Clean Water Act Section 404
Ecological Services
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In 1972, Section 404 of the Clean Water Act established a program to regulate the discharge of dredged or fill material into waters of the United States, including wetlands.  The program is jointly administered by the U.S. Army Corps of Engineers and the Environmental Protection Agency. The Corps is responsible for the day-to-day administration and permit review and EPA provides program oversight. The program supports the Clean Water Act’s overall objective “to restore and maintain the chemical, physical and biological integrity of the Nation’s waters.”

Under the program, no discharge of dredged or fill material is permitted in regulated wetlands and waterways (‘navigable waters’) if there is a practicable alternative that would be less damaging to our aquatic resources or if significant degradation would occur to the nation’s waters. Permit review and issuance follows a sequence process that encourages avoidance of impacts, followed by minimizing impacts and, finally, requiring mitigation for unavoidable impacts to the aquatic environment. This sequence is described in the guidelines at Section 404(b)(1) of the Clean Water Act.

The Rivers and Harbors Act of 1899 defined navigable waters of the United States as “those waters that are subject to the ebb and flow of the tides and/or are presently used, or have been used in the past, or maybe susceptible to use to transport interstate or foreign commerce." The Clean Water Act expanded the definition to include tributaries to navigable waters, interstate wetlands, wetlands which could affect interstate or foreign commerce and wetlands adjacent to other waters of the United States.  More information on the definition of ‘navigable waters’ may be found here.

Role of the Fish and Wildlife Service

Wetlands are vital for sustaining fish and wildlife populations in the United States. They provide important feeding, breeding, and migration habitat for a number of species. This includes 50 percent of our migratory bird species and over 30 percent of plants and animals listed under the Endangered Species Act.

The Service plays an important advisory role to protect wetlands under Section 404 of the Clean Water Act. Section 404 identifies the Service as the lead federal agency for providing comments and recommendations to the Corps for the purpose of conserving fish and wildlife.  The Service is authorized and directed to conserve fish and wildlife through the Fish and Wildlife Coordination Act, Fish and Wildlife Act of 1956, Food Security Act, Anadromous Fish Conservation Act, Migratory Bird Treaty Act, and Endangered Species Act.


Last updated: December 19, 2013

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