Waters and Wetlands
Corps of Engineers Needs to Evaluate Its District Office Practices in Determining Jurisdiction Gao ID: GAO-04-297 February 27, 2004Each 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.
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.
RecommendationsOur recommendations from this work are listed below with a Contact for more information. Status will change from "In process" to "Open," "Closed - implemented," or "Closed - not implemented" based on our follow up work.
Director: Team: Phone:GAO-04-297, Waters and Wetlands: Corps of Engineers Needs to Evaluate Its District Office Practices in Determining Jurisdiction
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Report to the Chairman, Subcommittee on Energy Policy, Natural
Resources and Regulatory Affairs, Committee on Government Reform, House
of Representatives:
February 2004:
WATERS AND WETLANDS:
Corps of Engineers Needs to Evaluate Its District Office Practices in
Determining Jurisdiction:
[Hyperlink, http: //www.gao.gov/cgi-bin/getrpt?GAO-04-297]:
GAO Highlights:
Highlights of GAO-04-297, a report to the Chairman, Subcommittee on
Energy Policy, Natural Resources and Regulatory Affairs, Committee on
Government Reform, House of Representatives
Why GAO Did This Study:
Each year the U.S. Army Corps of Engineers (Corps) receives thousands
of Clean Water Act permit applications from project proponents wishing
to fill waters and wetlands. The first step in the permitting process
is to determine if the waters and wetlands are jurisdictional. Prior to
2001, if migratory birds used the waters or wetlands as habitat, they
were usually jurisdictional. In 2001, the Supreme Court” in Solid Waste
Agency of Northern Cook County v. U.S. Army Corps of Engineers (SWANCC)”
struck down the migratory bird rule, leaving the Corps to rely on other
jurisdictional criteria. GAO was asked to describe the (1) regulations
and guidance used to determine jurisdictional waters and wetlands and
related developments since SWANCC, (2) extent to which Corps district
offices vary in their interpretation of these regulations and guidance,
and (3) extent to which Corps district offices document their practices
and make this information publicly available.
What GAO Found:
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.
What GAO Recommends:
GAO recommends that the Corps, in consultation with the Environmental
Protection Agency (EPA): (1) survey district office practices in making
jurisdictional determinations to determine if significant differences
exist, (2) evaluate whether and how these differences need to be
resolved, and (3) require districts to document their practices and
make this information publicly available.
www.gao.gov/cgi-bin/getrpt?GAO-04-297.
To view the full product, including the scope and methodology, click on
the link above. For more information, contact Anu Mittal at (202)
512-3841, and mittala@gao.gov.
[End of section]
Contents:
Letter:
Results in Brief:
Background:
Federal Regulations That Define Jurisdictional Waters Allow for
Interpretation by Individual Corps Districts and Are Currently the
Subject of Debate:
Corps District Offices Use Differing Practices to Make Jurisdictional
Determinations:
Few Districts Make Documentation of Their Practices Public:
Conclusions:
Recommendations for Executive Action:
Agency Comments and Our Evaluation:
Appendixes:
Appendix I: Scope and Methodology:
Appendix II: Text of 33 C.F.R. § 328.3:
Appendix III: Comments from the Department of the Army:
Appendix IV: Comments from the Environmental Protection Agency:
Appendix V: GAO Contacts and Staff Acknowledgments:
GAO Contacts:
Staff Acknowledgments:
Table:
Table 1: Appellate Court Cases Decided Post-SWANCC:
Figures:
Figure 1: Map of Corps Divisions and Districts that GAO Contacted:
Figure 2: Ditch Conveying Water from a Wetland:
Figure 3: Drain Tile Conveying Water from a Wetland:
Abbreviations:
ANPRM: Advance Notice of Proposed Rulemaking:
C.F.R.: Code of Federal Regulations:
CWA: Clean Water Act:
EPA: Environmental Protection Agency:
SWANCC: Solid Waste Agency of Northern Cook County v. U.S. Army Corps
of Engineers:
Letter February 27, 2004:
The Honorable Doug Ose:
Chairman, Subcommittee on Energy Policy, Natural Resources and
Regulatory Affairs:
Committee on Government Reform:
House of Representatives:
Dear Mr. Chairman:
The Clean Water Act prohibits the discharge of pollutants into
"navigable waters"--defined in the act as the "waters of the United
States"--without a permit.[Footnote 1] For most pollutants the permit
program is administered by the Environmental Protection Agency (EPA),
or EPA-approved states and tribes. However, for section 404 of the act,
the Army Corps of Engineers (the Corps), with EPA oversight, is
responsible for issuing permits for the discharge of dredged or fill
material into the waters of the United States. Under section 404,
project proponents who seek to fill in wetlands or waters on their
property are required to obtain a permit from the Corps before they can
undertake such activities, if the water or wetland falls within federal
jurisdiction. Each year, the Corps receives thousands of applications
for permits under section 404.
Regulations applicable to federal jurisdiction under the Clean Water
Act, including the section 404 program, define "waters of the United
States" for which a permit must be obtained to include, among other
things, interstate waters; navigable waters; waters such as wetlands,
the use or degradation of which could affect interstate commerce;
tributaries of the waters identified above; and wetlands adjacent to
these waters. In addition, in 1986, the Corps stated in a preamble to
wetlands program regulations that its definition of "[w]aters of the
United States" included waters "which are or would be used as habitat
by birds protected by Migratory Bird Treaties." This statement became
known as the migratory bird rule; and under it, the Corps was able to
regulate almost any body of water or wetland.
The Corps' implementation of the section 404 program changed
significantly in January 2001, when the Supreme Court struck down the
migratory bird rule. In Solid Waste Agency of Northern Cook County v.
United States Army Corps of Engineers (SWANCC),[Footnote 2] the Supreme
Court ruled that the Corps had exceeded its authority in asserting
jurisdiction over certain ponds based on their use by migratory birds.
The breadth of the SWANCC holding has been the subject of considerable
dispute. In a 2001 memorandum, EPA and the Corps interpreted the
Supreme Court's opinion as applying only to isolated, intrastate,
nonnavigable waters. Some project proponents have disputed this
interpretation in court, arguing that, under SWANCC, the Corps also
lacks authority to regulate such bodies of water as nonnavigable
tributaries and ditches and wetlands adjacent to these bodies of water.
In this context, you asked us to provide information on the Corps'
practices in making jurisdictional determinations since the SWANCC
decision. Specifically, this report describes the (1) regulations and
guidance used by the Corps for making jurisdictional determinations for
waters and wetlands and administrative and judicial developments that
have affected this process since the Supreme Court decision, (2) extent
to which Corps district offices vary in their interpretation and
application of the regulations (hereafter referred to as practices),
and (3) extent to which Corps districts document their practices and
make this information publicly available. To meet our objectives, we
examined 16 of the Corps' 38 district offices, selected for geographic
diversity. We interviewed officials from these offices and reviewed the
practices they used to determine jurisdictional waters. Appendix I
provides a more detailed description of the scope and methodology for
this review.
Results in Brief:
EPA's and the Corps' regulations defining waters of the United States
provide the framework for determining which waters fall within federal
jurisdiction. However, the regulations leave room for interpretation by
the Corps districts when considering jurisdiction over, for example,
(1) adjacent wetlands, (2) tributaries, and (3) ditches and other man-
made conveyances. Since the SWANCC decision, the Corps and EPA provided
limited additional guidance to the districts concerning jurisdictional
determinations. Specifically, the Corps instructed its district offices
to no longer assert jurisdiction over any waters solely on the basis of
use by migratory birds and prohibited them from developing new local
practices for determining the extent of Clean Water Act section 404
regulatory jurisdiction. In addition, in January 2003 the Corps and EPA
published an Advance Notice of Proposed Rulemaking (ANPRM), soliciting
comments on, among other things, whether the regulations should define
the term isolated waters and whether any other revisions are needed to
the regulations defining waters of the United States. In response to
the ANPRM, the agencies received approximately 133,000 comments
representing widely differing views and decided in December 2003 that
they would not issue a new rule on federal regulatory jurisdiction over
isolated wetlands. Moreover, in the 3 years since the SWANCC decision,
11 federal appellate court decisions interpreting the term "waters of
the United States" have been issued. Project proponents in three of
these cases are seeking Supreme Court review, and review has been
denied for two others.
In certain circumstances, Corps districts differ in how they interpret
and apply the federal regulations when determining what wetlands and
other waters fall within the jurisdiction of the federal government.
Districts apply different approaches to identify wetlands that are
adjacent to other waters of the United States and are subject to
federal regulation. For example, one district generally regulates
wetlands located within 200 feet of other waters of the United States,
while other districts consider the proximity of the wetland to other
waters of the United States on a case-by-case basis without any
reference to a specific linear distance. Districts also differ in how
they regulate wetlands connected to other waters of the United States
by ditches, pipes, storm sewers and other man-made conveyances. For
example, one district generally regulates a wetland connected to
another water of the United States by a ditch, only if the ditch
modifies or replaces a natural stream. Other districts generally
regulate the wetland, regardless of whether the ditch modifies or
replaces a natural stream. Other differences in identifying the
jurisdictional limits of rivers and streams stemmed from the diverse
environmental factors present in various districts. For example,
districts in the arid West developed a method for identifying the
jurisdictional boundaries of dry channels that flood occasionally,
expanding several times their normal size. Whether or to what degree
the individual differences in Corps district office practices would
result in different jurisdictional determinations in similar situations
is unclear, in part, because Corps staff consider many factors when
making jurisdictional determinations. Nevertheless, Corps headquarters
officials said that differences in district office practices that we
identified were sufficiently prevalent to warrant a more comprehensive
survey of district office practices. We are recommending that the Corps
survey its district offices, evaluate their practices for making
jurisdictional determinations, and, if necessary, resolve differences
among them.
Few districts make documentation of their practices for making
jurisdictional determinations publicly available. Specifically, only 3
of the 16 districts that we reviewed made documentation of their
practices available to the public. The other districts generally relied
on oral communication to convey their practices to interested parties.
To provide greater clarity to the regulated community, we are
recommending that Corps districts prepare documentation that specifies
the practices used in making jurisdictional determinations and make it
publicly available.
Background:
The Clean Water Act prohibits the discharge of pollutants, including
dredged or fill material, into "navigable waters," defined in the act
as the "waters of the United States," without a permit. The act's
objective is to restore and maintain the chemical, physical, and
biological integrity of the nation's waters. Congress' intent in
passing the act was to establish an all-encompassing program of water
pollution regulation. The act contains several programs designed to
protect waters of the United States, including section 303, which calls
for development of water quality standards for waters of the United
States; section 311, which establishes a program for preventing,
preparing for, and responding to oil spills that occur in waters of the
United States; section 401, which establishes state water quality
certification of federally issued permits that may result in a
discharge to waters of the United States; and section 402, which
establishes a permitting system to regulate point source discharges of
pollutants (other than dredged and fill material) into waters of the
United States.
Section 404 of the Clean Water Act generally prohibits the discharge of
dredged or fill material into waters of the United States without a
permit from the Corps.[Footnote 3] Corps and EPA regulations under the
section 404 program define "waters of the United States" for which a
permit must be obtained to include, among other things, (1) interstate
waters; (2) waters which are or could be used in interstate commerce;
(3) waters such as wetlands, the use or degradation of which could
affect interstate commerce; (4) tributaries of the waters identified
above and (5) wetlands adjacent to these waters. As such, this program
is the nation's primary wetland protection program. In addition to the
federal regulation of wetlands, some state and local governments have
developed wetland protection programs.
The Corps administers the permitting responsibilities of the section
404 program, while EPA in conjunction with the Corps establishes the
substantive environmental protection standards that permit applicants
must meet. EPA also has final administrative responsibility for
interpreting the term "waters of the United States," a term that
governs the scope of many other programs that EPA administers under the
Clean Water Act.[Footnote 4] Day-to-day authority for administering the
permitting program rests with the 38 Corps district offices, whereas
Corps division and headquarters offices exercise policy oversight (see
fig. 1). Under section 404(q), EPA and other federal agencies, such as
the Department of the Interior's Fish and Wildlife Service, can request
that a permit application receive a higher level of review within the
Department of the Army. Under a memorandum of agreement between EPA and
the Corps, EPA may also initiate a "special case," in which EPA
determines the scope of jurisdiction for a particular site or issue for
section 404 purposes. EPA also has "veto" authority over section 404
permitting decisions under section 404(c). However, EPA has rarely used
its 404(c) authority to intervene in or overrule Corps permit
decisions. EPA also exercises independent enforcement authority.
Figure 1: Map of Corps Divisions and Districts that GAO Contacted:
[See PDF for image]
[End of figure]
Wetlands are areas that are inundated or saturated with surface or
ground water at a frequency and duration sufficient to support
vegetation adapted for life in saturated soil conditions. Wetlands
include swamps, marshes, bogs, and similar areas. They are
characterized by three factors: (1) frequent or prolonged presence of
water at or near the soil surface, (2) hydric soils that form under
flooded or saturated conditions, and (3) plants that are adapted to
live in these types of soils. Wetlands play valuable ecological roles
by reducing flood risks, recharging water supplies, improving water
quality, and providing habitats for fish, aquatic birds, and other
plants and animals, including a number of endangered species. As the
Supreme Court has recognized in upholding Corps' authority under the
Clean Water Act to regulate wetlands adjacent to waters of the United
States, "[t]he regulation of activities that cause water pollution
cannot rely on . . . artificial lines . . . but must focus on all
waters that together form the entire aquatic system."[Footnote 5]
Further, water moves in hydrologic cycles and pollution of one part of
an aquatic system can affect other waters within that aquatic system.
The regulations also extend federal jurisdiction under section 404 to
tributaries. The federal government has argued in court that it must
regulate tributary waters well beyond the point at which they are
navigable because any pollutant or fill material that degrades water
quality in a tributary has the potential to move downstream and degrade
the quality of navigable waters themselves. Similarly, according to the
Corps, drainage ditches constructed in uplands that connect two waters
of the United States may themselves be jurisdictional.
The first step in the regulatory process is a jurisdictional
determination, in which the Corps determines whether a water or wetland
is a "water of the United States." In general, Corps staff conduct
jurisdictional determinations by considering a range of factors, and
they often view each factor's importance within the context of the
actual site of a proposed project. While many jurisdictional
determinations are simple to perform, some can be complex and require
considerable effort. For example, a relatively simple jurisdictional
determination might involve a proposed project for the placement of a
pier on the Mississippi River. In this case, Corps staff may only
consult a map to determine that the activity falls within the Corps'
jurisdiction. In contrast, a more complex jurisdictional determination
might arise when a property owner wants to fill in multiple wetlands to
build a parking lot. This kind of jurisdictional determination would
likely require additional time and resources because Corps staff might
need to consult a variety of maps and aerial photographs and then visit
the site. Once on site, Corps staff would verify the exact locations of
the wetlands. If the Corps determines that a water or wetland is
jurisdictional, a permit applicant then has the option of filing an
administrative appeal challenging this determination and could
subsequently pursue the matter in court.
If a water or wetland is found to be jurisdictional, the property owner
would take the next step in the process and apply for a section 404
permit from the Corps. The Corps bases its decision to issue a permit
on an evaluation of the probable impacts, including cumulative impacts,
of the proposed activity on the public interest. The decision should
reflect the national concern for both the protection and utilization of
important resources. As part of the balancing process, the Corps may
require project modifications designed to avoid and minimize impacts on
natural resources. Depending on the individual and cumulative impacts
of the regulated activity, these modifications can range from requiring
little or no additional effort by the property owner to requiring the
property owner to incur significant costs. According to the Corps, in
approving permits, the agency requires permit applicants to avoid,
minimize, or mitigate impacts to wetlands and waters in most
cases.[Footnote 6] The Corps approves virtually all section 404 permit
applications. In fiscal year 2002, for example, of 85,445 section 404
permit applications filed, the Corps denied 128 and 4,143 were
withdrawn by the applicant.
While the interpretation of Clean Water Act jurisdiction has evolved
over time, the Corps' implementation of section 404 of the act changed
significantly in January 2001, when the Supreme Court in the SWANCC
decision ruled that Corps guidance known as the migratory bird rule
could no longer be used as a basis to assert jurisdiction over a water
or wetland. Discussed in the preamble to regulations issued in 1986--
but never itself promulgated as a regulation--this provision stated
that jurisdictional waters include waters that "are or would be used as
habitat by birds protected by migratory bird treaties," or that "are or
would be used as habitat by other migratory birds that cross state
lines."[Footnote 7] Under this provision, nearly all waters and
wetlands in the United States were potentially jurisdictional. The
Supreme Court held that the Clean Water Act did not authorize the Corps
to require a permit for filling an isolated, intrastate, nonnavigable
pond where the sole basis for the Corps' authority was that the pond
had been used by migratory birds.[Footnote 8] The extent to which the
reasoning in the SWANCC decision applies to waters other than those
specifically at issue in that case has been the subject of considerable
debate in the courts and among the public. Some groups have argued the
SWANCC decision precludes the Corps from regulating virtually all
isolated, intrastate, nonnavigable waters, as well as nonnavigable
tributaries to navigable waters, while others have argued that it
merely prohibits the regulation of isolated, intrastate, nonnavigable
waters and wetlands solely on the basis of use by migratory birds. In
the context of this decision, the Corps and EPA considered whether to
modify the definition of "waters of the United States." However, any
modification of the scope of waters of the United States would have
implications for other Clean Water Act programs that cover "navigable
waters," including section 303 (governing water quality standards),
section 311 (governing oil and hazardous substance spills), and section
402 (regulating discharges of pollutants other than dredged and fill
material).
Federal Regulations That Define Jurisdictional Waters Allow for
Interpretation by Individual Corps Districts and Are Currently the
Subject of Debate:
EPA's and the Corps' regulations defining waters of the United States
provide a framework for determining which waters are within federal
jurisdiction. The regulations leave room for judgment and
interpretation by the Corps districts when considering jurisdiction
over, for example, (1) adjacent wetlands, (2) tributaries, and (3)
ditches and other man-made conveyances. Prior to the 2001 SWANCC
decision, the Corps generally did not have to be concerned with such
factors as adjacency, tributaries, and other aspects of connection with
an interstate or navigable water body, if the wetland or water body
qualified as a jurisdictional water on the basis of its use by
migratory birds. Since the SWANCC decision, the Corps and EPA have
provided limited additional guidance to the districts concerning
jurisdictional determinations. Specifically, the Corps told districts
that they may not assert jurisdiction over any waters solely on the
basis of use by migratory birds and that they should not develop new
local practices for determining the extent of Clean Water Act section
404 regulatory jurisdiction or use local practices that were not in
effect prior to the SWANCC decision. Additionally, in January 2003, the
Corps and EPA published an ANPRM, soliciting public comments on, among
other things, whether isolated, intrastate, nonnavigable waters are
jurisdictional under the Clean Water Act, whether the regulations
should define the term isolated waters and whether any other revisions
are needed to the regulations defining "waters of the United States."
According to EPA officials, respondents submitted approximately 133,000
comments with widely differing views on the need for a new regulation
and the scope of Clean Water Act jurisdiction. In December 2003, the
Corps and EPA decided that they would not issue a new rule on federal
regulatory jurisdiction over isolated wetlands. In the almost 3 years
since the SWANCC decision, 11 federal appellate court decisions
interpreting the term "waters of the United States" have been issued.
Project proponents in three of these cases are seeking Supreme Court
review, and review has been denied for two additional cases.
Regulations and Guidance Define Waters of the United States but Do Not
Specify Detailed Aspects of Making a Jurisdictional Determination:
EPA's and the Corps' regulations defining waters of the United States
establish the framework for determining which waters are within federal
jurisdiction. In addition, the agencies have provided some limited
additional national guidance to aid interpretation by the Corps
districts. The regulations and national guidance leave room for
judgment and interpretation by the Corps districts when considering
jurisdiction over, for example, (1) adjacent wetlands, (2) tributaries,
and (3) ditches and other man-made conveyances.
For example, federal regulations state that wetlands adjacent to other
waters of the United States, other than waters that are themselves
wetlands, are to be considered waters of the United States. The
regulations specify that adjacent means "bordering, contiguous, or
neighboring," and that wetlands separated from other waters of the
United States by barriers such as man-made dikes, natural river berms,
and beach dunes may be considered adjacent wetlands. This definition of
adjacency leaves some degree of interpretation to the Corps districts.
For example, the regulations and subsequent national guidance do not
fully define the circumstances under which wetlands that do not touch
waters of the United States may be considered jurisdictional waters.
The regulations also specify that tributaries to waters of the United
States are to be considered waters of the United States. The
regulations do not define "tributaries," but state that in the absence
of adjacent wetlands, lateral jurisdiction over nontidal waters extends
to the ordinary high water mark. The ordinary high water mark is the
line on the shore caused by fluctuations of water and can be
characterized by a clear bank, shelving, debris, or changes in
vegetation.[Footnote 9] The Corps further states that the ordinary high
water mark should be used to identify the upstream limits of
jurisdiction for tributary waters. Thus, federal jurisdiction generally
extends up the banks and upstream of a tributary to the point where the
ordinary high water mark is no longer discernible. Additionally, the
Corps states that ephemeral tributaries--which have flowing water only
at certain times of year or only after certain storm events in a
typical year--are to be considered jurisdictional, provided that an
ordinary high water mark is present.[Footnote 10] Tributary waters can
thus range from substantial rivers and streams with definite ordinary
high water marks, to channels that are usually dry, and may have very
faint or ill-defined ordinary high water marks.
The regulations do not further define the physical characteristics of
an ordinary high water mark. As a result, it is possible that well
trained and competent staff might interpret the term differently. The
definition refers to factors such as changes in the character of the
soil, absence of terrestrial vegetation, and the presence of litter and
debris; but both the interpretation and weight assigned to each of
these factors is left to the official conducting the jurisdictional
determination. Neither the Corps nor EPA have issued any additional
clarifying national technical guidance for use by Corps staff in
identifying ordinary high water marks.
The regulatory definition of waters of the United States also does not
specifically discuss the jurisdictional status of ditches and other
man-made conveyances, and guidance issued by the Corps and EPA leaves
room for interpretation. The Corps has stated that certain man-made
conveyances, such as nontidal drainage and irrigation ditches excavated
on dry land, are generally not considered waters of the United States.
In other situations, however, the Corps may determine that man-made
conveyances are waters of the United States. For example, natural
streams that have been diverted into man-made channels are
jurisdictional. Also, ditches that extend the ordinary high water mark
of a water of the United States are jurisdictional. However, the Corps
guidance provides little additional direction on when asserting
jurisdiction over man-made conveyances is warranted, leaving that
decision to individual Corps districts. The Corps guidance allows
districts discretion when determining whether man-made channels dug on
dry land are jurisdictional.
Administrative Actions to Clarify Jurisdiction After SWANCC:
Since the SWANCC decision in January 2001, Corps and EPA headquarters
have moved cautiously to address its implications. In a series of
memoranda, the Corps has outlined some of the issues raised by the
decision, but it has provided limited specific guidance as to how Corps
districts are to respond to it. Specifically, the Corps has taken the
following three steps.
* In a memorandum issued 10 days after the SWANCC decision in January
2001, EPA and Corps headquarters instructed field staff that they could
no longer assert jurisdiction over waters and wetlands, solely on the
basis of use by migratory birds. The memorandum also noted that because
the SWANCC decision was limited to isolated, intrastate, nonnavigable
waters, the Corps could continue asserting jurisdiction over all other
waters covered by its regulations, such as adjacent wetlands and
tributaries. However, the memorandum noted the Supreme Court's opinion
raised questions about--but did not specifically address--what, if any,
connections to interstate commerce could be used to assert jurisdiction
over isolated, intrastate, nonnavigable waters. Consequently, the
memorandum instructed Corps districts to consult agency legal counsel
when such cases arose.[Footnote 11]
* In May 2001, the Corps issued another memorandum that prohibited the
districts from developing local practices for asserting jurisdiction
and from using any practices not in effect before the SWANCC decision.
The memorandum said that a prohibition on new practices was necessary
to minimize any inconsistencies among the districts.
* In January 2003, the Corps and EPA issued an ANPRM seeking public
comment on issues associated with the definition of "waters of the
United States" and soliciting information from the general public, the
scientific community, and federal and state resource agencies on the
implications of SWANCC for jurisdictional decisions under the Clean
Water Act.[Footnote 12] Attached to the notice was a joint memorandum
between EPA and the Corps designed to provide clarifying guidance
regarding SWANCC and to address several legal issues that had arisen
since the SWANCC decision concerning jurisdiction under various factual
scenarios. For example, the joint memorandum stated that, isolated,
intrastate waters that are capable of supporting navigation by
watercraft remain subject to Clean Water Act jurisdiction.[Footnote 13]
The guidance called for field staff to continue to assert jurisdiction
over traditional navigable waters, their tributaries, and adjacent
wetlands. The joint memorandum directed field staff to make
jurisdictional determinations on a case-by-case basis, considering the
guidance in the memorandum as well as applicable regulations and any
relevant court decisions in addition to those discussed in the
memorandum. The joint memorandum also reiterated that field staff were
no longer to assert jurisdiction over an isolated, intrastate,
nonnavigable water on the basis of the factors listed in the migratory
bird rule. It also noted that, in light of the SWANCC decision, it is
uncertain whether there remains any basis for jurisdiction over any
isolated, intrastate, nonnavigable waters. In view of these
uncertainties, the joint memorandum stated that field staff should seek
formal headquarters approval before asserting jurisdiction over such
waters.[Footnote 14]
The ANPRM generated significant interest, as evidenced by the
approximately 133,000 comments submitted by state agencies, national
development organizations, environmental groups, and other parties.
According to EPA, 99 percent of the comments on the need for a new rule
submitted to EPA and the Corps in response to the ANPRM were opposed to
a new rule. Some groups, such as industry representatives, generally
indicated that they favor a rulemaking because they believe the SWANCC
decision created, among other things, a great deal of uncertainty,
resulting in unequal treatment and significant financial burden to the
regulated community. These groups further stated that the current
breadth of federal jurisdiction is too great and that, under the
principles of federalism, state and local governments are the
appropriate regulators of nonnavigable waters within their borders. In
contrast, other groups, such as environmentalists, indicated a general
opposition to any rulemaking effort, expressing concerns that a new
rule would result in reduced federal jurisdiction under section 404 and
other programs under the Clean Water Act. Furthermore, these other
groups argued that it is unlikely that other federal and state programs
provide the oversight or require the mitigation that would be
sufficient to protect wetlands and other waters that were no longer
covered under the section 404 program. An EPA official stated that 41
of the 43 states that submitted comments were concerned about any major
reduction in Clean Water Act jurisdiction. This official also said that
most states are concerned that political, legal, and budgetary
constraints complicate efforts to regulate certain types of waters and
wetlands at the state level. In December 2003, EPA and the Corps
announced that they would not issue a new rule on federal regulatory
jurisdiction over isolated wetlands.
Along with the ANPRM, attempts have been made to coordinate Corps and
EPA efforts to address the implications of the SWANCC decision. In
October 2003, the Corps agreed to an EPA request to collect data
measuring the extent to which the Supreme Court's SWANCC ruling
prompted Corps district offices to avoid the regulation of wetlands and
other waters. Specifically, the Corps has agreed to have district
offices report quarterly to EPA any negative jurisdictional
determinations for 1 year--that is any decision not to regulate waters
or wetlands--based on issues raised by the SWANCC decision and the
districts' basis and reasoning for making these determinations. EPA has
also requested that Corps district offices coordinate with them before
declining jurisdiction over waters or wetlands, based upon issues
raised by the SWANCC decision. However, the Corps has declined EPA's
request, stating that it is "most prudent to continue the present
policy regarding interagency coordination.":
Clean Water Act Jurisdiction Has Been Litigated in Several Appellate
Courts Since SWANCC:
Since January 2001, 11 federal appellate court cases have considered
the scope of the term "waters of the United States" in situations other
than those involving the migratory bird rule. Table 1 summarizes these
cases. In three cases, the affected project proponents are seeking
Supreme Court review, while the Supreme Court denied review in two
others.
Table 1: Appellate Court Cases Decided Post-SWANCC:
Case: Headwaters, Inc. v. Talent Irrigation District, 243 F.3d 526;
Appellate Court: Ninth Circuit;
Date of decision: March;
2001;
Summary of decision: Court held that irrigation canals in question were
tributaries of navigable waters, and therefore within Clean Water Act
jurisdiction;
Petition for Supreme Court review pending? No.
Case: Rice v. Harken Exploration Co., 250 F.3d 264;
Appellate Court: Fifth Circuit;
Date of decision: April;
2001;
Summary of decision: Court held that a generalized assertion that
waters of the United States will eventually be affected by remote,
gradual, and natural seepage from contaminated groundwater is
insufficient to establish liability under the Oil Pollution Act;
court stated that under SWANCC it appears that a body of water is
subject to regulation if the body of water is actually navigable or is
adjacent to an open body of navigable water;
Petition for Supreme Court review pending? No[A].
Case: United States v. Interstate General Co., 39 Fed. Appx. 870;
Appellate Court: Fourth Circuit;
Date of decision: July;
2002;
Summary of decision: Court held that Corps jurisdiction extended to
wetlands adjacent to tributaries of traditional navigable waters;
Petition for Supreme Court review pending? No.
Case: United States v. Krilich, 303 F.3d 784;
Appellate Court: Seventh Circuit;
Date of decision: September 2002;
Summary of decision: Court refused to reopen consent decree, concluding
defendants were bound by their jurisdictional stipulations and
rejecting their argument that SWANCC removed from the Corps'
jurisdiction all waters not adjacent to open water, concluding that
SWANCC did not affect the law regarding adjacency as a basis for
jurisdiction;
Petition for Supreme Court review pending? No[B].
Case: Community Ass'n for Restoration of the Env't v. Henry Bosma
Dairy, 305 F.3d 943;
Appellate Court: Ninth Circuit;
Date of decision: September 2002;
Summary of decision: Court held that concentrated animal feeding
operation drainage ditch, which discharged directly or by connecting
waterways into a navigable water, was subject to Clean Water Act
jurisdiction;
Petition for Supreme Court review pending? No.
Case: United States v. Rueth Development Co., 335 F.3d 598;
Appellate Court: Seventh Circuit;
Date of decision: July;
2003;
Summary of decision: Court refused to reopen consent decree, concluding
that SWANCC did not affect the Corps' adjacency jurisdiction, and
suggesting that wetlands adjacent to tertiary tributaries of navigable
waters are jurisdictional;
Petition for Supreme Court review pending? No[B].
Case: United States v. Deaton, 332 F.3d 698;
Appellate Court: Fourth Circuit;
Date of decision: June;
2003;
Summary of decision: Court held that Corps reasonably interpreted
regulations defining "waters of the United States" to include
nonnavigable tributaries, such as the roadside ditch at issue, and
adjacent wetlands;
Petition for Supreme Court review pending? Yes.
Case: United States v. Rapanos, 339 F.3d 447;
Appellate Court: Sixth Circuit;
Date of decision: August 2003;
Summary of decision: Court held that wetlands at issue were within
Clean Water Act's jurisdiction because there was a hydrological
connection between the wetlands, an adjacent drainage ditch, and
navigable waters;
Petition for Supreme Court review pending? Yes.
Case: Treacy v. Newdunn, 344 F.3d 407;
Appellate Court: Fourth Circuit;
Date of decision: September 2003;
Summary of decision: Court held that wetlands adjacent to a ditch
hydrologically connected to navigable waters were jurisdictional, and
the fact that ditch was man- made, as opposed to a natural watercourse
was irrelevant;
Petition for Supreme Court review pending? Yes.
Case: In re Needham, 354 F.3d 340;
Appellate Court: Fifth Circuit;
Date of decision: December 2003;
Summary of decision: Court held that bayou flowing directly into
navigable waters was jurisdictional, but stated that Oil Pollution Act
was not so broad as to permit the federal government to impose
regulations over tributaries that are neither themselves navigable nor
truly adjacent to navigable waters;
Petition for Supreme Court review pending? No[A].
Case: United States v. Phillips, No. 02-30035;
Appellate Court: Ninth Circuit;
Date of decision: January 2004;
Summary of decision: Court refused to overturn defendant's conviction
for Clean Water Act violations, holding that district court correctly
rejected the defendant's theory that criminal prosecutions under the
Clean Water Act were limited to discharges into navigable-in-fact
waters;
Petition for Supreme Court review pending? No.
Source: GAO.
[A] Federal agencies and the parties seeking Supreme Court review
disagree over whether the Fifth Circuit's statements in Rice and
Needham concerning the scope of the Clean Water Act are in conflict
with the holdings of other circuits (which would increase the
likelihood of the Supreme Court granting review) or simply dicta
unnecessary to the decisions. GAO expresses no view on this question.
[B] Supreme Court denied review.
[End of table]
Corps District Offices Use Differing Practices to Make Jurisdictional
Determinations:
There are several differences in the practices Corps districts use to
make jurisdictional determinations.[Footnote 15] Specifically,
districts sometimes differ when (1) identifying jurisdictional wetlands
adjacent to waters of United States; (2) identifying jurisdictional
limits of tributaries; and (3) regulating wetlands connected to waters
of the United States by man-made conveyances, such as ditches. Corps
headquarters officials said that there are enough differences in
district office practices that a comprehensive survey of them is
warranted.
District Offices Use Different Factors to Identify Adjacent Wetlands:
All Corps districts that we reviewed regulated wetlands that are
contiguous with--directly touching--other waters of the United States.
However, when making jurisdictional determinations for wetlands not
touching waters of the United States, districts consider several
factors, including hydrologic connections between wetlands and other
waters of the United States, the proximity of wetlands to other waters
of the United States, and the number of barriers separating wetlands
from other waters of the United States. Districts differed in the way
they considered and weighed these various factors.
Hydrologic Connections:
Districts use different approaches to determine whether there is a
sufficient hydrologic connection between a wetland and a water of the
United States to consider the wetland jurisdictional. In making
determinations, some factors that are considered by some districts but
not others include the likelihood that a water of the United States
will flood into a wetland in any given year and whether the wetland is
connected to a water of the United States through a periodic sheet
flow.
We found differences in how districts apply these considerations. For
example, districts differed in their use of floodplains to make
jurisdictional determinations. Some districts often use the 100-year
floodplain to determine if wetlands are adjacent to waters of the
United States.[Footnote 16] For example, written guidance from the
Galveston District states that the district generally regulates
wetlands located in the 100-year floodplain because this type of
flooding is sufficient evidence of a hydrological connection between a
wetland and a water of the United States.[Footnote 17] Alternatively,
officials from other districts, such as Jacksonville and Philadelphia,
stated that they may consider the 100-year floodplain as one of many
factors when making jurisdictional determinations for adjacent
wetlands, but they do not consider it sufficient evidence on its own.
Still other districts, such as Chicago and Rock Island, do not consider
the 100-year floodplain at all when making jurisdictional
determinations. Rock Island District officials said that they do not
use the 100-year floodplain because headquarters never suggested it as
a possible criterion. Moreover, these officials were concerned that if
they used this practice, there were parts of the Rock Island District
where the practice would be very inclusive because the 100-year
floodplain can extend several miles inland from the banks of the
Mississippi River.
Additionally, districts varied in their use of sheet flow--that is
overland flow of water outside of a defined channel--for making
jurisdictional determinations. In certain circumstances, some
districts, such as San Francisco, Sacramento, and Los Angeles, used
sheet flow between a wetland and a water of the United States as a
basis for regulating the wetland. For example, San Francisco District
officials said they would assert jurisdiction over a series of vernal
pools--intermittently flooded areas--that are hydrologically connected
to each other and a water of the United States through directional
sheet flow during storm events. These officials said that this kind of
sheet flow is common in the San Francisco District because the clay
soils do not allow for rapid rates of infiltration, and the water flows
more easily across the surface. In contrast, both the New Orleans
District and the Galveston District do not consider sheet flow between
a wetland and a water of the United States when making jurisdictional
determinations. Officials from the Galveston District said they do not
consider sheet flow when asserting jurisdiction because they believe
sheet flow is not well defined and that, in its broadest
interpretation, could cover nearly all waters in their district.
Proximity:
Districts also vary in their use of proximity as a factor in making
jurisdictional determinations. Some districts set a specific distance
from a water of the United States within which a wetland must lie to be
jurisdictional. For example, officials from the Jacksonville District
said that they regulate almost all wetlands located within 200 feet of
other waters of the United States, and they generally do not assert
jurisdiction beyond that distance. According to these officials, the
district set this distance because it needed an approximate distance
for enforcement purposes, and it gradually became a rule of thumb.
Philadelphia District officials said they generally consider a
different specific distance to determine whether wetlands are
jurisdictional. These officials said they generally do not consider a
wetland adjacent if it is located more than 500 feet away from a water
of the United States, although not all wetlands located within 500 feet
of waters of the United States are regulated.
Other districts, such as Portland and Sacramento, have not established
specific distances between a wetland and a water of the United States
that would make the wetland jurisdictional or nonjurisdictional.
However, these districts do include proximity as an important
consideration when making jurisdictional determinations. For example,
Sacramento District officials said that a wetland that is 50 feet away
from a water of the United States is more likely to be considered
adjacent than a wetland that is 1,000 feet away. These officials
explained that the farther a wetland is away from a water of the United
States the greater the emphasis placed on other factors, such as the
wetlands' location in the 100-year floodplain. Similarly, Portland
District officials asserted that it is important to consider different
relationships--hydrological, ecological, and others--between a wetland
and water of the United States, along with the distance between the two
to provide the most meaningful basis for a jurisdictional
determination.
Man-Made and Natural Barriers:
According to federal regulations, a jurisdictional wetland may be
separated from a water of the United States by man-made or natural
barriers, such as dikes and dunes. The regulations do not specify the
number of barriers necessary to break a jurisdictional connection, and
district officials that we contacted applied different practices.
Officials at several districts, such as Buffalo, Chicago, and
Galveston, assert jurisdiction over wetlands separated from other
waters of the United States by no more than one barrier. In contrast,
officials from other districts said they assert jurisdiction over
wetlands separated from other waters of the United States by more than
one barrier. For example, officials from the Rock Island and Omaha
districts said they would regulate wetlands separated from other waters
of the United States by as many as two barriers. Also, officials from
the Jacksonville District said they would generally regulate all
wetlands within 200 feet of other waters of the United States,
regardless of the number of barriers separating the waters from the
wetlands. Officials from the Baltimore District said they have not
established a maximum number of barriers that may separate a water of
the United States from a jurisdictional wetland because the regulations
leave room for interpretation.
Districts Generally Use a Common Approach to Identify the
Jurisdictional Limits of Tributaries but May Apply It Differently:
The Corps districts that we contacted generally used a similar approach
to identify jurisdictional tributaries. However, beneath this
similarity, we found that districts in different regions of the United
States--and even individual Corps staff--could differ significantly in
how they applied this approach when delineating tributary waters.
The districts that we contacted rarely used a quantitative standard of
the volume or frequency of flow for assessing jurisdiction. Instead,
most of them used the concept of an ordinary high water mark to
identify both the outer limits of a tributary, as well as the upstream
limits of a tributary. Corps staff said that they generally assert
jurisdiction, as long as they can identify the characteristics of an
ordinary high water mark, regardless of the volume or frequency of flow
in the channel. In some arid regions, this means that channels that
might have little water flow in a given year, and at times may be
completely dry, could be jurisdictional, as long as the characteristics
of an ordinary high water mark were visible to the Corps
staff.[Footnote 18] Districts would also assert jurisdiction over a
tributary in the absence of an ordinary high water mark if there were
evidence that construction or other activities had obliterated its
signature. For example, officials from the Chicago District said that
because their district was heavily urbanized many channels had been
manipulated and contained, often in ways that obscured the ordinary
high water mark.
Districts in arid regions identified unique difficulties they face when
identifying the limits of an ordinary high water mark. For example, in
the arid West, the intermittency of the water flow and the occasional
massive flood surges that affect many rivers and streams can make
identifying the ordinary high water mark a difficult exercise.
According to Corps district officials, large periodic floods in the
arid West create complex tributary basins that feature a network of
channels, many of which are remnants of a time when the water flowed
along a different course and which rarely, if ever, experience water
flow. Corps officials said that identifying the ordinary high water
mark in such basins can be very difficult because there may be physical
evidence of water flow that is little more than a historic artifact.
Additionally, large flood surges can wash away normal banks, debris,
vegetation, and other evidence of the ordinary high water mark, making
it more difficult for Corps staff to identify the outer limits of the
tributary.
Because of the difficulties in identifying the ordinary high water mark
in some arid regions, the Corps has determined that there can be
considerable variations among Corps staff in identifying the outer
limits of the ordinary high water mark in arid regions resulting in
considerable differences in their assessments of the width of tributary
channels. To address the difficulties, the Corps and EPA have taken
several actions to help ensure better consistency for jurisdictional
determinations. For example, the Corps' South Pacific Division--which
includes district offices encompassing a large portion of the arid
West--has issued a jurisdictional determination tool that staff can use
to identify the limits of tributaries in the region. It specifically
guides the user to identify the water features present--including water
features indigenous to the arid West, such as arroyos, coulees, and
washes[Footnote 19]--and includes implicit practices for assessing the
jurisdictional status of a water feature in that region. In addition,
the Corps and EPA are developing a manual to guide field staff in
identifying the ordinary high water mark in arid regions.
Moreover, the difficulty and ambiguity associated with identifying the
ordinary high water mark can affect jurisdictional determinations
beyond arid regions. For example, an official of the Portland District
said that the definition of the ordinary high water mark is among the
most ambiguous terms in the regulatory definition of waters of the
United States and that the lateral limits of the ordinary high water
mark can be difficult to identify, even for major bodies of water such
as the Columbia River. The official said that if he asked three
different district staff to make a jurisdictional determination, he
would probably get three different assessments of the ordinary high
water mark from them. Similarly, an official from the Philadelphia
District stated that identifying the upper reaches of an ordinary high
water mark is one of the most difficult challenges the district staff
face. The official explained that, as one progresses upstream, the
depth of the bed and bank diminish, and the key indicators of an
ordinary high water mark gradually disappear, thus identifying
precisely where the ordinary high water mark ends is very much a
judgment call.
Districts Vary in Treatment of Ditches and Other Man-Made Conveyances:
All of the district office officials that we contacted consider and use
links created by man-made conveyances to assert jurisdiction over
wetlands. However, the district officials described different
circumstances under which they consider a man-made conveyance
sufficient to establish jurisdiction for a wetland that is connected by
the conveyance to a water of the United States. The officials also
differed with regard to the circumstances under which they consider the
conveyance itself to be jurisdictional and with regard to their
treatment of subsurface closed conveyances such as pipes and drain
tiles. According to Corps headquarters officials, man-made conveyances
are the most difficult and complex jurisdictional issue faced by Corps
districts.
Ditches and Other Man-Made Surface Conveyances:
Officials in all the districts we contacted said they consider and use
connections made by man-made surface conveyances--such as ditches--when
assessing the jurisdictional status of a wetland (see figure 2). If,
for example, a ditch carries water between a wetland and a water of the
United States, then a wetland could be considered jurisdictional.
However, districts differed in their practices to test the sufficiency
of such a connection. For example, some districts, such as the St.
Paul, Rock Island, and Wilmington districts, were fairly inclusive and
said that they would find a wetland jurisdictional if water flowed in a
man-made surface conveyance between the wetland and a water of the
United States. Other districts consider hydrologic connections through
a man-made surface conveyance under more limited circumstances. For
example, officials from the Portland and Philadelphia districts said
that a ditch would also need to have an ordinary high water mark or
display wetland characteristics in order to establish jurisdictional
status for a wetland. Officials of the Omaha and Fort Worth districts
consider different factors when using man-made surface conveyances to
assert jurisdiction over a wetland. Omaha District officials require,
in addition to water being present at least once per year, that the
water flow from the wetland through the ditch and into a water of the
United States. If the flow of water went from the water of the United
States through the ditch and into the wetland, they would not consider
the wetland to be jurisdictional. Omaha District officials told us that
officials from Corps headquarters had endorsed this view. Officials of
the Fort Worth District said that a ditch would establish a tributary
connection for a wetland only if the ditch was a modification of or
replacement for a natural stream.
Figure 2: Ditch Conveying Water from a Wetland:
[See PDF for image]
[End of figure]
Districts also differed regarding the circumstances under which they
consider a ditch itself to be jurisdictional. For example, officials
from the Omaha and Fort Worth districts said they assert jurisdiction
over a ditch whenever it creates a jurisdictional connection between a
wetland and a water of the United States. In contrast, officials from
other districts--such as Sacramento, Rock Island, and Galveston--said
that they might assert jurisdiction over a wetland without regulating
the ditch connecting it to a water of the United States. In these
districts, the jurisdiction of the ditch depends upon several factors,
including whether or not the ditch displays an ordinary high water
mark, exhibits the three parameters of a wetland, or replaces a
historic stream. Officials at the Galveston District said a result of
this policy is that a nonjurisdictional ditch can be filled without a
section 404 permit, severing the jurisdictional connection of the
wetland to the water of the United States. After the connection is
severed, the previously jurisdictional wetland is rendered
nonjurisdictional and can be filled without a section 404 permit.
Man-Made Subsurface Conveyances:
Officials in all the districts that we visited confirmed using man-made
subsurface conveyances (such as drain tiles,[Footnote 20] storm drain
systems, and culverts) that connect a wetland to a water of the United
States as sufficient evidence to assert jurisdiction over a wetland.
Nevertheless, we identified variations relating to the type of closed
man-made conveyance considered sufficient to make a jurisdictional
connection. Chicago District officials said they use drain tiles to
establish a jurisdictional connection between a wetland and a water of
the United States, but only when evidence supports that it had replaced
a historic tributary. The Corps' justification is that a natural stream
that is confined to a pipe, or replaced by a series of pipes in
essentially the same location, still functions as a connection between
upstream and downstream waters and remains a part of the surface
tributary system.
Figure 3: Drain Tile Conveying Water from a Wetland:
[See PDF for image]
[End of figure]
In contrast, officials from the Rock Island District do not consider
drain tiles to establish jurisdictional connections between wetlands
and waters of the United States. Rock Island District staff said they
asked Corps headquarters about the use of drain tiles to establish
jurisdictional connections after the SWANCC decision; and they were
instructed not to use drain tiles, even in situations where Corps staff
could determine that water was draining from the wetland through the
drain tile and into a water of the United States. Also, officials from
the St. Paul district said that they do not use drain tiles to
establish jurisdictional connections to wetlands, and Philadelphia
District officials said they likely would not do so.
Districts also varied in their use of storm drain systems to establish
jurisdictional connections for wetlands and other waters. For example,
officials from the Portland District said they considered storm drain
systems as jurisdictional connections, depending on the historical
situation. If a storm drain system conveyed the flow of a historic
stream, then Portland District officials would consider the connection
jurisdictional; however, in other situations, they would not. Officials
from the St. Paul District said they had used storm drain systems to
support jurisdictional connections among waters that had not been
historically connected. St. Paul District officials explained that
several lakes in the Minneapolis-St. Paul area had been connected to
one another through underground storm water pipes to control flooding
and that the system eventually empties into a water of the United
States. These same officials said that this storm drain system is a
jurisdictional connection because it is part of a tributary system,
reasoning that if a pollutant enters the system it would eventually
flow into a water of the United States.
Corps Headquarters Officials Recognize That There Are Differences among
Corps District Offices:
We discussed the differences that we observed among district offices'
practices for making jurisdictional determinations with Corps
headquarters officials. The officials explained that there are two
primary reasons for the differences among Corps district offices.
First, a variety of waterways and wetlands across the country are
continuously shaped by local climate, topographic features, geological
and soil characteristics, fauna and flora, as well as other
environmental factors. As a result, in their opinion, the definitions
used to make jurisdictional determinations had to be vague. This
vagueness has led to the development of local district practices and
guidance concerning jurisdictional determinations. Second, because
nearly all waters were jurisdictional under the migratory bird rule,
questions regarding the imprecise definition of adjacent wetlands and
isolated waters were previously moot. When the Supreme Court struck
down the migratory bird rule in 2001, districts had to rely on the key
terms in the regulatory definition of waters of the United States,
which had not been well defined. This led to some confusion in the
districts, and Corps headquarters subsequently instructed the districts
to use locally developed practices, regardless of their clarity. As a
result of these two factors, Corps headquarters officials told us that
the existence of differences in jurisdictional determination practices
among Corps districts is not surprising.
Corps headquarters officials also noted that, given the complexity of
nature and the need for some degree of flexibility within and among
districts, it is not possible to achieve absolute nationwide
consistency in making jurisdictional determinations. Nevertheless,
these officials stated that we documented enough differences in the
district office practices to warrant a more comprehensive survey, which
would include the Corps districts not surveyed in this report. This
type of additional review and analysis would help ensure that the Corps
is achieving the highest level of consistency possible under the
current circumstances.
Few Districts Make Documentation of Their Practices Public:
Few Corps districts that we reviewed made documentation of their
practices for making jurisdictional determinations available to the
public. Many of the 16 districts that we contacted generally relied on
oral communication to convey their practices to interested parties and
only 3 had developed documentation of their practices that they made
available to the public.
Three districts--Jacksonville, Portland, and Galveston--had documented
their practices and made this documentation available to the general
public. These districts stated that their written materials documented
practices that predated the 2001 SWANCC decision. The Jacksonville
District developed a comprehensive document in July 2003 describing its
practices for asserting jurisdiction over adjacent wetlands, tributary
streams, man-made conveyances, and isolated waters and posted this
guidance to its Web site. The Portland District also posted
descriptions of district practices to its Web site, but its
documentation addressed issues such as the regulation of storm water
ponds and culvert maintenance activities. Finally, the Galveston
District's documentation, which addresses identifying wetlands
adjacent to waters of the United States, is available upon request--but
is not posted on its Web site.
The other 13 districts that we reviewed have not made documentation of
their practices publicly available. When asked about the written
materials available to the public, Corps district officials sometimes
referred to the Code of Federal Regulations and the Corps' 1987
Wetlands Delineation Manual as publicly available sources of
information.
In lieu of documentation, some districts communicate their practices to
the public informally, by talking with land planning consultants who
help property owners navigate the section 404 program at workshops, in
the office, and in the field. For example, the Baltimore District
regularly makes its wetland delineations with land planning consultants
present, explaining that this allows the consultants to better
understand the district's practices.
Conclusions:
After the Supreme Court's 2001 SWANCC decision that struck down the
migratory bird rule, Corps districts have needed to rely on criteria
other than use of the water as habitat for migratory birds to assert
jurisdiction over certain waters and wetlands. In doing so, the Corps
has based its determinations on criteria within the regulatory
definition of "waters of the United States," including determining
whether a wetland or water body is adjacent to or a tributary of a
navigable or interstate water or whether the water has a connection
with interstate commerce. In making these determinations, the Corps
districts and staff have used different practices and have applied
different factors. Some flexibility and variation in district practices
may well be appropriate to address differences in climatic, hydrologic,
or other factors. However, it is unclear whether or to what degree
these differences in Corps district office practices would result in
different jurisdictional determinations in similar situations, in part,
because Corps staff consider many factors when making these
determinations. Also, because few Corps districts make documentation of
their practices for making jurisdictional determinations available to
the public, project proponents may not have clarity as to their
responsibilities under section 404 of the Clean Water Act.
Recommendations for Executive Action:
In light of the uncertainty of the impact of differences in district
offices' interpretation and application of the regulations, we
recommend that the Secretary of the Army in consultation with the
Administrator of EPA:
* survey the district offices to determine how they are interpreting
and applying the regulations and whether significant differences exist
among the Corps' 38 districts;
* evaluate whether and how the differences in the interpretation and
application of the regulations among the Corps district offices need to
be resolved, recognizing that some level of flexibility may be needed
because of differing climatic, hydrologic, and other relevant
circumstances among the districts; and:
* require districts to prepare and make publicly available
documentation specifying the interpretation and application of the
regulations they use to determine whether a water or wetland is
jurisdictional.
Agency Comments and Our Evaluation:
We provided a draft of this report to the Secretary of the Department
of Defense and the Administrator of EPA for review and comment. Both
the Department of Defense and EPA concurred with the report's findings
and recommendations. The Department of Defense said that, on the basis
of our recommendations, it will (1) conduct a more comprehensive survey
to further assess the Corps district office practices in determining
jurisdiction; (2) develop a strategic approach to ensure the Corps is
achieving the highest level of consistency and predictability possible
for making jurisdictional determinations; and (3) ask the Corps
districts and divisions to prepare documentation describing specific
local practices used in making jurisdictional determinations and make
this information available to the public. EPA agreed that a more
complete survey of approaches to geographic jurisdictional
determinations would be helpful and that it is important to document
jurisdictional determinations and ensure such information is publicly
available. Both the Department of Defense and EPA also provided several
technical changes that we have incorporated into this report, as
appropriate. The full text of the Department of Defense's response is
included in appendix III, and EPA's response is included in appendix
IV.
As arranged with your office, unless you publicly announce its contents
earlier, we plan no further distribution of this report until 7 days
after the date of this letter. At that time, we will send copies to
interested congressional committees and Members; the Secretary of
Defense; the Administrator, EPA; and the Chief of Engineers and
Commander, U.S. Army Corps of Engineers. We will also make copies
available to others upon request. In addition, this report will be
available at no charge on GAO's home page at
[Hyperlink, http: //www.gao.gov].
If you or your staff have any questions about this report, please
contact me at (202) 512-3841. Key contributors to this report are
listed in appendix V.
Sincerely yours,
Signed by:
Anu K. Mittal:
Director, Natural Resources And Environment:
[End of section]
Appendixes:
Appendix I: Scope and Methodology:
To identify the national criteria for making jurisdictional
determinations, and administrative and judicial developments affecting
this process since Solid Waste Agency of Northern Cook County v. U.S.
Army Corps of Engineers (SWANCC), we reviewed federal regulations and
related guidance that define "waters of the United States." We also
interviewed officials of both the Army Corps of Engineers (the Corps)
and the Environmental Protection Agency (EPA) headquarters in
Washington D.C. Further, we reviewed the Supreme Court's SWANCC
decision, as well as various subsequent and related lower court
decisions. In addition, we analyzed administrative guidance issued by
the Corps and EPA, as well as the Advance Notice of Proposed Rulemaking
(ANPRM) issued by the Corps and EPA in January 2003. Finally, we
reviewed several major public comments addressing the ANPRM and
discussed the full range of comments submitted by the public with EPA
officials.
To determine the extent to which Corps district offices vary in their
interpretation and application of the regulations and guidance, we
interviewed Corps headquarters officials, as well as national
environmental groups and representatives of industry and real estate
development organizations. We then selected 16 of the Corps' 38
district offices for an in-depth examination of their jurisdictional
determination practices. Selected to obtain geographic representation
across the United States as well as climatic, geologic, and topographic
diversity, we contacted at least one district in each of the Corps'
seven Divisions located in the contiguous United States. Specifically
we contacted the Baltimore, Buffalo, Chicago, Fort Worth, Galveston,
Jacksonville, Los Angeles, New Orleans, Omaha, Philadelphia, Portland,
Rock Island, Sacramento, St. Paul, San Francisco, and Wilmington Corps
district offices (see fig. 1). For each district office, we conducted a
series of preliminary interviews, including interviews with officials
representing the Corps Divisional Office responsible for the district
office, a state wetland protection agency with jurisdiction overlapping
that of the district office, a corresponding EPA regional
office,[Footnote 21] and at least one firm representing the perspective
of section 404 permit applicants.[Footnote 22]
The primary purpose of these interviews was to obtain preliminary
information on the Corps district's jurisdictional determination
practices and, in particular, information on any significant
differences among the districts. Following these discussions, we
interviewed officials from 16 Corps district offices, using detailed
questionnaires.[Footnote 23] In these interviews, we discussed a wide
range of topics pertaining to jurisdictional determinations, including
the practices used by districts to determine whether to assert
jurisdiction over adjacent wetlands, tributary waters, man-made
conveyances, and isolated, intrastate waters. We also discussed other
issues related to jurisdictional determinations, such as the overall
impact of the SWANCC decision on districts' jurisdictional practices,
and particular difficulties the districts face in conducting
jurisdictional determinations. At the 11 district offices that we
visited, we supplemented office discussions with field visits to sites
of recent jurisdictional determinations, as well as sites that typified
difficult jurisdictional issues. During these site visits, we observed
and discussed hydrologic linkages between wetlands and waters of the
United States, the difficulty in identifying the outer extent of
tributaries in both arid and wet regions, and the role of ditches and
other man-made conveyances in establishing jurisdictional connections
for wetlands. We did not attempt to determine whether individual
differences in district practices resulted in different jurisdictional
determinations in similar situations, in part, because Corps staff
consider many factors when making these determinations. Also, we did
not attempt to compare districts' practices before and after the SWANCC
decision.
To determine the extent to which the Corps districts document and make
their practices for conducting jurisdictional determinations available
to the public, we interviewed Corps officials in each of the 16
district offices we contacted. When available, we obtained and reviewed
districts' written guidance. We also perused district office's Web
sites to determine if they made information about their practices
readily available to the public. Additionally, we discussed other means
of keeping the public informed of district practices and the methods
districts used to maintain some degree of consistency among different
jurisdictional determinations.
We conducted our work between April 2003 and January 2004 in accordance
with generally accepted government auditing standards. Because we
reviewed 16 of the Corps' 38 districts, our findings may not apply to
those districts we did not review.
[End of section]
Appendix II: Text of 33 C.F.R. § 328.3:
For the purpose of this regulation these terms are defined as follows:
(a) The term waters of the United States means:
(1) All waters which are currently used, or were used in the past, or
may be susceptible to use in interstate or foreign commerce, including
all waters which are subject to the ebb or flow of the tide;
(2) All interstate waters including interstate wetlands;
(3) All other waters such as intrastate lakes, rivers, streams
(including intermittent streams), mudflats, sandflats, wetlands,
sloughs, prairie potholes, wet meadows, playa lakes, or natural ponds,
the use, degradation or destruction of which could affect interstate or
foreign commerce including any such waters:
(i) Which are or could be used by interstate or foreign travelers for
recreational or other purposes; or:
(ii) From which fish or shellfish are or could be taken and sold in
interstate or foreign commerce; or:
(iii) Which are used or could be used for industrial purpose by
industries in interstate commerce;
(4) All impoundments of waters otherwise defined as waters of the United
States under the definition;
(5) Tributaries of waters identified in paragraphs (a)(1) - (4) of this
section;
(6) The territorial seas;
(7) Wetlands adjacent to waters (other than waters that are themselves
wetlands) identified in paragraphs (a)(1) - (6) of this section.
Waste treatment systems including treatment ponds or lagoons designed
to meet the requirements of Clean Water Act (other than cooling ponds
as defined in 40 CFR 123.11(m) which also meet the criteria of this
definition) are not waters of the United States.
(8) Waters of the United States do not include prior converted cropland.
Nothwithstanding the determination of an area's status as prior
converted cropland by any other federal agency, for the purposes of the
Clean Water Act, the final authority regarding Clean Water Act
jurisdiction remains with EPA.
(b) The term wetlands means those areas that are inundated or saturated
by surface or ground water at a frequency and duration sufficient to
support, and that under normal circumstances do support, a prevalence
of vegetation typically adapted for life in saturated soil conditions.
Wetlands generally include swamps, marshes, bogs, and similar areas.
(c) The term adjacent means bordering, contiguous, or neighboring.
Wetlands separated from other waters of the United States by man-made
dikes or barriers, natural river berms, beach dunes, and the like are
"adjacent wetlands.":
(d) The term high tide line means the line of intersection of the land
with the water's surface at the maximum height reached by a rising
tide. The high tide line may be determined, in the absence of actual
data, by a line of oil or scum along shore objects, a more or less
continuous deposit of fine shell or debris on the foreshore or berm,
other physical markings or characteristics, vegetation lines, tidal
gages, or other suitable means that delineate the general height
reached by a rising tide. The line encompasses spring high tides and
other high tides that occur with periodic frequency but does not
include storm surges in which there is a departure from the normal or
predicted reach of the tide due to the piling up of water against a
coast by strong winds such as those accompanying a hurricane or other
intense storm.
(e) The term ordinary high water mark means that line on the shore
established by the fluctuation of water and indicated by physical
characteristics such as clear, natural line impressed on the bank,
shelving, changes in the character of soil, destruction of terrestrial
vegetation, the presence of litter and debris, or other appropriate
means that consider the characteristics of the surrounding areas.
(f) The term tidal waters means those waters that rise and fall in a
predictable and measurable rhythm or cycle due to the gravitational
pulls of the moon and sun. Tidal waters end where the rise and fall of
the water surface can no longer be practically measured in a
predictable rhythm due to masking by hydrologic, wind, or other
effects.
[End of section]
Appendix III: Comments from the Department of the Army:
DEPARTMENT OF THE ARMY:
OFFICE OF THE ASSISTANT SECRETARY:
CIVIL WORKS
108 ARMY PENTAGON:
WASHINGTON DC 20310-0108:
2 FEB 2004:
REPLY TO ATTENTION OF:
Ms. Anu Mittal:
Director:
Natural Resources and Environment:
U.S. General Accounting Office:
441 G Street, N.W.
Washington, D.C. 20548 -1000:
Dear Ms. Mittal:
This is the Department of Defense (DOD) response to the GAO draft
report, 'WATERS AND WETLANDS: Corps of Engineers Needs To Evaluate its
District Office Practices in Determining Jurisdiction," dated January
12, 2004, (GAO Code 360323/GAO-04-297).
The GAO report was prepared to describe the: (1) regulations and
guidance used to determine jurisdictional waters and related
developments since SWANCC; (2) extent to which Corps district offices
vary in their interpretation of these regulations and guidance; and,
(3) extent to which Corps district offices document their practices and
make this information publicly available. The report concludes that:
(1) the Corps' Clean Water Act jurisdictional regulations leave room
for interpretation by Corps districts; (2) the Corps districts often
differ from one another as to how they interpret and apply the
regulations when determining which waters and wetlands are subject to
Federal jurisdiction; and (3) only a few of the districts surveyed made
their rationale for definitions of waters and -jurisdictional
determinations available to the public. On behalf of the Department of
Defense, Army Civil Works comments on the report follow.
In general, the GAO report concludes that Corps districts often employ
different practices to determine what waters are subject to Clean Water
Act Jurisdiction and that these practices are producing different
results among the districts. We believe that these inconsistencies may
be attributed to a variety of factors. First, following the SWANCC
decision, it may generally be said that a water (and associated aquatic
resources) will be subject to Clean Water Act jurisdiction if the water
is either a territorial sea, a traditional navigable water, a tributary
to a traditional navigable water, or an adjacent wetland. As the GAO
report observes, the existing regulations do not contain a definition
of the term "tributaries", nor do they explain how "adjacency" is to be
established for purposes of Clean Water Act jurisdiction. This absence
of clarity has led field personnel to draw different conclusions about
the meaning of these terms and whether or not they cover certain
manmade conveyances, such as certain ditches and pipes.
Second, even when field personnel in the districts generally agree that
a type of water is jurisdictional, such as an ephemeral stream, they
may reach different conclusions about what is an ephemeral stream, or
how one jurisdictional ephemeral stream may differ from a non
jurisdictional erosion feature. This can cause field regulators to
place the same types of waters in different categories, which produces
different results as regards Clean Water Act jurisdiction.
Third, existing regulations and practices concerning Clean Water Act
jurisdiction do not always take into account the variations in water
resources that occur in different regions of the country. For example,
the nature and characteristics of wetlands in Florida are almost always
very different from wetlands in Alaska or the arid southwest. Of
course, this leads to correspondingly differing assessments of features
under consideration as to whether they are jurisdictional or not.
Army Civil Works and the Army Corps of Engineers concur with your
findings. The Corps will conduct a more comprehensive survey to further
assess District practices in determining jurisdiction. We believe we
can build on data presented in the report and by using that data and
supplement it with further data collection efforts in districts not
surveyed by the GAO. The Corps will build a knowledge base that will
allow it to undertake a series of future actions to promote greater
consistency in Clean Water Act jurisdictional determinations. It is
anticipated that this effort will utilize a similar analysis as that
presented in the GAO report. Our goal is to develop a strategy with
adaptive management to ensure the Corps achieves the highest level of
consistency and predictability possible given inherently different
characteristics of aquatic resources in different locations, while
providing the public with the greatest opportunity for understanding
the basis for jurisdictional determinations so that full compliance
with the Clean Water Act Is encouraged, with the goal of increasing the
effectiveness, efficiency and responsiveness of the Army's regulatory
program.
Signed by:
John Paul Woodley, Jr.,
Assistant Secretary of the Army (Civil Works):
Enclosure:
GAO DRAFT REPORT - DATED JANUARY 12, 2004 GAO CODE 360323/GAO-04-297:
"WATERS AND WETLANDS: Corps of Engineers Needs To Evaluate its District
Office Practices in Determining Jurisdiction":
DEPARTMENT OF DEFENSE COMMENTS TO THE RECOMMENDATIONS:
RECOMMENDATION 1: The GAO recommended that the Secretary of the Army in
consultation with the Administrator of EPA survey the district offices
to determine how they are interpreting and applying the regulations and
whether significant differences exist among the Corps' 38 districts.
(p. 30/GAO Draft Report):
DOD RESPONSE: We concur with your findings and will be conducting a
more comprehensive survey to further assess District office practices
in determining jurisdiction. We believe that we can build on data
presented in the report and by using that data and by supplementing it
with further data collection efforts in non-surveyed districts, we can
build a knowledge base that will allow us to undertake a series of
future actions to promote greater consistency in Clean Water act
jurisdictional determinations. It is anticipated that we will conduct a
similar analysis to that presented in the report. Our goal is to develop
a strategy with adaptive management to ensure the Corps is achieving
the highest level of consistency and predictability possible, while
providing the public with the greatest opportunity for understanding
the basis for jurisdictional determinations so that full compliance
with the Clean Water Act Is encouraged.
RECOMMENDATION 2: The GAO recommended that the Secretary of the Army in
consultation with the Administrator of EPA evaluate whether and how the
differences in the interpretation and application of the regulations
among the Corps district offices need to be resolved, recognizing that
some level of flexibility may be needed on account of differing
climatic, hydrologic, and other relevant circumstances among the
districts.
(p. 30-31/GAO Draft Report):
DOD RESPONSE: We concur with your recommendation and will be developing
a strategic approach to ensure the Corps is achieving the highest level
of consistency and predictability possible, recognizing that some level
of flexibility is needed to account for different climatic, hydrologic,
and other environmental conditions within the districts and divisions,
for making jurisdictional determinations. To further increase our
ability in making consistent and predictable determinations, we will:
* Use district level case studies to further evaluate and clarify
standard operating procedures for making jurisdictional
determinations;
* As appropriate, develop and provide internal policy guidance to
promote consistency in problem areas;
* Develop a monitoring program at the division level to ensure
consistency is occurring to the maximum extent possible;
* Continue to conduct inter-agency meetings;
* Continue to monitor cases in litigation; and:
* Develop an adaptive management plan that allows for adjustments based
on division and inter-agency meetings and applicable legal precedents.
RECOMMENDATION 3: The GAO recommended that the Secretary of the Army in
consultation with the Administrator of EPA require districts to prepare
and make publicly available documentation specifying the interpretation
and application of the regulations used to determine whether or not a
water or wetland is jurisdictional. (p. 31/GAO Draft Report):
DOD RESPONSE: We concur with your findings. To provide greater clarity
to the regulated community and public at large, Corps districts and
divisions will be asked to prepare documentation describing specific
local practices used in making jurisdictional determinations and to
make this information available to the public. Our goal is to develop a
strategy with adaptive management to ensure the Corps is achieving the
highest level of consistency and predictability possible while
providing the public with the greatest opportunity for understanding
the basis for jurisdictional determinations in order to encourage full
compliance with the Clean Water Act. In addition, we will be
encouraging the states to assume a more active Clean Water Act role by
developing more regional general permits in concert with the states and
by assisting them in communicating their regulatory responsibilities to
the public.
CF:
CRC:
SACE (Read, Sign, file) CECW-OR:
CEIR (Pearlena Patters):
Mr. Carlos J. Chapa:
Technical Director, Audit Followup & FAO Affairs
Inspector General:
Department of Defense
400 Army Navy Drive
Arlington, Virginia 22202-2885:
J:\shared\smith,chip\GAO Wetlands\GAO Audit Comment Letter cs ogc gd
edits v7 clean:
[End of section]
Appendix IV: Comments from the Environmental Protection Agency:
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY:
WASHINGTON, D.C. 20460:
FEB 4 2004:
OFFICE OF WATER:
Ms. Anu Mittal:
Director:
Natural Resources and Environment:
U.S. General Accounting Office:
Washington, D. C. 20548:
Dear Ms. Mittal:
Thank you for the opportunity to review and comment on the draft
General Accounting Office (GAO) report entitled "Waters and Wetlands:
Corps of Engineers Needs to Evaluate its District Office Practices in
Determining Jurisdiction." The draft report focuses on implementation
by the Corps of Engineers of the Clean Water Act (CWA) section 404
program and geographic jurisdiction issues after the U.S. Supreme Court
decision in Solid Waste Agency of Northern Cook County (SWANCC), which
held that the CWA does not authorize regulation of isolated,
intrastate, non-navigable waters based solely on the presence of
migratory birds. Environmental Protection Agency (EPA) appreciates the
information, analyses, and recommendations provided by the GAO, and
welcomes this opportunity to comment on the report and to provide the
broader CWA perspective for its discussion.
The CWA section 404 program is one of several established under the Act
to protect the Nation's aquatic resources, and requires permits for
discharges of dredged or fill material into "waters of the United
States." Although SWANCC involved a section 404 permitting action, the
decision has implications for other programs because the term "waters
of the United States" defines the jurisdictional scope of all CWA
programs. Additional programs include section 402 NPDES pollutant
discharge permits, section 401 state water quality certification,
section 303 water quality standards, and section 311 oil spill
prevention and cleanup. Interpretation and clarification of the scope
of "waters of the US" after SWANCC therefore requires consideration of
Congressional intent and impacts on all CWA programs, not just section
404. In addition, because many States administer CWA programs and often
rely on Federal definitions for jurisdiction, State regulatory agencies
are also affected by these issues. As the draft report notes, EPA has
final administrative authority for determining the scope of "waters of
the US" protected by CWA programs.
As part of efforts to address the SWANCC decision, EPA and the Corps
issued an Advance Notice of Proposed Rulemaking (ANPRM) on January 15,
2003, on the scope of "waters of the United States." We received
approximately 130,000 public comments, with over 99% of those comments
opposed to any changes to the regulations that would reduce aquatic
resource protection. An overwhelming majority of comments from States
expressed strong
opposition to rulemaking that could change the Federal-State-Tribal
partnership under the CWA that protects our Nation's aquatic resources.
Based in part on the public comments submitted in response to the
ANPRM, EPA and the Corps decided that a rulemaking is not necessary.
The agencies are continuing to monitor implementation of CWA programs
to ensure their effectiveness.
Also on January 15, 2003, EPA and the Corps issued joint legal guidance
to our field offices addressing the effects of SWANCC. The guidance
called for field staff to continue to assert CWA jurisdiction over
traditional navigable waters, their tributaries, and adjacent wetlands.
The guidance also indicated that, in light of SWANCC, the factors in
the "Migratory Bird Rule" were no longer an appropriate sole basis for
jurisdiction. Field staff were asked to obtain formal EPA and Corps
Headquarters approval before asserting jurisdiction based on links to
interstate commerce, as a means of helping ensure that jurisdictional
calls were consistent and predictable.
The draft GAO report emphasizes some of the challenges faced by Corps
Districts since the SWANCC decision. The draft GAO report notes that
conditions that could affect jurisdiction vary geographically and that
it is unclear if variation among Districts would result in different
jurisdictional determinations in similar situations. We note further
that all regulations, by their nature, set out a framework which is
then interpreted and applied to various factual circumstances. This is
particularly the case with regulations such as those defining "waters
of the US," which the CWA recognizes would be applied to a wide variety
of geographic and climactic situations. In our view, the current
regulations establish a framework that provides useful detail and
consistency for applying best professional judgment on a case-by-case
basis and avoids one-size-fits-all results.
The section 404 program is designed to help protect wetlands and other
aquatic resources, and maintain the environmental and economic benefits
provided by these valuable natural resources. Wetlands provide
important water quality functions, by trapping nutrients and sediments
that would otherwise enter streams and lakes. The severity and
frequency of flooding is lessened by wetlands, which are capable of
storing large volumes of snowmelt or runoff. Wetlands also provide
essential wildlife habitat; for example, over half of North American
waterfowl originate from the prairie pothole wetlands of the upper
Midwest. These functions are important not only to the environment, but
also the economy. For example, non-consumptive recreational uses and
fisheries value amount to billions of dollars every year.
The continental United States has lost over half its wetlands since
European settlement, with approximately 100 million wetland acres
remaining. Of those, some 20% may be wetlands that are less obviously
connected to the broader aquatic ecosystem. On December 16, 2003,
EPA and the Corps reiterated the Administration's commitment to the
goal of "no net loss" of wetlands in the United States. In determining
that a rulemaking is not necessary to achieve this goal, the decision
also recognizes that there are regulatory and incentive-based
approaches to continue to improve the programs that protect our
Nation's waters.
In closing, EPA appreciates the information provided in the draft
report, and agrees that a more complete survey of approaches to
geographic jurisdictional determinations would be helpful. As mentioned
earlier, EPA and the Corps are monitoring section 404 implementation,
and are working together to analyze whether and how any differences
among field offices should be addressed. In particular, we agree that
it is very important to document jurisdictional determinations and
ensure such information is publicly available. While EPA and the Corps
have determined that we will not pursue rulemaking, we are discussing
ways that we can further advance openness, predictability, and
consistency, grounded in good science. We are committed to evaluating
field-level practices, providing more information to the public, and
improving agency coordination.
Thank you again for the opportunity to comment on your draft report.
Sincerely,
Signed by:
Benjamin H. Grumbles:
Acting Assistant Administrator:
[End of section]
Appendix V: GAO Contacts and Staff Acknowledgments:
GAO Contacts:
Anu Mittal, (202) 512-3841 Chet Janik, (202) 512-6508:
Staff Acknowledgments:
In addition, Charles Barchok, Doreen Feldman, Glenn Fischer, Michael
Hartnett, Richard Johnson, Kate Kousser, Stephanie Luehr, Jonathan
McMurray, and Adam Shapiro made key contributions to this report.
(360323):
FOOTNOTES
[1] Under 33 C.F.R. § 328.3(a)(1)-(a)(7) "waters of the United States"
can include many types of waters, such as rivers, wetlands,
impoundments, the territorial seas, and waters used in interstate
commerce. For the full text of the regulation, please see appendix II.
[2] 531 U.S. 159 (2001).
[3] Section 404(e) of the Clean Water Act authorizes the Corps to
develop general permits on a geographic basis for categories of
activities having minimal adverse environmental impact. Section 404(f)
identifies activities exempt from the permitting requirement, including
certain ongoing farming activities. Section 404(g) authorizes states
(and tribes) to establish their own permit programs.
[4] 43 Op. Atty. Gen. 197 (1979).
[5] United States v. Riverside Bayview Homes, 474 U.S. 121 (1985)
(quoting a Corps preamble at 42 Fed. Reg. 37128 (1977)).
[6] The section 404 regulatory program relies upon a sequential
approach to mitigating these harmful effects by first avoiding
unnecessary impacts, then minimizing environmental harm, and, finally,
compensating for remaining unavoidable damage to wetlands and other
waters through, for example, the restoration or creation of wetlands.
[7] The preamble also addressed, (1) waters that "are or would be used
as habitat for endangered species" and (2) waters used to irrigate
crops sold in interstate commerce.
[8] SWANCC involved an abandoned sand and gravel pit, containing
several permanent and seasonal ponds at which migratory bird species
had been observed. In striking down the migratory bird rule, the
Supreme Court stated that Congress' use of the phrase "waters of the
United States" to define navigable waters did not constitute a "basis
for reading the term 'navigable waters' out of the statute" and that
"it is one thing to give a word limited effect and quite another to
give it no effect whatever." 531 U.S. at 172.
[9] Specifically, the regulation states that an ordinary high water
mark is "that line on the shore established by the fluctuations of
water and indicated by physical characteristics such as [a] clear
natural line impressed on the bank, shelving, changes in the character
of soil, destruction of terrestrial vegetation, the presence of litter
and debris, or other appropriate means that consider the
characteristics of the surrounding areas."
[10] 65 Fed. Reg. 12823 (2000).
[11] Specifically, districts were instructed to consult with agency
legal counsel before asserting jurisdiction over isolated, intrastate,
nonnavigable waters based upon 33 C.F.R. § 328.3(a)(3) (jurisdictional
waters include all waters the use, degradation, or destruction of which
could affect interstate commerce).
[12] Specifically, the ANPRM requested information, data, and comments
on six major topics: (1) whether the factors listed in 33 C.F.R. §
328.3 (a)(3) or any other factors are a basis for Clean Water Act
jurisdiction over isolated wetlands; (2) whether the regulations should
define "isolated waters," and if so, using what factors; (3) the
effectiveness of federal and state programs in protecting waters and
wetlands; (4) whether any other changes are needed to the
jurisdictional regulations; (5) the resource impacts of SWANCC on
isolated, intrastate, nonnavigable waters; and (6) the function and
values of wetlands and other waters that might be affected by the
issues discussed in the ANPRM.
[13] Jurisdiction over these waters is based upon 33 C.F.R. §
328.3(a)(1) (jurisdictional waters include all waters that are
currently used, were used in the past, or may be susceptible to use in
interstate commerce).
[14] Since January 2003, there have been eight cases in which districts
sought headquarters' approval to assert jurisdiction over isolated,
intrastate, nonnavigable waters, based upon 33 C.F.R. § 328.3(a)(3). In
six of these cases, Corps headquarters ultimately determined that the
water in question was navigable-in-fact. In one case, headquarters
determined the water in question was not jurisdictional; and, in
another, the district withdrew its request for headquarters' approval.
[15] We did not attempt to compare districts' practices before and
after the SWANCC decision.
[16] The 100-year floodplain is defined as "the lowland and relatively
flat area adjoining inland and coastal waters, including at a minimum,
that area subject to a 1 percent or greater chance of flooding in any
given year." The Federal Emergency Management Agency routinely maps the
100-year floodplain for large rivers and streams for purposes of flood
insurance and management.
[17] Galveston District does not consider the 100-year floodplain to
determine adjacency on the coastal barrier islands. Additionally, under
Galveston District's approach, if a wetland is separated from a water
of the United States by two or more natural or man-made barriers, the
wetland is considered isolated, even if the wetland lies in a 100-year
floodplain.
[18] According to the Corps, in arid and semi-arid regions, an
ephemeral stream may convey flow seasonally under normal and local
climatic conditions. During a drought, an ephemeral stream may not flow
at all. Even though the flow may be unpredictable in these regions, the
creek develops a signature and channel over time that exhibits physical
evidence supporting an ordinary high water mark. In some cases, these
channels originate from erosion features. As these erosion features
generally do not provide the same function that an ephemeral stream
system may provide, many districts do not demarcate erosion features as
waters of the United States. However, other districts do so on a case-
by-case basis.
[19] An arroyo is an ephemeral stream with a sand substrate, sometimes
within a larger eroded channel; a coulee is a small stream, dry
streambed, or small ravine; a wash is a steep sided depression from
which bottom sediments have been removed by water.
[20] Drain tiles are porous clay pipes buried below the surface to
provide drainage (see fig. 3).
[21] In the course of our work, we spoke with 8 of the 10 EPA regional
offices. We did not speak with officials of EPA Region 1 or Region 7.
[22] Typically, these firms were consulting firms that conduct initial
jurisdictional determinations for property owners and other entities
that might require a section 404 permit. Such firms have an ongoing
working relationship with the Corps and are generally in a good
position to know about the jurisdictional determination practices in
one or more Corps districts.
[23] Of the 16 Corps district offices included in our review, we
visited 11 and conducted telephone interviews with 5.
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