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Section 404 of the Clean Water Act

Section 404 of the Clean Water Act: How Wetlands are Defined and Identified

"Wetlands are areas that are inundated or saturated by surface or ground water at a frequency and duration sufficient to support, and that under normal circumstances do support, a prevalence of vegetation typically adapted for life in saturated soil conditions. Wetlands generally include swamps, marshes, bogs, and similar areas." - Definition of wetlands as used by the U.S. Army Corps of Engineers (Corps) and the U.S. Environmental Protection Agency (EPA) since the 1970s for regulatory purposes.

In more common language, wetlands are areas where the frequent and prolonged presence of water at or near the soil surface drives the natural system meaning the kind of soils that form, the plants that grow and the fish and/or wildlife communities that use the habitat. Swamps, marshes and bogs are well-recognized types of wetlands. However, many important specific wetland types have drier or more variable water systems than those familiar to the general public. Some examples of these are vernal pools (pools that form in the spring rains but are dry at other times of the year), playas (areas at the bottom of undrained desert basins that are sometimes covered with water) and prairie potholes.

Characteristics of Wetlands

When the upper part of the soil is saturated with water at growing season temperatures, soil organisms consume the oxygen in the soil and cause conditions unsuitable for most plants. Such conditions also cause the development of soil characteristics (such as color and texture) of so-called "hydric soils." The plants that can grow in such conditions, such as marsh grasses, are called "hydrophytes." Together, hydric soils and hydrophytes give clues that a wetland area is present.

The presence of water by ponding, flooding or soil saturation is not always a good indicator of wetlands. Except for wetlands flooded by ocean tides, the amount of water present in wetlands fluctuates as a result of rainfall patterns, snow melt, dry seasons and longer droughts.

Some of the most well-known wetlands, such as the Everglades and Mississippi bottomland hardwood swamps, are often dry. In contrast, many upland areas are very wet during and shortly after wet weather. Such natural fluctuations must be considered when identifying areas subject to Federal wetlands jurisdiction. Similarly, the effects of upstream dams, drainage ditches, dikes, irrigation and other modifications must also be considered.

Manual for Defining Wetlands

The EPA and the Corps use the 1987 Corps of Engineers Wetlands Delineation Manual and Regional Supplements Exitto define wetlands for the Clean Water Act Section 404 permit program. Section 404 requires a permit from the Corps or authorized state for the discharge of dredged or fill material into the waters of the United States, including wetlands.

The 1987 Corps of Engineers Wetlands Delineation Manual and Regional Supplements organizes characteristics of a potential wetland into three categories: soils, vegetation and hydrology. The manual and supplements contain criteria for each category. With this approach, an area that meets all three criteria is considered a wetland.

Jurisdictional Determinations

Jurisdictional Determinations are issued by the Army Corps of Engineers, and determine whether a water will be regulated under CWA 404. These are often determined by performing a jurisdictional delineation of waters on a property.

Jurisdictional Delineations are performed on a property in order to delineate which waters are Waters of the U.S. and are therefore subject to CWA 404. Most often,  a preliminary jurisdictional delineation is submitted to the Army Corps by the permit applicant, which the Corps then verifies. The applicant can decide whether they would like a final approved delineation or would like to proceed with an application with only a verified preliminary delineation, which makes for a shorter process. When and How do I do a Jurisdictional Delineation?