic environment so indicate, it may exercise discretionary authority to override the regional permit and require an individual application and review. No regional permit may be issued for more than five years. Programmatic permits are a type of general permit founded on an existing state, local or other Federal agency program and designed to avoid duplication with that program.

  33 CFR 325.2(e)(2); 325.5(c)(3) [27]
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  Regional permits are a type of general permit ... They may be issued by a division or district engineer ... When the issuing authority determines on a case-by-case basis that the concerns for the aquatic environment so indicate, he may exercise discretionary authority to override the regional permit and require an individual application and review. ... No regional permit shall be issued for ... more than five years. ... Programmatic permits are a type of general permit founded on an existing state, local or other Federal agency program and designed to avoid duplication with that program

  Open eCFR (Office of the Federal Register / GPO) (opens in a new tab)

• ProcessCharleston District (South Carolina) contrast for non-exempt ponds: Regional General Permit SAC-RGP 24 covers non-commercial private recreational ponds with a full-pool surface area under 5 acres, with impacts capped at 1,000 linear feet of tributaries and/or 2 acres of wetlands and other waters; the RGPs do not authorize irrigation ponds, aesthetic ponds for development, stormwater or sediment ponds, or commercial aquaculture ponds. The RGPs took effect July 8, 2022 and expire July 8, 2027.

  Applies when: Recreational pond in waters of the United States in South Carolina (not a farm pond) USACE Charleston District, SAC-RGP 24 through 26 (effective July 8, 2022; expires July 8, 2027) [28]
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  Effective Date: July 8, 2022 Expiration Date: July 8, 2027 ... These RGPs do not authorize the construction of aesthetic ponds for residential or commercial development, stormwater management ponds, sediment ponds, ... commercial aquaculture ponds, irrigation ponds ... Private Recreational Ponds authorized by this RGP are limited to non-commercial, recreational ponds with a full pool surface area of less than five (5) acres. a. Impacts shall not exceed 1,000 linear feet of tributaries and/or 2 acres of wetlands and other jurisdictional waters of the U.S.

  Open U.S. Army Corps of Engineers, Charleston District (USACE library) (opens in a new tab)

• ProcessLetters of permission (LOPs) are a type of permit issued through abbreviated processing that includes coordination with Federal and state fish and wildlife agencies and a public interest evaluation, but no individual public notice. For Section 404 discharges, LOPs may be used only after the district engineer has developed (through agency consultation) and publicly noticed a list of categories of activities eligible for LOP procedures, and after 401 certification has been issued or waived.

  33 CFR 325.2(e)(1) [27]
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  Letters of permission are a type of permit issued through an abbreviated processing procedure which includes coordination with Federal and state fish and wildlife agencies, as required by the Fish and Wildlife Coordination Act, and a public interest evaluation, but without the publishing of an individual public notice. ... (ii) In those cases subject to section 404 of the Clean Water Act after: (A) The district engineer ... develops a list of categories of activities proposed for authorization under LOP procedures; ... (C) A 401 certification has been issued or waived

  Open eCFR (Office of the Federal Register / GPO) (opens in a new tab)

• TimelineIndividual permit process timelines in the regulations: within 15 days of receiving an application the district engineer will determine whether it is complete; the public notice comment period should be not more than 30 days nor less than 15 days (extendable up to an additional 30 days); and district engineers will decide on all applications not later than 60 days after receipt of a complete application, unless one of the exceptions listed in 325.2(d)(3) applies.

  33 CFR 325.2(a)(2), (d)(2)-(3) [27]
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  (2) Within 15 days of receipt of an application the district engineer will either determine that the application is complete ... The comment period should not be more than 30 days nor less than 15 days from the date of the notice. ... the district engineer may extend the comment period up to an additional 30 days if warranted. (3) District engineers will decide on all applications not later than 60 days after receipt of a complete application, unless

  Open eCFR (Office of the Federal Register / GPO) (opens in a new tab)

• RequirementExcept as provided under CWA section 404(b)(2), EPA's 404(b)(1) Guidelines prohibit a discharge of dredged or fill material if there is a practicable alternative with less adverse impact on the aquatic ecosystem, so long as the alternative does not have other significant adverse environmental consequences. Where a discharge is proposed for a special aquatic site (as defined in subpart E of 40 CFR part 230) for an activity that is not 'water dependent', practicable alternatives not involving special aquatic sites are presumed to be available, and are presumed to have less adverse impact, unless clearly demonstrated otherwise.

  Applies when: Ponds proposed in special aquatic sites (e.g., wetlands under the definitions in 40 CFR part 230 subpart E) that need a permit evaluated under the Guidelines 40 CFR 230.10(a), (a)(3) [29]
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  Except as provided under section 404(b)(2), no discharge ... shall be permitted if there is a practicable alternative to the proposed discharge which would have less adverse impact on the aquatic ecosystem, so long as the alternative does not have other significant adverse environmental consequences. ... (i.e., is not “water dependent”), practicable alternatives that do not involve special aquatic sites are presumed to be available, unless clearly demonstrated otherwise. ... which do not involve a discharge into a special aquatic site are presumed to have less adverse impact

  Open eCFR (Office of the Federal Register) (opens in a new tab)

• FeeCorps permit application fees under the current regulation: $100.00 when the planned or ultimate purpose of the project is commercial or industrial in nature and is in support of operations that charge for the production, distribution or sale of goods or services; $10.00 when the proposed work is non-commercial in nature and would provide personal benefits that have no connection with a commercial enterprise. No fees are charged for time extensions, general permits or letters of permission.

  33 CFR 325.1(f) [27]
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  A fee of $100.00 will be charged when the planned or ultimate purpose of the project is commercial or industrial in nature and is in support of operations that charge for the production, distribution or sale of goods or services. A $10.00 fee will be charged ... when the proposed work is non-commercial in nature and would provide personal benefits that have no connection with a commercial enterprise. ... No fees will be charged for time extensions, general permits or letters of permission.

  Open eCFR (Office of the Federal Register / GPO) (opens in a new tab)

• ProcessThe Corps' Regulatory Request System (RRS) is an online application portal that allows the public to submit permit applications and other information; the Corps states it evaluates permit applications for essentially all construction activities that occur in the Nation's waters, including wetlands.

  USACE HQ, Civil Works Regulatory Program and Permits page [30]
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  introduced its new Regulatory Request System (RRS), an online application portal that allows the public to submit permit applications and other information ... The Corps evaluates permit applications for essentially all construction activities that occur in the Nation's waters, including wetlands.

  Open U.S. Army Corps of Engineers Headquarters (opens in a new tab)

• Any person who violates a condition or limitation in a Section 404 permit issued by the Corps, or a Corps compliance order issued under 1344(s)(1), is subject to a civil penalty not to exceed $25,000 per day for each violation (statutory figure).

  33 U.S.C. 1344(s)(1), (4) [1]
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  Any person who violates any condition or limitation in a permit issued by the Secretary under this section, and any person who violates any order issued by the Secretary under paragraph (1) of this subsection, shall be subject to a civil penalty not to exceed $25,000 per day for each violation.

  Open Office of the Law Revision Counsel, U.S. House of Representatives (opens in a new tab)

Jurisdictional determinations

A Corps jurisdictional determination (JD) addresses whether a parcel contains waters of the United States. An approved JD states their presence or absence, or maps their limits, and is appealable; a preliminary JD is a written indication that such waters may be present, or of their approximate location, and is advisory and cannot be appealed. [33]

To appeal an approved JD, a permit denial or a declined permit, an affected party must submit a Request for Appeal that the division engineer receives within 60 days of the date of the Notification of Appeal Process. In U.S. Army Corps of Engineers v. Hawkes Co. (2016), the Supreme Court held that an approved JD is final agency action judicially reviewable under the Administrative Procedure Act. [33][34]

EPA says that under existing Corps policy (Regulatory Guidance Letter 05-02) approved JDs are generally valid for five years unless new information warrants revision, and that, as a general matter, the agencies' actions are governed by the definition of "waters of the United States" in effect when the Corps completes the approved JD, not when it was requested. [6]

The Corps' Regulatory Guidance Letter (RGL) 16-01 (October 31, 2016), as described in a Corps Fort Worth District notice, explains the difference between preliminary and approved JDs and when it may be appropriate to issue a JD. The Corps says RGLs provide mandatory guidance to Corps district offices and that, unless superseded, their content generally remains valid after their stated expiration date. [35][36]

District engineers can also issue formal determinations on whether the Clean Water Act or the Rivers and Harbors Act applies to an activity or tract of land, and whether a general permit or statutory exemption applies to a proposed activity; such a determination is a Corps final agency action. The Corps' Regulatory Boundaries locator shows the contact details of the local Corps Regulatory office for an address or a point on a map. [15][37]

• DefinitionAn approved jurisdictional determination (AJD) is a Corps document stating the presence or absence of waters of the United States on a parcel, or a written statement and map identifying their limits; approved JDs are appealable actions. A preliminary JD is a written indication that there may be waters of the United States on a parcel, or of their approximate location(s); preliminary JDs are advisory and may not be appealed.

  33 CFR 331.2 [33]
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  Approved jurisdictional determination means a Corps document stating the presence or absence of waters of the United States on a parcel or a written statement and map identifying the limits of waters of the United States on a parcel. Approved JDs are clearly designated appealable actions and will include a basis of JD with the document. ... Preliminary JDs are written indications that there may be waters of the United States on a parcel or indications of the approximate location(s) of waters of the United States on a parcel. Preliminary JDs are advisory in nature and may not be appealed.

  Open eCFR (Office of the Federal Register) (opens in a new tab)

• TimelineTo appeal an approved JD (or a permit denial or declined permit), an affected party must submit a Request for Appeal (RFA) that is received by the division engineer within 60 days of the date of the Notification of Appeal Process (NAP).

  33 CFR 331.6(a) [33]
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  (a) An affected party appealing an approved JD, permit denial or declined permit must submit an RFA that is received by the division engineer within 60 days of the date of the NAP.

  Open eCFR (Office of the Federal Register) (opens in a new tab)

• EPA states that under existing Corps policy, approved jurisdictional determinations are generally valid for five years unless new information warrants revision before expiration (citing Corps Regulatory Guidance Letter 05-02), and that the agencies' actions are governed by the definition of 'waters of the United States' in effect when the Corps completes the AJD, not when it is requested.

  EPA, 'Current Implementation of Waters of the United States' - Jurisdictional Determinations [6]
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  Under existing Corps’ policy, AJDs are generally valid for five years unless new information warrants revision prior to the expiration date. See U.S. Army Corps of Engineers, Regulatory Guidance Letter No. 05–02, § 1(a), p. 1 (June 2005) (Regulatory Guidance Letter (RGL) 05–02). As a general matter, the agencies’ actions are governed by the definition of "waters of the United States" that is in effect at the time the Corps completes an AJD, not by the date of the request for an AJD.

  Open U.S. Environmental Protection Agency (opens in a new tab)

• ProcessOn 31 October 2016 the Corps issued Regulatory Guidance Letter (RGL) 16-01, 'Jurisdictional Determinations', which explains the difference between preliminary and approved JDs and gives guidance on when it may be appropriate to issue a JD.

  USACE RGL 16-01 (Oct. 31, 2016), as described by USACE Fort Worth District public notice [35]
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  On 31 October 2016, the U.S. Army Corps of Engineers issued Regulatory Guidance Letter (RGL) 16-01, Subject: Jurisdictional Determinations. The RGL explains the difference between Preliminary Jurisdictional Determinations (PJD) and Approved Jurisdictional Determinations (AJD) and provides guidance to USACE districts and the regulated public on when it may be appropriate to issue jurisdictional determinations in light of recent Supreme Court decisions.

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• Corps Regulatory Guidance Letters (RGLs) interpret or clarify existing Regulatory Program policy but provide mandatory guidance to Corps district offices; RGLs expire on a specified date, but unless superseded by later regulations or guidance their content generally remains valid after the expiration date.

  USACE HQ, Regulatory Guidance Letters index page [36]
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  RGL’s are used only to interpret or clarify existing Regulatory Program policy, but do provide mandatory guidance to the Corps district offices. RGL’s are sequentially numbered and expire on a specified date. However, unless superseded by specific provisions of subsequently issued regulations or guidance, the content provided in RGL’s generally remains valid after the expiration date.

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• ProcessDistrict engineers are authorized to issue formal determinations concerning the applicability of the Clean Water Act or the Rivers and Harbors Act to activities or tracts of land and the applicability of general permits or statutory exemptions to proposed activities; such a determination constitutes a Corps final agency action.

  Applies when: Landowner wants written confirmation that a farm/stock pond exemption applies 33 CFR 320.1(a)(6) [15]
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  The Corps has authorized its district engineers to issue formal determinations concerning the applicability of the Clean Water Act or the Rivers and Harbors Act of 1899 to activities or tracts of land and the applicability of general permits or statutory exemptions to proposed activities. A determination pursuant to this authorization shall constitute a Corps final agency action.

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Navigable waters: Rivers and Harbors Act Sections 9 and 10

Section 10 of the Rivers and Harbors Act of 1899 prohibits any obstruction to the navigable capacity of waters of the United States not affirmatively authorized by Congress, and makes it unlawful to excavate or fill, or in any manner alter or modify the course, location, condition, or capacity of, any navigable water of the United States unless the work has been recommended by the Chief of Engineers and authorized by the Secretary of the Army before it begins. [38]

Except as provided in 33 CFR 322.4, Corps regulations require Section 10 permits for structures or work in or affecting navigable waters of the United States, including structures or work outside those limits that affect the course, location, or condition of the waterbody so as to impact its navigable capacity; "work" includes any dredging, excavation, filling, or other modification of a navigable water. [39]

Navigable waters of the United States are waters subject to the ebb and flow of the tide and/or presently used, used in the past, or susceptible for use to transport interstate or foreign commerce. A navigability determination, once made, applies laterally over the entire surface of the waterbody and is not extinguished by later actions that impede or destroy navigable capacity. [40]

In the 2026 nationwide permit rule the Corps stated that no work or structures in navigable waters of the United States are exempted from regulation under Section 10, and the Corps' Sacramento District says the 404(f) exemptions do not apply to any activity within a navigable water that requires a Section 10 permit. [3][18]

Section 9 (33 U.S.C. 401) covers a dike or dam that completely spans a navigable water of the United States and may obstruct interstate waterborne commerce; weirs are excluded and regulated under Section 10. Dams and dikes in navigable waters also require Section 404 permits, and the Corps will not complete a Section 9 application until Congress (for an interstate waterbody) or the state legislature (for an intrastate waterbody) has approved. [41]

• RequirementRivers and Harbors Act Section 10 prohibits creating any obstruction not affirmatively authorized by Congress to the navigable capacity of waters of the United States, and makes it unlawful to excavate or fill, or in any manner alter or modify the course, location, condition, or capacity of any navigable water of the United States unless the work has been recommended by the Chief of Engineers and authorized by the Secretary of the Army before beginning.

  33 U.S.C. 403 (Rivers and Harbors Act of 1899, sec. 10) [38]
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  The creation of any obstruction not affirmatively authorized by Congress, to the navigable capacity of any of the waters of the United States is prohibited; ... it shall not be lawful to excavate or fill, or in any manner to alter or modify the course, location, condition, or capacity of, ... or of the channel of any navigable water of the United States, unless the work has been recommended by the Chief of Engineers and authorized by the Secretary of the Army prior to beginning the same.

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• RequirementExcept as otherwise provided in 33 CFR 322.4, Section 10 permits are required for structures and/or work in or affecting navigable waters of the United States. Structures or work outside navigable-water limits are also covered if they affect the course, location, or condition of the waterbody so as to impact its navigable capacity. 'Work' includes any dredging, excavation, filling, or other modification of a navigable water of the United States.

  Applies when: Ponds, intakes, or outlet work in or affecting a Section 10 navigable water 33 CFR 322.3(a); 322.2(c) [39]
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  The term work shall include, without limitation, any dredging or disposal of dredged material, excavation, filling, or other modification of a navigable water of the United States. ... DA permits are required under section 10 for structures and/or work in or affecting navigable waters of the United States except as otherwise provided in § 322.4 below. ... Structures or work outside these limits are subject to the provisions of law cited ... if these structures or work affect the course, location, or condition of the waterbody in such a manner as to impact on its navigable capacity.

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• DefinitionNavigable waters of the United States (Section 10) are waters subject to the ebb and flow of the tide and/or presently used, used in the past, or susceptible for use to transport interstate or foreign commerce; a navigability determination applies laterally over the entire surface of the waterbody and is not extinguished by later actions that impede or destroy navigable capacity.

  33 CFR 329.4 [40]
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  Navigable waters of the United States are those waters that are subject to the ebb and flow of the tide and/or are presently used, or have been used in the past, or may be susceptible for use to transport interstate or foreign commerce. A determination of navigability, once made, applies laterally over the entire surface of the waterbody, and is not extinguished by later actions or events which impede or destroy navigable capacity.

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• In the 2026 NWP rule the Corps stated that there are no work or structures in navigable waters of the United States that are exempted from regulation under Section 10 of the Rivers and Harbors Act (i.e., the CWA 404(f) exemptions do not exempt Section 10 work).

  91 FR 768 (Jan. 8, 2026), preamble [3]
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  There are no work or structures in navigable waters of the United States that are exempted from regulation under Section 10 of the RHA.

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• ExemptionThe Corps' Sacramento District states that the Section 404(f) exemptions do not apply to any activity within a navigable water of the United States which requires a permit under Section 10 of the Rivers and Harbors Act of 1899.

  Applies when: Pond work in or affecting a Section 10 navigable water USACE Sacramento District, Section 404 Exemptions page [18]
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  These exemptions do not apply to any activity within a navigable water of the U.S. which requires a permit under Section 10 of the Rivers and Harbors Act of 1899.

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• RequirementFor Section 9 of the Rivers and Harbors Act (33 U.S.C. 401), a 'dike or dam' is any impoundment structure that completely spans a navigable water of the United States and that may obstruct interstate waterborne commerce (weirs are excluded and regulated under Section 10). Dams and dikes in navigable waters of the United States also require DA permits under CWA Section 404. The Corps will not complete a Section 9 application until Congress (interstate navigable water) or the state legislature (intrastate navigable water) has approved.

  Applies when: Only dams across Section 9/10 navigable waters - rare for farm or recreation ponds 33 CFR 321.1, 321.2(b), 321.3(c) [41]
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  Dams and dikes in navigable waters of the United States also require DA permits under section 404 ... The term dike or dam means ... any impoundment structure that completely spans a navigable water of the United States and that may obstruct interstate waterborne commerce. The term does not include a weir. ... Processing a DA application under section 9 will not be completed until the approval of the United States Congress has been obtained if the navigable water of the United States is an interstate waterbody, or until the approval of the appropriate state legislature has been obtained

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