Policy and Guidance Documents under CWA Section 404

Section 404 Compensatory Mitigation

1999 Memorandum to the Field - emphasizes the protection afforded the Nation´s valuable coral reef ecosystems under the Clean Water Act (CWA) Section 404 regulatory program, the Marine Protection, Research, and Sanctuaries Act (MPRSA) Sections 102 and 103 provisions, Rivers and Harbors Act (RHA) Section 10 requirements, and Federal Projects conducted by the Corps.

RGLs on the Corps of Engineers Home Page access to the guidance the Corps issues to its field staff.

1992 Memorandum of Agreement - establishes procedures for the Corps and EPA to minimize delays and resolve disputes in the issuance of Section 404 permits.

404(q) Fact Sheet

Chronology of 404(q) Actions

Memoranda on 404(q) Coordination

• 2002 Memorandum on Designation of Aquatic Resources of National Importance under Clean Water Act Section 404(q)
• 2006 Memorandum on Coordination between EPA Regional Offices and Headquarters on Clean Water Act Section 404(q) Actions
• 2008 Memorandum on Revised Coordination between EPA Regional Offices and Headquarters on Clean Water Act Section 404(q) Actions

Comparison of Dredged Material to Reference Sediment
The Environmental Protection Agency (EPA) is proposing to revise the Clean Water Act Section 404(b)(1) Guidelines (Guidelines) to provide for comparison of dredged material proposed for discharge with "reference sediment," for the purposes of conducting chemical, biological, and physical evaluations and testing.

Inland Testing Manual - This joint EPA and Corps document, "Evaluation of Dredged Material Proposed for Discharge in Waters of the U.S. - Testing Manual" (ITM), provides guidance regarding technical protocols under Section 404 for evaluating proposed discharges of dredged material associated with navigational dredging projects.

Beneficial Use of Dredged Material - An important goal of managing dredged material is to ensure that the material is used or disposed of in an environmentally sound manner. The Federal Standard Paper provides guidance on using dredged material as a resource to achieve environmental and economic benefits and is intended as a companion piece to the Beneficial Use Planning Manual.

1989 Memorandum of Agreement - establishes the allocation of enforcement responsibilities between EPA and the Corps for Section 404 of the Clean Water Act.

General Coordination

1995 Memorandum to the Field - identifies regulatory flexibility under Section 404 of the Clean Water Act to those small landowners impacting less than two acres of wetlands on their property.

1993 Memorandum to the Field - clarifies that the level of review associated with a permit application is linked to the nature of anticipated environmental impacts. Thus, small projects with fewer impacts require less review.

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).

Wetlands Delineation

Clean Water Act definition of "Waters of the United States"

The final "Revised Definition of 'Waters of the United States'" rule was published in the Federal Register on January 18, 2023, and took effect on March 20, 2023. On August 29, 2023, the agencies issued a final rule amending the Code of Federal Regulations to conform the January 2023 Rule’s definition of “waters of the United States” to the Supreme Court decision in Sackett v. Environmental Protection Agency. The conforming rule amends the provisions of the agencies’ definition of “waters of the United States” in the January 2023 Rule that are invalid under the Supreme Court’s interpretation of the Clean Water Act in the Sackett decision. The conforming rule, “Revised Definition of ‘Waters of the United States’; Conforming,” became effective on September 8, 2023 upon publication in the Federal Register. In addition, the January 2023 Rule, as amended, is not currently operative in certain states and for certain parties due to litigation. Please visit the Rule Status page for additional information about the status of the January 2023 Rule, as amended, and litigation. More information about current implementation of the definition of "waters of the United States" is available here. 

The agencies utilize the following guidance documents to implement the pre-2015 regulatory regime where it is currently operative in light of litigation. Additionally, the agencies are interpreting the phrase “waters of the United States” consistent with the Supreme Court’s decision in Sackett. Thus, certain aspects of the guidance documents listed below may no longer be in effect.

• 2003 Solid Waste Agency of Northern Cook County (SWANCC) Guidance
• 2008 Rapanos Guidance 

The following guidance documents are applicable, regardless of the definition of "waters of the United States."

• Memorandum to the Field Concerning Issues Related to Implementation of Section 404 of the Clean Water Act (CWA) and the Food Security Act of 1985, as Amended (FSA) (“2022 Ag Memo”) (note: portions of the memo tied specifically to the 2023 Rule are not applicable to the pre-2015 regulatory regime)
  • 2022 Ag Memo (pdf) (2.1 MB)
• Memorandum to the Field on Exemptions from Regulation under Section 404(f)(1)(C) of the CWA for the Construction or Maintenance of Irrigation Ditches and for the Maintenance of Drainage Ditches (“2020 Ditch Exemptions Memo”)
  • 2020 Ditch Exemption Memo (pdf) (141.25 KB)
• Waters That Qualify as “Traditional Navigable Waters” Under Section (a)(1) of the Agencies’ Regulations (“TNW Guidance”)
  • Waters That Qualify as “Traditional Navigable Waters” Under Section (a)(1) of the Agencies’ Regulations (pdf) (177.72 KB)
• 2016 Post-Hawkes Memorandum - interim guidance to field staff in light of U.S. Army Corps of Engineers v. Hawkes Co.

Surface Coal Mining Initiative Actions - This page provides updates and background information regarding EPA's recent activities under the Clean Water Act Section 404, Clean Water Act Section 402, and National Environmental Policy Act (NEPA).

Joint Procedures Framework MOU for Surface Coal Mining Permit Applications - February 10, 2005 - The U.S. Office of Surface Mining (OSM), U.S. Army Corps of Engineers (COE), U.S. Environmental Protection Agency (EPA), and U.S. Fish and Wildlife Service (FWS) have coordinated in the development of a Memorandum of Understanding (MOU) to improve coordination and information sharing among the agencies responsible for reviewing and processing Surface Mining Control and Reclamation Act (SMCRA) and Clean Water Act (CWA) Section 404 dredge and fill permits.

EPA/Corps Memo on CWA Requirements and Coal Mining Operations - May 5, 2003.

1999 Memorandum of Understanding - establishes a process for improving coordination among the U.S. Office of Surface Mining, U.S. Environmental Protection Agency, U.S. Army Corps of Engineers, U.S. Fish and Wildlife Service, and West Virginia Division of Environmental Protection, in the review of permit applications required for surface coal mining and reclamation operations resulting in the placement of excess spoil fills in the waters of the United States in West Virginia.

Summary of the Forestry Resolution- outlines the innovative resolution of a long-standing silvicultural issue affecting forested wetlands in the Southeast. The guidance clarifies where a wetlands permit is not needed when certain ´Best Management´ practices are conducted in association with forestry site preparation.

1995 Forestry Guidance - the full text of the guidance.

1990 National Guidance: Wetlands and Non-Point Source Control - describes how State non-point source programs can use the protection of existing wetlands and the restoration of previously lost or degraded wetlands to meet the water quality objectives of adjacent or downstream water bodies.

1990 National Guidance - Water Quality Standards for Wetlands - assists States in applying their water quality standards regulations to wetlands.

2018 Memorandum of Agreement between EPA and Army provides guidance regarding flexibilities that exist in the mitigation requirements for Clean Water Act Section 404 permits, and how those flexibilities can be applied in the state of Alaska given the abundance of wetlands and unique circumstances involved with Section 404 permitting in the state.

1990 Memorandum to the Field - explains the applicability of the Section 404 program to agriculture and clarifies agricultural exemptions under section 404(f).

Regulatory Guidance Letter 96-02  - joint Army Corps/EPA RGL on the applicability of exemptions under Section 404(f) to "Deep-Ripping" Activities in Wetlands.