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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: 

[Hyperlink, http: //www.gao.gov/cgi-bin/getrpt?GAO-04-297]: 

GAO Highlights: 

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 

Why GAO Did This Study: 

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.

What GAO Found: 

EPAs 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.

What GAO Recommends: 

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 mittala@gao.gov.

[End of section]

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: 

Appendixes: 

Appendix I: Scope and Methodology: 

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

Appendix III: Comments from the Department of the Army: 

Appendix IV: Comments from the Environmental Protection Agency: 

Appendix V: GAO Contacts and Staff Acknowledgments: 

GAO Contacts: 

Staff Acknowledgments: 

Table: 

Table 1: Appellate Court Cases Decided Post-SWANCC: 

Figures: 

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

Figure 2: Ditch Conveying Water from a Wetland: 

Figure 3: Drain Tile Conveying Water from a Wetland: 

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: 

Letter 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.[Footnote 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 
migratory bird rule. In Solid Waste Agency of Northern Cook County v. 
United States Army Corps of Engineers (SWANCC),[Footnote 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 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-by-case 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 all-encompassing 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.[Footnote 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 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.[Footnote 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.

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

[See PDF for image]

[End of figure]

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."[Footnote 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.

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.[Footnote 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."[Footnote 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 was that the pond 
had been used by migratory birds.[Footnote 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 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.[Footnote 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.[Footnote 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 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.

* 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.[Footnote 11]

* 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.

* 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.[Footnote 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.[Footnote 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-by-case 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 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.[Footnote 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 
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 Has Been Litigated in Several Appellate 
Courts Since SWANCC: 

Since January 2001, 11 federal appellate court cases have considered 
the scope of the term "waters of the United States" in situations other 
than those involving the migratory bird rule. Table 1 summarizes these 
cases. In three cases, the affected project proponents are seeking 
Supreme Court review, while the Supreme Court denied review in two 
others.

Table 1: Appellate Court Cases Decided Post-SWANCC: 

Case: Headwaters, Inc. v. Talent Irrigation District, 243 F.3d 526; 
Appellate Court: Ninth Circuit; 
Date of decision: March; 
2001; 
Summary of decision: Court held that irrigation canals in question were 
tributaries of navigable waters, and therefore within Clean Water Act 
jurisdiction; 
Petition for Supreme Court review pending? No.

Case: Rice v. Harken Exploration Co., 250 F.3d 264; 
Appellate Court: Fifth Circuit; 
Date of decision: April; 
2001; 
Summary of decision: Court held that a generalized assertion that 
waters of the United States will eventually be affected by remote, 
gradual, and natural seepage from contaminated 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; 
Petition for Supreme Court review pending? No[A].

Case: United States v. Interstate General Co., 39 Fed. Appx. 870; 
Appellate Court: Fourth Circuit; 
Date of decision: July; 
2002; 
Summary of decision: Court held that Corps jurisdiction extended to 
wetlands adjacent to tributaries of traditional navigable waters; 
Petition for Supreme Court review pending? No.

Case: United States v. Krilich, 303 F.3d 784; 
Appellate Court: Seventh Circuit; 
Date of decision: September 2002; 
Summary of decision: Court refused to reopen consent decree, concluding 
defendants were bound by their jurisdictional 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; 
Petition for Supreme Court review pending? No[B].

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

Case: United States v. Rueth Development Co., 335 F.3d 598; 
Appellate Court: Seventh Circuit; 
Date of decision: July; 
2003; 
Summary of decision: Court refused to reopen consent decree, concluding 
that SWANCC did not affect the Corps' adjacency jurisdiction, and 
suggesting that wetlands adjacent to tertiary tributaries of navigable 
waters are jurisdictional; 
Petition for Supreme Court review pending? No[B].

Case: United States v. Deaton, 332 F.3d 698; 
Appellate Court: Fourth Circuit; 
Date of decision: June; 
2003; 
Summary of decision: Court held that Corps reasonably interpreted 
regulations defining "waters of the United States" to include 
nonnavigable tributaries, such as the roadside ditch at issue, and 
adjacent wetlands; 
Petition for Supreme Court review pending? Yes.

Case: United States v. Rapanos, 339 F.3d 447; 
Appellate Court: Sixth Circuit; 
Date of decision: August 2003; 
Summary of decision: Court held that wetlands at issue were within 
Clean Water Act's jurisdiction because there was a hydrological 
connection between the wetlands, an adjacent drainage ditch, and 
navigable waters; 
Petition for Supreme Court review pending? Yes.

Case: Treacy v. Newdunn, 344 F.3d 407; 
Appellate Court: Fourth Circuit; 
Date of decision: September 2003; 
Summary of decision: Court held that wetlands adjacent to a ditch 
hydrologically connected to navigable waters were jurisdictional, and 
the fact that ditch was man- made, as opposed to a natural watercourse 
was irrelevant; 
Petition for Supreme Court review pending? Yes.

Case: In re Needham, 354 F.3d 340; 
Appellate Court: Fifth Circuit; 
Date of decision: December 2003; 
Summary of decision: Court held that bayou flowing directly into 
navigable waters was jurisdictional, but stated that 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; 
Petition for Supreme Court review pending? No[A].

Case: United States v. Phillips, No. 02-30035; 
Appellate Court: Ninth Circuit; 
Date of decision: January 2004; 
Summary of decision: Court refused to overturn defendant's conviction 
for Clean Water Act violations, holding that district court correctly 
rejected the defendant's theory that criminal prosecutions under the 
Clean Water Act were limited to discharges into navigable-in-fact 
waters; 
Petition for Supreme Court review pending? No. 

Source: GAO.

[A] Federal 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.

[B] Supreme Court denied review.

[End of table]

Corps District Offices Use Differing Practices to Make Jurisdictional 
Determinations: 

There are several differences in the practices Corps districts use to 
make jurisdictional determinations.[Footnote 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: 

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.

Hydrologic Connections: 

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.[Footnote 16] For example, written guidance from the 
Galveston District states that the 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.[Footnote 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 100-year 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.

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.[Footnote 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 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 
washes[Footnote 19]--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, 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: 

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.

Ditches and Other Man-Made Surface Conveyances: 

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 man-made 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: 

[See PDF for image]

[End of figure]

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 Conveyances: 

Officials in all the districts that we visited confirmed using man-made 
subsurface conveyances (such as drain tiles,[Footnote 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.

Figure 3: Drain Tile Conveying Water from a Wetland: 

[See PDF for image]

[End of figure]

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: 

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

* 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: 

* 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 
[Hyperlink, 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,

Signed by: 

Anu K. Mittal: 
Director, Natural Resources And Environment: 

[End of section]

Appendixes: 

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 regional 
office,[Footnote 21] and at least one firm representing the perspective 
of section 404 permit applicants.[Footnote 22]

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.[Footnote 23] 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 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.

[End of section]

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

(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 man-made 
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 
predictable rhythm due to masking by hydrologic, wind, or other 
effects.

[End of section]

Appendix III: Comments from the Department of the Army: 

DEPARTMENT OF THE ARMY: 
OFFICE OF THE ASSISTANT SECRETARY: 
CIVIL WORKS 
108 ARMY PENTAGON: 
WASHINGTON DC 20310-0108:

2 FEB 2004:

REPLY TO ATTENTION OF:

Ms. Anu Mittal: 
Director:

Natural Resources and Environment: 
U.S. General Accounting Office:

441 G Street, N.W. 
Washington, D.C. 20548 -1000:

Dear Ms. Mittal:

This is the Department of Defense (DOD) response to the GAO draft 
report, 'WATERS AND WETLANDS: Corps of Engineers Needs To Evaluate its 
District Office Practices in Determining Jurisdiction," dated January 
12, 2004, (GAO Code 360323/GAO-04-297).

The GAO report was prepared to describe the: (1) regulations and 
guidance used to determine jurisdictional waters 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. The report concludes that: 
(1) the Corps' Clean Water Act jurisdictional regulations leave room 
for interpretation by Corps districts; (2) the Corps districts often 
differ from one another as to how they interpret and apply the 
regulations when determining which waters and wetlands are subject to 
Federal jurisdiction; and (3) only a few of the districts surveyed made 
their rationale for definitions of waters and -jurisdictional 
determinations available to the public. On behalf of the Department of 
Defense, Army Civil Works comments on the report follow.

In general, the GAO report concludes that Corps districts often employ 
different practices to determine what waters are subject to Clean Water 
Act Jurisdiction and that these practices are producing different 
results among the districts. We believe that these inconsistencies may 
be attributed to a variety of factors. First, following the SWANCC 
decision, it may generally be said that a water (and associated aquatic 
resources) will be subject to Clean Water Act jurisdiction if the water 
is either a territorial sea, a traditional navigable water, a tributary 
to a traditional navigable water, or an adjacent wetland. As the GAO 
report observes, the existing regulations do not contain a definition 
of the term "tributaries", nor do they explain how "adjacency" is to be 
established for purposes of Clean Water Act jurisdiction. This absence 
of clarity has led field personnel to draw different conclusions about 
the meaning of these terms and whether or not they cover certain 
manmade conveyances, such as certain ditches and pipes.

Second, even when field personnel in the districts generally agree that 
a type of water is jurisdictional, such as an ephemeral stream, they 
may reach different conclusions about what is an ephemeral stream, or 
how one jurisdictional ephemeral stream may differ from a non 
jurisdictional erosion feature. This can cause field regulators to 
place the same types of waters in different categories, which produces 
different results as regards Clean Water Act jurisdiction.

Third, existing regulations and practices concerning Clean Water Act 
jurisdiction do not always take into account the variations in water 
resources that occur in different regions of the country. For example, 
the nature and characteristics of wetlands in Florida are almost always 
very different from wetlands in Alaska or the arid southwest. Of 
course, this leads to correspondingly differing assessments of features 
under consideration as to whether they are jurisdictional or not.

Army Civil Works and the Army Corps of Engineers concur with your 
findings. The Corps will conduct a more comprehensive survey to further 
assess District practices in determining jurisdiction. We believe we 
can build on data presented in the report and by using that data and 
supplement it with further data collection efforts in districts not 
surveyed by the GAO. The Corps will build a knowledge base that will 
allow it to undertake a series of future actions to promote greater 
consistency in Clean Water Act jurisdictional determinations. It is 
anticipated that this effort will utilize a similar analysis as that 
presented in the GAO report. Our goal is to develop a strategy with 
adaptive management to ensure the Corps achieves the highest level of 
consistency and predictability possible given inherently different 
characteristics of aquatic resources in different locations, while 
providing the public with the greatest opportunity for understanding 
the basis for jurisdictional determinations so that full compliance 
with the Clean Water Act Is encouraged, with the goal of increasing the 
effectiveness, efficiency and responsiveness of the Army's regulatory 
program.

Signed by: 

John Paul Woodley, Jr., 
Assistant Secretary of the Army (Civil Works):

Enclosure:

GAO DRAFT REPORT - DATED JANUARY 12, 2004 GAO CODE 360323/GAO-04-297:

"WATERS AND WETLANDS: Corps of Engineers Needs To Evaluate its District 
Office Practices in Determining Jurisdiction":

DEPARTMENT OF DEFENSE COMMENTS TO THE RECOMMENDATIONS:

RECOMMENDATION 1: The GAO recommended that the Secretary of the Army in 
consultation with the Administrator of EPA survey the district offices 
to determine how they are interpreting and applying the regulations and 
whether significant differences exist among the Corps' 38 districts. 
(p. 30/GAO Draft Report):

DOD RESPONSE: We concur with your findings and will be conducting a 
more comprehensive survey to further assess District office practices 
in determining jurisdiction. We believe that we can build on data 
presented in the report and by using that data and by supplementing it 
with further data collection efforts in non-surveyed districts, we can 
build a knowledge base that will allow us to undertake a series of 
future actions to promote greater consistency in Clean Water act 
jurisdictional determinations. It is anticipated that we will conduct a 
similar analysis to that presented in the report. Our goal is to develop 
a strategy with adaptive management to ensure the Corps is achieving 
the highest level of consistency and predictability possible, while 
providing the public with the greatest opportunity for understanding 
the basis for jurisdictional determinations so that full compliance 
with the Clean Water Act Is encouraged.

RECOMMENDATION 2: The GAO recommended that the Secretary of the Army in 
consultation with the Administrator of EPA 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 on account of differing 
climatic, hydrologic, and other relevant circumstances among the 
districts.

(p. 30-31/GAO Draft Report):

DOD RESPONSE: We concur with your recommendation and will be developing 
a strategic approach to ensure the Corps is achieving the highest level 
of consistency and predictability possible, recognizing that some level 
of flexibility is needed to account for different climatic, hydrologic, 
and other environmental conditions within the districts and divisions, 
for making jurisdictional determinations. To further increase our 
ability in making consistent and predictable determinations, we will:

* Use district level case studies to further evaluate and clarify 
standard operating procedures for making jurisdictional 
determinations;

* As appropriate, develop and provide internal policy guidance to 
promote consistency in problem areas;

* Develop a monitoring program at the division level to ensure 
consistency is occurring to the maximum extent possible;

* Continue to conduct inter-agency meetings;

* Continue to monitor cases in litigation; and:

* Develop an adaptive management plan that allows for adjustments based 
on division and inter-agency meetings and applicable legal precedents.

RECOMMENDATION 3: The GAO recommended that the Secretary of the Army in 
consultation with the Administrator of EPA require districts to prepare 
and make publicly available documentation specifying the interpretation 
and application of the regulations used to determine whether or not a 
water or wetland is jurisdictional. (p. 31/GAO Draft Report):

DOD RESPONSE: We concur with your findings. To provide greater clarity 
to the regulated community and public at large, Corps districts and 
divisions will be asked to prepare documentation describing specific 
local practices used in making jurisdictional determinations and to 
make this information available to the public. Our goal is to develop a 
strategy with adaptive management to ensure the Corps is achieving the 
highest level of consistency and predictability possible while 
providing the public with the greatest opportunity for understanding 
the basis for jurisdictional determinations in order to encourage full 
compliance with the Clean Water Act. In addition, we will be 
encouraging the states to assume a more active Clean Water Act role by 
developing more regional general permits in concert with the states and 
by assisting them in communicating their regulatory responsibilities to 
the public.

CF:

CRC:
SACE (Read, Sign, file) CECW-OR:
CEIR (Pearlena Patters):

Mr. Carlos J. Chapa:
Technical Director, Audit Followup & FAO Affairs 
Inspector General:
Department of Defense 
400 Army Navy Drive 
Arlington, Virginia 22202-2885:

J:\shared\smith,chip\GAO Wetlands\GAO Audit Comment Letter cs ogc gd 
edits v7 clean:

[End of section]

Appendix IV: Comments from the Environmental Protection Agency: 

UNITED STATES ENVIRONMENTAL PROTECTION AGENCY: 
WASHINGTON, D.C. 20460:

FEB 4 2004:

OFFICE OF WATER:

Ms. Anu Mittal: 
Director: 
Natural Resources and Environment: 
U.S. General Accounting Office: 
Washington, D. C. 20548:

Dear Ms. Mittal:

Thank you for the opportunity to review and comment on the draft 
General Accounting Office (GAO) report entitled "Waters and Wetlands: 
Corps of Engineers Needs to Evaluate its District Office Practices in 
Determining Jurisdiction." The draft report focuses on implementation 
by the Corps of Engineers of the Clean Water Act (CWA) section 404 
program and geographic jurisdiction issues after the U.S. Supreme Court 
decision in Solid Waste Agency of Northern Cook County (SWANCC), which 
held that the CWA does not authorize regulation of isolated, 
intrastate, non-navigable waters based solely on the presence of 
migratory birds. Environmental Protection Agency (EPA) appreciates the 
information, analyses, and recommendations provided by the GAO, and 
welcomes this opportunity to comment on the report and to provide the 
broader CWA perspective for its discussion.

The CWA section 404 program is one of several established under the Act 
to protect the Nation's aquatic resources, and requires permits for 
discharges of dredged or fill material into "waters of the United 
States." Although SWANCC involved a section 404 permitting action, the 
decision has implications for other programs because the term "waters 
of the United States" defines the jurisdictional scope of all CWA 
programs. Additional programs include section 402 NPDES pollutant 
discharge permits, section 401 state water quality certification, 
section 303 water quality standards, and section 311 oil spill 
prevention and cleanup. Interpretation and clarification of the scope 
of "waters of the US" after SWANCC therefore requires consideration of 
Congressional intent and impacts on all CWA programs, not just section 
404. In addition, because many States administer CWA programs and often 
rely on Federal definitions for jurisdiction, State regulatory agencies 
are also affected by these issues. As the draft report notes, EPA has 
final administrative authority for determining the scope of "waters of 
the US" protected by CWA programs.

As part of efforts to address the SWANCC decision, EPA and the Corps 
issued an Advance Notice of Proposed Rulemaking (ANPRM) on January 15, 
2003, on the scope of "waters of the United States." We received 
approximately 130,000 public comments, with over 99% of those comments 
opposed to any changes to the regulations that would reduce aquatic 
resource protection. An overwhelming majority of comments from States 
expressed strong 
opposition to rulemaking that could change the Federal-State-Tribal 
partnership under the CWA that protects our Nation's aquatic resources. 
Based in part on the public comments submitted in response to the 
ANPRM, EPA and the Corps decided that a rulemaking is not necessary. 
The agencies are continuing to monitor implementation of CWA programs 
to ensure their effectiveness.

Also on January 15, 2003, EPA and the Corps issued joint legal guidance 
to our field offices addressing the effects of SWANCC. The guidance 
called for field staff to continue to assert CWA jurisdiction over 
traditional navigable waters, their tributaries, and adjacent wetlands. 
The guidance also indicated that, in light of SWANCC, the factors in 
the "Migratory Bird Rule" were no longer an appropriate sole basis for 
jurisdiction. Field staff were asked to obtain formal EPA and Corps 
Headquarters approval before asserting jurisdiction based on links to 
interstate commerce, as a means of helping ensure that jurisdictional 
calls were consistent and predictable.

The draft GAO report emphasizes some of the challenges faced by Corps 
Districts since the SWANCC decision. The draft GAO report notes that 
conditions that could affect jurisdiction vary geographically and that 
it is unclear if variation among Districts would result in different 
jurisdictional determinations in similar situations. We note further 
that all regulations, by their nature, set out a framework which is 
then interpreted and applied to various factual circumstances. This is 
particularly the case with regulations such as those defining "waters 
of the US," which the CWA recognizes would be applied to a wide variety 
of geographic and climactic situations. In our view, the current 
regulations establish a framework that provides useful detail and 
consistency for applying best professional judgment on a case-by-case 
basis and avoids one-size-fits-all results.

The section 404 program is designed to help protect wetlands and other 
aquatic resources, and maintain the environmental and economic benefits 
provided by these valuable natural resources. Wetlands provide 
important water quality functions, by trapping nutrients and sediments 
that would otherwise enter streams and lakes. The severity and 
frequency of flooding is lessened by wetlands, which are capable of 
storing large volumes of snowmelt or runoff. Wetlands also provide 
essential wildlife habitat; for example, over half of North American 
waterfowl originate from the prairie pothole wetlands of the upper 
Midwest. These functions are important not only to the environment, but 
also the economy. For example, non-consumptive recreational uses and 
fisheries value amount to billions of dollars every year.

The continental United States has lost over half its wetlands since 
European settlement, with approximately 100 million wetland acres 
remaining. Of those, some 20% may be wetlands that are less obviously 
connected to the broader aquatic ecosystem. On December 16, 2003, 
EPA and the Corps reiterated the Administration's commitment to the 
goal of "no net loss" of wetlands in the United States. In determining 
that a rulemaking is not necessary to achieve this goal, the decision 
also recognizes that there are regulatory and incentive-based 
approaches to continue to improve the programs that protect our 
Nation's waters.

In closing, EPA appreciates the information provided in the draft 
report, and agrees that a more complete survey of approaches to 
geographic jurisdictional determinations would be helpful. As mentioned 
earlier, EPA and the Corps are monitoring section 404 implementation, 
and are working together to analyze whether and how any differences 
among field offices should be addressed. In particular, we agree that 
it is very important to document jurisdictional determinations and 
ensure such information is publicly available. While EPA and the Corps 
have determined that we will not pursue rulemaking, we are discussing 
ways that we can further advance openness, predictability, and 
consistency, grounded in good science. We are committed to evaluating 
field-level practices, providing more information to the public, and 
improving agency coordination.

Thank you again for the opportunity to comment on your draft report. 

Sincerely,

Signed by: 

Benjamin H. Grumbles:

Acting Assistant Administrator: 

[End of section]

Appendix V: GAO Contacts and Staff Acknowledgments: 

GAO Contacts: 

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

Staff Acknowledgments: 

In addition, Charles Barchok, Doreen Feldman, Glenn Fischer, Michael 
Hartnett, Richard Johnson, Kate Kousser, Stephanie Luehr, Jonathan 
McMurray, and Adam Shapiro made key contributions to this report.

(360323): 

FOOTNOTES

[1] Under 33 C.F.R.  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.

[2] 531 U.S. 159 (2001).

[3] Section 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. 

[4] 43 Op. Atty. Gen. 197 (1979).

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

[6] The 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.

[7] The 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.

[8] SWANCC 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.

[9] Specifically, 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."

[10] 65 Fed. Reg. 12823 (2000).

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

[12] Specifically, the ANPRM requested information, data, and comments 
on six major topics: (1) whether the factors listed in 33 C.F.R.  
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.

[13] Jurisdiction over these waters is based upon 33 C.F.R.  
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).

[14] Since 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.  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.

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

[16] The 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.

[17] Galveston 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.

[18] According 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.

[19] An 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.

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

[21] In 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. 

[22] Typically, 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. 

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

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 Voice: (202) 512-6000: 

 TDD: (202) 512-2537: 

 Fax: (202) 512-6061: 

To Report Fraud, Waste, and Abuse in Federal Programs: 

Contact: 

Web site: www.gao.gov/fraudnet/fraudnet.htm E-mail: fraudnet@gao.gov

Automated answering system: (800) 424-5454 or (202) 512-7470: 

Public Affairs: 

Jeff Nelligan, managing director, NelliganJ@gao.gov (202) 512-4800 U.S.

General Accounting Office, 441 G Street NW, Room 7149 Washington, D.C.

20548: