Waters and Wetlands: Corps of Engineers Needs to Evaluate Its District Office Practices in Determining Jurisdiction
Published: 2004-02-27T00:00:00

Fast Facts:

Highlights:
section_title: Why GAO Did This Study
paragraphs: 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.
section_title: What GAO Found
paragraphs: 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.

section_title: Letter
paragraphs: 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.  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 “aters of the United States” included waters “which are  or would be used as habitat by birds protected by Migratory Bird Treaties.”   This statement became known as the migratory bird rule; and under it, the  Corps was able to regulate almost any body of water or wetland.
The Corps’ implementation of the section 404 program changed  significantly in January 2001, when the Supreme Court struck down the  migratory bird rule.  In Solid Waste Agency of Northern Cook County v.  United States Army Corps of Engineers (SWANCC), 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.
subsections: section_title: Background
paragraphs: The Clean Water Act prohibits the discharge of pollutants, including  dredged or fill material, into “navigable waters,” defined in the act as the  “waters of the United States,” without a permit.  The act’s objective is to  restore and maintain the chemical, physical, and biological integrity of the  nation’s waters.  Congress’ intent in passing the act was to establish an all- encompassing program of water pollution regulation.  The act contains  several programs designed to protect waters of the United States, including  section 303, which calls for development of water quality standards for  waters of the United States; section 311, which establishes a program for  preventing, preparing for, and responding to oil spills that occur in waters  of the United States; section 401, which establishes state water quality  certification of federally issued permits that may result in a discharge to  waters of the United States; and section 402, which establishes a permitting  system to regulate point source discharges of pollutants (other than  dredged and fill material) into waters of the United States.
Section 404 of the Clean Water Act generally prohibits the discharge of  dredged or fill material into waters of the United States without a permit  from the Corps.  Corps and EPA regulations under the section 404 program  define “waters of the United States” for which a permit must be obtained to  include, among other things, (1) interstate waters; (2) waters which are or  could be used in interstate commerce; (3) waters such as wetlands, the use  or degradation of which could affect interstate commerce; (4) tributaries of  the waters identified above and (5) wetlands adjacent to these waters.  As  such, this program is the nation’s primary wetland protection program.  In  addition to the federal regulation of wetlands, some state and local  governments have developed wetland protection programs.
The Corps administers the permitting responsibilities of the section 404  program, while EPA in conjunction with the Corps establishes the  substantive environmental protection standards that permit applicants  must meet.  EPA also has final administrative responsibility for interpreting  the term “waters of the United States,” a term that governs the scope of  many other programs that EPA administers under the Clean Water Act.   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.
Wetlands are areas that are inundated or saturated with surface or ground  water at a frequency and duration sufficient to support vegetation adapted  for life in saturated soil conditions.  Wetlands include swamps, marshes,  bogs, and similar areas.  They are characterized by three factors: (1)  frequent or prolonged presence of water at or near the soil surface, (2)  hydric soils that form under flooded or saturated conditions, and (3) plants  that are adapted to live in these types of soils.  Wetlands play valuable  ecological roles by reducing flood risks, recharging water supplies,  improving water quality, and providing habitats for fish, aquatic birds, and  other plants and animals, including a number of endangered species.  As  the Supreme Court has recognized in upholding Corps' authority under the  Clean Water Act to regulate wetlands adjacent to waters of the United  States, “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.”  Further, water moves in hydrologic cycles and  pollution of one part of an aquatic system can affect other waters within  that aquatic system.
The regulations also extend federal jurisdiction under section 404 to  tributaries.  The federal government has argued in court that it must  regulate tributary waters well beyond the point at which they are navigable  because any pollutant or fill material that degrades water quality in a  tributary has the potential to move downstream and degrade the quality of  navigable waters themselves.  Similarly, according to the Corps, drainage  ditches constructed in uplands that connect two waters of the United  States may themselves be jurisdictional.
The first step in the regulatory process is a jurisdictional determination, in  which the Corps determines whether a water or wetland is a “water of the  United States.”  In general, Corps staff conduct jurisdictional  determinations by considering a range of factors, and they often view each  factor’s importance within the context of the actual site of a proposed  project.  While many jurisdictional determinations are simple to perform,  some can be complex and require considerable effort.  For example, a  relatively simple jurisdictional determination might involve a proposed  project for the placement of a pier on the Mississippi River.  In this case,  Corps staff may only consult a map to determine that the activity falls  within the Corps’ jurisdiction.  In contrast, a more complex jurisdictional  determination might arise when a property owner wants to fill in multiple  wetlands to build a parking lot.  This kind of jurisdictional determination  would likely require additional time and resources because Corps staff  might need to consult a variety of maps and aerial photographs and then  visit the site.  Once on site, Corps staff would verify the exact locations of  the wetlands.  If the Corps determines that a water or wetland is  jurisdictional, a permit applicant then has the option of filing an  administrative appeal challenging this determination and could  subsequently pursue the matter in court.
If a water or wetland is found to be jurisdictional, the property owner  would take the next step in the process and apply for a section 404 permit  from the Corps.  The Corps bases its decision to issue a permit on an  evaluation of the probable impacts, including cumulative impacts, of the  proposed activity on the public interest.  The decision should reflect the  national concern for both the protection and utilization of important  resources.  As part of the balancing process, the Corps may require project  modifications designed to avoid and minimize impacts on natural  resources.  Depending on the individual and cumulative impacts of the  regulated activity, these modifications can range from requiring little or no  additional effort by the property owner to requiring the property owner to  incur significant costs.  According to the Corps, in approving permits, the  agency requires permit applicants to avoid, minimize, or mitigate impacts  to wetlands and waters in most cases.  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.”  Under this  provision, nearly all waters and wetlands in the United States were  potentially jurisdictional.  The Supreme Court held that the Clean Water  Act did not authorize the Corps to require a permit for filling an isolated,  intrastate, nonnavigable pond where the sole basis for the Corps' authority was that the pond had been used by migratory birds.  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).
section_title: Federal Regulations That Define Jurisdictional Waters Allow for Interpretation by Individual Corps Districts and Are Currently the Subject of Debate
paragraphs: EPA’s and the Corps’ regulations defining waters of the United States  provide a framework for determining which waters are within federal  jurisdiction.  The regulations leave room for judgment and interpretation  by the Corps districts when considering jurisdiction over, for example, (1)  adjacent wetlands, (2) tributaries, and (3) ditches and other man-made  conveyances.  Prior to the 2001 SWANCC decision, the Corps generally did  not have to be concerned with such factors as adjacency, tributaries, and  other aspects of connection with an interstate or navigable water body, if  the wetland or water body qualified as a jurisdictional water on the basis of  its use by migratory birds.  Since the SWANCC decision, the Corps and EPA  have provided limited additional guidance to the districts concerning  jurisdictional determinations.  Specifically, the Corps told districts that  they may not assert jurisdiction over any waters solely on the basis of use  by migratory birds and that they should not develop new local practices for  determining the extent of Clean Water Act section 404 regulatory  jurisdiction or use local practices that were not in effect prior to the  SWANCC decision.  Additionally, in January 2003, the Corps and EPA  published an ANPRM, soliciting public comments on, among other things,  whether isolated, intrastate, nonnavigable waters are jurisdictional under  the Clean Water Act, whether the regulations should define the term  isolated waters and whether any other revisions are needed to the  regulations defining “waters of the United States.”  According to EPA  officials, respondents submitted approximately 133,000 comments with  widely differing views on the need for a new regulation and the scope of  Clean Water Act jurisdiction.  In December 2003, the Corps and EPA  decided that they would not issue a new rule on federal regulatory  jurisdiction over isolated wetlands.  In the almost 3 years since the  SWANCC decision, 11 federal appellate court decisions interpreting the  term “waters of the United States” have been issued.  Project proponents in  three of these cases are seeking Supreme Court review, and review has  been denied for two additional cases.
subsections: section_title: Regulations and Guidance Define Waters of the United States but Do Not Specify Detailed Aspects of Making a Jurisdictional Determination
paragraphs: EPA’s and the Corps’ regulations defining waters of the United States  establish the framework for determining which waters are within federal  jurisdiction.  In addition, the agencies have provided some limited  additional national guidance to aid interpretation by the Corps districts.   The regulations and national guidance leave room for judgment and  interpretation by the Corps districts when considering jurisdiction over, for  example, (1) adjacent wetlands, (2) tributaries, and (3) ditches and other  man-made conveyances.
For example, federal regulations state that wetlands adjacent to other  waters of the United States, other than waters that are themselves  wetlands, are to be considered waters of the United States.  The regulations  specify that adjacent means “bordering, contiguous, or neighboring,” and  that wetlands separated from other waters of the United States by barriers  such as man-made dikes, natural river berms, and beach dunes may be  considered adjacent wetlands.  This definition of adjacency leaves some  degree of interpretation to the Corps districts.  For example, the  regulations and subsequent national guidance do not fully define the  circumstances under which wetlands that do not touch waters of the  United States may be considered jurisdictional waters.
The regulations also specify that tributaries to waters of the United States  are to be considered waters of the United States.  The regulations do not  define “tributaries,” but state that in the absence of adjacent wetlands,  lateral jurisdiction over nontidal waters extends to the ordinary high water  mark.  The ordinary high water mark is the line on the shore caused by  fluctuations of water and can be characterized by a clear bank, shelving,  debris, or changes in vegetation.  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.  Tributary waters can thus range from substantial rivers and  streams with definite ordinary high water marks, to channels that are  usually dry, and may have very faint or ill-defined ordinary high water  marks.
The regulations do not further define the physical characteristics of an  ordinary high water mark.  As a result, it is possible that well trained and  competent staff might interpret the term differently.  The definition refers  to factors such as changes in the character of the soil, absence of terrestrial  vegetation, and the presence of litter and debris; but both the interpretation  and weight assigned to each of these factors is left to the official  conducting the jurisdictional determination.  Neither the Corps nor EPA  have issued any additional clarifying national technical guidance for use by  Corps staff in identifying ordinary high water marks.
The regulatory definition of waters of the United States also does not  specifically discuss the jurisdictional status of ditches and other man-made  conveyances, and guidance issued by the Corps and EPA leaves room for  interpretation.  The Corps has stated that certain man-made conveyances,  such as nontidal drainage and irrigation ditches excavated on dry land, are  generally not considered waters of the United States.  In other situations,  however, the Corps may determine that man-made conveyances are waters  of the United States.  For example, natural streams that have been diverted  into man-made channels are jurisdictional.  Also, ditches that extend the  ordinary high water mark of a water of the United States are jurisdictional.   However, the Corps guidance provides little additional direction on when  asserting jurisdiction over man-made conveyances is warranted, leaving  that decision to individual Corps districts.  The Corps guidance allows  districts discretion when determining whether man-made channels dug on  dry land are jurisdictional.
section_title: Administrative Actions to Clarify Jurisdiction After SWANCC
paragraphs: 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.
In May 2001, the Corps issued another memorandum that prohibited the  districts from developing local practices for asserting jurisdiction and  from using any practices not in effect before the SWANCC decision.  The  memorandum said that a prohibition on new practices was necessary to  minimize any inconsistencies among the districts.
In January 2003, the Corps and EPA issued an ANPRM seeking public  comment on issues associated with the definition of “waters of the  United States” and soliciting information from the general public, the  scientific community, and federal and state resource agencies on the  implications of SWANCC for jurisdictional decisions under the Clean  Water Act.  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.  The guidance called  for field staff to continue to assert jurisdiction over traditional navigable  waters, their tributaries, and adjacent wetlands.  The joint memorandum  directed field staff to make jurisdictional determinations on a case-by- case basis, considering the guidance in the memorandum as well as  applicable regulations and any relevant court decisions in addition to  those discussed in the memorandum.  The joint memorandum also  reiterated that field staff were no longer to assert jurisdiction over an  isolated, intrastate, nonnavigable water on the basis of the factors listed  in the migratory bird rule.  It also noted that, in light of the SWANCC  decision, it is uncertain whether there remains any basis for jurisdiction over any isolated, intrastate, nonnavigable waters.  In view of these  uncertainties, the joint memorandum stated that field staff should seek  formal headquarters approval before asserting jurisdiction over such  waters.
The ANPRM generated significant interest, as evidenced by the  approximately 133,000 comments submitted by state agencies, national  development organizations, environmental groups, and other parties.   According to EPA, 99 percent of the comments on the need for a new rule  submitted to EPA and the Corps in response to the ANPRM were opposed  to a new rule.  Some groups, such as industry representatives, generally  indicated that they favor a rulemaking because they believe the SWANCC  decision created, among other things, a great deal of uncertainty, resulting  in unequal treatment and significant financial burden to the regulated  community.  These groups further stated that the current breadth of federal  jurisdiction is too great and that, under the principles of federalism, state  and local governments are the appropriate regulators of nonnavigable  waters within their borders.  In contrast, other groups, such as  environmentalists, indicated a general opposition to any rulemaking effort,  expressing concerns that a new rule would result in reduced federal  jurisdiction under section 404 and other programs under the Clean Water  Act.  Furthermore, these other groups argued that it is unlikely that other  federal and state programs provide the oversight or require the mitigation  that would be sufficient to protect wetlands and other waters that were no  longer covered under the section 404 program.  An EPA official stated that  41 of the 43 states that submitted comments were concerned about any  major reduction in Clean Water Act jurisdiction.  This official also said that  most states are concerned that political, legal, and budgetary constraints  complicate efforts to regulate certain types of waters and wetlands at the  state level.  In December 2003, EPA and the Corps announced that they  would not issue a new rule on federal regulatory jurisdiction over isolated  wetlands.
Along with the ANPRM, attempts have been made to coordinate Corps and  EPA efforts to address the implications of the SWANCC decision.  In  October 2003, the Corps agreed to an EPA request to collect data  measuring the extent to which the Supreme Court’s SWANCC ruling  prompted Corps district offices to avoid the regulation of wetlands and  other waters.  Specifically, the Corps has agreed to have district offices  report quarterly to EPA any negative jurisdictional determinations for 1  year—that is any decision not to regulate waters or wetlands—based on  issues raised by the SWANCC decision and the districts’ basis and  reasoning for making these determinations.  EPA has also requested that  Corps district offices coordinate with them before declining jurisdiction  over waters or wetlands, based upon issues raised by the SWANCC  decision.  However, the Corps has declined EPA’s request, stating that it is  “most prudent to continue the present policy regarding interagency  coordination.”
section_title: Clean Water Act Jurisdiction Has Been Litigated in Several Appellate Courts Since SWANCC
paragraphs: 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.
section_title: Corps District Offices Use Differing Practices to Make Jurisdictional Determinations
paragraphs: There are several differences in the practices Corps districts use to make  jurisdictional determinations.  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.
subsections: section_title: District Offices Use Different Factors to Identify Adjacent Wetlands
paragraphs: 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.
subsections: section_title: Hydrologic Connections
paragraphs: 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.  For  example, written guidance from the Galveston District states that the  district generally regulates wetlands located in the 100-year floodplain  because this type of flooding is sufficient evidence of a hydrological  connection between a wetland and a water of the United States.   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.
section_title: Proximity
paragraphs: 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.
section_title: Man-Made and Natural Barriers
paragraphs: According to federal regulations, a jurisdictional wetland may be separated  from a water of the United States by man-made or natural barriers, such as  dikes and dunes.  The regulations do not specify the number of barriers  necessary to break a jurisdictional connection, and district officials that we  contacted applied different practices.  Officials at several districts, such as  Buffalo, Chicago, and Galveston, assert jurisdiction over wetlands  separated from other waters of the United States by no more than one  barrier.  In contrast, officials from other districts said they assert  jurisdiction over wetlands separated from other waters of the United States  by more than one barrier.  For example, officials from the Rock Island and  Omaha districts said they would regulate wetlands separated from other  waters of the United States by as many as two barriers.  Also, officials from  the Jacksonville District said they would generally regulate all wetlands  within 200 feet of other waters of the United States, regardless of the  number of barriers separating the waters from the wetlands.  Officials from  the Baltimore District said they have not established a maximum number of  barriers that may separate a water of the United States from a jurisdictional  wetland because the regulations leave room for interpretation.
section_title: Districts Generally Use a Common Approach to Identify the Jurisdictional Limits of Tributaries but May Apply It Differently
paragraphs: 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.  Districts would also assert jurisdiction over a tributary in the  absence of an ordinary high water mark if there were evidence that  construction or other activities had obliterated its signature.  For example,  officials from the Chicago District said that because their district was  heavily urbanized many channels had been manipulated and contained,  often in ways that obscured the ordinary high water mark.
Districts in arid regions identified unique difficulties they face when  identifying the limits of an ordinary high water mark.  For example, in the  arid West, the intermittency of the water flow and the occasional massive  flood surges that affect many rivers and streams can make identifying the  ordinary high water mark a difficult exercise.  According to Corps district  officials, large periodic floods in the arid West create complex tributary  basins that feature a network of channels, many of which are remnants of a  time when the water flowed along a different course and which rarely, if  ever, experience water flow.  Corps officials said that identifying the  ordinary high water mark in such basins can be very difficult because there  may be physical evidence of water flow that is little more than a historic  artifact.  Additionally, large flood surges can wash away normal banks,  debris, vegetation, and other evidence of the ordinary high water mark,  making it more difficult for Corps staff to identify the outer limits of the  tributary.
Because of the difficulties in identifying the ordinary high water mark in  some arid regions, the Corps has determined that there can be considerable  variations among Corps staff in identifying the outer limits of the ordinary  high water mark in arid regions resulting in considerable differences in  their assessments of the width of tributary channels.  To address the  difficulties, the Corps and EPA have taken several actions to help ensure  better consistency for jurisdictional determinations.  For example, the  Corps’ South Pacific Division—which includes district offices  encompassing a large portion of the arid West—has issued a jurisdictional  determination tool that staff can use to identify the limits of tributaries in  the region.  It specifically guides the user to identify the water features  present—including water features indigenous to the arid West, such as  arroyos, coulees, and washes—and includes implicit practices for  assessing the jurisdictional status of a water feature in that region.  In  addition, the Corps and EPA are developing a manual to guide field staff in  identifying the ordinary high water mark in arid regions.
Moreover, the difficulty and ambiguity associated with identifying the  ordinary high water mark can affect jurisdictional determinations beyond  arid regions.  For example, an official of the Portland District said that the  definition of the ordinary high water mark is among the most ambiguous  terms in the regulatory definition of waters of the United States and that  the lateral limits of the ordinary high water mark can be difficult to identify,  even for major bodies of water such as the Columbia River.  The official  said that if he asked three different district staff to make a jurisdictional  determination, he would probably get three different assessments of the  ordinary high water mark from them.  Similarly, an official from the  Philadelphia District stated that identifying the upper reaches of an  ordinary high water mark is one of the most difficult challenges the district  staff face.  The official explained that, as one progresses upstream, the  depth of the bed and bank diminish, and the key indicators of an ordinary  high water mark gradually disappear, thus identifying precisely where the  ordinary high water mark ends is very much a judgment call.
section_title: Districts Vary in Treatment of Ditches and Other Man- Made Conveyances
paragraphs: 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.
subsections: section_title: Ditches and Other Man-Made Surface Conveyances
paragraphs: Officials in all the districts we contacted said they consider and use  connections made by man-made surface conveyances— such as ditches — when assessing the jurisdictional status of a wetland (see figure 2). If, for  example, a ditch carries water between a wetland and a water of the United  States, then a wetland could be considered jurisdictional.  However,  districts differed in their practices to test the sufficiency of such a  connection.  For example, some districts, such as the St. Paul, Rock Island,  and Wilmington districts, were fairly inclusive and said that they would find  a wetland jurisdictional if water flowed in a man-made surface conveyance  between the wetland and a water of the United States.  Other districts  consider hydrologic connections through a man-made surface conveyance  under more limited circumstances.  For example, officials from the  Portland and Philadelphia districts said that a ditch would also need to  have an ordinary high water mark or display wetland characteristics in  order to establish jurisdictional status for a wetland.  Officials of the  Omaha and Fort Worth districts consider different factors when using man- made surface conveyances to assert jurisdiction over a wetland.  Omaha  District officials require, in addition to water being present at least once  per year, that the water flow from the wetland through the ditch and into a  water of the United States.  If the flow of water went from the water of the  United States through the ditch and into the wetland, they would not  consider the wetland to be jurisdictional.  Omaha District officials told us  that officials from Corps headquarters had endorsed this view.  Officials of  the Fort Worth District said that a ditch would establish a tributary  connection for a wetland only if the ditch was a modification of or  replacement for a natural stream.
Districts also differed regarding the circumstances under which they  consider a ditch itself to be jurisdictional.  For example, officials from the  Omaha and Fort Worth districts said they assert jurisdiction over a ditch  whenever it creates a jurisdictional connection between a wetland and a  water of the United States.  In contrast, officials from other districts—such  as Sacramento, Rock Island, and Galveston—said that they might assert  jurisdiction over a wetland without regulating the ditch connecting it to a  water of the United States.  In these districts, the jurisdiction of the ditch  depends upon several factors, including whether or not the ditch displays  an ordinary high water mark, exhibits the three parameters of a wetland, or  replaces a historic stream.  Officials at the Galveston District said a result  of this policy is that a nonjurisdictional ditch can be filled without a section  404 permit, severing the jurisdictional connection of the wetland to the  water of the United States.  After the connection is severed, the previously  jurisdictional wetland is rendered nonjurisdictional and can be filled  without a section 404 permit.
section_title: Man-Made Subsurface Conveyances
paragraphs: Officials in all the districts that we visited confirmed using man-made  subsurface conveyances (such as drain tiles, 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.
In contrast, officials from the Rock Island District do not consider drain  tiles to establish jurisdictional connections between wetlands and waters  of the United States.  Rock Island District staff said they asked Corps  headquarters about the use of drain tiles to establish jurisdictional  connections after the SWANCC decision; and they were instructed not to  use drain tiles, even in situations where Corps staff could determine that  water was draining from the wetland through the drain tile and into a water  of the United States.  Also, officials from the St. Paul district said that they  do not use drain tiles to establish jurisdictional connections to wetlands,  and Philadelphia District officials said they likely would not do so.
Districts also varied in their use of storm drain systems to establish  jurisdictional connections for wetlands and other waters.  For example,  officials from the Portland District said they considered storm drain  systems as jurisdictional connections, depending on the historical  situation.  If a storm drain system conveyed the flow of a historic stream,  then Portland District officials would consider the connection  jurisdictional; however, in other situations, they would not.  Officials from  the St. Paul District said they had used storm drain systems to support  jurisdictional connections among waters that had not been historically  connected.  St. Paul District officials explained that several lakes in the  Minneapolis-St. Paul area had been connected to one another through  underground storm water pipes to control flooding and that the system  eventually empties into a water of the United States.  These same officials  said that this storm drain system is a jurisdictional connection because it is  part of a tributary system, reasoning that if a pollutant enters the system it  would eventually flow into a water of the United States.
section_title: Corps Headquarters Officials Recognize That There Are Differences among Corps District Offices
paragraphs: We discussed the differences that we observed among district offices’  practices for making jurisdictional determinations with Corps headquarters  officials.  The officials explained that there are two primary reasons for the  differences among Corps district offices.  First, a variety of waterways and  wetlands across the country are continuously shaped by local climate,  topographic features, geological and soil characteristics, fauna and flora, as  well as other environmental factors.  As a result, in their opinion, the  definitions used to make jurisdictional determinations had to be vague.   This vagueness has led to the development of local district practices and  guidance concerning jurisdictional determinations.  Second, because  nearly all waters were jurisdictional under the migratory bird rule,  questions regarding the imprecise definition of adjacent wetlands and  isolated waters were previously moot.  When the Supreme Court struck  down the migratory bird rule in 2001, districts had to rely on the key terms  in the regulatory definition of waters of the United States, which had not  been well defined.  This led to some confusion in the districts, and Corps  headquarters subsequently instructed the districts to use locally developed  practices, regardless of their clarity.  As a result of these two factors, Corps  headquarters officials told us that the existence of differences in  jurisdictional determination practices among Corps districts is not  surprising.
Corps headquarters officials also noted that, given the complexity of nature  and the need for some degree of flexibility within and among districts, it is  not possible to achieve absolute nationwide consistency in making  jurisdictional determinations.  Nevertheless, these officials stated that we  documented enough differences in the district office practices to warrant a  more comprehensive survey, which would include the Corps districts not  surveyed in this report.  This type of additional review and analysis would  help ensure that the Corps is achieving the highest level of consistency  possible under the current circumstances.
section_title: Few Districts Make Documentation of Their Practices Public
paragraphs: 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.
section_title: Conclusions
paragraphs: 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.
section_title: Recommendations for Executive Action
paragraphs: 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.
section_title: Agency Comments and Our Evaluation
paragraphs: We provided a draft of this report to the Secretary of the Department of  Defense and the Administrator of EPA for review and comment.  Both the  Department of Defense and EPA concurred with the report’s findings and  recommendations.  The Department of Defense said that, on the basis of  our recommendations, it will (1) conduct a more comprehensive survey to  further assess the Corps district office practices in determining  jurisdiction; (2) develop a strategic approach to ensure the Corps is  achieving the highest level of consistency and predictability possible for  making jurisdictional determinations; and (3) ask the Corps districts and  divisions to prepare documentation describing specific local practices used  in making jurisdictional determinations and make this information  available to the public.  EPA agreed that a more complete survey of  approaches to geographic jurisdictional determinations would be helpful  and that it is important to document jurisdictional determinations and  ensure such information is publicly available.  Both the Department of  Defense and EPA also provided several technical changes that we have  incorporated into this report, as appropriate.  The full text of the  Department of Defense’s response is included in appendix III, and EPA’s  response is included in appendix IV.
As arranged with your office, unless you publicly announce its contents  earlier, we plan no further distribution of this report until 7 days after the  date of this letter.  At that time, we will send copies to interested  congressional committees and Members; the Secretary of Defense; the  Administrator, EPA; and the Chief of Engineers and Commander, U.S. Army  Corps of Engineers.  We will also make copies available to others upon  request.  In addition, this report will be available at no charge on GAO’s  home page at http://www.gao.gov.
If you or your staff have any questions about this report, please contact me  at (202) 512-3841.  Key contributors to this report are listed in appendix V.
section_title: Scope and Methodology
paragraphs: To identify the national criteria for making jurisdictional determinations,  and administrative and judicial developments affecting this process since  Solid Waste Agency of Northern Cook County v. U.S. Army Corps of  Engineers (SWANCC), we reviewed federal regulations and related  guidance that define “waters of the United States.”  We also interviewed  officials of both the Army Corps of Engineers (the Corps) and the  Environmental Protection Agency (EPA) headquarters in Washington D.C.   Further, we reviewed the Supreme Court’s SWANCC decision, as well as  various subsequent and related lower court decisions.  In addition, we  analyzed administrative guidance issued by the Corps and EPA, as well as  the Advance Notice of Proposed Rulemaking (ANPRM) issued by the Corps  and EPA in January 2003.  Finally, we reviewed several major public  comments addressing the ANPRM and discussed the full range of  comments submitted by the public with EPA officials.
To determine the extent to which Corps district offices vary in their  interpretation and application of the regulations and guidance, we  interviewed Corps headquarters officials, as well as national environmental  groups and representatives of industry and real estate development  organizations.  We then selected 16 of the Corps’ 38 district offices for an  in-depth examination of their jurisdictional determination practices.   Selected to obtain geographic representation across the United States as  well as climatic, geologic, and topographic diversity, we contacted at least  one district in each of the Corps’ seven Divisions located in the contiguous  United States.  Specifically we contacted the Baltimore, Buffalo, Chicago,  Fort Worth, Galveston, Jacksonville, Los Angeles, New Orleans, Omaha,  Philadelphia, Portland, Rock Island, Sacramento, St. Paul, San Francisco,  and Wilmington Corps district offices (see fig. 1). For each district office,  we conducted a series of preliminary interviews, including interviews with  officials representing the Corps Divisional Office responsible for the  district office, a state wetland protection agency with jurisdiction  overlapping that of the district office, a corresponding EPA regional office, and at least one firm representing the perspective of  section 404 permit applicants.
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.  In these interviews,  we discussed a wide range of topics pertaining to jurisdictional  determinations, including the practices used by districts to determine  whether to assert jurisdiction over adjacent wetlands, tributary waters,  man-made conveyances, and isolated, intrastate waters.  We also discussed  other issues related to jurisdictional determinations, such as the overall  impact of the SWANCC decision on districts’ jurisdictional practices, and  particular difficulties the districts face in conducting jurisdictional  determinations.  At the 11 district offices that we visited, we supplemented  office discussions with field visits to sites of recent jurisdictional  determinations, as well as sites that typified difficult jurisdictional issues.   During these site visits, we observed and discussed hydrologic linkages  between wetlands and waters of the United States, the difficulty in  identifying the outer extent of tributaries in both arid and wet regions, and  the role of ditches and other man-made conveyances in establishing  jurisdictional connections for wetlands.  We did not attempt to determine  whether individual differences in district practices resulted in different  jurisdictional determinations in similar situations, in part, because Corps  staff consider many factors when making these determinations.  Also, we  did not attempt to compare districts' practices before and after the  SWANCC decision.
To determine the extent to which the Corps districts document and make  their practices for conducting jurisdictional determinations available to the  public, we interviewed Corps officials in each of the 16 district offices we  contacted.  When available, we obtained and reviewed districts’ written  guidance.  We also perused district office’s Web sites to determine if they  made information about their practices readily available to the public.   Additionally, we discussed other means of keeping the public informed of  district practices and the methods districts used to maintain some degree  of consistency among different jurisdictional determinations.
We conducted our work between April 2003 and January 2004 in  accordance with generally accepted government auditing standards.   Because we reviewed 16 of the Corps' 38 districts, our findings may not  apply to those districts we did not review.
section_title: Text of 33 C.F.R. § 328.3
paragraphs: 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  (6) The territorial seas; (7) Wetlands adjacent to waters (other than waters that are themselves  wetlands) identified in paragraphs (a)(1) - (6) of this section.
Waste treatment systems including treatment ponds or lagoons  designed to meet the requirements of Clean Water Act (other than  cooling ponds as defined in 40 CFR 123.11(m) which also meet the  criteria of this definition) are not waters of the United States. (8) Waters of the United States do not include prior converted  cropland.  Nothwithstanding the determination of an area's status  as prior converted cropland by any other federal agency, for the  purposes of the Clean Water Act, the final authority regarding Clean  Water Act jurisdiction remains with EPA. (b) The term wetlands means those areas that are inundated or saturated  by surface or ground water at a frequency and duration sufficient to  support, and that under normal circumstances do support, a prevalence  of vegetation typically adapted for life in saturated soil conditions.   Wetlands generally include swamps, marshes, bogs, and similar areas. (c) The term adjacent means bordering, contiguous, or neighboring.
Wetlands separated from other waters of the United States by man- made dikes or barriers, natural river berms, beach dunes, and the like  are "adjacent wetlands." (d) The term high tide line means the line of intersection of the land with  the water's surface at the maximum height reached by a rising tide.  The  high tide line may be determined, in the absence of actual data, by a line  of oil or scum along shore objects, a more or less continuous deposit of  fine shell or debris on the foreshore or berm, other physical markings  or characteristics, vegetation lines, tidal gages, or other suitable means  that delineate the general height reached by a rising tide.  The line  encompasses spring high tides and other high tides that occur with  periodic frequency but does not include storm surges in which there is  a departure from the normal or predicted reach of the tide due to the  piling up of water against a coast by strong winds such as those  accompanying a hurricane or other intense storm. (e) The term ordinary high water mark means that line on the shore  established by the fluctuation of water and indicated by physical  characteristics such as clear, natural line impressed on the bank,  shelving, changes in the character of soil, destruction of terrestrial  vegetation, the presence of litter and debris, or other appropriate  means that consider the characteristics of the surrounding areas.  (f) The term tidal waters means those waters that rise and fall in a  predictable and measurable rhythm or cycle due to the gravitational  pulls of the moon and sun.  Tidal waters end where the rise and fall of  the water surface can no longer be practically measured in a  predictable rhythm due to masking by hydrologic, wind, or other  effects.
section_title: Comments from the Department of the Army
section_title: Comments from the Environmental Protection Agency
section_title: GAO Contacts and Staff Acknowledgments
subsections: section_title: GAO Contacts
section_title: Staff Acknowledgments
paragraphs: 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.
section_title: GAO’s Mission
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subsections: section_title: Order by Mail or Phone
section_title: To Report Fraud, Waste, and Abuse in Federal Programs
section_title: Public Affairs