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. Since the SWANCC decision, the Corps and EPA  have provided limited additional guidance to the districts concerning  jurisdictional determinations. 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. 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. Some districts often use the 100-year floodplain to  determine if wetlands are adjacent to waters of the United States. 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. 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. 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. 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. 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. 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. Key contributors to this report are listed in appendix V.

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.
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.