a

GAO

United States General Accounting Office

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

GAO-04-297
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. 

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 

February 2004

WATERS AND WETLANDS

Corps of Engineers Needs to Evaluate Its 

District Office Practices in Determining 

Jurisdiction 

EPA’s and the Corps’ regulations defining waters of the United States 

establish the framework for determining which waters fall within federal 

jurisdiction. However, the regulations leave room for interpretation by 

Corps districts when considering (1) adjacent wetlands, (2) tributaries, and 

(3) ditches and other man-made conveyances. Since the SWANCC decision, 

the Corps and EPA have provided limited additional guidance to the districts 

concerning jurisdictional determinations, and the Corps has prohibited the 

districts from developing new local practices for determining the extent of 

Clean Water Act regulatory jurisdiction. In January 2003, the Corps and EPA 

published an Advance Notice of Proposed Rulemaking (ANPRM) soliciting 

comments on whether there was a need to revise the regulations that define 

which waters should be subject to federal jurisdiction. The ANPRM 

generated approximately 133,000 comments representing widely differing 

views. The agencies decided in December 2003 that they would not proceed 

with a rulemaking. Additionally, since SWANCC, 11 federal appellate court 

decisions relating to the extent of jurisdictional waters have been rendered; 

and 3 of these decisions are on appeal with the Supreme Court, with review 

denied for 2 others. 

Corps districts differ in how they interpret and apply the federal regulations 

when determining which waters and wetlands are subject to federal 

jurisdiction. For example, one district generally regulates wetlands located 

within 200 feet of other jurisdictional waters, while other districts consider 

the proximity of wetlands to other jurisdictional waters without any 

reference to a specific linear distance. Additionally, some districts assert 

jurisdiction over all wetlands located in the 100-year floodplain, while others 

do not consider floodplains as a factor. Although districts used generally 

similar criteria to identify the jurisdictional limits of tributaries, they used 

differing approaches in how they apply these criteria. Whether or to what 

degree individual differences in Corps district office practices would result 

in different jurisdictional determinations in similar situations is unclear, in 

part, because Corps staff consider many factors when making these 

determinations. Nevertheless, Corps headquarters officials stated that GAO 

had documented enough differences in district office practices to warrant a 

more comprehensive survey, which would include the other districts not 

surveyed in this report. This would help to ensure that the Corps is 

achieving the highest level of consistency possible under the current 

circumstances. 

Only 3 of the 16 districts that GAO reviewed made documentation of their 

practices available to the public. Other districts generally relied on oral 

communication to convey their practices to interested parties. 

Each year the U.S. Army Corps of 

Engineers (Corps) receives 

thousands of Clean Water Act 

permit applications from project 

proponents wishing to fill waters 

and wetlands. The first step in the 

permitting process is to determine 

if the waters and wetlands are 

jurisdictional. Prior to 2001, if 

migratory birds used the waters or 

wetlands as habitat, they were 

usually jurisdictional. In 2001, the 

Supreme Court— in Solid Waste 

Agency of Northern Cook County 

v. U.S. Army Corps of Engineers 

(SWANCC)—struck down the 

migratory bird rule, leaving the 

Corps to rely on other 

jurisdictional criteria. GAO was 

asked to describe the (1) 

regulations and guidance used to 

determine jurisdictional waters and 

wetlands and related developments 

since SWANCC, (2) extent to which 

Corps district offices vary in their 

interpretation of these regulations 

and guidance, and (3) extent to 

which Corps district offices 

document their practices and make 

this information publicly available.

GAO recommends that the Corps, 

in consultation with the Environmental Protection Agency (EPA): 

(1) survey district office practices 

in making jurisdictional 

determinations to determine if 

significant differences exist, (2) 

evaluate whether and how these 

differences need to be resolved, 

and (3) require districts to 

document their practices and make 

this information publicly available.
Page i GAO-04-297 Waters and Wetlands

Contents

Letter 1

Results in Brief 2

Background 4

Federal Regulations That Define Jurisdictional Waters Allow for 

Interpretation by Individual Corps Districts and Are Currently the 

Subject of Debate 9

Corps District Offices Use Differing Practices to Make Jurisdictional 

Determinations 17

Few Districts Make Documentation of Their Practices Public 27

Conclusions 28

Recommendations for Executive Action 28

Agency Comments and Our Evaluation 29

Appendixes

Appendix I: Scope and Methodology 31

Appendix II: Text of 33 C.F.R. § 328.3 34

Appendix III: Comments from the Department of the Army 37

Appendix IV: Comments from the Environmental Protection Agency 42

Appendix V: GAO Contacts and Staff Acknowledgments 45

GAO Contacts 45

Staff Acknowledgments 45

Table Table 1: Appellate Court Cases Decided Post-SWANCC 15

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

Contacted 6

Figure 2: Ditch Conveying Water from a Wetland 23

Figure 3: Drain Tile Conveying Water from a Field 25
Contents

Page ii GAO-04-297 Waters and Wetlands

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

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Page 1 GAO-04-297 Waters and Wetlands

United States General Accounting Office

Washington, D.C. 20548

A

February 27, 2004 Letr

The Honorable Doug Ose

Chairman, Subcommittee on Energy Policy,

 Natural Resources and Regulatory Affairs

Committee on Government Reform

House of Representatives

Dear Mr. Chairman:

The Clean Water Act prohibits the discharge of pollutants into “navigable 

waters”—defined in the act as the “waters of the United States”—without a 

permit.1

 For most pollutants the permit program is administered by the 

Environmental Protection Agency (EPA), or EPA-approved states and 

tribes. However, for section 404 of the act, the Army Corps of Engineers 

(the Corps), with EPA oversight, is responsible for issuing permits for the 

discharge of dredged or fill material into the waters of the United States. 

Under section 404, project proponents who seek to fill in wetlands or 

waters on their property are required to obtain a permit from the Corps 

before they can undertake such activities, if the water or wetland falls 

within federal jurisdiction. Each year, the Corps receives thousands of 

applications for permits under section 404.

Regulations applicable to federal jurisdiction under the Clean Water Act, 

including the section 404 program, define “waters of the United States” for 

which a permit must be obtained to include, among other things, interstate 

waters; navigable waters; waters such as wetlands, the use or degradation 

of which could affect interstate commerce; tributaries of the waters 

identified above; and wetlands adjacent to these waters. In addition, in 

1986, the Corps stated in a preamble to wetlands program regulations that 

its definition of “[w]aters of the United States” included waters “which are 

or would be used as habitat by birds protected by Migratory Bird Treaties.” 

This statement became known as the migratory bird rule; and under it, the 

Corps was able to regulate almost any body of water or wetland.

The Corps’ implementation of the section 404 program changed 

significantly in January 2001, when the Supreme Court struck down the 

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.
Page 2 GAO-04-297 Waters and Wetlands

migratory bird rule. In Solid Waste Agency of Northern Cook County v. 

United States Army Corps of Engineers (SWANCC),2

 the Supreme Court 

ruled that the Corps had exceeded its authority in asserting jurisdiction 

over certain ponds based on their use by migratory birds. The breadth of 

the SWANCC holding has been the subject of considerable dispute. In a 

2001 memorandum, EPA and the Corps interpreted the Supreme Court’s 

opinion as applying only to isolated, intrastate, nonnavigable waters. Some 

project proponents have disputed this interpretation in court, arguing that, 

under SWANCC, the Corps also lacks authority to regulate such bodies of 

water as nonnavigable tributaries and ditches and wetlands adjacent to 

these bodies of water. 

In this context, you asked us to provide information on the Corps’ practices 

in making jurisdictional determinations since the SWANCC decision. 

Specifically, this report describes the (1) regulations and guidance used by 

the Corps for making jurisdictional determinations for waters and wetlands 

and administrative and judicial developments that have affected this 

process since the Supreme Court decision, (2) extent to which Corps 

district offices vary in their interpretation and application of the 

regulations (hereafter referred to as practices), and (3) extent to which 

Corps districts document their practices and make this information 

publicly available. To meet our objectives, we examined 16 of the Corps’ 38 

district offices, selected for geographic diversity. We interviewed officials 

from these offices and reviewed the practices they used to determine 

jurisdictional waters. Appendix I provides a more detailed description of 

the scope and methodology for this review.

Results in Brief EPA’s and the Corps’ regulations defining waters of the United States 

provide the framework for determining which waters fall within federal 

jurisdiction. However, the regulations leave room for interpretation by the 

Corps districts when considering jurisdiction over, for example, (1) 

adjacent wetlands, (2) tributaries, and (3) ditches and other man-made 

conveyances. Since the SWANCC decision, the Corps and EPA provided 

limited additional guidance to the districts concerning jurisdictional 

determinations. Specifically, the Corps instructed its district offices to no 

longer assert jurisdiction over any waters solely on the basis of use by 

migratory birds and prohibited them from developing new local practices 

2

531 U.S. 159 (2001).
Page 3 GAO-04-297 Waters and Wetlands

for determining the extent of Clean Water Act section 404 regulatory 

jurisdiction. In addition, in January 2003 the Corps and EPA published an 

Advance Notice of Proposed Rulemaking (ANPRM), soliciting comments 

on, among other things, whether the regulations should define the term 

isolated waters and whether any other revisions are needed to the 

regulations defining waters of the United States. In response to the 

ANPRM, the agencies received approximately 133,000 comments 

representing widely differing views and decided in December 2003 that 

they would not issue a new rule on federal regulatory jurisdiction over 

isolated wetlands. Moreover, in the 3 years since the SWANCC decision, 11 

federal appellate court decisions interpreting the term “waters of the 

United States” have been issued. Project proponents in three of these 

cases are seeking Supreme Court review, and review has been denied for 

two others. 

In certain circumstances, Corps districts differ in how they interpret and 

apply the federal regulations when determining what wetlands and other 

waters fall within the jurisdiction of the federal government. Districts 

apply different approaches to identify wetlands that are adjacent to other 

waters of the United States and are subject to federal regulation. For 

example, one district generally regulates wetlands located within 200 feet 

of other waters of the United States, while other districts consider the 

proximity of the wetland to other waters of the United States on a case-bycase basis without any reference to a specific linear distance. Districts also 

differ in how they regulate wetlands connected to other waters of the 

United States by ditches, pipes, storm sewers and other man-made 

conveyances. For example, one district generally regulates a wetland 

connected to another water of the United States by a ditch, only if the ditch 

modifies or replaces a natural stream. Other districts generally regulate the 

wetland, regardless of whether the ditch modifies or replaces a natural 

stream. Other differences in identifying the jurisdictional limits of rivers 

and streams stemmed from the diverse environmental factors present in 

various districts. For example, districts in the arid West developed a 

method for identifying the jurisdictional boundaries of dry channels that 

flood occasionally, expanding several times their normal size. Whether or 

to what degree the individual differences in Corps district office practices 

would result in different jurisdictional determinations in similar situations 

is unclear, in part, because Corps staff consider many factors when making 

jurisdictional determinations. Nevertheless, Corps headquarters officials 

said that differences in district office practices that we identified were 

sufficiently prevalent to warrant a more comprehensive survey of district 

office practices. We are recommending that the Corps survey its district 
Page 4 GAO-04-297 Waters and Wetlands

offices, evaluate their practices for making jurisdictional determinations, 

and, if necessary, resolve differences among them.

Few districts make documentation of their practices for making 

jurisdictional determinations publicly available. Specifically, only 3 of the 

16 districts that we reviewed made documentation of their practices 

available to the public. The other districts generally relied on oral 

communication to convey their practices to interested parties. To provide 

greater clarity to the regulated community, we are recommending that 

Corps districts prepare documentation that specifies the practices used in 

making jurisdictional determinations and make it publicly available.

Background The Clean Water Act prohibits the discharge of pollutants, including 

dredged or fill material, into “navigable waters,” defined in the act as the 

“waters of the United States,” without a permit. The act’s objective is to 

restore and maintain the chemical, physical, and biological integrity of the 

nation’s waters. Congress’ intent in passing the act was to establish an allencompassing program of water pollution regulation. The act contains 

several programs designed to protect waters of the United States, including 

section 303, which calls for development of water quality standards for 

waters of the United States; section 311, which establishes a program for 

preventing, preparing for, and responding to oil spills that occur in waters 

of the United States; section 401, which establishes state water quality 

certification of federally issued permits that may result in a discharge to 

waters of the United States; and section 402, which establishes a permitting 

system to regulate point source discharges of pollutants (other than 

dredged and fill material) into waters of the United States. 

Section 404 of the Clean Water Act generally prohibits the discharge of 

dredged or fill material into waters of the United States without a permit 

from the Corps.3

 Corps and EPA regulations under the section 404 program 

define “waters of the United States” for which a permit must be obtained to 

include, among other things, (1) interstate waters; (2) waters which are or 

could be used in interstate commerce; (3) waters such as wetlands, the use 

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. 
Page 5 GAO-04-297 Waters and Wetlands

or degradation of which could affect interstate commerce; (4) tributaries of 

the waters identified above and (5) wetlands adjacent to these waters. As 

such, this program is the nation’s primary wetland protection program. In 

addition to the federal regulation of wetlands, some state and local 

governments have developed wetland protection programs.

The Corps administers the permitting responsibilities of the section 404 

program, while EPA in conjunction with the Corps establishes the 

substantive environmental protection standards that permit applicants 

must meet. EPA also has final administrative responsibility for interpreting 

the term “waters of the United States,” a term that governs the scope of 

many other programs that EPA administers under the Clean Water Act. 4

 

Day-to-day authority for administering the permitting program rests with 

the 38 Corps district offices, whereas Corps division and headquarters 

offices exercise policy oversight (see fig. 1). Under section 404(q), EPA 

and other federal agencies, such as the Department of the Interior’s Fish 

and Wildlife Service, can request that a permit application receive a higher 

level of review within the Department of the Army. Under a memorandum 

of agreement between EPA and the Corps, EPA may also initiate a “special 

case,” in which EPA determines the scope of jurisdiction for a particular 

site or issue for section 404 purposes. EPA also has “veto” authority over 

section 404 permitting decisions under section 404(c). However, EPA has 

rarely used its 404(c) authority to intervene in or overrule Corps permit 

decisions. EPA also exercises independent enforcement authority.

4

43 Op. Atty. Gen. 197 (1979).
Page 6 GAO-04-297 Waters and Wetlands

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

Wetlands are areas that are inundated or saturated with surface or ground 

water at a frequency and duration sufficient to support vegetation adapted 

for life in saturated soil conditions. Wetlands include swamps, marshes, 

bogs, and similar areas. They are characterized by three factors: (1) 

frequent or prolonged presence of water at or near the soil surface, (2) 

hydric soils that form under flooded or saturated conditions, and (3) plants 

that are adapted to live in these types of soils. Wetlands play valuable 

ecological roles by reducing flood risks, recharging water supplies, 

improving water quality, and providing habitats for fish, aquatic birds, and 
Page 7 GAO-04-297 Waters and Wetlands

other plants and animals, including a number of endangered species. As 

the Supreme Court has recognized in upholding Corps' authority under the 

Clean Water Act to regulate wetlands adjacent to waters of the United 

States, “[t]he regulation of activities that cause water pollution cannot rely 

on . . . artificial lines . . . but must focus on all waters that together form the 

entire aquatic system.”5

 Further, water moves in hydrologic cycles and 

pollution of one part of an aquatic system can affect other waters within 

that aquatic system. 

The regulations also extend federal jurisdiction under section 404 to 

tributaries. The federal government has argued in court that it must 

regulate tributary waters well beyond the point at which they are navigable 

because any pollutant or fill material that degrades water quality in a 

tributary has the potential to move downstream and degrade the quality of 

navigable waters themselves. Similarly, according to the Corps, drainage 

ditches constructed in uplands that connect two waters of the United 

States may themselves be jurisdictional.

The first step in the regulatory process is a jurisdictional determination, in 

which the Corps determines whether a water or wetland is a “water of the 

United States.” In general, Corps staff conduct jurisdictional 

determinations by considering a range of factors, and they often view each 

factor’s importance within the context of the actual site of a proposed 

project. While many jurisdictional determinations are simple to perform, 

some can be complex and require considerable effort. For example, a 

relatively simple jurisdictional determination might involve a proposed 

project for the placement of a pier on the Mississippi River. In this case, 

Corps staff may only consult a map to determine that the activity falls 

within the Corps’ jurisdiction. In contrast, a more complex jurisdictional 

determination might arise when a property owner wants to fill in multiple 

wetlands to build a parking lot. This kind of jurisdictional determination 

would likely require additional time and resources because Corps staff 

might need to consult a variety of maps and aerial photographs and then 

visit the site. Once on site, Corps staff would verify the exact locations of 

the wetlands. If the Corps determines that a water or wetland is 

jurisdictional, a permit applicant then has the option of filing an 

administrative appeal challenging this determination and could 

subsequently pursue the matter in court. 

5

United States v. Riverside Bayview Homes, 474 U.S. 121 (1985) (quoting a Corps preamble 

at 42 Fed. Reg. 37128 (1977)).
Page 8 GAO-04-297 Waters and Wetlands

If a water or wetland is found to be jurisdictional, the property owner 

would take the next step in the process and apply for a section 404 permit 

from the Corps. The Corps bases its decision to issue a permit on an 

evaluation of the probable impacts, including cumulative impacts, of the 

proposed activity on the public interest. The decision should reflect the 

national concern for both the protection and utilization of important 

resources. As part of the balancing process, the Corps may require project 

modifications designed to avoid and minimize impacts on natural 

resources. Depending on the individual and cumulative impacts of the 

regulated activity, these modifications can range from requiring little or no 

additional effort by the property owner to requiring the property owner to 

incur significant costs. According to the Corps, in approving permits, the 

agency requires permit applicants to avoid, minimize, or mitigate impacts 

to wetlands and waters in most cases.6

 The Corps approves virtually all 

section 404 permit applications. In fiscal year 2002, for example, of 85,445 

section 404 permit applications filed, the Corps denied 128 and 4,143 were 

withdrawn by the applicant. 

While the interpretation of Clean Water Act jurisdiction has evolved over 

time, the Corps’ implementation of section 404 of the act changed 

significantly in January 2001, when the Supreme Court in the SWANCC

decision ruled that Corps guidance known as the migratory bird rule could 

no longer be used as a basis to assert jurisdiction over a water or wetland. 

Discussed in the preamble to regulations issued in 1986—but never itself 

promulgated as a regulation—this provision stated that jurisdictional 

waters include waters that “are or would be used as habitat by birds 

protected by migratory bird treaties,” or that “are or would be used as 

habitat by other migratory birds that cross state lines.”7

 Under this 

provision, nearly all waters and wetlands in the United States were 

potentially jurisdictional. The Supreme Court held that the Clean Water 

Act did not authorize the Corps to require a permit for filling an isolated, 

intrastate, nonnavigable pond where the sole basis for the Corps' authority

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.
Page 9 GAO-04-297 Waters and Wetlands

was that the pond had been used by migratory birds.8 The extent to which 

the reasoning in the SWANCC decision applies to waters other than those 

specifically at issue in that case has been the subject of considerable 

debate in the courts and among the public. Some groups have argued the 

SWANCC decision precludes the Corps from regulating virtually all 

isolated, intrastate, nonnavigable waters, as well as nonnavigable 

tributaries to navigable waters, while others have argued that it merely 

prohibits the regulation of isolated, intrastate, nonnavigable waters and 

wetlands solely on the basis of use by migratory birds. In the context of 

this decision, the Corps and EPA considered whether to modify the 

definition of “waters of the United States.” However, any modification of 

the scope of waters of the United States would have implications for other 

Clean Water Act programs that cover “navigable waters,” including section 

303 (governing water quality standards), section 311 (governing oil and 

hazardous substance spills), and section 402 (regulating discharges of 

pollutants other than dredged and fill material).

Federal Regulations 

That Define 

Jurisdictional Waters 

Allow for 

Interpretation by 

Individual Corps 

Districts and Are 

Currently the Subject 

of Debate

EPA’s and the Corps’ regulations defining waters of the United States 

provide a framework for determining which waters are within federal 

jurisdiction. The regulations leave room for judgment and interpretation 

by the Corps districts when considering jurisdiction over, for example, (1) 

adjacent wetlands, (2) tributaries, and (3) ditches and other man-made 

conveyances. Prior to the 2001 SWANCC decision, the Corps generally did 

not have to be concerned with such factors as adjacency, tributaries, and 

other aspects of connection with an interstate or navigable water body, if 

the wetland or water body qualified as a jurisdictional water on the basis of 

its use by migratory birds. Since the SWANCC decision, the Corps and EPA 

have provided limited additional guidance to the districts concerning 

jurisdictional determinations. Specifically, the Corps told districts that 

they may not assert jurisdiction over any waters solely on the basis of use 

by migratory birds and that they should not develop new local practices for 

determining the extent of Clean Water Act section 404 regulatory 

jurisdiction or use local practices that were not in effect prior to the 

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.
Page 10 GAO-04-297 Waters and Wetlands

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 
Page 11 GAO-04-297 Waters and Wetlands

mark. The ordinary high water mark is the line on the shore caused by 

fluctuations of water and can be characterized by a clear bank, shelving, 

debris, or changes in vegetation.9

 The Corps further states that the 

ordinary high water mark should be used to identify the upstream limits of 

jurisdiction for tributary waters. Thus, federal jurisdiction generally 

extends up the banks and upstream of a tributary to the point where the 

ordinary high water mark is no longer discernible. Additionally, the Corps 

states that ephemeral tributaries—which have flowing water only at certain 

times of year or only after certain storm events in a typical year—are to be 

considered jurisdictional, provided that an ordinary high water mark is 

present.10 Tributary waters can thus range from substantial rivers and 

streams with definite ordinary high water marks, to channels that are 

usually dry, and may have very faint or ill-defined ordinary high water 

marks. 

The regulations do not further define the physical characteristics of an 

ordinary high water mark. As a result, it is possible that well trained and 

competent staff might interpret the term differently. The definition refers 

to factors such as changes in the character of the soil, absence of terrestrial 

vegetation, and the presence of litter and debris; but both the interpretation 

and weight assigned to each of these factors is left to the official 

conducting the jurisdictional determination. Neither the Corps nor EPA 

have issued any additional clarifying national technical guidance for use by 

Corps staff in identifying ordinary high water marks.

The regulatory definition of waters of the United States also does not 

specifically discuss the jurisdictional status of ditches and other man-made 

conveyances, and guidance issued by the Corps and EPA leaves room for 

interpretation. The Corps has stated that certain man-made conveyances, 

such as nontidal drainage and irrigation ditches excavated on dry land, are 

generally not considered waters of the United States. In other situations, 

however, the Corps may determine that man-made conveyances are waters 

of the United States. For example, natural streams that have been diverted 

into man-made channels are jurisdictional. Also, ditches that extend the 

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.” 

1065 Fed. Reg. 12823 (2000).
Page 12 GAO-04-297 Waters and Wetlands

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.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.

11Specifically, 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).
Page 13 GAO-04-297 Waters and Wetlands

• In January 2003, the Corps and EPA issued an ANPRM seeking public 

comment on issues associated with the definition of “waters of the 

United States” and soliciting information from the general public, the 

scientific community, and federal and state resource agencies on the 

implications of SWANCC for jurisdictional decisions under the Clean 

Water Act.12 Attached to the notice was a joint memorandum between 

EPA and the Corps designed to provide clarifying guidance regarding 

SWANCC and to address several legal issues that had arisen since the 

SWANCC decision concerning jurisdiction under various factual 

scenarios. For example, the joint memorandum stated that, isolated, 

intrastate waters that are capable of supporting navigation by watercraft 

remain subject to Clean Water Act jurisdiction.13 The guidance called 

for field staff to continue to assert jurisdiction over traditional navigable 

waters, their tributaries, and adjacent wetlands. The joint memorandum 

directed field staff to make jurisdictional determinations on a case-bycase basis, considering the guidance in the memorandum as well as 

applicable regulations and any relevant court decisions in addition to 

those discussed in the memorandum. The joint memorandum also 

reiterated that field staff were no longer to assert jurisdiction over an 

isolated, intrastate, nonnavigable water on the basis of the factors listed 

in the migratory bird rule. It also noted that, in light of the SWANCC 

decision, it is uncertain whether there remains any basis for jurisdiction

12Specifically, the ANPRM requested information, data, and comments on six major topics: 

(1) whether the factors listed in 33 C.F.R. § 328.3 (a)(3) or any other factors are a basis for 

Clean Water Act jurisdiction over isolated wetlands; (2) whether the regulations should 

define “isolated waters,” and if so, using what factors; (3) the effectiveness of federal and 

state programs in protecting waters and wetlands; (4) whether any other changes are 

needed to the jurisdictional regulations; (5) the resource impacts of SWANCC on isolated, 

intrastate, nonnavigable waters; and (6) the function and values of wetlands and other 

waters that might be affected by the issues discussed in the ANPRM.

13Jurisdiction over these waters is based upon 33 C.F.R. § 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).
Page 14 GAO-04-297 Waters and Wetlands

over any isolated, intrastate, nonnavigable waters. In view of these 

uncertainties, the joint memorandum stated that field staff should seek 

formal headquarters approval before asserting jurisdiction over such 

waters.14 

The ANPRM generated significant interest, as evidenced by the 

approximately 133,000 comments submitted by state agencies, national 

development organizations, environmental groups, and other parties. 

According to EPA, 99 percent of the comments on the need for a new rule 

submitted to EPA and the Corps in response to the ANPRM were opposed 

to a new rule. Some groups, such as industry representatives, generally 

indicated that they favor a rulemaking because they believe the SWANCC

decision created, among other things, a great deal of uncertainty, resulting 

in unequal treatment and significant financial burden to the regulated 

community. These groups further stated that the current breadth of federal 

jurisdiction is too great and that, under the principles of federalism, state 

and local governments are the appropriate regulators of nonnavigable 

waters within their borders. In contrast, other groups, such as 

environmentalists, indicated a general opposition to any rulemaking effort, 

expressing concerns that a new rule would result in reduced federal 

jurisdiction under section 404 and other programs under the Clean Water 

Act. Furthermore, these other groups argued that it is unlikely that other 

federal and state programs provide the oversight or require the mitigation 

that would be sufficient to protect wetlands and other waters that were no 

longer covered under the section 404 program. An EPA official stated that 

41 of the 43 states that submitted comments were concerned about any 

major reduction in Clean Water Act jurisdiction. This official also said that 

most states are concerned that political, legal, and budgetary constraints 

complicate efforts to regulate certain types of waters and wetlands at the 

state level. In December 2003, EPA and the Corps announced that they 

would not issue a new rule on federal regulatory jurisdiction over isolated 

wetlands.

Along with the ANPRM, attempts have been made to coordinate Corps and 

EPA efforts to address the implications of the SWANCC decision. In 

14Since January 2003, there have been eight cases in which districts sought headquarters’ 

approval to assert jurisdiction over isolated, intrastate, nonnavigable waters, based upon 33 

C.F.R. § 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.
Page 15 GAO-04-297 Waters and Wetlands

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

Appellate 

Court

Date of 

decision Summary of decision

Petition for 

Supreme Court 

review 

pending?

Headwaters, Inc. v. 

Talent Irrigation 

District, 243 F.3d 

526.

Ninth Circuit March 

2001

Court held that irrigation canals in question were tributaries of 

navigable waters, and therefore within Clean Water Act 

jurisdiction.

No

Rice v. Harken 

Exploration Co., 250 

F.3d 264.

Fifth Circuit April

2001

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. 

Noa

United States v. 

Interstate General 

Co., 39 Fed. Appx. 

870.

Fourth 

Circuit

July

2002

Court held that Corps jurisdiction extended to wetlands adjacent 

to tributaries of traditional navigable waters.

No
Page 16 GAO-04-297 Waters and Wetlands

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.

United States v. 

Krilich, 303 F.3d 784.

Seventh 

Circuit

September 

2002

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.

Nob

Community Ass’n for 

Restoration of the 

Env’t v. Henry 

Bosma Dairy, 305 

F.3d 943.

Ninth Circuit September 

2002

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.

No

United States v. 

Rueth Development 

Co., 335 F.3d 598.

Seventh 

Circuit

July

2003

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.

 Nob

United States v. 

Deaton, 332 F.3d 

698.

Fourth 

Circuit

June 

2003

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.

Yes

United States v. 

Rapanos, 339 F.3d 

447.

Sixth Circuit August

2003

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.

Yes

Treacy v. Newdunn, 

344 F.3d 407.

Fourth 

Circuit

September 

2003

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.

Yes

In re Needham, 354 

F.3d 340.

Fifth Circuit December 

2003

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. 

Noa

United States v. 

Phillips, No. 02-

30035.

Ninth Circuit January

2004

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.

No

(Continued From Previous Page)

Case

Appellate 

Court

Date of 

decision Summary of decision

Petition for 

Supreme Court 

review 

pending?
Page 17 GAO-04-297 Waters and Wetlands

Corps District Offices 

Use Differing Practices 

to Make Jurisdictional 

Determinations

There are several differences in the practices Corps districts use to make 

jurisdictional determinations.15 Specifically, districts sometimes differ 

when (1) identifying jurisdictional wetlands adjacent to waters of United 

States; (2) identifying jurisdictional limits of tributaries; and (3) regulating 

wetlands connected to waters of the United States by man-made 

conveyances, such as ditches. Corps headquarters officials said that there 

are enough differences in district office practices that a comprehensive 

survey of them is warranted.

District Offices Use 

Different Factors to Identify 

Adjacent Wetlands

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.16 For 

example, written guidance from the Galveston District states that the 

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

16The 100-year floodplain is defined as “the lowland and relatively flat area adjoining inland 

and coastal waters, including at a minimum, that area subject to a 1 percent or greater 

chance of flooding in any given year.” The Federal Emergency Management Agency 

routinely maps the 100-year floodplain for large rivers and streams for purposes of flood 

insurance and management.
Page 18 GAO-04-297 Waters and Wetlands

district generally regulates wetlands located in the 100-year floodplain 

because this type of flooding is sufficient evidence of a hydrological 

connection between a wetland and a water of the United States.17 

Alternatively, officials from other districts, such as Jacksonville and 

Philadelphia, stated that they may consider the 100-year floodplain as one 

of many factors when making jurisdictional determinations for adjacent 

wetlands, but they do not consider it sufficient evidence on its own. Still 

other districts, such as Chicago and Rock Island, do not consider the 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.

17Galveston District does not consider the 100-year floodplain to determine adjacency on the 

coastal barrier islands. Additionally, under Galveston District’s approach, if a wetland is 

separated from a water of the United States by two or more natural or man-made barriers, 

the wetland is considered isolated, even if the wetland lies in a 100-year floodplain.
Page 19 GAO-04-297 Waters and Wetlands

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 
Page 20 GAO-04-297 Waters and Wetlands

the Jacksonville District said they would generally regulate all wetlands 

within 200 feet of other waters of the United States, regardless of the 

number of barriers separating the waters from the wetlands. Officials from 

the Baltimore District said they have not established a maximum number of 

barriers that may separate a water of the United States from a jurisdictional 

wetland because the regulations leave room for interpretation. 

Districts Generally Use a 

Common Approach to 

Identify the Jurisdictional 

Limits of Tributaries but 

May Apply It Differently 

The Corps districts that we contacted generally used a similar approach to 

identify jurisdictional tributaries. However, beneath this similarity, we 

found that districts in different regions of the United States—and even 

individual Corps staff—could differ significantly in how they applied this 

approach when delineating tributary waters. 

The districts that we contacted rarely used a quantitative standard of the 

volume or frequency of flow for assessing jurisdiction. Instead, most of 

them used the concept of an ordinary high water mark to identify both the 

outer limits of a tributary, as well as the upstream limits of a tributary. 

Corps staff said that they generally assert jurisdiction, as long as they can 

identify the characteristics of an ordinary high water mark, regardless of 

the volume or frequency of flow in the channel. In some arid regions, this 

means that channels that might have little water flow in a given year, and at 

times may be completely dry, could be jurisdictional, as long as the 

characteristics of an ordinary high water mark were visible to the Corps 

staff.18 Districts would also assert jurisdiction over a tributary in the 

absence of an ordinary high water mark if there were evidence that 

construction or other activities had obliterated its signature. For example, 

officials from the Chicago District said that because their district was 

heavily urbanized many channels had been manipulated and contained, 

often in ways that obscured the ordinary high water mark. 

Districts in arid regions identified unique difficulties they face when 

identifying the limits of an ordinary high water mark. For example, in the 

18According to the Corps, in arid and semi-arid regions, an ephemeral stream may convey 

flow seasonally under normal and local climatic conditions. During a drought, an ephemeral 

stream may not flow at all. Even though the flow may be unpredictable in these regions, the 

creek develops a signature and channel over time that exhibits physical evidence supporting 

an ordinary high water mark. In some cases, these channels originate from erosion features. 

As these erosion features generally do not provide the same function that an ephemeral 

stream system may provide, many districts do not demarcate erosion features as waters of 

the United States. However, other districts do so on a case-by-case basis.
Page 21 GAO-04-297 Waters and Wetlands

arid West, the intermittency of the water flow and the occasional massive 

flood surges that affect many rivers and streams can make identifying the 

ordinary high water mark a difficult exercise. According to Corps district 

officials, large periodic floods in the arid West create complex tributary 

basins that feature a network of channels, many of which are remnants of a 

time when the water flowed along a different course and which rarely, if 

ever, experience water flow. Corps officials said that identifying the 

ordinary high water mark in such basins can be very difficult because there 

may be physical evidence of water flow that is little more than a historic 

artifact. Additionally, large flood surges can wash away normal banks, 

debris, vegetation, and other evidence of the ordinary high water mark, 

making it more difficult for Corps staff to identify the outer limits of the 

tributary. 

Because of the difficulties in identifying the ordinary high water mark in 

some arid regions, the Corps has determined that there can be considerable 

variations among Corps staff in identifying the outer limits of the ordinary 

high water mark in arid regions resulting in considerable differences in 

their assessments of the width of tributary channels. To address the 

difficulties, the Corps and EPA have taken several actions to help ensure 

better consistency for jurisdictional determinations. For example, the 

Corps’ South Pacific Division—which includes district offices 

encompassing a large portion of the arid West—has issued a jurisdictional 

determination tool that staff can use to identify the limits of tributaries in 

the region. It specifically guides the user to identify the water features 

present—including water features indigenous to the arid West, such as 

arroyos, coulees, and washes19—and includes implicit practices for 

assessing the jurisdictional status of a water feature in that region. In 

addition, the Corps and EPA are developing a manual to guide field staff in 

identifying the ordinary high water mark in arid regions. 

Moreover, the difficulty and ambiguity associated with identifying the 

ordinary high water mark can affect jurisdictional determinations beyond 

arid regions. For example, an official of the Portland District said that the 

definition of the ordinary high water mark is among the most ambiguous 

terms in the regulatory definition of waters of the United States and that 

the lateral limits of the ordinary high water mark can be difficult to identify, 

19An arroyo is an ephemeral stream with a sand substrate, sometimes within a larger eroded 

channel; a coulee is a small stream, dry streambed, or small ravine; a wash is a steep sided 

depression from which bottom sediments have been removed by water.
Page 22 GAO-04-297 Waters and Wetlands

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 ManMade 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 manmade surface conveyances to assert jurisdiction over a wetland. Omaha 

District officials require, in addition to water being present at least once 
Page 23 GAO-04-297 Waters and Wetlands

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

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 

Wetland area.

Source: U.S. Army Corps of Engineers.
Page 24 GAO-04-297 Waters and Wetlands

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,20 storm drain systems, and 

culverts) that connect a wetland to a water of the United States as 

sufficient evidence to assert jurisdiction over a wetland. Nevertheless, we 

identified variations relating to the type of closed man-made conveyance 

considered sufficient to make a jurisdictional connection. Chicago District 

officials said they use drain tiles to establish a jurisdictional connection 

between a wetland and a water of the United States, but only when 

evidence supports that it had replaced a historic tributary. The Corps’ 

justification is that a natural stream that is confined to a pipe, or replaced 

by a series of pipes in essentially the same location, still functions as a 

connection between upstream and downstream waters and remains a part 

of the surface tributary system.

20Drain tiles are porous clay pipes buried below the surface to provide drainage (see fig. 3). 
Page 25 GAO-04-297 Waters and Wetlands

Figure 3: Drain Tile Conveying Water from a Field

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, 

Drainage of wet soil is accomplished by layering

perforated pipe (A), called a drain tile, at a prescribed

depth in the soil. If the water table rises to this level

(B), the excess water flows into the drain tile and

flows along (within) the tile, to a drainage ditch

(C), from which it exits the field.

A

B

C

Source: Photo and photo caption by Dr. Randy Schaetzl; illustration GAO.
Page 26 GAO-04-297 Waters and Wetlands

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 
Page 27 GAO-04-297 Waters and Wetlands

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. 
Page 28 GAO-04-297 Waters and Wetlands

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.
Page 29 GAO-04-297 Waters and Wetlands

Agency Comments and 

Our Evaluation

We provided a draft of this report to the Secretary of the Department of 

Defense and the Administrator of EPA for review and comment. Both the 

Department of Defense and EPA concurred with the report’s findings and 

recommendations. The Department of Defense said that, on the basis of 

our recommendations, it will (1) conduct a more comprehensive survey to 

further assess the Corps district office practices in determining 

jurisdiction; (2) develop a strategic approach to ensure the Corps is 

achieving the highest level of consistency and predictability possible for 

making jurisdictional determinations; and (3) ask the Corps districts and 

divisions to prepare documentation describing specific local practices used 

in making jurisdictional determinations and make this information 

available to the public. EPA agreed that a more complete survey of 

approaches to geographic jurisdictional determinations would be helpful 

and that it is important to document jurisdictional determinations and 

ensure such information is publicly available. Both the Department of 

Defense and EPA also provided several technical changes that we have 

incorporated into this report, as appropriate. The full text of the 

Department of Defense’s response is included in appendix III, and EPA’s 

response is included in appendix IV. 

As arranged with your office, unless you publicly announce its contents 

earlier, we plan no further distribution of this report until 7 days after the 

date of this letter. At that time, we will send copies to interested 

congressional committees and Members; the Secretary of Defense; the 

Administrator, EPA; and the Chief of Engineers and Commander, U.S. Army 

Corps of Engineers. We will also make copies available to others upon 

request. In addition, this report will be available at no charge on GAO’s 

home page at http://www.gao.gov.
Page 30 GAO-04-297 Waters and Wetlands

If you or your staff have any questions about this report, please contact me 

at (202) 512-3841. Key contributors to this report are listed in appendix V.

Sincerely yours, 

Anu K. Mittal

Director, Natural Resources

and Environment
Page 31 GAO-04-297 Waters and Wetlands

Appendix I

Scope and Methodology AAppenednxidexiIs

To identify the national criteria for making jurisdictional determinations, 

and administrative and judicial developments affecting this process since 

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

Engineers (SWANCC), we reviewed federal regulations and related 

guidance that define “waters of the United States.” We also interviewed 

officials of both the Army Corps of Engineers (the Corps) and the 

Environmental Protection Agency (EPA) headquarters in Washington D.C. 

Further, we reviewed the Supreme Court’s SWANCC decision, as well as 

various subsequent and related lower court decisions. In addition, we 

analyzed administrative guidance issued by the Corps and EPA, as well as 

the Advance Notice of Proposed Rulemaking (ANPRM) issued by the Corps 

and EPA in January 2003. Finally, we reviewed several major public 

comments addressing the ANPRM and discussed the full range of 

comments submitted by the public with EPA officials.

To determine the extent to which Corps district offices vary in their 

interpretation and application of the regulations and guidance, we 

interviewed Corps headquarters officials, as well as national environmental 

groups and representatives of industry and real estate development 

organizations. We then selected 16 of the Corps’ 38 district offices for an 

in-depth examination of their jurisdictional determination practices. 

Selected to obtain geographic representation across the United States as 

well as climatic, geologic, and topographic diversity, we contacted at least 

one district in each of the Corps’ seven Divisions located in the contiguous 

United States. Specifically we contacted the Baltimore, Buffalo, Chicago, 

Fort Worth, Galveston, Jacksonville, Los Angeles, New Orleans, Omaha, 

Philadelphia, Portland, Rock Island, Sacramento, St. Paul, San Francisco, 

and Wilmington Corps district offices (see fig. 1). For each district office, 

we conducted a series of preliminary interviews, including interviews with 

officials representing the Corps Divisional Office responsible for the 

district office, a state wetland protection agency with jurisdiction 

overlapping that of the district office, a corresponding EPA
Appendix I

Scope and Methodology

Page 32 GAO-04-297 Waters and Wetlands

regional office,1 and at least one firm representing the perspective of 

section 404 permit applicants.2 

The primary purpose of these interviews was to obtain preliminary 

information on the Corps district’s jurisdictional determination practices 

and, in particular, information on any significant differences among the 

districts. Following these discussions, we interviewed officials from 16 

Corps district offices, using detailed questionnaires.3

 In these interviews, 

we discussed a wide range of topics pertaining to jurisdictional 

determinations, including the practices used by districts to determine 

whether to assert jurisdiction over adjacent wetlands, tributary waters, 

man-made conveyances, and isolated, intrastate waters. We also discussed 

other issues related to jurisdictional determinations, such as the overall 

impact of the SWANCC decision on districts’ jurisdictional practices, and 

particular difficulties the districts face in conducting jurisdictional 

determinations. At the 11 district offices that we visited, we supplemented 

office discussions with field visits to sites of recent jurisdictional 

determinations, as well as sites that typified difficult jurisdictional issues. 

During these site visits, we observed and discussed hydrologic linkages 

between wetlands and waters of the United States, the difficulty in 

identifying the outer extent of tributaries in both arid and wet regions, and 

the role of ditches and other man-made conveyances in establishing 

jurisdictional connections for wetlands. We did not attempt to determine 

whether individual differences in district practices resulted in different 

jurisdictional determinations in similar situations, in part, because Corps 

staff consider many factors when making these determinations. Also, we 

did not attempt to compare districts' practices before and after the 

SWANCC decision. 

To determine the extent to which the Corps districts document and make 

their practices for conducting jurisdictional determinations available to the 

1

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. 

2

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. 

3

Of the 16 Corps district offices included in our review, we visited 11 and conducted 

telephone interviews with 5. 
Appendix I

Scope and Methodology

Page 33 GAO-04-297 Waters and Wetlands

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.
Page 34 GAO-04-297 Waters and Wetlands

Appendix II

Text of 33 C.F.R. § 328.3 ApendxiI

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

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

(1) All waters which are currently used, or were used in the past, or 

may be susceptible to use in interstate or foreign commerce, 

including all waters which are subject to the ebb or flow of the tide;

(2) All interstate waters including interstate wetlands;

(3) All other waters such as intrastate lakes, rivers, streams (including 

intermittent streams), mudflats, sandflats, wetlands, sloughs, 

prairie potholes, wet meadows, playa lakes, or natural ponds, the 

use, degradation or destruction of which could affect interstate or 

foreign commerce including any such waters:

(i) Which are or could be used by interstate or foreign travelers for 

recreational or other purposes; or

(ii) From which fish or shellfish are or could be taken and sold in 

interstate or foreign commerce; or 

(iii)Which are used or could be used for industrial purpose by 

industries in interstate commerce;

(4) All impoundments of waters otherwise defined as waters of the 

United States under the definition;

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

section;

(6) The territorial seas;

(7) Wetlands adjacent to waters (other than waters that are themselves 

wetlands) identified in paragraphs (a)(1) - (6) of this section.

Waste treatment systems including treatment ponds or lagoons 

designed to meet the requirements of Clean Water Act (other than 

cooling ponds as defined in 40 CFR 123.11(m) which also meet the 

criteria of this definition) are not waters of the United States.
Appendix II

Text of 33 C.F.R. § 328.3

Page 35 GAO-04-297 Waters and Wetlands

(8) Waters of the United States do not include prior converted 

cropland. Nothwithstanding the determination of an area's status 

as prior converted cropland by any other federal agency, for the 

purposes of the Clean Water Act, the final authority regarding Clean 

Water Act jurisdiction remains with EPA.

(b) The term wetlands means those areas that are inundated or saturated 

by surface or ground water at a frequency and duration sufficient to 

support, and that under normal circumstances do support, a prevalence 

of vegetation typically adapted for life in saturated soil conditions. 

Wetlands generally include swamps, marshes, bogs, and similar areas.

(c) The term adjacent means bordering, contiguous, or neighboring. 

Wetlands separated from other waters of the United States by manmade dikes or barriers, natural river berms, beach dunes, and the like 

are "adjacent wetlands."

(d) The term high tide line means the line of intersection of the land with 

the water's surface at the maximum height reached by a rising tide. The 

high tide line may be determined, in the absence of actual data, by a line 

of oil or scum along shore objects, a more or less continuous deposit of 

fine shell or debris on the foreshore or berm, other physical markings 

or characteristics, vegetation lines, tidal gages, or other suitable means 

that delineate the general height reached by a rising tide. The line 

encompasses spring high tides and other high tides that occur with 

periodic frequency but does not include storm surges in which there is 

a departure from the normal or predicted reach of the tide due to the 

piling up of water against a coast by strong winds such as those 

accompanying a hurricane or other intense storm.

(e) The term ordinary high water mark means that line on the shore 

established by the fluctuation of water and indicated by physical 

characteristics such as clear, natural line impressed on the bank, 

shelving, changes in the character of soil, destruction of terrestrial 

vegetation, the presence of litter and debris, or other appropriate 

means that consider the characteristics of the surrounding areas. 

(f) The term tidal waters means those waters that rise and fall in a 

predictable and measurable rhythm or cycle due to the gravitational 

pulls of the moon and sun. Tidal waters end where the rise and fall of 

the water surface can no longer be practically measured in a 
Appendix II

Text of 33 C.F.R. § 328.3

Page 36 GAO-04-297 Waters and Wetlands

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

effects.
Page 37 GAO-04-297 Waters and Wetlands

Appendix III

Comments from the Department of the Army ApendxiI
Appendix III

Comments from the Department of the Army

Page 38 GAO-04-297 Waters and Wetlands
Appendix III

Comments from the Department of the Army

Page 39 GAO-04-297 Waters and Wetlands
Appendix III

Comments from the Department of the Army

Page 40 GAO-04-297 Waters and Wetlands
Appendix III

Comments from the Department of the Army

Page 41 GAO-04-297 Waters and Wetlands
Page 42 GAO-04-297 Waters and Wetlands

Appendix IV

Comments from the Environmental 

Protection Agency ApendxiIV
Appendix IV

Comments from the Environmental 

Protection Agency

Page 43 GAO-04-297 Waters and Wetlands
Appendix IV

Comments from the Environmental 

Protection Agency

Page 44 GAO-04-297 Waters and Wetlands
Page 45 GAO-04-297 Waters and Wetlands

Appendix V

GAO Contacts and Staff Acknowledgments ApendxiV

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)
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