Waters and Wetlands: Corps of Engineers Needs to Evaluate Its	 
District Office Practices in Determining Jurisdiction (27-FEB-04,
GAO-04-297).							 
                                                                 
Each year the U.S. Army Corps of Engineers (Corps) receives	 
thousands of Clean Water Act permit applications from project	 
proponents wishing to fill waters and wetlands. The first step in
the permitting process is to determine if the waters and wetlands
are jurisdictional. Prior to 2001, if migratory birds used the	 
waters or wetlands as habitat, they were usually jurisdictional. 
In 2001, the Supreme Court--in Solid Waste Agency of Northern	 
Cook County v. U.S. Army Corps of Engineers (SWANCC)--struck down
the migratory bird rule, leaving the Corps to rely on other	 
jurisdictional criteria. GAO was asked to describe the (1)	 
regulations and guidance used to determine jurisdictional waters 
and wetlands and related developments since SWANCC, (2) extent to
which Corps district offices vary in their interpretation of	 
these regulations and guidance, and (3) extent to which Corps	 
district offices document their practices and make this 	 
information publicly available. 				 
-------------------------Indexing Terms------------------------- 
REPORTNUM:   GAO-04-297 					        
    ACCNO:   A09352						        
  TITLE:     Waters and Wetlands: Corps of Engineers Needs to Evaluate
Its District Office Practices in Determining Jurisdiction	 
     DATE:   02/27/2004 
  SUBJECT:   Federal regulations				 
	     Government information dissemination		 
	     Jurisdictional authority				 
	     Legal opinions					 
	     Water resources conservation			 
	     Interagency relations				 
	     Land management					 
	     Wetlands						 

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GAO-04-297

United States General Accounting Office

GAO	Report to the Chairman, Subcommittee on Energy Policy, Natural Resources and
  Regulatory Affairs, Committee on Government Reform, House of Representatives

February 2004

WATERS AND WETLANDS

     Corps of Engineers Needs to Evaluate Its District Office Practices in
                            Determining Jurisdiction

                                       a

GAO-04-297

Highlights of GAO-04-297, a report to the Chairman, Subcommittee on Energy
Policy, Natural Resources and Regulatory Affairs, Committee on Government
Reform, House of Representatives

Each year the U.S. Army Corps of Engineers (Corps) receives thousands of
Clean Water Act permit applications from project proponents wishing to
fill waters and wetlands. The first step in the permitting process is to
determine if the waters and wetlands are jurisdictional. Prior to 2001, if
migratory birds used the waters or wetlands as habitat, they were usually
jurisdictional. In 2001, the Supreme Court- in Solid Waste Agency of
Northern Cook County

v. U.S. Army Corps of Engineers (SWANCC)-struck down the migratory bird
rule, leaving the Corps to rely on other jurisdictional criteria. GAO was
asked to describe the (1) regulations and guidance used to determine
jurisdictional waters and wetlands and related developments since SWANCC,
(2) extent to which Corps district offices vary in their interpretation of
these regulations and guidance, and (3) extent to which Corps district
offices document their practices and make this information publicly
available.

GAO recommends that the Corps, in consultation with the Environmental
Protection Agency (EPA): (1) survey district office practices in making
jurisdictional determinations to determine if significant differences
exist, (2) evaluate whether and how these differences need to be resolved,
and (3) require districts to document their practices and make this
information publicly available.

www.gao.gov/cgi-bin/getrpt?GAO-04-297.

To view the full product, including the scope and methodology, click on
the link above. For more information, contact Anu Mittal at (202)
512-3841, and [email protected].

February 2004

WATERS AND WETLANDS

Corps of Engineers Needs to Evaluate Its District Office Practices in
Determining Jurisdiction

EPA's and the Corps' regulations defining waters of the United States
establish the framework for determining which waters fall within federal
jurisdiction. However, the regulations leave room for interpretation by
Corps districts when considering (1) adjacent wetlands, (2) tributaries,
and (3) ditches and other man-made conveyances. Since the SWANCC decision,
the Corps and EPA have provided limited additional guidance to the
districts concerning jurisdictional determinations, and the Corps has
prohibited the districts from developing new local practices for
determining the extent of Clean Water Act regulatory jurisdiction. In
January 2003, the Corps and EPA published an Advance Notice of Proposed
Rulemaking (ANPRM) soliciting comments on whether there was a need to
revise the regulations that define which waters should be subject to
federal jurisdiction. The ANPRM generated approximately 133,000 comments
representing widely differing views. The agencies decided in December 2003
that they would not proceed with a rulemaking. Additionally, since SWANCC,
11 federal appellate court decisions relating to the extent of
jurisdictional waters have been rendered; and 3 of these decisions are on
appeal with the Supreme Court, with review denied for 2 others.

Corps districts differ in how they interpret and apply the federal
regulations when determining which waters and wetlands are subject to
federal jurisdiction. For example, one district generally regulates
wetlands located within 200 feet of other jurisdictional waters, while
other districts consider the proximity of wetlands to other jurisdictional
waters without any reference to a specific linear distance. Additionally,
some districts assert jurisdiction over all wetlands located in the
100-year floodplain, while others do not consider floodplains as a factor.
Although districts used generally similar criteria to identify the
jurisdictional limits of tributaries, they used differing approaches in
how they apply these criteria. Whether or to what degree individual
differences in Corps district office practices would result in different
jurisdictional determinations in similar situations is unclear, in part,
because Corps staff consider many factors when making these
determinations. Nevertheless, Corps headquarters officials stated that GAO
had documented enough differences in district office practices to warrant
a more comprehensive survey, which would include the other districts not
surveyed in this report. This would help to ensure that the Corps is
achieving the highest level of consistency possible under the current
circumstances.

Only 3 of the 16 districts that GAO reviewed made documentation of their
practices available to the public. Other districts generally relied on
oral communication to convey their practices to interested parties.

Contents

  Letter

Results in Brief
Background
Federal Regulations That Define Jurisdictional Waters Allow for

Interpretation by Individual Corps Districts and Are Currently the Subject
of Debate Corps District Offices Use Differing Practices to Make
Jurisdictional

Determinations Few Districts Make Documentation of Their Practices Public
Conclusions Recommendations for Executive Action Agency Comments and Our
Evaluation

1 2 4

9

17 27 28 28 29

Appendixes

              Appendix I: Appendix II: Appendix III: Appendix IV: Appendix V:

Scope and Methodology
Text of 33 C.F.R. S: 328.3
Comments from the Department of the Army
Comments from the Environmental Protection Agency
GAO Contacts and Staff Acknowledgments

GAO Contacts
Staff Acknowledgments

31

34

37

42

45 45 45

Table Table 1: Appellate Court Cases Decided Post-SWANCC

Figures Figure 1: Map of Corps Divisions and Districts that GAO

Contacted 6

Figure 2: Ditch Conveying Water from a Wetland 23

Figure 3: Drain Tile Conveying Water from a Field 25

Contents

Abbreviations

ANPRM Advance Notice of Proposed Rulemaking
C.F.R. Code of Federal Regulations
CWA Clean Water Act
EPA Environmental Protection Agency

SWANCC	Solid Waste Agency of Northern Cook County v. U.S. Army Corps of
Engineers

This is a work of the U.S. government and is not subject to copyright
protection in the United States. It may be reproduced and distributed in
its entirety without further permission from GAO. However, because this
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copyright holder may be necessary if you wish to reproduce this material
separately.

A

United States General Accounting Office Washington, D.C. 20548

February 27, 2004

The Honorable Doug Ose

Chairman, Subcommittee on Energy Policy, Natural Resources and Regulatory
Affairs Committee on Government Reform House of Representatives

Dear Mr. Chairman:

The Clean Water Act prohibits the discharge of pollutants into "navigable
waters"-defined in the act as the "waters of the United States"-without a
permit.1 For most pollutants the permit program is administered by the
Environmental Protection Agency (EPA), or EPA-approved states and tribes.
However, for section 404 of the act, the Army Corps of Engineers (the
Corps), with EPA oversight, is responsible for issuing permits for the
discharge of dredged or fill material into the waters of the United
States. Under section 404, project proponents who seek to fill in wetlands
or waters on their property are required to obtain a permit from the Corps
before they can undertake such activities, if the water or wetland falls
within federal jurisdiction. Each year, the Corps receives thousands of
applications for permits under section 404.

Regulations applicable to federal jurisdiction under the Clean Water Act,
including the section 404 program, define "waters of the United States"
for which a permit must be obtained to include, among other things,
interstate waters; navigable waters; waters such as wetlands, the use or
degradation of which could affect interstate commerce; tributaries of the
waters identified above; and wetlands adjacent to these waters. In
addition, in 1986, the Corps stated in a preamble to wetlands program
regulations that its definition of "[w]aters of the United States"
included waters "which are or would be used as habitat by birds protected
by Migratory Bird Treaties." This statement became known as the migratory
bird rule; and under it, the Corps was able to regulate almost any body of
water or wetland.

The Corps' implementation of the section 404 program changed significantly
in January 2001, when the Supreme Court struck down the

1Under 33 C.F.R. S: 328.3(a)(1)-(a)(7) "waters of the United States" can
include many types of waters, such as rivers, wetlands, impoundments, the
territorial seas, and waters used in interstate commerce. For the full
text of the regulation, please see appendix II.

migratory bird rule. In Solid Waste Agency of Northern Cook County v.
United States Army Corps of Engineers (SWANCC),2 the Supreme Court ruled
that the Corps had exceeded its authority in asserting jurisdiction over
certain ponds based on their use by migratory birds. The breadth of the
SWANCC holding has been the subject of considerable dispute. In a 2001
memorandum, EPA and the Corps interpreted the Supreme Court's opinion as
applying only to isolated, intrastate, nonnavigable waters. Some project
proponents have disputed this interpretation in court, arguing that, under
SWANCC, the Corps also lacks authority to regulate such bodies of water as
nonnavigable tributaries and ditches and wetlands adjacent to these bodies
of water.

In this context, you asked us to provide information on the Corps'
practices in making jurisdictional determinations since the SWANCC
decision. Specifically, this report describes the (1) regulations and
guidance used by the Corps for making jurisdictional determinations for
waters and wetlands and administrative and judicial developments that have
affected this process since the Supreme Court decision, (2) extent to
which Corps district offices vary in their interpretation and application
of the regulations (hereafter referred to as practices), and (3) extent to
which Corps districts document their practices and make this information
publicly available. To meet our objectives, we examined 16 of the Corps'
38 district offices, selected for geographic diversity. We interviewed
officials from these offices and reviewed the practices they used to
determine jurisdictional waters. Appendix I provides a more detailed
description of the scope and methodology for this review.

Results in Brief	EPA's and the Corps' regulations defining waters of the
United States provide the framework for determining which waters fall
within federal jurisdiction. However, the regulations leave room for
interpretation by the Corps districts when considering jurisdiction over,
for example, (1) adjacent wetlands, (2) tributaries, and (3) ditches and
other man-made conveyances. Since the SWANCC decision, the Corps and EPA
provided limited additional guidance to the districts concerning
jurisdictional determinations. Specifically, the Corps instructed its
district offices to no longer assert jurisdiction over any waters solely
on the basis of use by migratory birds and prohibited them from developing
new local practices

2531 U.S. 159 (2001).

for determining the extent of Clean Water Act section 404 regulatory
jurisdiction. In addition, in January 2003 the Corps and EPA published an
Advance Notice of Proposed Rulemaking (ANPRM), soliciting comments on,
among other things, whether the regulations should define the term
isolated waters and whether any other revisions are needed to the
regulations defining waters of the United States. In response to the
ANPRM, the agencies received approximately 133,000 comments representing
widely differing views and decided in December 2003 that they would not
issue a new rule on federal regulatory jurisdiction over isolated
wetlands. Moreover, in the 3 years since the SWANCC decision, 11 federal
appellate court decisions interpreting the term "waters of the United
States" have been issued. Project proponents in three of these cases are
seeking Supreme Court review, and review has been denied for two others.

In certain circumstances, Corps districts differ in how they interpret and
apply the federal regulations when determining what wetlands and other
waters fall within the jurisdiction of the federal government. Districts
apply different approaches to identify wetlands that are adjacent to other
waters of the United States and are subject to federal regulation. For
example, one district generally regulates wetlands located within 200 feet
of other waters of the United States, while other districts consider the
proximity of the wetland to other waters of the United States on a
case-bycase basis without any reference to a specific linear distance.
Districts also differ in how they regulate wetlands connected to other
waters of the United States by ditches, pipes, storm sewers and other
man-made conveyances. For example, one district generally regulates a
wetland connected to another water of the United States by a ditch, only
if the ditch modifies or replaces a natural stream. Other districts
generally regulate the wetland, regardless of whether the ditch modifies
or replaces a natural stream. Other differences in identifying the
jurisdictional limits of rivers and streams stemmed from the diverse
environmental factors present in various districts. For example, districts
in the arid West developed a method for identifying the jurisdictional
boundaries of dry channels that flood occasionally, expanding several
times their normal size. Whether or to what degree the individual
differences in Corps district office practices would result in different
jurisdictional determinations in similar situations is unclear, in part,
because Corps staff consider many factors when making jurisdictional
determinations. Nevertheless, Corps headquarters officials said that
differences in district office practices that we identified were
sufficiently prevalent to warrant a more comprehensive survey of district
office practices. We are recommending that the Corps survey its district

offices, evaluate their practices for making jurisdictional
determinations, and, if necessary, resolve differences among them.

Few districts make documentation of their practices for making
jurisdictional determinations publicly available. Specifically, only 3 of
the 16 districts that we reviewed made documentation of their practices
available to the public. The other districts generally relied on oral
communication to convey their practices to interested parties. To provide
greater clarity to the regulated community, we are recommending that Corps
districts prepare documentation that specifies the practices used in
making jurisdictional determinations and make it publicly available.

Background	The Clean Water Act prohibits the discharge of pollutants,
including dredged or fill material, into "navigable waters," defined in
the act as the "waters of the United States," without a permit. The act's
objective is to restore and maintain the chemical, physical, and
biological integrity of the nation's waters. Congress' intent in passing
the act was to establish an allencompassing program of water pollution
regulation. The act contains several programs designed to protect waters
of the United States, including section 303, which calls for development
of water quality standards for waters of the United States; section 311,
which establishes a program for preventing, preparing for, and responding
to oil spills that occur in waters of the United States; section 401,
which establishes state water quality certification of federally issued
permits that may result in a discharge to waters of the United States; and
section 402, which establishes a permitting system to regulate point
source discharges of pollutants (other than dredged and fill material)
into waters of the United States.

Section 404 of the Clean Water Act generally prohibits the discharge of
dredged or fill material into waters of the United States without a permit
from the Corps.3 Corps and EPA regulations under the section 404 program
define "waters of the United States" for which a permit must be obtained
to include, among other things, (1) interstate waters; (2) waters which
are or could be used in interstate commerce; (3) waters such as wetlands,
the use

3Section 404(e) of the Clean Water Act authorizes the Corps to develop
general permits on a geographic basis for categories of activities having
minimal adverse environmental impact. Section 404(f) identifies activities
exempt from the permitting requirement, including certain ongoing farming
activities. Section 404(g) authorizes states (and tribes) to establish
their own permit programs.

or degradation of which could affect interstate commerce; (4) tributaries
of the waters identified above and (5) wetlands adjacent to these waters.
As such, this program is the nation's primary wetland protection program.
In addition to the federal regulation of wetlands, some state and local
governments have developed wetland protection programs.

The Corps administers the permitting responsibilities of the section 404
program, while EPA in conjunction with the Corps establishes the
substantive environmental protection standards that permit applicants must
meet. EPA also has final administrative responsibility for interpreting
the term "waters of the United States," a term that governs the scope of
many other programs that EPA administers under the Clean Water Act. 4
Day-to-day authority for administering the permitting program rests with
the 38 Corps district offices, whereas Corps division and headquarters
offices exercise policy oversight (see fig. 1). Under section 404(q), EPA
and other federal agencies, such as the Department of the Interior's Fish
and Wildlife Service, can request that a permit application receive a
higher level of review within the Department of the Army. Under a
memorandum of agreement between EPA and the Corps, EPA may also initiate a
"special case," in which EPA determines the scope of jurisdiction for a
particular site or issue for section 404 purposes. EPA also has "veto"
authority over section 404 permitting decisions under section 404(c).
However, EPA has rarely used its 404(c) authority to intervene in or
overrule Corps permit decisions. EPA also exercises independent
enforcement authority.

443 Op. Atty. Gen. 197 (1979).

Figure 1: Map of Corps Divisions and Districts that GAO Contacted

Wetlands are areas that are inundated or saturated with surface or ground
water at a frequency and duration sufficient to support vegetation adapted
for life in saturated soil conditions. Wetlands include swamps, marshes,
bogs, and similar areas. They are characterized by three factors: (1)
frequent or prolonged presence of water at or near the soil surface, (2)
hydric soils that form under flooded or saturated conditions, and (3)
plants that are adapted to live in these types of soils. Wetlands play
valuable ecological roles by reducing flood risks, recharging water
supplies, improving water quality, and providing habitats for fish,
aquatic birds, and

other plants and animals, including a number of endangered species. As the
Supreme Court has recognized in upholding Corps' authority under the Clean
Water Act to regulate wetlands adjacent to waters of the United States,
"[t]he regulation of activities that cause water pollution cannot rely on
. . . artificial lines . . . but must focus on all waters that together
form the entire aquatic system."5 Further, water moves in hydrologic
cycles and pollution of one part of an aquatic system can affect other
waters within that aquatic system.

The regulations also extend federal jurisdiction under section 404 to
tributaries. The federal government has argued in court that it must
regulate tributary waters well beyond the point at which they are
navigable because any pollutant or fill material that degrades water
quality in a tributary has the potential to move downstream and degrade
the quality of navigable waters themselves. Similarly, according to the
Corps, drainage ditches constructed in uplands that connect two waters of
the United States may themselves be jurisdictional.

The first step in the regulatory process is a jurisdictional
determination, in which the Corps determines whether a water or wetland is
a "water of the United States." In general, Corps staff conduct
jurisdictional determinations by considering a range of factors, and they
often view each factor's importance within the context of the actual site
of a proposed project. While many jurisdictional determinations are simple
to perform, some can be complex and require considerable effort. For
example, a relatively simple jurisdictional determination might involve a
proposed project for the placement of a pier on the Mississippi River. In
this case, Corps staff may only consult a map to determine that the
activity falls within the Corps' jurisdiction. In contrast, a more complex
jurisdictional determination might arise when a property owner wants to
fill in multiple wetlands to build a parking lot. This kind of
jurisdictional determination would likely require additional time and
resources because Corps staff might need to consult a variety of maps and
aerial photographs and then visit the site. Once on site, Corps staff
would verify the exact locations of the wetlands. If the Corps determines
that a water or wetland is jurisdictional, a permit applicant then has the
option of filing an administrative appeal challenging this determination
and could subsequently pursue the matter in court.

5United States v. Riverside Bayview Homes, 474 U.S. 121 (1985) (quoting a
Corps preamble at 42 Fed. Reg. 37128 (1977)).

If a water or wetland is found to be jurisdictional, the property owner
would take the next step in the process and apply for a section 404 permit
from the Corps. The Corps bases its decision to issue a permit on an
evaluation of the probable impacts, including cumulative impacts, of the
proposed activity on the public interest. The decision should reflect the
national concern for both the protection and utilization of important
resources. As part of the balancing process, the Corps may require project
modifications designed to avoid and minimize impacts on natural resources.
Depending on the individual and cumulative impacts of the regulated
activity, these modifications can range from requiring little or no
additional effort by the property owner to requiring the property owner to
incur significant costs. According to the Corps, in approving permits, the
agency requires permit applicants to avoid, minimize, or mitigate impacts
to wetlands and waters in most cases.6 The Corps approves virtually all
section 404 permit applications. In fiscal year 2002, for example, of
85,445 section 404 permit applications filed, the Corps denied 128 and
4,143 were withdrawn by the applicant.

While the interpretation of Clean Water Act jurisdiction has evolved over
time, the Corps' implementation of section 404 of the act changed
significantly in January 2001, when the Supreme Court in the SWANCC
decision ruled that Corps guidance known as the migratory bird rule could
no longer be used as a basis to assert jurisdiction over a water or
wetland. Discussed in the preamble to regulations issued in 1986-but never
itself promulgated as a regulation-this provision stated that
jurisdictional waters include waters that "are or would be used as habitat
by birds protected by migratory bird treaties," or that "are or would be
used as habitat by other migratory birds that cross state lines."7 Under
this provision, nearly all waters and wetlands in the United States were
potentially jurisdictional. The Supreme Court held that the Clean Water
Act did not authorize the Corps to require a permit for filling an
isolated, intrastate, nonnavigable pond where the sole basis for the
Corps' authority

6The section 404 regulatory program relies upon a sequential approach to
mitigating these harmful effects by first avoiding unnecessary impacts,
then minimizing environmental harm, and, finally, compensating for
remaining unavoidable damage to wetlands and other waters through, for
example, the restoration or creation of wetlands.

7The preamble also addressed, (1) waters that "are or would be used as
habitat for endangered species" and (2) waters used to irrigate crops sold
in interstate commerce.

was that the pond had been used by migratory birds.8 The extent to which
the reasoning in the SWANCC decision applies to waters other than those
specifically at issue in that case has been the subject of considerable
debate in the courts and among the public. Some groups have argued the
SWANCC decision precludes the Corps from regulating virtually all
isolated, intrastate, nonnavigable waters, as well as nonnavigable
tributaries to navigable waters, while others have argued that it merely
prohibits the regulation of isolated, intrastate, nonnavigable waters and
wetlands solely on the basis of use by migratory birds. In the context of
this decision, the Corps and EPA considered whether to modify the
definition of "waters of the United States." However, any modification of
the scope of waters of the United States would have implications for other
Clean Water Act programs that cover "navigable waters," including section
303 (governing water quality standards), section 311 (governing oil and
hazardous substance spills), and section 402 (regulating discharges of
pollutants other than dredged and fill material).

Federal Regulations That Define Jurisdictional Waters Allow for
Interpretation by Individual Corps Districts and Are Currently the Subject
of Debate

EPA's and the Corps' regulations defining waters of the United States
provide a framework for determining which waters are within federal
jurisdiction. The regulations leave room for judgment and interpretation
by the Corps districts when considering jurisdiction over, for example,
(1) adjacent wetlands, (2) tributaries, and (3) ditches and other man-made
conveyances. Prior to the 2001 SWANCC decision, the Corps generally did
not have to be concerned with such factors as adjacency, tributaries, and
other aspects of connection with an interstate or navigable water body, if
the wetland or water body qualified as a jurisdictional water on the basis
of its use by migratory birds. Since the SWANCC decision, the Corps and
EPA have provided limited additional guidance to the districts concerning
jurisdictional determinations. Specifically, the Corps told districts that
they may not assert jurisdiction over any waters solely on the basis of
use by migratory birds and that they should not develop new local
practices for determining the extent of Clean Water Act section 404
regulatory jurisdiction or use local practices that were not in effect
prior to the

8SWANCC involved an abandoned sand and gravel pit, containing several
permanent and seasonal ponds at which migratory bird species had been
observed. In striking down the migratory bird rule, the Supreme Court
stated that Congress' use of the phrase "waters of the United States" to
define navigable waters did not constitute a "basis for reading the term
`navigable waters' out of the statute" and that "it is one thing to give a
word limited effect and quite another to give it no effect whatever." 531
U.S. at 172.

SWANCC decision. Additionally, in January 2003, the Corps and EPA
published an ANPRM, soliciting public comments on, among other things,
whether isolated, intrastate, nonnavigable waters are jurisdictional under
the Clean Water Act, whether the regulations should define the term
isolated waters and whether any other revisions are needed to the
regulations defining "waters of the United States." According to EPA
officials, respondents submitted approximately 133,000 comments with
widely differing views on the need for a new regulation and the scope of
Clean Water Act jurisdiction. In December 2003, the Corps and EPA decided
that they would not issue a new rule on federal regulatory jurisdiction
over isolated wetlands. In the almost 3 years since the SWANCC decision,
11 federal appellate court decisions interpreting the term "waters of the
United States" have been issued. Project proponents in three of these
cases are seeking Supreme Court review, and review has been denied for two
additional cases.

Regulations and Guidance Define Waters of the United States but Do Not
Specify Detailed Aspects of Making a Jurisdictional Determination

EPA's and the Corps' regulations defining waters of the United States
establish the framework for determining which waters are within federal
jurisdiction. In addition, the agencies have provided some limited
additional national guidance to aid interpretation by the Corps districts.
The regulations and national guidance leave room for judgment and
interpretation by the Corps districts when considering jurisdiction over,
for example, (1) adjacent wetlands, (2) tributaries, and (3) ditches and
other man-made conveyances.

For example, federal regulations state that wetlands adjacent to other
waters of the United States, other than waters that are themselves
wetlands, are to be considered waters of the United States. The
regulations specify that adjacent means "bordering, contiguous, or
neighboring," and that wetlands separated from other waters of the United
States by barriers such as man-made dikes, natural river berms, and beach
dunes may be considered adjacent wetlands. This definition of adjacency
leaves some degree of interpretation to the Corps districts. For example,
the regulations and subsequent national guidance do not fully define the
circumstances under which wetlands that do not touch waters of the United
States may be considered jurisdictional waters.

The regulations also specify that tributaries to waters of the United
States are to be considered waters of the United States. The regulations
do not define "tributaries," but state that in the absence of adjacent
wetlands, lateral jurisdiction over nontidal waters extends to the
ordinary high water

mark. The ordinary high water mark is the line on the shore caused by
fluctuations of water and can be characterized by a clear bank, shelving,
debris, or changes in vegetation.9 The Corps further states that the
ordinary high water mark should be used to identify the upstream limits of
jurisdiction for tributary waters. Thus, federal jurisdiction generally
extends up the banks and upstream of a tributary to the point where the
ordinary high water mark is no longer discernible. Additionally, the Corps
states that ephemeral tributaries-which have flowing water only at certain
times of year or only after certain storm events in a typical year-are to
be considered jurisdictional, provided that an ordinary high water mark is
present.10 Tributary waters can thus range from substantial rivers and
streams with definite ordinary high water marks, to channels that are
usually dry, and may have very faint or ill-defined ordinary high water
marks.

The regulations do not further define the physical characteristics of an
ordinary high water mark. As a result, it is possible that well trained
and competent staff might interpret the term differently. The definition
refers to factors such as changes in the character of the soil, absence of
terrestrial vegetation, and the presence of litter and debris; but both
the interpretation and weight assigned to each of these factors is left to
the official conducting the jurisdictional determination. Neither the
Corps nor EPA have issued any additional clarifying national technical
guidance for use by Corps staff in identifying ordinary high water marks.

The regulatory definition of waters of the United States also does not
specifically discuss the jurisdictional status of ditches and other
man-made conveyances, and guidance issued by the Corps and EPA leaves room
for interpretation. The Corps has stated that certain man-made
conveyances, such as nontidal drainage and irrigation ditches excavated on
dry land, are generally not considered waters of the United States. In
other situations, however, the Corps may determine that man-made
conveyances are waters of the United States. For example, natural streams
that have been diverted into man-made channels are jurisdictional. Also,
ditches that extend the

9Specifically, the regulation states that an ordinary high water mark is
"that line on the shore established by the fluctuations of water and
indicated by physical characteristics such as [a] clear natural line
impressed on the bank, shelving, changes in the character of soil,
destruction of terrestrial vegetation, the presence of litter and debris,
or other appropriate means that consider the characteristics of the
surrounding areas."

1065 Fed. Reg. 12823 (2000).

ordinary high water mark of a water of the United States are
jurisdictional. However, the Corps guidance provides little additional
direction on when asserting jurisdiction over man-made conveyances is
warranted, leaving that decision to individual Corps districts. The Corps
guidance allows districts discretion when determining whether man-made
channels dug on dry land are jurisdictional.

              Administrative Actions to Clarify Jurisdiction After

SWANCC

Since the SWANCC decision in January 2001, Corps and EPA headquarters have
moved cautiously to address its implications. In a series of memoranda,
the Corps has outlined some of the issues raised by the decision, but it
has provided limited specific guidance as to how Corps districts are to
respond to it. Specifically, the Corps has taken the following three
steps.

o 	In a memorandum issued 10 days after the SWANCC decision in January
2001, EPA and Corps headquarters instructed field staff that they could no
longer assert jurisdiction over waters and wetlands, solely on the basis
of use by migratory birds. The memorandum also noted that because the
SWANCC decision was limited to isolated, intrastate, nonnavigable waters,
the Corps could continue asserting jurisdiction over all other waters
covered by its regulations, such as adjacent wetlands and tributaries.
However, the memorandum noted the Supreme Court's opinion raised questions
about-but did not specifically address-what, if any, connections to
interstate commerce could be used to assert jurisdiction over isolated,
intrastate, nonnavigable waters. Consequently, the memorandum instructed
Corps districts to consult agency legal counsel when such cases arose.11

o 	In May 2001, the Corps issued another memorandum that prohibited the
districts from developing local practices for asserting jurisdiction and
from using any practices not in effect before the SWANCC decision. The
memorandum said that a prohibition on new practices was necessary to
minimize any inconsistencies among the districts.

11Specifically, districts were instructed to consult with agency legal
counsel before asserting jurisdiction over isolated, intrastate,
nonnavigable waters based upon 33 C.F.R. S: 328.3(a)(3) (jurisdictional
waters include all waters the use, degradation, or destruction of which
could affect interstate commerce).

o 	In January 2003, the Corps and EPA issued an ANPRM seeking public
comment on issues associated with the definition of "waters of the United
States" and soliciting information from the general public, the scientific
community, and federal and state resource agencies on the implications of
SWANCC for jurisdictional decisions under the Clean Water Act.12 Attached
to the notice was a joint memorandum between EPA and the Corps designed to
provide clarifying guidance regarding SWANCC and to address several legal
issues that had arisen since the SWANCC decision concerning jurisdiction
under various factual scenarios. For example, the joint memorandum stated
that, isolated, intrastate waters that are capable of supporting
navigation by watercraft remain subject to Clean Water Act jurisdiction.13
The guidance called for field staff to continue to assert jurisdiction
over traditional navigable waters, their tributaries, and adjacent
wetlands. The joint memorandum directed field staff to make jurisdictional
determinations on a case-bycase basis, considering the guidance in the
memorandum as well as applicable regulations and any relevant court
decisions in addition to those discussed in the memorandum. The joint
memorandum also reiterated that field staff were no longer to assert
jurisdiction over an isolated, intrastate, nonnavigable water on the basis
of the factors listed in the migratory bird rule. It also noted that, in
light of the SWANCC decision, it is uncertain whether there remains any
basis for jurisdiction

12Specifically, the ANPRM requested information, data, and comments on six
major topics: (1) whether the factors listed in 33 C.F.R. S: 328.3 (a)(3)
or any other factors are a basis for Clean Water Act jurisdiction over
isolated wetlands; (2) whether the regulations should define "isolated
waters," and if so, using what factors; (3) the effectiveness of federal
and state programs in protecting waters and wetlands; (4) whether any
other changes are needed to the jurisdictional regulations; (5) the
resource impacts of SWANCC on isolated, intrastate, nonnavigable waters;
and (6) the function and values of wetlands and other waters that might be
affected by the issues discussed in the ANPRM.

13Jurisdiction over these waters is based upon 33 C.F.R. S: 328.3(a)(1)
(jurisdictional waters include all waters that are currently used, were
used in the past, or may be susceptible to use in interstate commerce).

over any isolated, intrastate, nonnavigable waters. In view of these
uncertainties, the joint memorandum stated that field staff should seek
formal headquarters approval before asserting jurisdiction over such
waters.14

The ANPRM generated significant interest, as evidenced by the
approximately 133,000 comments submitted by state agencies, national
development organizations, environmental groups, and other parties.
According to EPA, 99 percent of the comments on the need for a new rule
submitted to EPA and the Corps in response to the ANPRM were opposed to a
new rule. Some groups, such as industry representatives, generally
indicated that they favor a rulemaking because they believe the SWANCC
decision created, among other things, a great deal of uncertainty,
resulting in unequal treatment and significant financial burden to the
regulated community. These groups further stated that the current breadth
of federal jurisdiction is too great and that, under the principles of
federalism, state and local governments are the appropriate regulators of
nonnavigable waters within their borders. In contrast, other groups, such
as environmentalists, indicated a general opposition to any rulemaking
effort, expressing concerns that a new rule would result in reduced
federal jurisdiction under section 404 and other programs under the Clean
Water Act. Furthermore, these other groups argued that it is unlikely that
other federal and state programs provide the oversight or require the
mitigation that would be sufficient to protect wetlands and other waters
that were no longer covered under the section 404 program. An EPA official
stated that 41 of the 43 states that submitted comments were concerned
about any major reduction in Clean Water Act jurisdiction. This official
also said that most states are concerned that political, legal, and
budgetary constraints complicate efforts to regulate certain types of
waters and wetlands at the state level. In December 2003, EPA and the
Corps announced that they would not issue a new rule on federal regulatory
jurisdiction over isolated wetlands.

Along with the ANPRM, attempts have been made to coordinate Corps and EPA
efforts to address the implications of the SWANCC decision. In

14Since January 2003, there have been eight cases in which districts
sought headquarters' approval to assert jurisdiction over isolated,
intrastate, nonnavigable waters, based upon 33 C.F.R. S: 328.3(a)(3). In
six of these cases, Corps headquarters ultimately determined that the
water in question was navigable-in-fact. In one case, headquarters
determined the water in question was not jurisdictional; and, in another,
the district withdrew its request for headquarters' approval.

October 2003, the Corps agreed to an EPA request to collect data measuring
the extent to which the Supreme Court's SWANCC ruling prompted Corps
district offices to avoid the regulation of wetlands and other waters.
Specifically, the Corps has agreed to have district offices report
quarterly to EPA any negative jurisdictional determinations for 1
year-that is any decision not to regulate waters or wetlands-based on
issues raised by the SWANCC decision and the districts' basis and
reasoning for making these determinations. EPA has also requested that
Corps district offices coordinate with them before declining jurisdiction
over waters or wetlands, based upon issues raised by the SWANCC decision.
However, the Corps has declined EPA's request, stating that it is "most
prudent to continue the present policy regarding interagency
coordination."

Clean Water Act Jurisdiction Since January 2001, 11 federal appellate
court cases have considered the Has Been Litigated in scope of the term
"waters of the United States" in situations other than Several Appellate
Courts those involving the migratory bird rule. Table 1 summarizes these
cases.

In three cases, the affected project proponents are seeking Supreme
CourtSince SWANCC review, while the Supreme Court denied review in two
others.

               Table 1: Appellate Court Cases Decided Post-SWANCC

                                                                 Petition for 
                                                                Supreme Court 
                Appellate   Date of                                    review 
     Case       Court      decision    Summary of decision           pending? 

                                                Court held that irrigation    
Headwaters, Inc. v. Ninth Circuit March         canals in question were No
                                                            tributaries of 
    Talent Irrigation                2001  navigable waters, and therefore 
                                           within Clean Water Act          
District, 243 F.3d                               jurisdiction.          
          526.                                                             

                                            Court held that a generalized     
      Rice v. Harken    Fifth Circuit April  assertion that waters of the Noa
                                                                   United 
                                                States will eventually be 
Exploration Co., 250               2001   affected by remote, gradual, 
                                                              and natural 
                                            seepage from contaminated     
        F.3d 264.                           groundwater is insufficient   
                                            to                            
                                            establish liability under the 
                                            Oil Pollution Act; court      
                                            stated that                   
                                            under SWANCC it appears that  
                                            a body of water is subject to 
                                                regulation if the body of 
                                              water is actually navigable 
                                                           or is adjacent 
                                            to an open body of navigable  
                                                       water.             

    United States v.  Fourth  July      Court held that Corps jurisdiction No 
                                             extended to wetlands adjacent 
Interstate General Circuit 2002 to tributaries of traditional navigable 
                                                   waters.                 
Co., 39 Fed. Appx.                                                      
          870.                                                             

(Continued From Previous Page)

                                                                 Petition for 
                                                                Supreme Court 
                Appellate   Date of                                    review 
     Case       Court      decision    Summary of decision           pending? 

United States v.  Seventh September Court refused to reopen consent    Nob 
                                       decree, concluding defendants      
Krilich, 303 F.3d Circuit   2002    were bound by their jurisdictional 
         784.                          stipulations and rejecting their   
                                       argument that SWANCC removed from  
                                       the Corps' jurisdiction all        
                                       waters not adjacent to open water, 
                                       concluding that SWANCC did         
                                             not affect the law regarding 
                                                 adjacency as a basis for 
                                                            jurisdiction. 

Community Ass'n for Ninth Circuit September Court held that concentrated
animal feeding operation drainage No
Restoration of the 2002 ditch, which discharged directly or by connecting
waterways into
Env't v. Henry a navigable water, was subject to Clean Water Act
jurisdiction.
Bosma Dairy, 305
F.3d 943.

    United States v.  Seventh July Court refused to reopen consent        Nob 
                                   decree, concluding that                
Rueth Development  Circuit 2003       SWANCC did not affect the Corps' 
                                              adjacency jurisdiction, and 
Co., 335 F.3d 598.              suggesting that wetlands adjacent to   
                                   tertiary tributaries of                
                                    navigable waters are jurisdictional.  

United States v. Fourth  June Court held that Corps reasonably         Yes 
                                 interpreted regulations                  
Deaton, 332 F.3d Circuit 2003   defining "waters of the United States" 
                                                  to include nonnavigable 
         698.                    tributaries, such as the roadside ditch  
                                 at issue, and adjacent                   
                                                wetlands.                 

                                              Court held that wetlands at     
United States v.  Sixth Circuit August   issue were within Clean Water Yes
                                                                    Act's 
Rapanos, 339 F.3d                2003  jurisdiction because there was  
                                             a hydrological connection    
                                                 between the wetlands, an 
         447.                                adjacent drainage ditch, and 
                                                                navigable 
                                                      waters.             

     Treacy v.    Fourth  September Court held that wetlands adjacent to  Yes 
      Newdunn,                             a ditch hydrologically         
344 F.3d 407.  Circuit   2003    connected to navigable waters were    
                                    jurisdictional, and the fact          
                                    that ditch was man-made, as opposed   
                                    to a natural watercourse              
                                               was irrelevant.            

In re Needham,                        Court held that bayou flowing        
        354       Fifth Circuit December directly into navigable waters   Noa
                                         was                              
                                         jurisdictional, but stated that  
     F.3d 340.                    2003   Oil Pollution Act was not so     
                                         broad                            
                                         as to permit the federal         
                                         government to impose regulations 
                                         over                             
                                           tributaries that are neither   
                                          themselves navigable nor truly  
                                          adjacent to navigable waters.   

                                                 Court refused to overturn    
United States v. Ninth Circuit January defendant's conviction for Clean No
                                                                     Water 
    Phillips, No.                         Act violations, holding that     
         02-                       2004   district court correctly         
                                          rejected the                     
        30035.                            defendant's theory that criminal 
                                          prosecutions under the Clean     
                                          Water Act were limited to        
                                          discharges into                  
                                          navigable-in-fact                
                                                      waters.              

Source: GAO.

aFederal agencies and the parties seeking Supreme Court review disagree
over whether the Fifth Circuit's statements in Rice and Needham concerning
the scope of the Clean Water Act are in conflict with the holdings of
other circuits (which would increase the likelihood of the Supreme Court
granting review) or simply dicta unnecessary to the decisions. GAO
expresses no view on this question.

bSupreme Court denied review.

Corps District Offices Use Differing Practices to Make Jurisdictional
Determinations

There are several differences in the practices Corps districts use to make
jurisdictional determinations.15 Specifically, districts sometimes differ
when (1) identifying jurisdictional wetlands adjacent to waters of United
States; (2) identifying jurisdictional limits of tributaries; and (3)
regulating wetlands connected to waters of the United States by man-made
conveyances, such as ditches. Corps headquarters officials said that there
are enough differences in district office practices that a comprehensive
survey of them is warranted.

District Offices Use Different Factors to Identify Adjacent Wetlands

Hydrologic Connections

All Corps districts that we reviewed regulated wetlands that are
contiguous with-directly touching-other waters of the United States.
However, when making jurisdictional determinations for wetlands not
touching waters of the United States, districts consider several factors,
including hydrologic connections between wetlands and other waters of the
United States, the proximity of wetlands to other waters of the United
States, and the number of barriers separating wetlands from other waters
of the United States. Districts differed in the way they considered and
weighed these various factors.

Districts use different approaches to determine whether there is a
sufficient hydrologic connection between a wetland and a water of the
United States to consider the wetland jurisdictional. In making
determinations, some factors that are considered by some districts but not
others include the likelihood that a water of the United States will flood
into a wetland in any given year and whether the wetland is connected to a
water of the United States through a periodic sheet flow.

We found differences in how districts apply these considerations. For
example, districts differed in their use of floodplains to make
jurisdictional determinations. Some districts often use the 100-year
floodplain to determine if wetlands are adjacent to waters of the United
States.16 For example, written guidance from the Galveston District states
that the

15We did not attempt to compare districts' practices before and after the
SWANCC decision.

16The 100-year floodplain is defined as "the lowland and relatively flat
area adjoining inland and coastal waters, including at a minimum, that
area subject to a 1 percent or greater chance of flooding in any given
year." The Federal Emergency Management Agency routinely maps the 100-year
floodplain for large rivers and streams for purposes of flood insurance
and management.

district generally regulates wetlands located in the 100-year floodplain
because this type of flooding is sufficient evidence of a hydrological
connection between a wetland and a water of the United States.17
Alternatively, officials from other districts, such as Jacksonville and
Philadelphia, stated that they may consider the 100-year floodplain as one
of many factors when making jurisdictional determinations for adjacent
wetlands, but they do not consider it sufficient evidence on its own.
Still other districts, such as Chicago and Rock Island, do not consider
the 100year floodplain at all when making jurisdictional determinations.
Rock Island District officials said that they do not use the 100-year
floodplain because headquarters never suggested it as a possible
criterion. Moreover, these officials were concerned that if they used this
practice, there were parts of the Rock Island District where the practice
would be very inclusive because the 100-year floodplain can extend several
miles inland from the banks of the Mississippi River.

Additionally, districts varied in their use of sheet flow-that is overland
flow of water outside of a defined channel-for making jurisdictional
determinations. In certain circumstances, some districts, such as San
Francisco, Sacramento, and Los Angeles, used sheet flow between a wetland
and a water of the United States as a basis for regulating the wetland.
For example, San Francisco District officials said they would assert
jurisdiction over a series of vernal pools-intermittently flooded
areas-that are hydrologically connected to each other and a water of the
United States through directional sheet flow during storm events. These
officials said that this kind of sheet flow is common in the San Francisco
District because the clay soils do not allow for rapid rates of
infiltration, and the water flows more easily across the surface. In
contrast, both the New Orleans District and the Galveston District do not
consider sheet flow between a wetland and a water of the United States
when making jurisdictional determinations. Officials from the Galveston
District said they do not consider sheet flow when asserting jurisdiction
because they believe sheet flow is not well defined and that, in its
broadest interpretation, could cover nearly all waters in their district.

17Galveston District does not consider the 100-year floodplain to
determine adjacency on the coastal barrier islands. Additionally, under
Galveston District's approach, if a wetland is separated from a water of
the United States by two or more natural or man-made barriers, the wetland
is considered isolated, even if the wetland lies in a 100-year floodplain.

Proximity	Districts also vary in their use of proximity as a factor in
making jurisdictional determinations. Some districts set a specific
distance from a water of the United States within which a wetland must lie
to be jurisdictional. For example, officials from the Jacksonville
District said that they regulate almost all wetlands located within 200
feet of other waters of the United States, and they generally do not
assert jurisdiction beyond that distance. According to these officials,
the district set this distance because it needed an approximate distance
for enforcement purposes, and it gradually became a rule of thumb.
Philadelphia District officials said they generally consider a different
specific distance to determine whether wetlands are jurisdictional. These
officials said they generally do not consider a wetland adjacent if it is
located more than 500 feet away from a water of the United States,
although not all wetlands located within 500 feet of waters of the United
States are regulated.

Other districts, such as Portland and Sacramento, have not established
specific distances between a wetland and a water of the United States that
would make the wetland jurisdictional or nonjurisdictional. However, these
districts do include proximity as an important consideration when making
jurisdictional determinations. For example, Sacramento District officials
said that a wetland that is 50 feet away from a water of the United States
is more likely to be considered adjacent than a wetland that is 1,000 feet
away. These officials explained that the farther a wetland is away from a
water of the United States the greater the emphasis placed on other
factors, such as the wetlands' location in the 100-year floodplain.
Similarly, Portland District officials asserted that it is important to
consider different relationships-hydrological, ecological, and
others-between a wetland and water of the United States, along with the
distance between the two to provide the most meaningful basis for a
jurisdictional determination.

Man-Made and Natural Barriers	According to federal regulations, a
jurisdictional wetland may be separated from a water of the United States
by man-made or natural barriers, such as dikes and dunes. The regulations
do not specify the number of barriers necessary to break a jurisdictional
connection, and district officials that we contacted applied different
practices. Officials at several districts, such as Buffalo, Chicago, and
Galveston, assert jurisdiction over wetlands separated from other waters
of the United States by no more than one barrier. In contrast, officials
from other districts said they assert jurisdiction over wetlands separated
from other waters of the United States by more than one barrier. For
example, officials from the Rock Island and Omaha districts said they
would regulate wetlands separated from other waters of the United States
by as many as two barriers. Also, officials from

the Jacksonville District said they would generally regulate all wetlands
within 200 feet of other waters of the United States, regardless of the
number of barriers separating the waters from the wetlands. Officials from
the Baltimore District said they have not established a maximum number of
barriers that may separate a water of the United States from a
jurisdictional wetland because the regulations leave room for
interpretation.

Districts Generally Use a Common Approach to Identify the Jurisdictional
Limits of Tributaries but May Apply It Differently

The Corps districts that we contacted generally used a similar approach to
identify jurisdictional tributaries. However, beneath this similarity, we
found that districts in different regions of the United States-and even
individual Corps staff-could differ significantly in how they applied this
approach when delineating tributary waters.

The districts that we contacted rarely used a quantitative standard of the
volume or frequency of flow for assessing jurisdiction. Instead, most of
them used the concept of an ordinary high water mark to identify both the
outer limits of a tributary, as well as the upstream limits of a
tributary. Corps staff said that they generally assert jurisdiction, as
long as they can identify the characteristics of an ordinary high water
mark, regardless of the volume or frequency of flow in the channel. In
some arid regions, this means that channels that might have little water
flow in a given year, and at times may be completely dry, could be
jurisdictional, as long as the characteristics of an ordinary high water
mark were visible to the Corps staff.18 Districts would also assert
jurisdiction over a tributary in the absence of an ordinary high water
mark if there were evidence that construction or other activities had
obliterated its signature. For example, officials from the Chicago
District said that because their district was heavily urbanized many
channels had been manipulated and contained, often in ways that obscured
the ordinary high water mark.

Districts in arid regions identified unique difficulties they face when
identifying the limits of an ordinary high water mark. For example, in the

18According to the Corps, in arid and semi-arid regions, an ephemeral
stream may convey flow seasonally under normal and local climatic
conditions. During a drought, an ephemeral stream may not flow at all.
Even though the flow may be unpredictable in these regions, the creek
develops a signature and channel over time that exhibits physical evidence
supporting an ordinary high water mark. In some cases, these channels
originate from erosion features. As these erosion features generally do
not provide the same function that an ephemeral stream system may provide,
many districts do not demarcate erosion features as waters of the United
States. However, other districts do so on a case-by-case basis.

arid West, the intermittency of the water flow and the occasional massive
flood surges that affect many rivers and streams can make identifying the
ordinary high water mark a difficult exercise. According to Corps district
officials, large periodic floods in the arid West create complex tributary
basins that feature a network of channels, many of which are remnants of a
time when the water flowed along a different course and which rarely, if
ever, experience water flow. Corps officials said that identifying the
ordinary high water mark in such basins can be very difficult because
there may be physical evidence of water flow that is little more than a
historic artifact. Additionally, large flood surges can wash away normal
banks, debris, vegetation, and other evidence of the ordinary high water
mark, making it more difficult for Corps staff to identify the outer
limits of the tributary.

Because of the difficulties in identifying the ordinary high water mark in
some arid regions, the Corps has determined that there can be considerable
variations among Corps staff in identifying the outer limits of the
ordinary high water mark in arid regions resulting in considerable
differences in their assessments of the width of tributary channels. To
address the difficulties, the Corps and EPA have taken several actions to
help ensure better consistency for jurisdictional determinations. For
example, the Corps' South Pacific Division-which includes district offices
encompassing a large portion of the arid West-has issued a jurisdictional
determination tool that staff can use to identify the limits of
tributaries in the region. It specifically guides the user to identify the
water features present-including water features indigenous to the arid
West, such as arroyos, coulees, and washes19-and includes implicit
practices for assessing the jurisdictional status of a water feature in
that region. In addition, the Corps and EPA are developing a manual to
guide field staff in identifying the ordinary high water mark in arid
regions.

Moreover, the difficulty and ambiguity associated with identifying the
ordinary high water mark can affect jurisdictional determinations beyond
arid regions. For example, an official of the Portland District said that
the definition of the ordinary high water mark is among the most ambiguous
terms in the regulatory definition of waters of the United States and that
the lateral limits of the ordinary high water mark can be difficult to
identify,

19An arroyo is an ephemeral stream with a sand substrate, sometimes within
a larger eroded channel; a coulee is a small stream, dry streambed, or
small ravine; a wash is a steep sided depression from which bottom
sediments have been removed by water.

even for major bodies of water such as the Columbia River. The official
said that if he asked three different district staff to make a
jurisdictional determination, he would probably get three different
assessments of the ordinary high water mark from them. Similarly, an
official from the Philadelphia District stated that identifying the upper
reaches of an ordinary high water mark is one of the most difficult
challenges the district staff face. The official explained that, as one
progresses upstream, the depth of the bed and bank diminish, and the key
indicators of an ordinary high water mark gradually disappear, thus
identifying precisely where the ordinary high water mark ends is very much
a judgment call.

Districts Vary in Treatment of Ditches and Other Man-Made Conveyances

Ditches and Other Man-Made Surface Conveyances

All of the district office officials that we contacted consider and use
links created by man-made conveyances to assert jurisdiction over
wetlands. However, the district officials described different
circumstances under which they consider a man-made conveyance sufficient
to establish jurisdiction for a wetland that is connected by the
conveyance to a water of the United States. The officials also differed
with regard to the circumstances under which they consider the conveyance
itself to be jurisdictional and with regard to their treatment of
subsurface closed conveyances such as pipes and drain tiles. According to
Corps headquarters officials, man-made conveyances are the most difficult
and complex jurisdictional issue faced by Corps districts.

Officials in all the districts we contacted said they consider and use
connections made by man-made surface conveyances- such as ditches - when
assessing the jurisdictional status of a wetland (see figure 2). If, for
example, a ditch carries water between a wetland and a water of the United
States, then a wetland could be considered jurisdictional. However,
districts differed in their practices to test the sufficiency of such a
connection. For example, some districts, such as the St. Paul, Rock
Island, and Wilmington districts, were fairly inclusive and said that they
would find a wetland jurisdictional if water flowed in a man-made surface
conveyance between the wetland and a water of the United States. Other
districts consider hydrologic connections through a man-made surface
conveyance under more limited circumstances. For example, officials from
the Portland and Philadelphia districts said that a ditch would also need
to have an ordinary high water mark or display wetland characteristics in
order to establish jurisdictional status for a wetland. Officials of the
Omaha and Fort Worth districts consider different factors when using
manmade surface conveyances to assert jurisdiction over a wetland. Omaha
District officials require, in addition to water being present at least
once

per year, that the water flow from the wetland through the ditch and into
a water of the United States. If the flow of water went from the water of
the United States through the ditch and into the wetland, they would not
consider the wetland to be jurisdictional. Omaha District officials told
us that officials from Corps headquarters had endorsed this view.
Officials of the Fort Worth District said that a ditch would establish a
tributary connection for a wetland only if the ditch was a modification of
or replacement for a natural stream.

Figure 2: Ditch Conveying Water from a Wetland

Wetland area.

Source: U.S. Army Corps of Engineers.

Districts also differed regarding the circumstances under which they
consider a ditch itself to be jurisdictional. For example, officials from
the Omaha and Fort Worth districts said they assert jurisdiction over a
ditch whenever it creates a jurisdictional connection between a wetland
and a water of the United States. In contrast, officials from other
districts-such as Sacramento, Rock Island, and Galveston-said that they
might assert jurisdiction over a wetland without regulating the ditch
connecting it to a water of the United States. In these districts, the
jurisdiction of the ditch depends upon several factors, including whether
or not the ditch displays an ordinary high water mark, exhibits the three
parameters of a wetland, or replaces a historic stream. Officials at the
Galveston District said a result of this policy is that a
nonjurisdictional ditch can be filled without a section 404 permit,
severing the jurisdictional connection of the wetland to the

water of the United States. After the connection is severed, the
previously jurisdictional wetland is rendered nonjurisdictional and can be
filled without a section 404 permit.

Man-Made Subsurface Officials in all the districts that we visited
confirmed using man-made

Conveyances	subsurface conveyances (such as drain tiles,20 storm drain
systems, and culverts) that connect a wetland to a water of the United
States as sufficient evidence to assert jurisdiction over a wetland.
Nevertheless, we identified variations relating to the type of closed
man-made conveyance considered sufficient to make a jurisdictional
connection. Chicago District officials said they use drain tiles to
establish a jurisdictional connection between a wetland and a water of the
United States, but only when evidence supports that it had replaced a
historic tributary. The Corps' justification is that a natural stream that
is confined to a pipe, or replaced by a series of pipes in essentially the
same location, still functions as a connection between upstream and
downstream waters and remains a part of the surface tributary system.

20Drain tiles are porous clay pipes buried below the surface to provide drainage
                                 (see fig. 3).

Figure 3: Drain Tile Conveying Water from a Field

Source: Photo and photo caption by Dr. Randy Schaetzl; illustration GAO.

In contrast, officials from the Rock Island District do not consider drain
tiles to establish jurisdictional connections between wetlands and waters
of the United States. Rock Island District staff said they asked Corps
headquarters about the use of drain tiles to establish jurisdictional
connections after the SWANCC decision; and they were instructed not to use
drain tiles, even in situations where Corps staff could determine that
water was draining from the wetland through the drain tile and into a
water of the United States. Also, officials from the St. Paul district
said that they do not use drain tiles to establish jurisdictional
connections to wetlands, and Philadelphia District officials said they
likely would not do so.

Districts also varied in their use of storm drain systems to establish
jurisdictional connections for wetlands and other waters. For example,

officials from the Portland District said they considered storm drain
systems as jurisdictional connections, depending on the historical
situation. If a storm drain system conveyed the flow of a historic stream,
then Portland District officials would consider the connection
jurisdictional; however, in other situations, they would not. Officials
from the St. Paul District said they had used storm drain systems to
support jurisdictional connections among waters that had not been
historically connected. St. Paul District officials explained that several
lakes in the Minneapolis-St. Paul area had been connected to one another
through underground storm water pipes to control flooding and that the
system eventually empties into a water of the United States. These same
officials said that this storm drain system is a jurisdictional connection
because it is part of a tributary system, reasoning that if a pollutant
enters the system it would eventually flow into a water of the United
States.

Corps Headquarters Officials Recognize That There Are Differences among
Corps District Offices

We discussed the differences that we observed among district offices'
practices for making jurisdictional determinations with Corps headquarters
officials. The officials explained that there are two primary reasons for
the differences among Corps district offices. First, a variety of
waterways and wetlands across the country are continuously shaped by local
climate, topographic features, geological and soil characteristics, fauna
and flora, as well as other environmental factors. As a result, in their
opinion, the definitions used to make jurisdictional determinations had to
be vague. This vagueness has led to the development of local district
practices and guidance concerning jurisdictional determinations. Second,
because nearly all waters were jurisdictional under the migratory bird
rule, questions regarding the imprecise definition of adjacent wetlands
and isolated waters were previously moot. When the Supreme Court struck
down the migratory bird rule in 2001, districts had to rely on the key
terms in the regulatory definition of waters of the United States, which
had not been well defined. This led to some confusion in the districts,
and Corps headquarters subsequently instructed the districts to use
locally developed practices, regardless of their clarity. As a result of
these two factors, Corps headquarters officials told us that the existence
of differences in jurisdictional determination practices among Corps
districts is not surprising.

Corps headquarters officials also noted that, given the complexity of
nature and the need for some degree of flexibility within and among
districts, it is not possible to achieve absolute nationwide consistency
in making jurisdictional determinations. Nevertheless, these officials
stated that we

documented enough differences in the district office practices to warrant
a more comprehensive survey, which would include the Corps districts not
surveyed in this report. This type of additional review and analysis would
help ensure that the Corps is achieving the highest level of consistency
possible under the current circumstances.

Few Districts Make Documentation of Their Practices Public

Few Corps districts that we reviewed made documentation of their practices
for making jurisdictional determinations available to the public. Many of
the 16 districts that we contacted generally relied on oral communication
to convey their practices to interested parties and only 3 had developed
documentation of their practices that they made available to the public.

Three districts-Jacksonville, Portland, and Galveston-had documented their
practices and made this documentation available to the general public.
These districts stated that their written materials documented practices
that predated the 2001 SWANCC decision. The Jacksonville District
developed a comprehensive document in July 2003 describing its practices
for asserting jurisdiction over adjacent wetlands, tributary streams,
man-made conveyances, and isolated waters and posted this guidance to its
Web site. The Portland District also posted descriptions of district
practices to its Web site, but its documentation addressed issues such as
the regulation of storm water ponds and culvert maintenance activities.
Finally, the Galveston District's documentation, which addresses
identifying wetlands adjacent to waters of the United States, is available
upon request-but is not posted on its Web site.

The other 13 districts that we reviewed have not made documentation of
their practices publicly available. When asked about the written materials
available to the public, Corps district officials sometimes referred to
the Code of Federal Regulations and the Corps' 1987 Wetlands Delineation
Manual as publicly available sources of information.

In lieu of documentation, some districts communicate their practices to
the public informally, by talking with land planning consultants who help
property owners navigate the section 404 program at workshops, in the
office, and in the field. For example, the Baltimore District regularly
makes its wetland delineations with land planning consultants present,
explaining that this allows the consultants to better understand the
district's practices.

Conclusions	After the Supreme Court's 2001 SWANCC decision that struck
down the migratory bird rule, Corps districts have needed to rely on
criteria other than use of the water as habitat for migratory birds to
assert jurisdiction over certain waters and wetlands. In doing so, the
Corps has based its determinations on criteria within the regulatory
definition of "waters of the United States," including determining whether
a wetland or water body is adjacent to or a tributary of a navigable or
interstate water or whether the water has a connection with interstate
commerce. In making these determinations, the Corps districts and staff
have used different practices and have applied different factors. Some
flexibility and variation in district practices may well be appropriate to
address differences in climatic, hydrologic, or other factors. However, it
is unclear whether or to what degree these differences in Corps district
office practices would result in different jurisdictional determinations
in similar situations, in part, because Corps staff consider many factors
when making these determinations. Also, because few Corps districts make
documentation of their practices for making jurisdictional determinations
available to the public, project proponents may not have clarity as to
their responsibilities under section 404 of the Clean Water Act.

Recommendations for Executive Action

In light of the uncertainty of the impact of differences in district
offices' interpretation and application of the regulations, we recommend
that the Secretary of the Army in consultation with the Administrator of
EPA:

o 	survey the district offices to determine how they are interpreting and
applying the regulations and whether significant differences exist among
the Corps' 38 districts;

o 	evaluate whether and how the differences in the interpretation and
application of the regulations among the Corps district offices need to be
resolved, recognizing that some level of flexibility may be needed because
of differing climatic, hydrologic, and other relevant circumstances among
the districts; and

o 	require districts to prepare and make publicly available documentation
specifying the interpretation and application of the regulations they use
to determine whether a water or wetland is jurisdictional.

Agency Comments and Our Evaluation

We provided a draft of this report to the Secretary of the Department of
Defense and the Administrator of EPA for review and comment. Both the
Department of Defense and EPA concurred with the report's findings and
recommendations. The Department of Defense said that, on the basis of our
recommendations, it will (1) conduct a more comprehensive survey to
further assess the Corps district office practices in determining
jurisdiction; (2) develop a strategic approach to ensure the Corps is
achieving the highest level of consistency and predictability possible for
making jurisdictional determinations; and (3) ask the Corps districts and
divisions to prepare documentation describing specific local practices
used in making jurisdictional determinations and make this information
available to the public. EPA agreed that a more complete survey of
approaches to geographic jurisdictional determinations would be helpful
and that it is important to document jurisdictional determinations and
ensure such information is publicly available. Both the Department of
Defense and EPA also provided several technical changes that we have
incorporated into this report, as appropriate. The full text of the
Department of Defense's response is included in appendix III, and EPA's
response is included in appendix IV.

As arranged with your office, unless you publicly announce its contents
earlier, we plan no further distribution of this report until 7 days after
the date of this letter. At that time, we will send copies to interested
congressional committees and Members; the Secretary of Defense; the
Administrator, EPA; and the Chief of Engineers and Commander, U.S. Army
Corps of Engineers. We will also make copies available to others upon
request. In addition, this report will be available at no charge on GAO's
home page at http://www.gao.gov.

If you or your staff have any questions about this report, please contact me at
(202) 512-3841. Key contributors to this report are listed in appendix V.

Sincerely yours,

Anu K. Mittal Director, Natural Resources and Environment

Appendix I

Scope and Methodology

To identify the national criteria for making jurisdictional
determinations, and administrative and judicial developments affecting
this process since

Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers
(SWANCC), we reviewed federal regulations and related guidance that define
"waters of the United States." We also interviewed officials of both the
Army Corps of Engineers (the Corps) and the Environmental Protection
Agency (EPA) headquarters in Washington D.C. Further, we reviewed the
Supreme Court's SWANCC decision, as well as various subsequent and related
lower court decisions. In addition, we analyzed administrative guidance
issued by the Corps and EPA, as well as the Advance Notice of Proposed
Rulemaking (ANPRM) issued by the Corps and EPA in January 2003. Finally,
we reviewed several major public comments addressing the ANPRM and
discussed the full range of comments submitted by the public with EPA
officials.

To determine the extent to which Corps district offices vary in their
interpretation and application of the regulations and guidance, we
interviewed Corps headquarters officials, as well as national
environmental groups and representatives of industry and real estate
development organizations. We then selected 16 of the Corps' 38 district
offices for an in-depth examination of their jurisdictional determination
practices. Selected to obtain geographic representation across the United
States as well as climatic, geologic, and topographic diversity, we
contacted at least one district in each of the Corps' seven Divisions
located in the contiguous United States. Specifically we contacted the
Baltimore, Buffalo, Chicago, Fort Worth, Galveston, Jacksonville, Los
Angeles, New Orleans, Omaha, Philadelphia, Portland, Rock Island,
Sacramento, St. Paul, San Francisco, and Wilmington Corps district offices
(see fig. 1). For each district office, we conducted a series of
preliminary interviews, including interviews with officials representing
the Corps Divisional Office responsible for the district office, a state
wetland protection agency with jurisdiction overlapping that of the
district office, a corresponding EPA

Appendix I
Scope and Methodology

regional office,1 and at least one firm representing the perspective of
section 404 permit applicants.2

The primary purpose of these interviews was to obtain preliminary
information on the Corps district's jurisdictional determination practices
and, in particular, information on any significant differences among the
districts. Following these discussions, we interviewed officials from 16
Corps district offices, using detailed questionnaires.3 In these
interviews, we discussed a wide range of topics pertaining to
jurisdictional determinations, including the practices used by districts
to determine whether to assert jurisdiction over adjacent wetlands,
tributary waters, man-made conveyances, and isolated, intrastate waters.
We also discussed other issues related to jurisdictional determinations,
such as the overall impact of the SWANCC decision on districts'
jurisdictional practices, and particular difficulties the districts face
in conducting jurisdictional determinations. At the 11 district offices
that we visited, we supplemented office discussions with field visits to
sites of recent jurisdictional determinations, as well as sites that
typified difficult jurisdictional issues. During these site visits, we
observed and discussed hydrologic linkages between wetlands and waters of
the United States, the difficulty in identifying the outer extent of
tributaries in both arid and wet regions, and the role of ditches and
other man-made conveyances in establishing jurisdictional connections for
wetlands. We did not attempt to determine whether individual differences
in district practices resulted in different jurisdictional determinations
in similar situations, in part, because Corps staff consider many factors
when making these determinations. Also, we did not attempt to compare
districts' practices before and after the SWANCC decision.

To determine the extent to which the Corps districts document and make
their practices for conducting jurisdictional determinations available to
the

1In the course of our work, we spoke with 8 of the 10 EPA regional
offices. We did not speak with officials of EPA Region 1 or Region 7.

2Typically, these firms were consulting firms that conduct initial
jurisdictional determinations for property owners and other entities that
might require a section 404 permit. Such firms have an ongoing working
relationship with the Corps and are generally in a good position to know
about the jurisdictional determination practices in one or more Corps
districts.

3Of the 16 Corps district offices included in our review, we visited 11
and conducted telephone interviews with 5.

Appendix I
Scope and Methodology

public, we interviewed Corps officials in each of the 16 district offices
we contacted. When available, we obtained and reviewed districts' written
guidance. We also perused district office's Web sites to determine if they
made information about their practices readily available to the public.
Additionally, we discussed other means of keeping the public informed of
district practices and the methods districts used to maintain some degree
of consistency among different jurisdictional determinations.

We conducted our work between April 2003 and January 2004 in accordance
with generally accepted government auditing standards. Because we reviewed
16 of the Corps' 38 districts, our findings may not apply to those
districts we did not review.

Appendix II

Text of 33 C.F.R. S: 328.3

For the purpose of this regulation these terms are defined as follows:

(a) The term waters of the United States means:

(1) All waters which are currently used, or were used in the past, or may
be susceptible to use in interstate or foreign commerce, including all
waters which are subject to the ebb or flow of the tide;

(2) All interstate waters including interstate wetlands;

(3) All other waters such as intrastate lakes, rivers, streams (including
intermittent streams), mudflats, sandflats, wetlands, sloughs, prairie
potholes, wet meadows, playa lakes, or natural ponds, the use, degradation
or destruction of which could affect interstate or foreign commerce
including any such waters:

(i)	Which are or could be used by interstate or foreign travelers for
recreational or other purposes; or

(ii) From which fish or shellfish are or could be taken and sold in
interstate or foreign commerce; or

(iii)Which are used or could be used for industrial purpose by industries
in interstate commerce;

(4) All impoundments of waters otherwise defined as waters of the United
States under the definition;

(5) Tributaries of waters identified in paragraphs (a)(1) -(4) of this
section;

(6) The territorial seas;

(7) Wetlands adjacent to waters (other than waters that are themselves
wetlands) identified in paragraphs (a)(1) -(6) of this section.

Waste treatment systems including treatment ponds or lagoons designed to
meet the requirements of Clean Water Act (other than cooling ponds as
defined in 40 CFR 123.11(m) which also meet the criteria of this
definition) are not waters of the United States.

Appendix II Text of 33 C.F.R. S: 328.3

(8) Waters of the United States do not include prior converted cropland.
Nothwithstanding the determination of an area's status as prior converted
cropland by any other federal agency, for the purposes of the Clean Water
Act, the final authority regarding Clean Water Act jurisdiction remains
with EPA.

(b) The term wetlands means those 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.

(c) The term adjacent means bordering, contiguous, or neighboring.
Wetlands separated from other waters of the United States by manmade dikes
or barriers, natural river berms, beach dunes, and the like are "adjacent
wetlands."

(d) The term high tide line means the line of intersection of the land
with the water's surface at the maximum height reached by a rising tide.
The high tide line may be determined, in the absence of actual data, by a
line of oil or scum along shore objects, a more or less continuous deposit
of fine shell or debris on the foreshore or berm, other physical markings
or characteristics, vegetation lines, tidal gages, or other suitable means
that delineate the general height reached by a rising tide. The line
encompasses spring high tides and other high tides that occur with
periodic frequency but does not include storm surges in which there is a
departure from the normal or predicted reach of the tide due to the piling
up of water against a coast by strong winds such as those accompanying a
hurricane or other intense storm.

(e) The term ordinary high water mark means that line on the shore
established by the fluctuation of water and indicated by physical
characteristics such as clear, natural line impressed on the bank,
shelving, changes in the character of soil, destruction of terrestrial
vegetation, the presence of litter and debris, or other appropriate means
that consider the characteristics of the surrounding areas.

(f)	The term tidal waters means those waters that rise and fall in a
predictable and measurable rhythm or cycle due to the gravitational pulls
of the moon and sun. Tidal waters end where the rise and fall of the water
surface can no longer be practically measured in a

Appendix II Text of 33 C.F.R. S: 328.3

predictable rhythm due to masking by hydrologic, wind, or other effects.

                                  Appendix III

                    Comments from the Department of the Army

Appendix III
Comments from the Department of the Army

Appendix III
Comments from the Department of the Army

Appendix III
Comments from the Department of the Army

Appendix III
Comments from the Department of the Army

Appendix IV

Comments from the Environmental Protection Agency

Appendix IV
Comments from the Environmental
Protection Agency

Appendix IV
Comments from the Environmental
Protection Agency

Appendix V

                     GAO Contacts and Staff Acknowledgments

GAO Contacts	Anu Mittal, (202) 512-3841 Chet Janik, (202) 512-6508

Staff 	In addition, Charles Barchok, Doreen Feldman, Glenn Fischer,
Michael Hartnett, Richard Johnson, Kate Kousser, Stephanie Luehr, Jonathan

Acknowledgments McMurray, and Adam Shapiro made key contributions to this
report.

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