United States Government Accountability Office

Washington, DC 20548 

B-316760 

February 19, 2009 

The Honorable Harry S. Reid 

Majority Leader 

United States Senate 

Subject: Bureau of Reclamation’s Legal Obligation to Dredge Laughlin Lagoon

Dear Senator Reid: 

This letter responds to your request for GAO’s opinion regarding whether the 

Department of the Interior’s Bureau of Reclamation (BoR) has a legal obligation to 

maintain the channels in Laughlin Lagoon that provide access to the Colorado River 

for boat traffic. Laughlin Lagoon was created in the late 1960s as a result of BoR’s 

construction of a so-called training structure on the Colorado River in present-day 

Laughlin, Nevada, primarily to improve navigation along the river. The town of 

Laughlin, landowners, and others believe BoR is responsible for maintaining the 

lagoon in a condition that permits boat access to the river. BoR disagrees. 

Based on the available information and as detailed below, we conclude that BoR does 

not have a legal obligation to maintain the channels in Laughlin Lagoon that provide 

river access for boats. Neither a federal permit authorizing one-time BoR dredging in 

1999-2000, nor any statutory or other legal requirements, impose a duty on BoR to 

maintain the navigability of Laughlin Lagoon’s access channels. 1

 

1

 Consistent with our regular practice in preparing legal opinions, see GAO, Procedures and Practices 

for Legal Decisions and Opinions, GAO-06-1064SP (Washington, D.C.: Sept. 2006), available at 

http://www.gao.gov/legal/resources.html, we obtained BoR’s legal views on whether it is required to 

maintain Laughlin Lagoon’s access channels. Its position is set forth in an internal September 3, 2008, 

legal memorandum (“September 2008 BoR Memorandum”), which BoR provided to us. We also met 

with BoR counsel and other officials knowledgeable about the agency’s legal position, and we 

reviewed relevant BoR documents dating from the 1960s to the present day. In addition to obtaining 

BoR’s views, we reviewed U.S. Army Corps of Engineers and U.S. Fish and Wildlife documents 

concerning BoR’s 1999-2000 dredging of the lagoon and met with U.S. Army Corps of Engineers and 

U.S. Fish and Wildlife officials, the Laughlin Town Manager, a Laughlin landowner, and the Clark 

County, Nevada, Department of Public Works. 
BACKGROUND 

I. Construction of the Training Structure: 1950s-1970s

In the early 1950s, BoR determined that the Colorado River was carrying millions of 

tons of sediment from the upper Mohave Valley in Arizona downstream to Nevada 

and that the sediment was degrading the river’s channel. To clear the channel, 

eliminate sediment-producing areas, and salvage water, BoR decided to dredge the 

river in and around an area in Nevada known as Big Bend--a large “S” curve in the 

river about 8 miles below Davis Dam and at the present location of Laughlin, then a 

small community supporting three casinos. The “channelization project” in the Big 

Bend area, which began in the 1950s and ended in 1960, included the construction of 

four jetties in the Big Bend area of the river to influence the current in order to 

protect the outside bank of the Bend, define a definite river channel, and prevent the 

channel from shifting. Enclosure I depicts the Big Bend area of the Colorado River. 

 

BoR carried out the channelization project pursuant to the Colorado River Front 

Work and Levee System Act (CRFWLSA),2which authorizes appropriations “for the 

purpose of controlling the floods, improving navigation, and regulating the flow of the 

Colorado River.” Act of June 28, 1946, 60 Stat. 338. Specifically, the act authorizes 

appropriations for, among other things, “(a) operating and maintaining the Colorado 

River front work and levee system in Arizona, Nevada, and California; (b) 

constructing, improving, extending, operating, and maintaining protection and 

drainage works and systems along the Colorado River; [and] (c) controlling [the] 

river, and improving, modifying, straightening, and rectifying the channel thereof.”3

 

Id. 

In 1966, BoR noticed that an upstream island was diverting water directly into the 

base of one of the jetties. BoR also had received numerous complaints about 

difficulties navigating the Big Bend. In 1968, to protect the jetty and improve 

navigation on the river by confining its flow, BoR decided to construct a training 

structure in the Big Bend upstream of the jetties. According to BoR, training 

structures are low dikes constructed within the river channel to confine the flow to a 

well defined and narrow channel. As with the channelization project, BoR built this 

structure pursuant to CRFWLSA. Construction of the training structure resulted in 

the creation of a backwater, or lagoon, behind it that would eventually be known as 

Laughlin Lagoon. 

Landowners and others we interviewed told us that either before or during 

construction of the training structure, BoR promised landowners that it would 

 

2

 Act of Mar. 3, 1925, 43 Stat. 1186, 1198, amended by Act of Jan. 21, 1927, 44 Stat. 1010, 1021; Act of 

July 1, 1940, 54 Stat. 708; Act of Apr. 1, 1944, 58 Stat. 150, 157; Act of June 28, 1946, 60 Stat. 338; Act of 

May 1, 1958, 72 Stat. 101. 

3

 Appropriations are made to carry out authorizing laws. GAO, Principles of Federal Appropriations 

Law, vol. 1, 3rd ed., GAO-04-261SP (Washington, D.C.: Jan. 2004), at 2-43.

Page 2 B-316760 
maintain the lagoon.4

 Although the BoR documents we reviewed reveal landowners’ 

concerns about the recreational and aesthetic quality of the lagoon, none 

memorializes nor mentions a commitment by BoR to maintain the lagoon.5

 The 

documents state only that BoR would provide “controlled access to the river through 

the structure.”6 

Shortly after construction of the training structure in 1969, BoR recognized it would 

eventually need to make some modifications to aid water circulation. In 1998, BoR 

repaired one culvert, a drain under a levee, and installed three additional culverts. 

Current residents and landowners told us that, apart from these modifications, BoR 

never maintained the training structure or lagoon prior to 1999. 

II. BoR’s Dredging of the Lagoon: 1999-2000

Laughlin had a development boom beginning in the mid-1980s, with a surge of casino 

construction that continued through the late-1980s. According to one landowner, 

sediment accumulation in the lagoon became a problem in the mid- to late-1980s, 

although it did not interfere with navigation. Landowners told us that by the mid1990s, however, sediment accumulation in the lagoon impeded navigation and that 

overgrowth on the training structure had blocked their river views. In response to 

the landowners’ concerns about the lack of maintenance, the Senate Appropriations 

Committee, in its report accompanying the Senate version of BoR’s fiscal year 1999 

appropriation, directed BoR “to clean up and dredge the Laughlin Lagoon along the 

Colorado River in Nevada.” S. REP. NO. 105-206, at 88 (1998). The report stated that 

the Senate Committee on Appropriations “has been informed that the BoR has 

acknowledged its obligation to maintain and correct deficiencies caused by work 

previously undertaken by the Bureau,” but provided no further information about 

BoR’s purported acknowledgment or obligation. Id. However, in a memorandum to 

persons concerned about the project, BoR stated that “as long as a public purpose is 

served, Reclamation has sufficient authority” to undertake maintenance work to 

improve circulation and reasonable access to the Lagoon if all parties agree to 

participate and an appropriation is received. We note that this is an acknowledgment 

of BoR’s statutory authority, not its legal obligation, to maintain the access channels. 

 

4

 The landowners’ statements appear to be informed by a study of Laughlin Lagoon’s development that 

interested persons, including landowners, commissioned in 1997 (the study is referred to colloquially 

as the Ladd study). This study consists of a four-page summary of selected BoR documents from the 

1950s-1970s relating to Laughlin Lagoon and the documents themselves. We found that the four-page 

summary misrepresented and overstated the documents’ contents. 

5

 BoR documents do note that the construction of the training structure could create a sheltered area 

for swimming beaches and marinas and that BoR found the private or commercial use of a backwater 

“acceptable as long as it was conducted in such a manner as not to undermine the training structure.” 

BoR’s documents also note that the training structure would probably enhance the value of adjacent 

lands. 

6

 As originally designed, the training structure had only “a natural drainage opening” at its southern 

end. The training structure as built reaches the shore at both ends but has an opening in the middle 

that allows river access. 

Page 3 B-316760 
Because Laughlin Lagoon is deemed to be a “navigable water of the United States,” 

BoR had to obtain a River and Harbors Act section 10 permit, 33 U.S.C. § 403, and a 

Clean Water Act section 404 permit, 33 U.S.C. § 1344(a), from the United States Army 

Corps of Engineers (Corps) before it could commence dredging. The section 10 

permit was necessary because the Secretary of the Army must authorize excavation 

of any navigable water of the United States. 33 U.S.C. § 403. The section 404 permit 

was necessary because the discharge of dredge or fill material into a navigable water 

without a permit is generally prohibited. 33 U.S.C. § 1344(a). BoR’s permit 

application characterized the proposed dredging as a “maintenance action” designed 

to maintain the established historic conditions and uses of Laughlin Lagoon.7 

Similarly, in supporting documents, BoR stated that under CRFWLSA, it was 

“mandated to maintain facilities constructed to maintain flow conditions” and 

“obligated to provide and maintain the historic Colorado River access for property 

owners located on the Nevada bankline of the lagoon.”8

Consistent with its customary practice, the Corps issued the section 10 and section 

404 permits as a single permit. According to the Corps, the permit’s main focus was 

improvement of water flow and, as discussed below, creation of habitat for the 

endangered species in the lagoon. The permit authorized BoR to dredge the access 

channel along the lagoon’s shoreline and the other channel from the shoreline to the 

access opening in the training structure as well as to excavate a channel on the south 

side of the lagoon. 

As depicted in enclosure II to this opinion, the dredged channels are perpendicular to 

each other and intersect at the mouth of an unnamed wash (a gully that is ordinarily 

dry but occasionally fills with running water), which deposits runoff from upland 

areas and sediment from the shoreline into the lagoon. According to the internal 

September 3, 2008, legal memorandum, BoR originally sought to install three 

additional culverts in the training structure and to remove sediment and rock from 

the access opening. September 2008 BoR Memorandum at 4. The Corps told us that 

BoR added dredging of the access channels to the project in response to resource 

agencies’ concerns about the need to protect endangered and threatened species in 

the lagoon and landowners’ complaints that sediment accumulation prevented boats 

from reaching the access opening. 

In addition to dredging, the permit authorized BoR to deposit the dredged material in 

three areas on shore and, in order to create island habitats, within the lagoon itself. 

The areas were: (1) several acres along the northern shoreline of the lagoon, where a 

marina was constructed in 2004 and where the unnamed wash is located; (2) several 

 

7

 We address the permit application and supporting documents’ acknowledgment of BoR’s obligation 

to maintain the lagoon in footnote 19. 

8

 The September 2008 BoR Memorandum explains that “it is not entirely clear what is meant by the 

term ‘obligated,’ and whether this statement refers to a legal obligation or to one based on 

administrative policy. The only reference to a legal authority is to CRFWLSA.” We received no other 

explanation of these documents or the official position BoR held in 1998-2000 regarding its 

maintenance obligations. 

Page 4 B-316760 
acres at the western end of the lagoon; and (3) approximately 18 acres west of the 

lagoon and a channelized wash.9

 

The permit contained several relevant general and special conditions. General 

condition 1 authorized work on the project until December 31, 2002. General 

condition 2 required BoR to “maintain the activity authorized by this permit in good 

condition” and in conformance with its terms and conditions. Special condition 1 

required BoR to construct mitigation wetland habitat.10 Special condition 8 required 

BoR to perform mitigation work if the habitat islands in the lagoon failed to meet 

their success criteria or goals. The permit contained no general or special conditions 

specifically requiring or relating to maintenance dredging of the lagoon for the 

purpose of maintaining access to the river. According to the Corps, under its 

regulations if a project proponent were required to conduct maintenance dredging, 

the permit would include a special condition detailing the requirement.11 Moreover, 

when a permit requires maintenance dredging, other special conditions, such as for 

the state certification required by section 401 of the Clean Water Act, are included in 

the permit.12 

Because three endangered or threatened species—the razorback sucker, Yuma 

clapper rail, and southern willow flycatcher—inhabit the lagoon, BoR sought Fish 

and Wildlife Service’s (FWS) concurrence with a finding that the dredging project is 

“Not Likely to Adversely Affect” (“NLAA”) these species or their critical habitat, as 

 

9

 There are two significant washes in the vicinity of Laughlin Lagoon. The first is unchannelized and 

located within the dredge spoils site along the northern shoreline at the intersection of the dredged 

access channels. This wash, known as the “unnamed wash,” empties into the lagoon and is the source 

of sediment currently accumulating in the lagoon, as described below. The second is a wash that was 

created during upstream development in the 1980s to divert runoff away from the developed areas. At 

the time, the mouth of the wash emptied into Laughlin Lagoon. In the late 1980s, a major flood 

breached this wash and inundated a neighborhood. As a result, Clark County created a special 

improvement district to fund a regional flood control project that included channelizing the wash and 

re-routing it so that its mouth emptied into the Colorado River instead of Laughlin Lagoon. (The 

county creates specialized improvement districts to fund construction and maintenance of projects 

through assessments of the properties which benefit from them.) Because this channelized wash now 

empties into the river and not the lagoon, it is not a current source of sediment in the lagoon. We refer 

to this wash as the “channelized wash.” Both these washes are depicted in enclosure II. 

10 Under Corps regulations and guidance, a section 404 permittee is expected to avoid deliberate 

discharge of fill materials into wetlands or other federally regulated waters, and then to minimize 

discharges that cannot be avoided. If such discharges are unavoidable, the Corps can require 

mitigation to compensate for the loss and/or degradation of wetlands from permitted activities as a 

condition of issuing the permit. GAO, Wetlands Protection: Corps of Engineers Does not Have an 

Effective Oversight Approach to Ensure that Compensatory Mitigation is Occurring, GAO-05-898 

(Washington, D.C.: Sept. 2005), at 1.

11 See 33 C.F.R. § 325.6(e). 

12 Under section 401, an applicant for a federal permit to carry out an activity that may result in any 

discharge into the navigable waters must provide a certification from the relevant state that the 

discharge will comply with applicable Clean Water Act provisions. 33 U.S.C. § 1341(a). 

Page 5 B-316760 
required by the Endangered Species Act (ESA).13 After reviewing additional 

information about the project, FWS concurred with the NLAA finding for the Yuma 

clapper rail and southern willow flycatcher. BoR and FWS then entered into formal 

consultations about the razorback sucker, which resulted in FWS issuing a biological 

opinion (BiOp) concluding that BoR’s dredging project was not likely to jeopardize 

the continued existence of the species. The BiOp states that the dredging project was 

based on BoR commitments made at the time of the training structure’s construction 

and BoR’s responsibility to provide river access for the landowners under CRFWLSA. 

The BiOp includes several “reasonable and prudent measures” that BoR had to 

implement in order to comply with the ESA. These measures included completing 

dredging by March 1, 2000, or revising the work schedule in coordination with FWS if 

that deadline was not met.14 The BiOp does not discuss continued or maintenance 

dredging. 

Prior to dredging, BoR also had to comply with the National Environmental Policy 

Act of 1969 (NEPA). NEPA requires federal agencies to evaluate the likely 

environmental effects of their activities using an environmental assessment (EA) or, 

if the activity likely would significantly affect the environment, a more detailed 

environmental impact statement (EIS). See 42 U.S.C. § 4332(2)(C); 40 C.F.R. 

§§ 1508.9, 1508.11. If the agency determines that the activity falls within a category of 

activities previously determined to have no significant environmental impact—called 

a categorical exclusion—then the agency generally need not prepare an EA or EIS. 

See 40 C.F.R. § 1508.4. BoR found the dredging to be categorically excluded from 

NEPA because it was “maintenance, rehabilitation, and replacement of existing 

facilities which may involve a minor change in size, location and/or operation.”15

 

Accordingly, BoR did not prepare an EA or EIS for the project. 

BoR conducted the dredging project between September 1999 and June 2000. In 

accordance with its permit, BoR used some of the dredged material to create island 

habitats and placed some on the northern side of the lagoon where the unnamed 

wash and present day marina are located (depicted as dredged spoils site #1 in 

enclosure II) as well as on the western side of the lagoon (depicted as dredged spoils 

site #2 in enclosure II). 

 

13 Under the ESA, the FWS is responsible for protecting terrestrial, or land-dwelling, and freshwater 

animal and plant species. See 16 U.S.C. § 1533(a)(2); Reorganization Plan No. 4 of 1970, 88 Stat. 2090. 

The act prohibits, without the appropriate exemption, the taking of any threatened or endangered 

species. 16 U.S.C. § 1538(a)(1)(B). When a federal agency determines that an activity it intends to 

authorize, fund, or carry out may affect a listed species, the agency may initiate a formal consultation 

with FWS. See 16 U.S.C. § 1536(a)(2)-(4). At the end of this process, FWS issues a “biological opinion” 

evaluating whether the activity is likely to jeopardize the species’ continued existence or adversely 

modify its designated critical habitat and what actions, if any, are required to mitigate that impact. See 

16 U.S.C. § 1536(b)(3)(A); 50 C.F.R. § 402.14(h). Should the activity likely result in the incidental 

taking of listed species, the biological opinion must provide reasonable and prudent measures 

designed to minimize the activity's impact on the species. 16 U.S.C. § 1536(b)(4); 50 C.F.R. § 402.14(i).

14 When BoR realized that dredging would not be complete by March 1, it sought and obtained an 

addendum to the BiOp in accordance with this “reasonable and prudent measure.” The addendum 

imposed additional measures on BoR but these did not include continued or maintenance dredging. 

15 Department of the Interior Departmental Manual, 516 DM 14.5.D(1). 

Page 6 B-316760 
III. Return of Sedimentation: 2002-Present

According to area residents, sediment began filling the lagoon again in 2002-2003. 

Some believe that development on a steep hillside above the lagoon facilitated runoff 

flowing into the unnamed wash. During heavy rains in 2002-2003, sediment, including 

some of the deposited dredging material, flowed through the unnamed wash and into 

the lagoon. In 2003, when a private landowner built a marina, west of the unnamed 

wash and within the dredged material deposition site, he dredged and removed some 

of this sediment. However, in 2005 heavy rains again brought a large load of sediment 

down and through the unnamed wash into the lagoon. 

In addition to this unnamed wash, Clark County Department of Public Works has 

identified two other major sources of sediment in the lagoon. The first is runoff from 

a large subdivision upland of the lagoon. The second is the Hiko Springs Wash that 

empties into the lagoon.16 The county maintains that the Hiko Springs Wash’s 

concrete lining and dissipator minimize the amount of sediment it carries into the 

lagoon.17 A 2005 BoR survey of the lagoon found sediment accumulation only at the 

mouth of the unnamed wash and 3,000 feet east of the access opening in the training 

structure. The county also believes the unnamed wash is the major area of concern 

for siltation. 

In 2006, at the request of a landowner, the Corps evaluated BoR’s compliance with its 

permit for the 1999-2000 dredging project. The evaluation revealed three compliance 

problems, all of which BoR has corrected. First, the evaluation stated that a gravel 

bar, caused by eddies, near the access opening in the training structure was 

obstructing navigation. The Corps concluded that this violated the section 10 permit. 

Second, the training structure’s culverts were malfunctioning. The Corps concluded 

that CRFWLSA and the Corps permit required BoR to maintain the training structure 

in good condition. Third, a sand bar was impeding the flow of sediment out of the 

lagoon and potentially creating a habitat problem. This problem would have violated 

the permit’s special conditions regarding habitat. The Corps also found that the 

dredged material deposited on the northern shore of the lagoon had come down 

through the unnamed wash and was the source of the sedimentation in the lagoon. 

Sediment accumulation in the lagoon remains a problem that has the potential to 

continue in the future. However, BoR says that the sediment is not a threat to the 

endangered or threatened species in the lagoon. According to an April 2008 BoR 

survey of the lagoon, two areas, including the area in front of the unnamed wash’s 

mouth, have notable sediment accumulation.18 According to the Clark County 

 

16 Clark County, Nevada, created a special improvement district (SID) to line this wash with concrete 

and install a sediment deposition basin. 

17 A dissipater is a device constructed in a waterway to reduce the kinetic energy of fast flowing water. 

Expert Glossary, http://www.expertglossary.com/water/definition/energy-dissipator (last visited Feb. 

12, 2009). 

18 The other area with sediment accumulation is along the marina’s beach. According to the section 

404 and section 10 permit, the beach is located near a dredged spoils deposition area. While the 

Page 7 B-316760 
Department of Public Works, sediment could continue coming down the unnamed 

wash, in part because not all of the dredged material placed along the northern shore 

of the lagoon has slid into the lagoon. 

As a result of the increased sediment accumulation in the lagoon, some landowners 

and the town of Laughlin once again sought BoR’s assistance in remedying the 

problem because, they argue, BoR is responsible for maintaining the lagoon, 

including the dredged access channels. They trace BoR’s responsibility back to its 

construction of the training structure that created the lagoon. Some believe that 

responsibility for maintenance was inherent in the structure’s construction; others 

believe that BoR explicitly committed to maintaining the lagoon during the planning 

or construction of the structure. Further, they believe that BoR incurred an 

obligation to maintain the lagoon and channels for boat traffic by dredging the lagoon 

in 1999-2000. Some believe BoR is obligated because it makes little sense to improve 

the lagoon once and not maintain it in the future; others believe that BoR is explicitly 

required to maintain the lagoon and the dredged access channels under the terms of 

the permit issued for the 1999-2000 dredging. 

In the September 2008 BoR Memorandum, BoR concluded that the agency had the 

authority to dredge the lagoon but did not have a legal obligation to do so for the 

purpose of providing landowners with river access for private or commercial use. 

Specifically, BoR determined that construction of the training structure did not 

obligate it to maintain the lagoon and that the exercise of its authority to dredge in 

1999-2000, including the permit issued for that project, did not create such an 

obligation. September 2008 BoR Memorandum, at 10. 

ANALYSIS 

A legal obligation for BoR to dredge the lagoon to ensure river access for boat traffic 

could arise in three ways: (1) if the Corps permit for the 1999-2000 dredging requires 

maintenance dredging; (2) if the federal government has a general duty to maintain 

navigable waters of the United States; or (3) if BoR has a specific legal duty to 

maintain the lagoon. We address each of these issues in turn. 

I. Section 10 and Section 404 Permit for the 1999-2000 Dredging 

The 1999-2000 Corps dredging permit does not authorize or require BoR to conduct 

future maintenance dredging to provide navigational access to the river from the 

lagoon’s shoreline. Such maintenance is not specifically provided for under the 

section 404 and section 10 permit and is not necessary for compliance with any of the 

permit’s general or special conditions. While some of these conditions could 

necessitate some limited maintenance dredging, this dredging would not be for the 

purpose of providing river access for boat traffic. 

 sediment might be from the dredged material falling back into the lagoon, siltation in this area has not 

been identified as an impediment to navigation. 

Page 8 B-316760 
BoR’s application for a Corps section 404 and section 10 permit was for a one-time 

dredging project and did not request authorization to conduct future maintenance 

dredging.19 Moreover, the permit’s lack of the special condition required by Corps 

regulations for maintenance dredging, and other related special conditions, 

demonstrates that the permit does not authorize maintenance dredging. Without 

such authorization, the permit does not authorize maintenance dredging unless it is 

necessary for compliance with the permit’s general and special conditions. See 33 

C.F.R. § 325.6(e). Accordingly, the Corps issued a permit that authorizes a one-time 

dredging project through December 31, 2002, but not continuing maintenance 

dredging.20 

As a result, the permit only authorizes maintenance dredging that is necessary for 

compliance with the permit’s general and special conditions. Although BoR and the 

Corps have disagreed in the past about the scope of the permit’s general and special 

conditions, today the two agencies agree that BoR must: (1) maintain the training 

structure itself;21 (2) maintain the access opening in the training structure; (3) 

 

19 Some BoR documents suggest the agency may have believed it needed to carry out the dredging 

project because of a pre-existing legal obligation to provide navigational access to shoreline owners. 

As noted above, documents supporting the section 404 and 10 permit application state that the project 

is a “maintenance action” and that BoR was “obligated to provide and maintain” river access. Further, 

as explained earlier, BoR’s consultation request to FWS stated that BoR believed it had a responsibility 

to provide river access for the landowners under CRFWLSA. Finally, as pointed out above, BoR 

determined that the dredging project was categorically excluded under NEPA because it was a 

maintenance action the agency was required to conduct. None of these statements contained any legal 

rationale for the asserted requirement.

However, three actions indicate that BoR did not believe it had a pre-existing obligation to maintain 

the backwater. First, the Corps issued an individual permit. Under Corps regulations, all applications 

for individual permits are reviewed for possible eligibility under a general permit. 33 C.F.R. § 330.1(f). 

General permits are issued for activities that are substantially similar in nature and cause only minimal 

individual and cumulative environmental impacts. 33 C.F.R. § 322.2(f). According to the Corps, if BoR 

had had an obligation to maintain the lagoon, such maintenance probably would have been covered in 

a general or nationwide permit, meaning that BoR would not have needed to obtain a separate 

individual permit for every maintenance activity. Second, BoR sought a formal consultation with FWS 

and a BiOp for the dredging project. FWS’s Final Biological Opinion on Lower Colorado River 

Operations and Maintenance would probably have covered the dredging project if it had been 

obligatory maintenance. Third, BoR’s project as originally proposed did not include dredging of the 

access channels. 

Notwithstanding the inconsistencies these documents present, BoR applied for and received a permit 

to conduct one dredging project, not a permit to conduct future maintenance. Moreover, as discussed 

below, the documents indicating that BoR had a legal obligation to maintain the lagoon cannot 

themselves create a legal obligation where none previously existed. 

20 The BiOp issued for the dredging project similarly did not cover future maintenance dredging. The 

original BiOp was based on completion of dredging before March 1, 2000, and, as a “reasonable and 

prudent measure,” required BoR to coordinate a revised work schedule with FWS if it did not meet this 

deadline. This “reasonable and prudent measure” demonstrates the BiOp’s temporary scope, not 

future maintenance dredging. 

21 Under the Corps permit’s general condition 2, as well as CRFWLSA, BoR must maintain the training 

structure itself. The Corps told us that its regulations require inclusion of general condition 2 in all 

section 404 permits to prevent the disarray of a structure that could become a hazard. See 33 C.F.R. 

Part 325, App. A. According to the Corps, the only structures at issue in this permit were the inflow 

and outflow pipes BoR installed in the training structure. BoR has failed to maintain the training 

Page 9 B-316760 
maintain wildlife habitat in the lagoon; and (4) must address certain obstructions to 

navigation. Compliance with these requirements might require BoR to dredge the 

lagoon, if, for example, sediment obstructed the access opening or threatened 

wildlife habitat, but it would not require dredging of the access channels for boat 

traffic. Maintenance of wildlife habitat also might require dredging—or excavation of 

flow improvement channels as occurred in 2006—but BoR told us that the sediment 

in the lagoon is not currently threatening any listed species’ habitat. BoR’s obligation 

to address obstructions to navigation under the section 10 permit, like its 2006 

removal of material from the gravel bar caused by eddies at the access opening, could 

entail dredging of access channels. However, the requirement only applies to 

obstructions of the access opening or obstructions caused by BoR. According to the 

Corps, BoR could not be held responsible for the sediment accumulation in the 

lagoon even if it obstructs navigation because BoR did not cause it. The Corps 

believes this sediment is the result of runoff coming down the unnamed wash. In any 

event, BoR’s maintenance requirements that could entail dredging for these limited 

purposes is not tantamount to a separate obligation to dredge to maintain the access 

channels. 

II. General Legal Duty to Maintain Navigable Waters of the United States

The courts that have addressed the issue have uniformly held that the United States 

has no general duty to maintain navigability. While Congress has the general power 

to regulate navigable waterways in interstate or foreign commerce under the 

Commerce Clause,22 “this grant of power certainly is not an assumption of the duty to 

make all interstate waterways navigable.” Kommanvittselskapet Harwi v. United 

States, 305 F.Supp. 882, 889 (E.D. Pa. 1969), aff’d on other grounds, 467 F.2d 456 (3rd 

Cir. 1970). “To require such a duty would in effect make the Government the 

guarantor or insurer of navigability at all times.” Canadian Pacific (Bermuda) Ltd v. 

United States, 534 F.2d 1165, 1170 (5th Cir. 1976). 

In Kommanvittselskapet, shipowners alleged that the United States’ failure to 

regularly survey and dredge the Delaware River caused their ship to ground on a 

shoal, or sandbank. At the time of the grounding, the Corps was in the process of 

dredging a new, deeper channel in the river for boat traffic and was not maintaining 

the older channel that the ship utilized. The court held that the United States was not 

liable for the accident because, in part, no statute required the Corps or any other 

federal agency to survey and maintain the Delaware River channel. Similarly, in 

Canadian Pacific, a boat owner alleged that the Corps’s failure to maintain the 

St. Johns River caused its boat to ground on a shoal. The grounding occurred within 

5 minutes of the boat passing a dredge that was deepening the river channel. The 

court found that the Corps’s responsibility for maintaining existing project depths 

and supervising new project construction did not amount to a required or assumed 

 structure for most of its existence. Not only have the training structure’s culverts malfunctioned 

repeatedly, but BoR also allowed the structure to become overgrown with weeds. 

22 The Commerce Clause provides that Congress has the power “[t]o regulate Commerce with foreign 

Nations, and among the several States, and with the Indian tribes...” U.S. CONST., art. I, § 8, cl. 3. 

Page 10 B-316760 
general undertaking to conduct dredging on the river at any given time. Further, the 

court could not find any authority, statutory or otherwise, that would impose a duty 

on the Corps or any government agency to dredge navigable waters at any particular 

time. 

As in Kommanvittselskapet and Canadian Pacific, BoR has no general legal duty to 

ensure that the lagoon is navigable. Even assuming the primary purpose of the 1999-

2000 dredging project was to improve navigation, these cases establish that a federal 

agency does not acquire an ongoing duty to maintain navigability merely because it 

undertakes to improve navigability in a specific instance. Moreover, federal 

improvements of rivers, harbors, and other waterways are under the jurisdiction of 

the Corps except as “otherwise specifically provided by Act of Congress.” 33 U.S.C. 

§ 540. Although CRFWLSA and other similar statutes give BoR jurisdiction over 

waterway improvements it constructs, we could find no statute creating a duty for 

BoR to maintain navigable waters. Since courts have not found the Corps to have a 

general duty to maintain navigable waters under its jurisdiction, BoR surely cannot 

have such a duty.23 

III. Specific Legal Duty for BoR to Maintain the Lagoon

There are six potential sources of a specific legal duty for BoR to maintain the access 

channels in the lagoon: (a) the Colorado River Front Work and Levee System Act; (b) 

BoR’s construction of the training structure; (c) promises by BoR to the landowners 

that the agency would dredge the lagoon; (d) Senate report language directing the 

1999-2000 dredging; (e) BoR’s dredging in 1999-2000; and (f) arguably negligent 

actions on the part of BoR during the 1999-2000 dredging. We conclude that none of 

these impose a duty on BoR. 

A. 

As noted above, CRFWLSA, enacted for “the purpose of controlling the floods, 

improving navigation and regulating the flow of the Colorado River,” authorized BoR 

to use appropriations for a number of purposes related thereto, including 

“constructing, improving, extending, operating, and maintaining protection and 

drainage works and systems along the Colorado River.” Act of June 28, 1946, 60 Stat. 

338.24 As discussed below, the lagoon is separate and distinct from the training 

structure and does not serve these statutory functions. The lagoon is neither a 

protection nor drainage work that helps improve the navigation of or regulate the 

 

23 Our conclusion is supported by the Corps, which has determined that BoR does not have a duty to 

remove the sediment in the lagoon and maintain the lagoon’s navigability because BoR is not the cause 

of the sediment accumulation. 

24 CRFWLSA also states that the expenditure of funds for authorized purposes “shall not be deemed a 

recognition of any obligation or liability whatsoever on the part of the United States.” Act of Apr. 1, 

1944, 58 Stat. 157. According to the legislative history, this provision affirmed well-settled law that any 

damages caused by BoR’s navigation improvements changing natural conditions were not 

compensable. H. REP. NO. 79-1818, at 3 (1946). Therefore, this provision is not relevant to whether 

BoR has an obligation to conduct maintenance dredging. 

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flow of the Colorado River. Therefore, CRFWLSA does not apply to the lagoon and in 

any event does not require BoR to dredge the lagoon. 

 B. 

Although some believe the construction of the training structure created an 

obligation for BoR to maintain the lagoon, including the dredged access channels, 

construction did not create a legal duty for BoR to maintain the lagoon because the 

lagoon is not part of the structure. According to BoR’s documents, the purpose of the 

training structure was not to create a lagoon for recreational uses, such as boating, 

but rather to control the river’s flow and improve navigation of the river. The lagoon 

is incidental to the structure and does not assist the levee in accomplishing its 

purpose. BoR documents recognize that local communities would benefit from the 

construction because it would create backwaters for recreation and marinas, and 

BoR did make concessions, such as providing an opening for controlled access 

through the training structure to the river, which facilitated recreational uses of the 

lagoon. However, BoR’s statements and concessions do not amount to an 

independent legal duty to maintain the access channels in the lagoon. 

Further, BoR documents from the 1950s and 1960s clearly indicate that BoR believed 

it was not authorized to maintain the lagoon, except under certain circumstances. 

These documents state that BoR was not authorized to and would not generally 

dredge or maintain backwaters created along the river. According to these 

documents, BoR’s appropriation was not available to dredge a navigation channel 

along an abandoned riverbank and CRFWLSA did not grant BoR authority to provide 

recreational structures that were not available prior to channelization. Specifically, 

BoR said it “can assist in publicly sponsored, river-management related projects 

which serve the general public if the assistance is within Reclamation’s authority and 

capabilities.”25 In addition, BoR officials told landowners that private ownership of 

the riverfront complicated the possibility of dredging Laughlin Lagoon. BoR’s belief 

that it was not authorized to maintain the lagoon or was only authorized in certain 

circumstances, supports our conclusion that construction did not create an 

independent legal duty for BoR to maintain the lagoon. If BoR was not authorized to 

maintain the lagoon, it certainly could not have been required to do so. 

At one point in the 1950s, BoR appears to have concluded, for reasons that are not 

readily apparent, that it was authorized and had a duty to dredge the lagoon if the act 

of constructing the training structure degraded the lagoon’s water quality. BoR 

documents predating construction of the training structure indicate that the agency 

was aware of and concerned about the effect construction would have on the 

lagoon’s water quality. Several documents discuss utilizing construction procedures, 

such as building during low water periods or building rapidly, to minimize the 

sandbar that often forms and the siltation that builds up behind the structures during 

construction. BoR also suggested going forward without any mitigation procedures 

 

25 Additionally, BoR stipulated that Nevada would have to “assume sponsorship of the overall project 

and furnish conclusive acceptance of responsibility...for installation, operation, and maintenance of 

features exclusive of those associated with river management facilities to be provided by 

Reclamation.” 

Page 12 B-316760 
and using corrective dredging to address any possible decline in the lagoon’s water 

quality. In a memorandum to his supervisor, the Acting Project Engineer stressed the 

anticipated degradation and concluded “it is probable that maintenance of the 

backwater area can be anticipated at some future date.” 

Although the documents we reviewed do not clearly establish whether BoR chose to 

mitigate degradation during construction or to remedy any degradation after the fact, 

post-construction documents do not reveal a sedimentation or water stagnation 

problem in the lagoon.26 In 1971, BoR noted that construction had raised a preexisting sandbar a minor amount, water flow through the culvert was excellent and 

adequate enough to prevent stagnation, and that with the exception of one area, boat 

access to the shoreline did not appear to be a major problem. A 1972 review of the 

Colorado River front work and levee system noted that “sediment deposition at 

marina entrances and backwater areas may become more of a problem than at 

present” but this was not included in the list of major maintenance problems.27 

Interviews we conducted support this documented lack of a sediment problem postconstruction; multiple interviewees told us that the lagoon’s sedimentation problem 

began in the mid- to late-1980s. Not only was this almost twenty years after the 

training structure’s construction, but it coincides with Laughlin’s development boom, 

when heavy runoff could have been the source of the sediment. Assuming arguendo 

that BoR would be required to dredge the lagoon if construction degraded water 

quality, this cannot be the source of BoR’s legal obligation because degradation did 

not occur. 

C. 

Although we found no documentary evidence that BoR promised to maintain the 

lagoon and provide river access, whether in the 1960s or more recently, if such a 

promise had been made it is unlikely the promise would have created a legal 

obligation for BoR to dredge the lagoon. 

As discussed above, BoR believed that it only had an obligation to maintain the 

lagoon in certain limited circumstances. If a BoR official or employee had promised 

that BoR would maintain the lagoon, including the access channels, it would have 

been a misrepresentation of BoR’s official position. Assuming such a promise was 

made and the landowners reasonably relied on such a promise to their detriment, the 

landowners may seek to invoke the legal doctrine of equitable estoppel to prevent 

BoR from abandoning its promise. See Restatement (Second) of Torts § 894 (1979). 

However, the Supreme Court has stated that equitable estoppel does not apply 

 

26 Shortly after construction was complete, landowners indicated that sand bars were present in the 

lagoon’s upper end but that they were not of “paramount importance.” Landowners hoped that BoR 

“would be able to work on them in the foreseeable future since at many water levels they reduce 

enjoyment of the lake.” 

27 The document does list “model test entrances to marinas and backwater areas for reducing sediment 

deposition in an intake channel” as a recommendation of less importance that would be sound and 

beneficial to the operation of the training structure. Today’s sedimentation problem, however, is 

caused mainly by run-off flowing into the lagoon through the unnamed wash and not by the river 

carrying sediment into the lagoon, so this maintenance activity would not resolve the problem. 

Page 13 B-316760 
against the government absent a showing of affirmative misconduct,28 and some 

courts have held that estoppel will not apply where the federal official who made the 

representation lacked authority to bind the government29 or where appropriated 

funds are at stake, absent extraordinary circumstances.30 We found no evidence of 

affirmative misconduct or extraordinary circumstances in BoR's statements or 

actions related to the training structure and the lagoon. 

D. 

As discussed above, in 1999-2000, BoR dredged Laughlin Lagoon in response to 

language in the Senate Appropriations Committee report accompanying the Senate 

version of BoR’s fiscal year 1999 appropriation act.31 S. REP. NO. 105-206, at 88 (1998). 

In general, directives contained in congressional reports and other legislative history 

are informational and not legally binding. See, e.g., Hein v. Freedom from Religion 

Found., Inc., ___ U.S. ___, 127 S. Ct. 2553, 2568 n.7 (2007); Cherokee Nation of 

Oklahoma v. Leavitt, 543 U.S. 631, 646 (2005); Lincoln v. Vigil, 508 U.S. 182, 192 

(1993), quoting 55 Comp. Gen. 307, 319 (1975). Such directives are legally binding 

only if they are contained, or incorporated by reference, in enacted legislation. See 

id. The hallmarks of incorporation by reference are a clear congressional intent in 

the law to incorporate by reference and specific identification of the referenced 

material so that all know with certainty the duties, terms, conditions, and constraints 

enacted into the law. B-316010, Feb. 25, 2008. 

The fiscal year 1999 Energy and Water Appropriations Act, which contained BoR’s 

appropriation, did not contain or incorporate by reference the Senate report or its 

language about Laughlin Lagoon. See Pub. L. No. 105-245 (1998). The Senate report 

language did not create a legal obligation for BoR to dredge the lagoon in the first 

 

28 Office of Personnel Mgmt. v. Richmond, 496 U.S. 414, 421-23 (1990); Heckler v. Cmty Health Serv. of 

Crawford County, Inc., 467 U.S. 51, 60 (1984); INS v. Miranda, 459 U.S. 14, 19 (1982); INS v. Hibi, 414 

U.S. 5, 8 (1973); Montana v. Kennedy, 366 U.S. 308, 314-15 (1961). The Supreme Court has never 

defined “affirmative misconduct,” but lower courts have developed various definitions. See e.g., 

Socop-Gonzalez v. INS, 272 F.3d 1176, 1184 (9th Cir. 2001) (deliberate lie or pattern of false promises); 

LaBonte v. United States, 233 F.3d 1049,1053 (7th Cir. 2000) (requires more than mere negligence; it 

requires an affirmative act to misrepresent or mislead); United States v. Marine Shale Processors, 81 

F.3d 1329, 1350 (5th Cir. 1986) (requires more than merely negligent conduct; the government official 

must intentionally or recklessly mislead the estoppel claimant). 

29 Connor Bros. Constr. Co., Inc., v. United States, 65 Fed. Cl. 657, 693 (Fed. Cl. 2005); Doe v. United 

States, 48 Fed. Cl. 495, 505 (Fed. Cl. 2000). 

30 Exp.-Imp. Bank v. Agricola, 536 F.Supp. 2d 345, 350 (S.D. N.Y. 2008) (citing Office of Personnel 

Mgmt. v. Richmond, 496 U.S. at 434). 

31 In its September 2008 legal memorandum BoR acknowledges that even though the language in the 

Senate report was not included in the conference committee report, was not binding law, and may 

have had less force than intent expressed in a joint conference committee report, executive agencies 

do generally strive to abide by such expressions of intent. September 2008 Legal Memorandum at 4, 

citing 55 Comp. Gen. 307, 325 (1975) (“this does not mean that agencies are free to ignore clearly 

expressed legislative history applicable to the use of appropriated funds. They ignore such 

expressions of intent at the peril of strained relations with the Congress. The Executive branch...has a 

practical duty to abide by such expressions.”) 

Page 14 B-316760 
instance, and certainly did not create any continuing obligation for the BoR to 

maintain the lagoon.32

 

E. 

The 1999-2000 dredging in and of itself did not create a legal obligation for BoR to 

conduct maintenance dredging, as evidenced by case law. In dictum, the 

Kommanvittselskapet court noted that the government had performed “a single 

service on a single occasion” by dredging the Delaware River. The court further 

observed that it would not “lightly presume the assumption of a duty” to dredge and 

survey the river channel on a regular basis, which “involves a costly course of 

conduct over an extended period, and the undertaking of which would be tantamount 

to making the government the virtual insurer of navigation on the Delaware.” 305 

F.Supp. at 890-91. As in Kommanvittselskapet, BoR’s dredging of the lagoon was a 

single service on a single occasion and no presumption should be made that the 

agency assumed a duty to dredge the lagoon on a regular basis because of it. 

F. 

BoR deposited some of the material dredged from the lagoon onto a site along the 

northern shoreline of the lagoon. As previously noted, an unnamed wash is located in 

this area and heavy rains push the dredged material through it and into the lagoon. It 

could be argued that in placing the dredged material along the lagoon’s shoreline and 

in close proximity to the unnamed wash, where it was reasonably foreseeable that 

erosion and/or the wash would send the dredged material back into the lagoon, BoR 

was negligent, and this negligence warrants corrective dredging as a remedy. The 

difficulty with this argument is that the Federal Torts Claims Act (FTCA) bars a 

lawsuit against BoR for this alleged negligence because an agency’s decision to 

dredge and to conduct that dredging in a particular way falls within the FTCA’s 

discretionary function exception.33 With the discretionary function exception barring 

 

32 In any event, if the report language had been incorporated by reference, it clearly only refers to a 

one-time dredging. 

33 Absent a waiver, sovereign immunity shields the federal government and its agencies from lawsuits. 

Fed. Deposit Ins. Corp. v. Meyer, 510 U.S. 471, 475 (1994). The FTCA waives the government’s 

sovereign immunity for tort claims, like negligence, in certain circumstances and makes the 

government liable “in the same manner and to the same extent as a private individual under like 

circumstances.” 28 U.S.C. § 2674. However, an exception to FTCA exists for the exercise or 

performance of a “discretionary function or duty.” 28 U.S.C. § 2680(a). The discretionary function 

exception applies, and sovereign immunity bars a lawsuit, if (1) the government act is a result of the 

decisions involving an element of judgment and (2) the judgment is based on considerations of public 

policy. United States v. Gaubert, 499 U.S. 315, 322-23 (1991). When established governmental policy, 

as expressed or implied by statute, regulation or agency guidelines, allows a government agent to 

exercise discretion, the agent’s acts are presumed to be grounded in policy. Id. at 324. 

Congress retained the government’s sovereign immunity as to river and harbor works to the extent 

that they fall within the discretionary exception. Boston Edison Co. v. Great Lakes Dredge & Dock 

Co., 423 F.2d 891, 896 (1st Cir. 1970). In recent lawsuits alleging the Corps was negligent in dredging a 

harbor and maintaining a dredge spoils site, courts found the Gaubert test was satisfied. In Northlight 

Harbor v. United States, 561 F. Supp. 2d 517, 520 (D. N.J. 2008), the plaintiff alleged that the Corps’s 

dredging of a harbor caused the bulkhead across his waterfront property to collapse into the harbor. 

In Williams v. United States Army Corps of Engineers, No. 06-CV-834, 2007 U.S. Dist. LEXIS 56624, at 

*4-6 (D. N.J. Aug. 2, 2007), the plaintiff alleged that the Corps’s negligent operation of a nearby dredged 

Page 15 B-316760 
suit for possible negligent disposal, BoR cannot be held liable for negligence or 

obligated to perform corrective dredging. 

CONCLUSION 

As a navigable water of the United States, Laughlin Lagoon can only be dredged in 

accordance with a section 10 and section 404 permit. The permit issued for the 1999-

2000 dredging does not authorize maintenance dredging of the river access channels 

and therefore does not create a legal obligation for BoR to dredge. In light of the case 

law declining to find that the United States has a duty to maintain navigable waters at 

all times, BoR does not have a general legal duty to dredge Laughlin Lagoon to 

maintain boat access to the river. 

Further, BoR has no specific legal duty requiring it to dredge the lagoon. CRFWLSA 

authorizes appropriations for certain activities but does not require BoR to carry out 

any specific action, and therefore creates no continuing legal obligation for BoR to 

dredge access channels for boat traffic. Construction of the training structure itself 

did not create such a duty, and we found no evidence that BoR promised landowners 

that it would maintain the lagoon. Indeed, the documents we reviewed are to the 

contrary. However, even if a promise had been made, it likely is not enforceable. 

The directive in the fiscal year 1999 Senate Report to “clean up and dredge the 

Laughlin Lagoon” was not legally binding and thus it does not constitute a continuing 

legal obligation for BoR. Nor did BoR’s 1999-2000 dredging create a legal obligation 

for BoR to maintain the lagoon because one-time dredging does not create a legal 

obligation to dredge a particular place at a particular time in the future. Finally, any 

claims against the United States alleging that the placement of the dredged materials 

was negligent would be barred, and accordingly such a claim could not be a source 

for a legal obligation to dredge. 

 spoils site was causing her basement to flood with water. In both cases, the court found the first step 

of the Gaubert discretionary function test satisfied because no statute mandated a particular course of 

conduct nor did agency regulations or policies control the agency’s decisionmaking with respect to 

dredging activities or storage of dredge spoils. Northlight, 561 F. Supp. 2d at 523; Williams, 2007 LEXIS 

56624 at *23-30. The Northlight court found the dredging to be the product of discretionary judgment 

based on accepted sound engineering principles. Northlight, 561 F. Supp. 2d at 523. The Williams 

court found that the Corps’s statutory authority granted it “wide discretion.” Williams, 2007 LEXIS 

56624 at *27. Both courts also found the second Gaubert step satisfied because the plaintiffs did not 

overcome the presumption that the dredging, as an act undertaken pursuant to an agency’s 

discretionary authority, was grounded in policy considerations. Northlight, 561 F. Supp. 2d at 527; 

Williams, 2007 LEXIS 56624 at *29-30. 

Like the Corps, BoR does not have a statute or regulation directing its decisionmaking in regards to 

dredging, so BoR’s decision to place the dredged material along the lagoon’s northern shoreline was 

left to its judgment. A landowner we spoke to said that the land used for the dredged spoils was 

offered to BoR for that purpose. We found no evidence refuting the presumption that this decision 

was grounded in policy considerations. Because the Gaubert test is satisfied, BoR’s decision to place 

the dredged spoils along the lagoon’s northern shoreline appears to fall within the FTCA’s 

discretionary function exception, and any lawsuit against the government alleging negligent placement 

of the dredged spoils would likely be barred by sovereign immunity. 

Page 16 B-316760 
If there are questions concerning these matters, please contact Managing Associate 

General Counsel Susan D. Sawtelle at (202) 512-6417. Deputy Assistant General 

Counsel Richard P. Johnson and Staff Attorney Jeanette M. Soares participated in 

preparing this opinion. 

Sincerely yours, 

Gary L. Kepplinger 

General Counsel 

Enclosures - 2 

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