But the National Association of Home Builders says Corps decisions are too expansive, resulting in builders having to "mitigate" the loss of wetlands before they can get a permit to go ahead with a project.
"We're talking about smaller, isolated areas. If the federal government had its way, everything would be regulated. This isn't the Chesapeake Bay or the Everglades or marshy areas along Puget Sound," said Duane Desiderio, staff vice president of legal affairs for the NAHB.
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"How could a ditch be considered isolated? It flows into something. Most ditches do," said Sibbing of the wildlife federation. "They really are streams and that's why they are important. Ditches are where streams used to be."
The U.S. Court of Appeals for the 4th Circuit agreed in a 2003 decision. It supported a Corps determination that a 12-acre parcel of land in Wicomico County, Md., should be protected because it drained into a roadside ditch, which follows a 32-mile path to the Chesapeake Bay.
Daniel Rosenberg, senior attorney for the Natural Resources Defense Council, said industry uses ditches as its "poster child" to lobby for less protection because "their interest is to fill in land to build homes, malls and sprawling developments."
The NAHB says the Corps shouldn't rely on what it calls "hydrological connection/trace-the-drop-of-water theory," which allows ditches miles from a large body of water to be covered by the act.
In January 2003, it looked as if the Bush administration would clear up the confusion with a rulemaking that would define "isolated" for regulatory purposes. But it ended the proceeding the following December, and EPA and the Corps instead issued a memorandum. It told field personnel that they should "seek formal project-specific headquarters approval prior to asserting jurisdiction over waters" that are isolated and non-navigable.
Groups interested in preserving the scope of the Clean Water Act said the guidance went beyond the Supreme Court decision. They estimated that as much as 30 percent of the nation's wetlands could be considered isolated under the agencies' interpretation -- especially since no approval from headquarters was necessary when the decision is to not protect an area.
"They gave the Corps field staff carte blanche to determine what is isolated. There is no public notice," Rosenberg said.
In January 2004, the Government Accountability Office weighed in, saying that Corps districts differ in how they make judgments and some do not make their practices public. It identified decisions regarding ditches, tributaries and adjacent wetlands as the most variable.
Sudol said the Corps is surveying districts on their decision-making practices. He said the results are due April 15 and "will tell us where there are problem areas and if we need [to issue] guidance in specific areas."
What this does not portend is a rulemaking.
Instead, Sudol said the Corps has "come to a compromise that provides environmentally reasonable development and protects aquatic resources."
