If your project touches a wetland, a stream, a pond, or the bed of a river, the starting question in every Mid-Atlantic state is the same: do you need a Section 404 permit from the US Army Corps of Engineers? Section 404 of the Clean Water Act (33 U.S.C. § 1344) is the federal dredge-and-fill permit program. Every state wetland essay in this library — Maryland's Nontidal Wetlands Protection Act, New Jersey's FHA/Wetlands Act, Pennsylvania's Chapter 105, Virginia's VWP, Delaware's Subaqueous Lands — sits inside the 404 framework. The state programs add regulation; they do not replace it.
Section 404 requires a Corps permit for the discharge of dredged or fill material into the waters of the United States (WOTUS), including wetlands. "Discharge" is broadly defined: any addition of dredged or fill material, including material from construction excavation placed back into a regulated water, mechanized land-clearing in wetlands, or sidecasting spoil into a ditch connected to a navigable water.
Section 404 does not regulate uplands. It does not regulate most pollutant discharges (those are Section 402 NPDES, the discharge permits handled by EPA or delegated state agencies). It does not reach every ditch and every puddle. The scope of "waters of the United States" is the threshold question in every 404 case.
The Supreme Court's Sackett v. EPA decision (May 25, 2023, 598 U.S. 651) narrowed the WOTUS definition substantively. Under Sackett, wetlands are "waters of the United States" only if they have a continuous surface connection to a traditional navigable water, a relatively permanent body of water connected to such a water, or a water with such a continuous connection — such that the wetland is indistinguishable from the water itself.
The practical consequence: isolated wetlands, geographically isolated waters such as prairie potholes, and many seasonal ponds that previously came within federal jurisdiction under the "significant nexus" test are now outside 404 jurisdiction.
The regulation implementing Sackett is the EPA/Corps "Conforming Rule" (September 8, 2023, final at 88 Fed. Reg. 61964), which amended the pre-Sackett 2023 "Revised Definition of Waters of the United States" to conform to the Court's ruling. That definition is what the Corps districts currently apply.
What this changed on the ground in the Mid-Atlantic: many developers who used to apply for Nationwide Permits for work in small, isolated wetlands now receive a Preliminary Jurisdictional Determination finding no federal jurisdiction — but the wetland remains regulated under state law in most Mid-Atlantic jurisdictions. Sackett shifted enforcement from federal to state, not away from regulation.
The Corps issues two types of Section 404 permits.
Issued by the Corps every five years (most recent issuance December 2021, with regional modifications and conditions). NWPs pre-authorize specified categories of activity that cause minimal individual and cumulative adverse environmental effects. There are roughly 59 NWPs covering activities like utility line crossings (NWP 12), stormwater management facilities (NWP 43), bank stabilization (NWP 13), residential development (NWP 29), commercial and institutional development (NWP 39), and agricultural activities.
Most private construction wetland impacts that cannot be avoided are permitted under an NWP because the impacts fall within the NWP acreage and linear-foot limits. Typical NWP 29 (residential) limit: 1/2 acre of non-tidal WOTUS loss. NWP 39 (commercial/institutional) is similar. Pre-construction notification (PCN) is required for many NWPs above specified thresholds.
When a project exceeds NWP limits, or when the Corps district declines NWP coverage on a discretionary case, an Individual Permit is required. IPs are project-specific, require a full public interest review under 33 CFR § 320.4, and typically take 12–24 months to issue.
The IP process includes:
Every 404 permit is evaluated against the compensatory mitigation rule (33 CFR Part 332, finalized 2008). The rule establishes a sequencing obligation:
Compensatory mitigation may be provided through:
The rule's preference order is Banks > ILF > PRM because bank credits are delivered before impact, while PRM is delivered after. Mid-Atlantic jurisdictions have active bank markets, particularly in Virginia and Maryland, with credit prices that reflect local wetland-type scarcity.
Every Section 404 permit — Nationwide or Individual — requires Section 401 Water Quality Certification from the state water-quality agency. Section 401 (33 U.S.C. § 1341) authorizes states to certify, with conditions, that the federally-permitted activity will comply with state water-quality standards.
401 certification is the lever states use to impose additional state-specific requirements on federal permits. State 401 conditions can address stormwater, sediment control, sensitive species, riparian buffers, water temperature, pH, and any other water-quality standard the state has adopted.
The Mid-Atlantic states: Maryland's Department of the Environment issues MDE 401 certifications and also administers nontidal wetlands permits under state law. Virginia DEQ issues VWP Program permits that often serve as the 401 certification. New Jersey DEP, Pennsylvania DEP, and Delaware DNREC do the same for their jurisdictions. A 404 permit is not complete without the 401 certification — and state 401 conditions often become the binding regulatory constraint.
Several Mid-Atlantic states have state wetland programs that regulate beyond the federal WOTUS line — and in the post-Sackett landscape, these state programs are doing the heavy lifting for impacts no longer federally regulated:
After Sackett, when the Corps finds no federal jurisdiction, the state program is often the only path. State permit timelines, buffer requirements, and mitigation ratios differ from federal — plan for the state process independently.
Three decisions drive 404 permitting. Is it a WOTUS? (post-Sackett, continuous surface connection). If yes, does it fit a Nationwide? (acreage/linear-foot limits). What mitigation? (bank, ILF, or PRM, at the ratio the district sets).
A frequent post-Sackett mistake is assuming that "no Corps jurisdiction" means "no regulation." In every Mid-Atlantic state, the state wetland program reaches features now outside federal jurisdiction. A no-jurisdiction call from the Corps is not the end of the wetland review — it is the start of the state review.
Primary sources for this essay: Clean Water Act § 404 (33 U.S.C. § 1344); 33 CFR Parts 320–332 (Corps regulations); Sackett v. EPA, 598 U.S. 651 (2023); 88 Fed. Reg. 61964 (September 8, 2023, Conforming Rule); 33 CFR Part 332 (compensatory mitigation); Corps 2021 Nationwide Permits and regional conditions; state 401 certification programs and state wetland programs referenced above. The 1987 Corps Wetland Delineation Manual and Regional Supplements are the field delineation authority.