Waters and Wetlands
Corps of Engineers Needs to Ensure That Permit Decisions Made Using Funds from Nonfederal Public Entities Are Transparent and Impartial Gao ID: GAO-07-478 May 16, 2007When a nonfederal public entity such as a city or county wants to build a public works project that could degrade or damage federally regulated waters and wetlands, it must obtain a permit from the U.S. Army Corps of Engineers (Corps) before proceeding. To help expedite the permit process for these entities, the Congress enacted section 214 of the Water Resources and Development Act of 2000, providing the Corps with temporary authority to receive funds from such entities and use the funds to process permits. To ensure the impartiality and transparency of section 214 permit decisions, the Corps requires its districts to adhere to all existing permit review processes, as well as some additional requirements. GAO was asked to identify (1) how many districts have used the section 214 authority, (2) the amount of funds they have received, (3) how permit processing times have changed, (4) the extent to which districts have adhered to the existing review processes and the additional requirements.
As of August 2006, 4 of the Corps' 38 districts had agreements with 11 nonfederal public entities to receive section 214 funds, which have been used to evaluate permit applications. These districts received, evaluated, and approved 187 applications using section 214 funds. The types of projects for which permits were requested included ecological restoration, water storage, transportation, and port construction. Most of the section 214 applicants were city or county departments, port authorities, or regional water authorities, but two applicants were private companies that were allowed to submit applications under section 214 agreements with the Corps. The legislation does not expressly prohibit private companies from submitting applications under section 214 agreements. The use of the section 214 authority may become more prevalent in the future because 7 additional districts are in the process of entering into such agreements, and 19 other districts told GAO that they would consider using the authority if the Congress makes it permanent. The Corps received more than $2 million in section 214 funds from nonfederal public entities between December 2001 and September 2006 and used these funds primarily to hire additional project managers to process permits. About 61 percent of the funds were used to cover personnel costs for the project managers who processed section 214 permits; the remainder covered overhead and other costs incurred to implement the authority. Since the Corps began using the section 214 authority, permit processing times have increased in some districts and decreased in others for both section 214 applicants and non-section 214 applicants. However, it is difficult to attribute the changes in processing time directly to the use of the section 214 authority because many other factors may have influenced processing times and may have masked the effects of the authority. For example, the complexity of 214 permit applications may have resulted in greater processing time for these applicants. Generally, Corps officials and nonfederal public entities who used the authority believe that it has expedited permit processing, saved them cost and time, and improved communication between the Corps and the section 214 applicants. The four districts varied in the extent to which they adhered to the existing permit review process and the additional requirements to ensure impartiality of section 214 permit decisions. For example, one district did not follow a key step in reviewing certain types of section 214 permits because officials did not know they were required to do so. In two other districts, lack of documentation in the permit files prevented GAO from determining whether they followed the existing review processes for another type of permit. With regard to the additional requirements imposed by the Corps for section 214 permits, some districts did not comply with these requirements because they were not aware of them, and others did not comply with them because they interpreted the requirements differently than Corps headquarters intended.
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-07-478, Waters and Wetlands: Corps of Engineers Needs to Ensure That Permit Decisions Made Using Funds from Nonfederal Public Entities Are Transparent and Impartial
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Report to the Chairman, Committee on Transportation and Infrastructure,
House of Representatives:
United States Government Accountability Office:
GAO:
May 2007:
Waters and Wetlands:
Corps of Engineers Needs to Ensure That Permit Decisions Made Using
Funds from Nonfederal Public Entities Are Transparent and Impartial:
GAO-07-478:
GAO Highlights:
Highlights of GAO-07-478, a report to the Chairman, Committee on
Transportation and Infrastructure, House of Representatives
Why GAO Did This Study:
When a nonfederal public entity such as a city or county wants to build
a public works project that could degrade or damage federally regulated
waters and wetlands, it must obtain a permit from the U.S. Army Corps
of Engineers (Corps) before proceeding. To help expedite the permit
process for these entities, the Congress enacted section 214 of the
Water Resources and Development Act of 2000, providing the Corps with
temporary authority to receive funds from such entities and use the
funds to process permits. To ensure the impartiality and transparency
of section 214 permit decisions, the Corps requires its districts to
adhere to all existing permit review processes, as well as some
additional requirements.
GAO was asked to identify (1) how many districts have used the section
214 authority, (2) the amount of funds they have received, (3) how
permit processing times have changed, (4) the extent to which districts
have adhered to the existing review processes and the additional
requirements.
What GAO Found:
As of August 2006, 4 of the Corps‘ 38 districts had agreements with 11
nonfederal public entities to receive section 214 funds, which have
been used to evaluate permit applications. These districts received,
evaluated, and approved 187 applications using section 214 funds. The
types of projects for which permits were requested included ecological
restoration, water storage, transportation, and port construction. Most
of the section 214 applicants were city or county departments, port
authorities, or regional water authorities, but two applicants were
private companies that were allowed to submit applications under
section 214 agreements with the Corps. The legislation does not
expressly prohibit private companies from submitting applications under
section 214 agreements. The use of the section 214 authority may become
more prevalent in the future because 7 additional districts are in the
process of entering into such agreements, and 19 other districts told
GAO that they would consider using the authority if the Congress makes
it permanent.
The Corps received more than $2 million in section 214 funds from
nonfederal public entities between December 2001 and September 2006 and
used these funds primarily to hire additional project managers to
process permits. About 61 percent of the funds were used to cover
personnel costs for the project managers who processed section 214
permits; the remainder covered overhead and other costs incurred to
implement the authority.
Since the Corps began using the section 214 authority, permit
processing times have increased in some districts and decreased in
others for both section 214 applicants and non-section 214 applicants.
However, it is difficult to attribute the changes in processing time
directly to the use of the section 214 authority because many other
factors may have influenced processing times and may have masked the
effects of the authority. For example, the complexity of 214 permit
applications may have resulted in greater processing time for these
applicants. Generally, Corps officials and nonfederal public entities
who used the authority believe that it has expedited permit processing,
saved them cost and time, and improved communication between the Corps
and the section 214 applicants.
The four districts varied in the extent to which they adhered to the
existing permit review process and the additional requirements to
ensure impartiality of section 214 permit decisions. For example, one
district did not follow a key step in reviewing certain types of
section 214 permits because officials did not know they were required
to do so. In two other districts, lack of documentation in the permit
files prevented GAO from determining whether they followed the existing
review processes for another type of permit. With regard to the
additional requirements imposed by the Corps for section 214 permits,
some districts did not comply with these requirements because they were
not aware of them, and others did not comply with them because they
interpreted the requirements differently than Corps headquarters
intended.
What GAO Recommends:
GAO recommends that the Corps improve its guidance and oversight of
districts‘ use of the section 214 authority. The agency generally
concurred with our recommendations.
[Hyperlink, http://www.gao.gov/cgi-bin/getrpt?GAO-07-478].
To view the full product, including the scope and methodology, click on
the link above. For more information, contact Anu K. Mittal at (202)
512-3841 or mittala@gao.gov.
[End of section]
Contents:
Letter:
Results in Brief:
Background:
Four Corps Districts Have Evaluated Projects Using Section 214 Funds,
and Use of This Authority is Likely to Expand in the Future:
Corps Districts Received More Than $2 Million in Section 214 Funds That
Were Used to Primarily Cover Personnel-Related Costs:
Changes in Permit Processing Times Have Varied Since the Districts
Started Using Section 214 Funds, but Officials Agree That the Authority
Provides Many Benefits:
When Using Section 214 Funds, the Districts Generally Followed the
Permit Review Process for Standard Permits, but It Is Unclear Whether
They Did So for Nationwide Permits:
The Districts Varied in Their Compliance with the Corps' Additional
Requirements for Ensuring Impartiality of Decisions Made Using Section
214 Funds:
Conclusions:
Recommendations for Executive Action:
Agency Comments and Our Evaluation:
Appendix I: Objectives, Scope, and Methodology:
Appendix II: Results of GAO's Review of Corps Permit Files for
Districts That Used Section 214 Authority Between 2001 and 2006:
Appendix III: Comments from the Department of Defense:
Appendix IV: GAO Contact and Staff Acknowledgments:
Tables:
Table 1: District Agreements with Nonfederal Public Entities to Receive
Section 214 Funds and the Date of the Agreements:
Table 2: Permit Applications Approved Using Section 214 Funds, by Type
of Permit and by District, as of August 2006:
Table 3: Types of Projects Approved by the Four Corps Districts That
Processed Permit Applications with Section 214 Funds, as of August
2006:
Table 4: Examples of Projects Evaluated and Approved by Four Corps
Districts Using Section 214 Funds:
Table 5: Total Section 214 Funds Provided by the 13 Nonfederal Public
Entities to Four Corps Districts from December 2001 through September
2006:
Table 6: Number of Additional Project Managers Hired Using Section 214
Funds and the Full-time Equivalent Staff Used by the Corps Districts to
Process Permits Using Section 214 Funds, Fiscal Year 2001 through
Fiscal Year 2006:
Table 7: Extent to Which Four Corps Districts Adhered to the Additional
Requirements for Processing Section 214 Permits:
Table 8: Permit Files Reviewed by GAO at the Four Corps Districts That
Used Section 214 Funds to Evaluate Permit Applications Between December
2001 and August 2006:
Table 9: Number of Permit Files GAO Reviewed for Evidence of Adherence
to the Corps' Existing Permit Review Processes and the Two Additional
Requirements for Permit Applications Evaluated Using Section 214 Funds:
Table 10: Information GAO Extracted from Section 214 Permit Files:
Table 11: Results of GAO's Review of the Districts' Adherence to Six
Key Steps in the Permit Review Process When Using Section 214 Funds to
Evaluate Standard Permit Applications:
Table 12: Results of GAO's Review of the Districts' Adherence to Two
Key Steps in the Permit Review Process when Using Section 214 Funds to
Evaluate Nationwide Permit Applications:
Figures:
Figure 1: Section 214 Funds Received by the Four Corps Districts from
December 2001 through September 2006:
Figure 2: Median Processing Times for Nationwide Permits Before and
After Three Districts Began Using the Section 214 Authority:
Abbreviations:
CEFMS: Corps of Engineers Financial Management System:
DCI: data collection instrument:
FWS: Fish and Wildlife Service:
NMFS: National Marine Fisheries Service:
United States Government Accountability Office:
Washington, DC 20548:
May 16, 2007:
The Honorable James L. Oberstar:
Chairman:
Committee on Transportation and Infrastructure:
House of Representatives:
Dear Mr. Chairman:
When cities, counties, or other nonfederal public entities propose
public works projects, such as road construction and sewer line
construction or maintenance, that could degrade or damage federally
regulated waters and wetlands, they must obtain a permit from the U.S.
Army Corps of Engineers (Corps) before proceeding. The Corps is
responsible for regulating activities that may impact wetlands,
streams, and other waters throughout much of the United States and
decides whether to allow such activities to occur. To obtain the Corps'
approval, the nonfederal public entity, like any other property owner,
must submit a permit application that contains a description of the
proposed project, including its purpose and location, and other
information the Corps needs to evaluate how the project will impact
wetlands and other federally regulated waters. Once the Corps receives
all of the required information from the applicant, the permit review
process begins. This process varies depending on the complexity of the
proposed project, the extent of the resources likely to be impacted,
and the type of permit required.
Some policymakers and others have expressed concerns that the Corps'
permit process takes too long and has significantly delayed some public
works projects. In 2000, the Congress included a provision in the Water
Resources and Development Act to expedite permit processing for
nonfederal public entities. Specifically, section 214 of the act
authorizes the Secretary of the Army, after providing public notice, to
accept and expend funds from nonfederal public entities to expedite the
evaluation of permit applications that fall under the jurisdiction of
the Department of the Army. The act also requires the Secretary to
ensure that the funds accepted will not impact impartial decision
making with respect to permit approvals. Originally set to expire at
the end of fiscal year 2003, this temporary authority has been extended
four times and is currently set to expire in December 2008. The
Secretary of the Army has delegated this authority to the Corps and, in
turn, the Corps has delegated day-to-day responsibility for
implementing the section 214 authority to its 38 districts that have
responsibility for processing permit applications.
To accept funds under the section 214 authority, a Corps district
typically enters into a legal agreement with a nonfederal public entity
that specifies the duration of the arrangement, the amount of funds to
be received, and how the funds are to be used. Although the agreements
are generally between the Corps and one nonfederal public entity, such
as a city or county, various departments within an entity may submit
permit applications for expedited review under the agreement.
To ensure the transparency and impartiality of permit decisions when
using section 214 funds, Corps districts must not only follow the same
basic permit processing procedures applicable to all applicants but
also meet two additional requirements. The basic permit processing
procedures that all districts must adhere to depends upon the type of
permit that is being considered for a project. For example, for those
projects that are likely to have only minimal impacts on water and
wetland resources, the Corps generally grants approvals under its
"nationwide" category of permits. Applications for these types of
projects generally only undergo a limited review process, which
includes two key steps. In contrast, some projects could have
substantial impacts on water and wetland resources, and for these
projects the Corps generally issues what is known as a "standard"
permit. The review process for standard permits is more extensive and
includes six key steps. In addition to these basic review processes,
permit decisions that are made using section 214 funds must also (1)
undergo a "higher level" review--in other words, a Corps official
senior to the decision maker must review the decision and (2) be posted
on the district's Web site.
In this context, you asked us to review the (1) extent to which Corps
districts have entered into agreements with nonfederal public entities
to receive section 214 funds since 2001 and how many permit
applications the Corps has evaluated using these funds, (2) amount of
section 214 funds the Corps has received and how it has used these
funds, (3) extent to which permit processing times have changed since
the Corps began using section 214 funds, (4) extent to which the Corps
districts have followed the basic permit review processes when
evaluating applications using section 214 funds, and (5) extent to
which the districts have met the additional requirements for ensuring
that permit decisions made using the section 214 funds are impartial
and transparent.
We contacted each of the 38 Corps districts that have responsibilities
for issuing permits to identify those districts that had entered into
agreements with nonfederal public entities and used section 214 funds
to process permit applications. We also surveyed districts that had not
used the section 214 authority to determine their reasons for not doing
so, and their plans, if any, to use the authority in the future. We
also visited each of the districts that had entered into section 214
agreements and processed permit applications with these funds to obtain
and review financial and processing time data. We found the financial
data related to the use of the section 214 authority to be sufficiently
reliable for our purposes, and while the processing time data were
generally reliable, it was not reliable for one district that had
recently participated in a pilot program for a new permit database. We
also reviewed permit files to determine the number and types of
projects the districts had evaluated with section 214 funds between
2001 and the time of our review. To determine the extent to which Corps
districts followed the basic review process when approving projects
using section 214 funds, we first identified key steps for processing
permits, in general. These steps were identified by the Corps as being
important "safeguards" for ensuring objectivity in its permit decisions
and must be completed before a permit is issued. In each district, we
reviewed permit files to determine whether they contained evidence that
the Corps followed each of these steps. We also reviewed the files for
evidence that the Corps met the two additional requirements it had
established to ensure that decisions for permits processed with section
214 funds are made impartially and were transparent. A more detailed
description of our objectives, scope, and methodology is presented in
appendix I. We performed our work between April 2006 and April 2007 in
accordance with generally accepted auditing standards.
Results in Brief:
Four Corps districts had entered into agreements with 11 nonfederal
public entities to receive section 214 funds and had evaluated permit
applications using these funds, as of August 2006 when we conducted our
file reviews. These districts--Jacksonville, Fla; Los Angeles and
Sacramento, Calif; and Seattle, Wash.--had received, evaluated, and
approved 187 permit applications using section 214 funds. The types of
projects for which applicants sought permits using section 214 funds
varied. For example, nearly half of the projects in Seattle were for
ecological restoration and pier and port repair, while the projects in
Los Angeles were mainly for maintaining sewer lines. Almost all of the
section 214 permit applicants were city or county departments, port
authorities, or regional water authorities. However, two applicants in
the Sacramento District were private companies that were allowed to
submit permit applications for expedited review under nonfederal public
entities' section 214 agreements with the Corps. The legislation does
not expressly prohibit private companies from submitting permit
applications under a nonfederal public entity's section 214 agreement
with the Corps. We also determined that the use of the section 214
authority may become more prevalent in the future. Of the 34 Corps
districts with regulatory responsibilities that had not yet used the
section 214 authority, officials from 7 told us they had begun
negotiations to enter into such agreements or had entered into such
agreements, but had not yet processed any permit applications under
this authority, at the time of our review. Moreover, officials from an
additional 19 districts told us that they would consider using the
authority if it were made permanent.
The Corps received more than $2 million in section 214 funds between
December 2001 and September 2006 and used these funds primarily to hire
additional project managers to process permits. Specifically, about 61
percent of the funds were used to cover personnel costs associated with
the project managers who were designated to process section 214 permit
applications; about 37 percent of the funds were used to cover overhead
costs such as the cost of office space, utilities, and administrative
support directly attributable to implementing the section 214
authority; and about 1 percent of the funds were used to cover other
costs such as equipment, transportation, and the cost of site visits,
as well as legal advice related to the processing of section 214
permits.
Since the Corps began using section 214 funds, permit processing times
have increased in some districts and decreased in others for both
section 214 applicants and non-section 214 applicants. A goal of using
the section 214 authority was to expedite permit processing for section
214 applicants; however, we found that the processing times for these
applicants have not consistently decreased in all four districts. For
example, although the median processing times for some permits
processed with section 214 funds decreased by 37 percent in the
Sacramento District they increased by 21 percent in the Seattle
District. Another goal of using the section 214 authority was to ensure
that the use of the authority did not result in processing delays for
non-section 214 applicants. However, we found that processing times for
these applicants have not consistently remained the same since section
214 funds have been available. For example, while the median processing
time for permits processed without section 214 funds remained constant
in the Los Angeles District, it increased by 29 percent in the
Sacramento District. However, it is difficult to attribute the changes
in processing time directly to the section 214 authority because many
other factors may have influenced processing times and may have masked
the effects of the authority. For example, Seattle officials told us
that section 214 applications are considerably more complex than
applications submitted by other permit applicants, and the extra time
needed to process these applications has contributed to the overall
processing time increases. Generally, Corps officials and nonfederal
public entities in each of the four districts told us that they believe
the authority has expedited permit processing and has had other
benefits as well. For example, they said that because permit applicants
communicate earlier and more frequently with the Corps during the
permit review process, applicants are able to avoid submitting project
designs that might otherwise have required costly revisions in order to
obtain Corps approval.
One Corps district did not follow all the required steps of the basic
project review process for standard permits, and it is unclear whether
two districts followed the review process for nationwide permits
because of lack of documentation in the permit files. Specifically, we
determined that three districts used section 214 funds to review
projects that were seeking a standard permit. Two of the three
districts--Jacksonville and Seattle--followed the established permit
review process for standard permits. One district--Sacramento--
followed most of the steps in the established standard review process
but did not complete one key step, which requires officials to balance
the project's benefits against the project's detriments and ensure that
the project is not contrary to the public interest. In addition, we
found that all four districts used section 214 funds to approve
projects with nationwide permits. Two districts--Jacksonville and
Seattle--generally followed the established permit review process for
approving projects with nationwide permits, but we could not make a
similar determination for the Los Angeles and Sacramento districts
because their permit files contained limited documentation supporting
their permit decisions. Corps headquarters has recently recognized that
maintaining consistent documentation of the districts' permit decisions
would help ensure that the decisions are transparent and legally
defensible and has begun to develop Corps-wide standards to address
this issue. We are recommending that the Corps clearly identify the
steps district officials must complete when approving projects under a
standard permit and clarify the information that needs to be documented
to justify and support permit approval decisions for nationwide permits
in the standards that are currently under development. In commenting on
a draft of this report, the agency generally concurred with our
recommendation.
The four districts varied in the extent to which they met the two
additional requirements for ensuring that permit decisions made using
section 214 funds are impartial and transparent. With regard to the
Corps requirement that permit decisions made using section 214 funds
are to receive a higher level review, we found that the Sacramento and
Seattle districts more frequently met this requirement for standard and
nationwide permit decisions, 87 and 65 percent, respectively, than did
the Jacksonville and Los Angeles districts, who met the requirement
only 8 and 9 percent, respectively. With regard to the second
requirement to post final decisions to the district's Web site, both
the Sacramento and Seattle districts generally posted the permit
decisions made using section 214 funds to their district's Web site,
but the Jacksonville and Los Angeles districts did not. According to
district officials, variations in their compliance with the additional
section 214-related requirements were caused by the lack of specificity
in the Corps guidance, causing some districts to believe that the
requirements did not apply to projects that were approved with
nationwide permits. In other cases, some project managers told us that
they were simply unaware of one or both of the requirements. To monitor
the districts' implementation of the section 214 authority, the Corps'
guidance requires that annual reports be submitted to headquarters on
their implementation processes. However, no reports have been submitted
since the districts began using the section 214 authority in 2001. We
believe if these reports had been filed Corps headquarters may have
become aware that some districts were not meeting the additional
section 214 requirements and could have taken corrective actions needed
to resolve these omissions. We are recommending that the Corps clarify
which additional requirements districts must adhere to when evaluating
projects with the section 214 authority, provide training to ensure
that district officials are aware of the additional requirements, and
develop an effective oversight approach to ensure that the districts
are following required procedures when evaluating projects under the
authority. In commenting on draft of this report, the agency generally
concurred with our recommendation.
Background:
Section 404 of the Clean Water Act is the principal federal program
that provides regulatory protections for wetlands, which include bogs,
swamps, and marshes. It generally prohibits the discharge of dredged or
fill material into waters of the United States, which include certain
wetlands, without a permit from the Corps. In addition, under the
Rivers and Harbors Act of 1899, the construction, excavation, or
deposition of materials in, over, or under any navigable water of the
United States, or any work which would affect the course, location,
condition, or capacity of those waters is prohibited without a permit
from the Corps. The Corps receives thousands of permit applications
each year from individuals, businesses, and public agencies seeking to
build houses, golf courses, and infrastructure projects, or to perform
other activities that could destroy or degrade wetlands, streams, and
rivers. The Corps' decisions to allow particular activities to occur--
and if so, under what conditions--are to reflect the national concern
for both the use and protection of these important water resources. The
Corps must balance the impacts that proposed projects may have on many
factors, from wetlands and wildlife to recreation and the economy, and
authorize projects only if it finds the projects are in the public
interest.
The Corps' regulatory program is highly decentralized. Most of the
authority to issue permits has been delegated from the Secretary of the
Army to the Chief of Engineers who, in turn, has delegated the
authority to 38 Corps districts. Regulatory program management and
administration is focused at the district office level, with policy
oversight at higher levels--including the Corps' 8 division offices and
headquarters.
To obtain a permit, project proponents, who may be the property owner
or the owner's authorized agent, such as a consultant, must submit an
application to the Corps. The application details the proposed project,
its purpose, location, and likely impacts to the aquatic environment.
The Corps reviews the application to ensure it contains the minimum
required information. The amount and type of information the Corps
requests from the applicant may vary by the type of applicant and
project, as well as the extent and functional values of the water
resources that may be impacted. If the information submitted does not
sufficiently identify the location or nature of the project, the Corps
will request additional information.
Once the permit application is complete, the permit review process
begins. This process is governed by federal regulations and guidance
documents from Corps headquarters. The regulations set the overall
review framework by describing the factors the districts must consider
when deciding whether to issue a permit and the general evaluation
procedures.[Footnote 1] The guidance documents, including the Corps'
"Standard Operating Procedures" and "Regulatory Guidance Letters,"
describe in more detail the steps the districts must follow to
implement the regulations, including documentation that should be
maintained in the administrative record to support the permit
decisions. The regulations allow the districts to issue different types
of permits--including nationwide permits, letters of permission, and
standard permits--depending on the scope and likely impacts of the
proposed projects. The specific steps the districts must follow to
review a permit application depend on the type of permit the Corps uses
to approve the proposed project.
The Corps approves most projects using nationwide permits. These
permits authorize classes of activities throughout the nation such as
minor dredging, road crossings, and bank stabilization that the Corps
has determined are likely to have minimal impacts to water and wetland
resources. The Corps has developed nationwide permits for 49 different
classes of activities. Each permit contains specific terms and
conditions that a proposed project must meet to ensure its impacts will
be minimal. The purpose of nationwide permits is to allow certain
activities to be performed in an expeditious manner with limited, if
any, delay or paperwork. Most prospective permittees may proceed with
their activity without ever contacting the Corps; they simply review
the terms of the different nationwide permits and self-certify that
their activity falls within the restrictions of one or more of the
permits. However, for some nationwide permits, a prospective permittee
must notify the Corps if the impacts of their proposed activity exceed
a certain threshold, for example filling in more than 1/10 acre of
wetlands or other federally regulated waters. The Corps then reviews
the project outlined in the permit application to determine whether it
meets the terms and conditions of one or more of the classes of
activities authorized by nationwide permits. If it does, the Corps
notifies the applicant that the project is approved under certain
nationwide permit(s). The Corps can combine two or more different
nationwide permits to approve a single project. The Corps can also
approve projects using regional general permits--which are similar to
nationwide permits, but cover smaller geographic areas, such as a
single state. In fiscal year 2006, the Corps issued about 67,000
nationwide and regional permit authorizations.
For projects likely to have more substantial impacts on waters and
wetlands, the Corps can issue standard permits. Given the potentially
larger impacts of these projects, federal regulations and related
guidance require a more extensive review for these permits.
Specifically, the Corps must evaluate the proposed activity's impact on
a wide range of factors, from wetlands and fish habitat to public
safety and energy needs. If the proposed project will adversely impact
one or more of these factors, the Corps can place conditions on the
issued permit, such as limiting work during particular times of the
year to reduce impacts on wildlife or requiring the applicant to
undertake mitigation activities to compensate for wetlands they damage
or degrade. The Corps may issue a permit only if it concludes, after
carefully weighing the project's costs and benefits, that the project
is not contrary to the public interest. As part of this public interest
review, the Corps must notify the public of the proposed project,
request comments, and incorporate any comments they receive into their
review of the overall public value of the project. In addition, the
Corps must determine that the proposed project will (1) not adversely
impact endangered or threatened species, (2) not discharge pollutants
into federally regulated waters that violate state water quality
standards, and (3) comply with guidelines developed by the
Environmental Protection Agency to protect wetlands and other federally
regulated waters.[Footnote 2] In making these determinations, the Corps
often coordinates with other federal and state agencies, such as the
U.S. Fish and Wildlife Service. In fiscal year 2006, the Corps issued
about 4,000 standard permits.
The Corps may use letters of permission in lieu of a standard permit
when it determines that the proposed work would be minor, not have
significant individual or cumulative impacts on the environment, and is
not expected to be controversial. In these situations, an abbreviated
standard permit review process, involving coordination with other
federal and state regulatory agencies and adjacent property owners--but
not the general public--is used to expedite the permit's approval.
Some concerns have been expressed that the Corps' permitting process
takes too long and has significantly delayed public works projects,
such as constructing and repairing ports. For example, the Pacific
Northwest Waterways Association, which represents ports and businesses,
believes that delays in permit processing in the Northwest have put
U.S. ports at a competitive disadvantage to ports in Canada, where they
argue permit requirements are not as strict. In 2000, the Congress
included a provision in the Water Resources and Development Act to
expedite permit processing for nonfederal public agencies.
Specifically, section 214 of the act authorizes the Secretary of the
Army, after public notice, to accept and expend funds contributed by
nonfederal public entities, such as cities and port authorities, to
expedite the evaluation of permit applications under the jurisdiction
of the Department of the Army. The act also requires the Secretary to
ensure that the funds accepted will not impact impartial decision
making with respect to permits. Originally set to expire at the end of
fiscal year 2003, this authority has been extended four times and is
currently set to expire in December 2008. The authority to accept
section 214 funds has been delegated to the Corps' 38 districts that
have regulatory responsibilities.
In 2001, and again in 2004, Corps headquarters issued guidance that
described the procedures that Corps districts must follow to accept and
use section 214 funds. Specifically, the guidance directs any district
accepting such funds to:
* issue for public comment notices announcing the Corps' intent to
accept funds from a nonfederal public entity that include the reasons
for accepting the funds and what activities the funds will be expended
on,
* after review of comments, notify the public of the District
Commander's decision to accept these funds, and:
* establish separate accounts to track the acceptance and expenditure
of these funds.
The guidance also calls for strict upward reporting to ensure that the
section 214 funds will be used for their intended purpose.
Specifically, the Corps' divisions are to submit annual reports to
headquarters that (1) document the acceptance and expenditure of funds,
along with any public notices, (2) assess how the use of the funds
expedited the permit review process, and (3) highlight any issues
regarding impartial decision making.
The guidance also specifies two steps that Corps districts must take to
ensure that the permit decisions they make using section 214 funds are
impartial and transparent. In addition to following the permit review
process described above, the districts must (1) ensure that a Corps
official senior to the decision maker reviews the final permit decision
before issuing the permit and (2) post permit decisions to the
district's Web site. Finally, the guidance requires that section 214
funds be expended only to expedite the final permit decision; funds
cannot be expended on the higher level review.
Four Corps Districts Have Evaluated Projects Using Section 214 Funds,
and Use of This Authority is Likely to Expand in the Future:
Four of the 38 Corps districts that have regulatory responsibilities
had entered into agreements with 11 nonfederal public entities to
receive section 214 funds and had evaluated 187 projects using these
funds as of August 2006. Almost all of the section 214 applicants were
city or county departments, port authorities, or regional water
authorities. However, two applicants were private companies that were
allowed to submit permit applications for expedited review under a
nonfederal public entity's agreement with the Corps. In addition, of
the 34 Corps districts with regulatory responsibilities that had not
used section 214 authority to evaluate permit applications, 7 had
entered into agreements, or had begun negotiations to enter into such
agreements, with nonfederal public entities at the time of our review.
An additional 19 districts told us that they would consider using the
authority if it were made permanent.
Four Districts Have Evaluated Permit Applications Using Section 214
Funds:
Since 2000 when Congress gave the Corps the authority to accept funds
from nonfederal public entities, four Corps districts--Jacksonville,
Fla; Los Angeles and Sacramento, Calif; and Seattle, Wash.--have
entered into agreements with 11 nonfederal public entities and
processed permit applications using funds received from these entities.
These agreements generally specify the duration of the agreement, the
amount of funds to be received, and how the funds are to be used.
Although the agreements are generally between the Corps and one entity,
such as a city or county, various departments within that entity may
submit permit applications for expedited review under the agreements.
The Seattle District was the first to enter into an agreement with a
nonfederal public entity and has entered into more agreements than the
other three districts. Table 1 shows the nonfederal public entities
with whom the four districts have agreements and the effective dates of
the agreements.
Table 1: District Agreements with Nonfederal Public Entities to Receive
Section 214 Funds and the Date of the Agreements:
District: Jacksonville;
Nonfederal public entity: South Florida Water Management District;
Date of agreement: August 2005.
District: Los Angeles;
Nonfederal public entity: City of San Diego;
Date of agreement: September 2004.
District: Sacramento;
Nonfederal public entity: City of Elk Grove;
Date of agreement: October 2004.
District: Sacramento;
Nonfederal public entity: City of Redding;
Date of agreement: October 2004.
District: Sacramento;
Nonfederal public entity: City of Lathrop;
Date of agreement: November 2004.
District: Sacramento;
Nonfederal public entity: Sacramento County;
Date of agreement: November 2004.
District: Seattle;
Nonfederal public entity: City of Seattle;
Date of agreement: December 2001.
District: Seattle;
Nonfederal public entity: Port of Seattle;
Date of agreement: February 2002.
District: Seattle;
Nonfederal public entity: Port of Tacoma;
Date of agreement: February 2002.
District: Seattle;
Nonfederal public entity: King County;
Date of agreement: October 2002[ A].
District: Seattle;
Nonfederal public entity: Snohomish County;
Date of agreement: April 2003[A].
Source: GAO generated from Corps data.
[A] This agreement expired on September 30, 2005, and was not renewed.
[End of table]
Using the funds received under the section 214 authority, the four
districts evaluated and approved 187 permit applications, as of August
2006. As table 2 shows, 82 percent of these applications were for
projects seeking approval under a nationwide permit. The districts
approved the remaining applications with standard permits, regional
permits, or letters of permission. The districts did not deny any
permit applications processed using section 214 funds. According to
district officials, the Corps rarely denies any permit applications,
regardless of the source of funding used to evaluate the applications.
Instead, the Corps frequently requires applicants to redesign their
projects to reduce impacts to the aquatic environment before receiving
permit approvals.
Table 2: Permit Applications Approved Using Section 214 Funds, by Type
of Permit and by District, as of August 2006:
(Continued From Previous Page)
District: Jacksonville;
Number of applications approved using section 214 funds: Nationwide
permits: 10;
Number of applications approved using section 214 funds: Standard
permits: 2;
Number of applications approved using section 214 funds: Letters of
permission and regional permits: 0;
Total: 12.
District: Los Angeles;
Number of applications approved using section 214 funds: Nationwide
permits: 11;
Number of applications approved using section 214 funds: Standard
permits: 0;
Number of applications approved using section 214 funds: Letters of
permission and regional permits: 3;
Total: 14.
District: Sacramento;
Number of applications approved using section 214 funds: Nationwide
permits: 29;
Number of applications approved using section 214 funds: Standard
permits: 2;
Number of applications approved using section 214 funds: Letters of
permission and regional permits: 0;
Total: 31.
District: Seattle;
Number of applications approved using section 214 funds: Nationwide
permits: 103;
Number of applications approved using section 214 funds: Standard
permits: 23;
Number of applications approved using section 214 funds: Letters of
permission and regional permits: 4;
Total: 130.
District: Total;
Number of applications approved using section 214 funds: Nationwide
permits: 153 (82%);
Number of applications approved using section 214 funds: Standard
permits: 27 (14%);
Number of applications approved using section 214 funds: Letters of
permission and regional permits: 7 (4%);
Total: 187 (100%).
Source: GAO analysis of Corps data.
[End of table]
The types of projects for which permits were sought under the section
214 authority varied by Corps district. For example, nearly half the
projects evaluated and approved by the Seattle District were for
ecological restoration and pier and port repair, while the projects
evaluated and approved by the Los Angeles District were mainly for
maintaining sewer lines. Table 3 shows the number of projects that fell
into each category, and table 4 provides examples of the different
types of projects evaluated by the Corps districts using section 214
funds.
Table 3: Types of Projects Approved by the Four Corps Districts That
Processed Permit Applications with Section 214 Funds, as of August
2006:
Type of project: Bank stabilization;
Jacksonville: 0;
Los Angeles: 0;
Sacramento: 0;
Seattle: 14;
Total: 14.
Type of project: Dredging;
Jacksonville: 0;
Los Angeles: 0;
Sacramento: 0;
Seattle: 4;
Total: 4.
Type of project: Pier repair;
Jacksonville: 0;
Los Angeles: 0;
Sacramento: 0;
Seattle: 22;
Total: 22.
Type of project: Port construction;
Jacksonville: 0;
Los Angeles: 0;
Sacramento: 0;
Seattle: 16;
Total: 16.
Type of project: Residential and commercial development;
Jacksonville: 0;
Los Angeles: 0;
Sacramento: 1;
Seattle: 0;
Total: 1.
Type of project: Ecological restoration;
Jacksonville: 4;
Los Angeles: 2;
Sacramento: 2;
Seattle: 25;
Total: 33.
Type of project: Sewer line maintenance and construction;
Jacksonville: 0;
Los Angeles: 10;
Sacramento: 3;
Seattle: 1;
Total: 14.
Type of project: Survey activities;
Jacksonville: 4;
Los Angeles: 0;
Sacramento: 2;
Seattle: 8;
Total: 14.
Type of project: Transportation;
Jacksonville: 0;
Los Angeles: 1;
Sacramento: 10;
Seattle: 17;
Total: 28.
Type of project: Water storage, supply, and treatment;
Jacksonville: 4;
Los Angeles: 1;
Sacramento: 10;
Seattle: 14;
Total: 29.
Type of project: Other construction and maintenance;
Jacksonville: 0;
Los Angeles: 0;
Sacramento: 1;
Seattle: 3;
Total: 4.
Type of project: Other utility line maintenance and construction;
Jacksonville: 0;
Los Angeles: 0;
Sacramento: 2;
Seattle: 5;
Total: 7.
Type of project: Total;
Jacksonville: 12;
Los Angeles: 14;
Sacramento: 31;
Seattle: 129[A];
Total: 186.
Source: GAO analysis of Corps permit files.
[A] We were unable to determine the purpose of one of the projects
approved by the district because district staff were unable to locate
the permit file.
[End of table]
Table 4: Examples of Projects Evaluated and Approved by Four Corps
Districts Using Section 214 Funds:
District: Jacksonville;
Project: In December 2005, the Corps approved a request from the South
Florida Water Management District to construct two temporary storage
reservoirs, approximately 30 acres each. These temporary reservoirs
will provide data that will guide design and construction of a future
water storage project in southwest Florida that is part of the
Everglades restoration initiative. As a condition of the permit, the
Corps required the applicant to implement measures to prevent harm to
endangered species, including the Florida panther, that might be found
within the project area. Because the loss of almost 28 acres of
federally regulated waters caused by this project is expected to be
offset by the construction of the larger water storage project, the
Corps did not require the applicant to mitigate for the acres impacted,
pending completion of that project.
District: Los Angeles;
Project: In July 2005, the Corps approved a request from the City of
San Diego's Engineering and Capital Projects Department to temporarily
dewater approximately 0.1 acres of the San Diego River to conduct an
emergency repair/reconstruction of a river crossing. To ensure that
impacts of the project were temporary, the Corps required that the
department comply with 19 special conditions, including that all
disturbed areas be replanted with preexisting or native vegetation and
that a qualified biologist be on-site during project construction to
ensure compliance with the permit.
District: Sacramento;
Project: In July 2005, the Corps issued a permit to the City of Elk
Grove, Calif., authorizing the fill of .46 acres of wetlands and other
federally regulated waters to construct a new roadway and intersection.
As a condition of the permit, the Corps required the applicant to
implement measures to prevent harm to endangered species that might be
found within the project area and to undertake mitigation activities to
compensate for the wetlands destroyed by the project.
District: Seattle;
Project: In September 2002, the Corps issued a permit to the Port of
Seattle to repair and upgrade port piers to meet new seismic and
building codes and increase port capacity. The project, encompassing
215 acres of urban waterfront, required the placement of fill and
riprap and was expected to have short-term impacts on some fish and
wildlife species and water quality. The Corps concluded that the
proposed project represented the least environmentally damaging
practicable alternative and would not result in the unacceptable
degradation of the aquatic environment. The Corps also placed several
conditions on the issued permit, including limiting when the work could
be performed and implementing measures to protect endangered species
that might be present in the project area, to mitigate the project's
effects.
Source: GAO analysis of Corps permit files.
[End of table]
Under the section 214 authority, the Corps received applications from
31 different applicants. Most of the permit applications were from city
or county departments, port authorities, or regional water authorities.
In general, the applicants were either the entities, or departments
within the entities, that entered into the section 214 agreement with
the Corps. For example, San Diego's Department of Engineering and
Capital Projects and Metropolitan Waste Water Department both submitted
applications for expedited review under the city's agreement with the
Corps' Los Angeles District. However, in the Corps' Sacramento
District, we found that two applications were submitted by private
companies that were not part of the nonfederal public entities with
whom the Corps had an agreement. One project was for a large, multiuse
development that would fill 1.8 acres of wetlands. The other project
was to fill in .46 acres of streams as part of a larger ecological
restoration effort to compensate for wetlands and other waters that may
be modified or destroyed by other construction projects. According to
Corps officials, in each case, a nonfederal public entity requested
that the Corps process the private company's application under the
section 214 agreement. The legislation does not expressly prohibit the
practice of allowing private companies from requesting permit approval
under a nonfederal public entity's section 214 agreement with the
Corps.
The Districts' Use of Section 214 Authority Is Likely to Expand in the
Future:
Thirty-four Corps districts had not yet used the section 214 authority
to evaluate permit applications at the time of our review, but many are
considering doing so in the future. Officials from 28 Corps districts
that had not entered into section 214 agreements cited two primary
reasons for not yet doing so: (1) nonfederal public entities in their
districts had not expressed an interest in entering into such
agreements and (2) the districts were concerned that the section 214
authority was not permanent and could expire in the future. In
addition, district officials identified two other disadvantages of
using the section 214 authority. First, officials were concerned about
the public's perception of the objectivity of permit decisions made
using section 214 funds. Second, officials were concerned that because
the authority was not permanent and they could not guarantee a
prospective employee's tenure, it would be difficult for them to hire
and retain qualified staff to process these types of applications.
Despite these concerns, many of the districts are considering the use
of the section 214 authority soon or in the future. Seven districts--
Huntington, W.Va; Louisville, Ky; Mobile, Ala; Omaha, Neb; Portland,
Ore; San Francisco, Calif; and Savannah, Ga.--had already entered into
agreements or had begun negotiations with nonfederal public entities
but had not completed the evaluation of any permit applications at the
time of our review. Nineteen districts told us that they would consider
entering into agreements with nonfederal public entities if the section
214 authority were made permanent. In addition, two of the four
districts included in our review that had used section 214 funds to
review permit applications have expanded their use of the authority.
The Los Angeles District has entered into three new agreements--San
Bernardino County in September 2006 and Port of Los Angeles and San
Diego Water Authority in October 2006. The Sacramento District entered
into two new agreements--one with the City of Roseville in September
2006 and one with the City of Rancho Cordova in October 2006.
Corps Districts Received More Than $2 Million in Section 214 Funds That
Were Used to Primarily Cover Personnel-Related Costs:
From December 2001 through September 2006, nonfederal public entities
provided over $2 million in section 214 funds to the four Corps
districts with whom they had section 214 agreements. The districts
hired additional project managers to process permit applications and
primarily used the section 214 funds received to cover personnel-
related costs, such as salaries and benefits.
As figure 1 shows, of the four districts that received section 214
funds from nonfederal public entities from December 2001 through
September 2006, the Sacramento District received the most, $932,000,
and the Jacksonville District the least, $225,324. Table 5 shows the
amounts provided by each of the 13 nonfederal public entities.
Figure 1: Section 214 Funds Received by the Four Corps Districts from
December 2001 through September 2006:
[See PDF for image]
Source: Data provided by the Corps districts.
[End of figure]
Table 5: Total Section 214 Funds Provided by the 13 Nonfederal Public
Entities to Four Corps Districts from December 2001 through September
2006:
District: Jacksonville;
Nonfederal public entity: South Florida Water Management District;
Amount provided: $225,324.
District: Los Angeles;
Nonfederal public entity: City of San Diego;
Amount provided: 240,000.
District: Los Angeles;
Nonfederal public entity: San Bernardino County;
Amount provided: 150,000[A].
District: Sacramento;
Nonfederal public entity: City of Elk Grove;
Amount provided: 178,000.
District: Sacramento;
Nonfederal public entity: City of Redding;
Amount provided: 220,000.
District: Sacramento;
Nonfederal public entity: City of Lathrop;
Amount provided: 178,000.
District: Sacramento;
Nonfederal public entity: Sacramento County;
Amount provided: 178,000.
District: Sacramento;
Nonfederal public entity: City of Roseville;
Amount provided: 178,000[A].
District: Seattle;
Nonfederal public entity: Port of Seattle;
Amount provided: 130,000.
District: Seattle;
Nonfederal public entity: Port of Tacoma;
Amount provided: 150,000.
District: Seattle;
Nonfederal public entity: City of Seattle;
Amount provided: 200,000.
District: Seattle;
Nonfederal public entity: Snohomish County;
Amount provided: 8,539.
District: Seattle;
Nonfederal public entity: King County;
Amount provided: $145,000.
Source: GAO analysis of Corps data.
[A] This nonfederal public entity entered into an agreement with the
Corps district and provided section 214 funds in September 2006 after
we conducted our file reviews.
[End of table]
Each of the four Corps districts that received section 214 funds was
able to increase its regulatory staff by either (1) combining the
section 214 funds with appropriated funds to hire new project managers
to process section 214 applications or (2) paying existing employees to
process section 214 applications and using the offsets in regular
program expenditures to hire new project managers to process non-
section 214 applications. Although the districts initially thought that
project managers would work full-time on section 214 permits, this has
not happened. None of the project managers added using section 214
funds worked full-time on processing section 214 permits; instead they
split their time between evaluating section 214 permits and permits for
other applicants. Table 6 shows the number of additional project
managers added using section 214 funds and the full-time equivalent
staff devoted to processing section 214 permits in each of the four
districts.[Footnote 3]
Table 6: Number of Additional Project Managers Hired Using Section 214
Funds and the Full-time Equivalent Staff Used by the Corps Districts to
Process Permits Using Section 214 Funds, Fiscal Year 2001 through
Fiscal Year 2006:
District: Jacksonville;
Total number of additional project managers hired: 1;
FY 2001[A]: N/A;
FY 2002: N/A;
FY 2003: N/A;
FY 2004: N/A;
FY 2005: .2;
FY 2006: .7.
District: Los Angeles;
Total number of additional project managers hired: 1;
FY 2001[A]: N/A;
FY 2002: N/A;
FY 2003: N/A;
FY 2004: N/A;
FY 2005: .9;
FY 2006: .5.
District: Sacramento;
Total number of additional project managers hired: 4;
FY 2001[A]: N/A;
FY 2002: N/A;
FY 2003: N/A;
FY 2004: N/A;
FY 2005: 2.2;
FY 2006: 1.5.
District: Seattle;
Total number of additional project managers hired: 4[B];
FY 2001[A]: N/A;
FY 2002: .6;
FY 2003: 1.5;
FY 2004: .6;
FY 2005: 1.4;
FY 2006: .5.
District: Total;
Total number of additional project managers hired: 10;
FY 2001[A]: [Empty];
FY 2002: .6;
FY 2003: 1.5;
FY 2004: .6;
FY 2005: 4.7;
FY 2006: 3.2.
Source: GAO generated from Corps data.
[A] Although Seattle entered into agreements in 2001, it did not expend
any funds from these agreements until fiscal year 2002.
[B] Unlike the other three districts, Seattle does not have designated
section 214 positions. Instead, these project managers are assigned
section 214 workload periodically.
[End of table]
Through September 2006, the districts used $1.398 million of the
section 214 funds that they received for costs associated with the
project managers assigned to process section 214 permits. Specifically
the funding was used for the following purposes: $858,000, or 61.4
percent, was used to pay for personnel costs, including the salaries
and cost of benefits, for project managers processing section 214
permits; $522,000, or 37.3 percent, was used to cover overhead costs,
such as office space, utilities, and administrative support associated
with the section 214 authority; and $18,000, or 1.3 percent, was used
to pay for equipment, transportation costs associated with site visits,
and legal advice from the Corps for processing applications under the
section 214 authority.
Changes in Permit Processing Times Have Varied Since the Districts
Started Using Section 214 Funds, but Officials Agree That the Authority
Provides Many Benefits:
Permit processing times have increased in some districts and decreased
in others since the Corps began using section 214 funds. Although
officials from both the Corps and nonfederal public entities said they
believe the use of the section 214 authority has been effective in
expediting permit applications of nonfederal public entities, other
factors may have also impacted processing times. Nonetheless, officials
from both the Corps and nonfederal entities believe the authority
provides significant other benefits. In addition, Corps officials
identified some challenges in implementing the section 214 authority in
their districts.
Processing Times Have Both Increased and Decreased Since the Use of the
Section 214 Authority Began:
Although a main goal of the Corps in using the section 214 authority is
to expedite permit processing for section 214 applicants, the
processing times for these applicants have not consistently decreased.
For example, the median processing times for nationwide permits
decreased by 37 percent in the Sacramento District, from 41 to 26 days,
but increased by 21 percent in the Seattle District, from 76 to 92
days. Similarly, another Corps goal is to ensure that the section 214
program does not delay permit processing for non-section 214
applicants; however, the processing times for these applicants have not
consistently remained the same. For example, the median times for
permits processed without section 214 funds remained constant in the
Los Angeles District but increased by 29 percent in the Sacramento
District, from 41 days to 53 days. Figure 2 shows changes in nationwide
permit processing times for the three districts that had data
sufficiently reliable for this analysis: Los Angeles, Sacramento, and
Seattle. The data in the Jacksonville District were not reliable
because the district experienced difficulties entering data during its
participation in a pilot project for a new permit database. We did not
conduct a similar analysis for standard permits because the districts
had not processed enough of these permits using section 214 funds to
calculate a reliable estimate of processing times under the authority.
Figure 2: Median Processing Times for Nationwide Permits Before and
After Three Districts Began Using the Section 214 Authority:
[See PDF for image]
Source: GAO analysis of Corps data.
Note: The median is the midpoint, with half of the permits taking more
days to process and half taking fewer.
[A] According to Corps officials, because some section 214 agreements
in the Seattle District had temporarily expired, some permits may have
been only partially processed using section 214 funds.
[End of figure]
We believe that several factors may have influenced the permit
processing times and masked the effect, if any, that the use of the
section 214 authority had on them. Specifically:
* Seattle District officials told us that the applications from section
214 permittees were considerably more complex than typical
applications. For example, these officials said the section 214
applicants frequently sought permission for activities in or near
Superfund sites, which required the Corps to consult with the
Environmental Protection Agency before issuing the permits. According
to Seattle officials, these consultations add several weeks or months
to the typical permit review process. These officials said the extra
time the Corps needed to process these applications because of their
complexity exceeded the time savings that resulted from the section 214
authority. As a result, they said, the net processing times for these
applicants increased, obscuring the benefit of the authority to section
214 applicants.
* Seattle District officials also told us that there are many
threatened and endangered species within their district and that they
must consult with the Fish and Wildlife Service (FWS) or the National
Marine Fisheries Service (NMFS) for almost every permit the district
issues to ensure that the proposed activity will not harm these
species. According to these officials, the consultation process can add
several months to the overall permit review process. In 2000, the
district entered into agreements with FWS and NMFS to streamline the
consultation process for endangered species. Seattle officials said
that this streamlined consultation is the main reason the permit
processing times for non-section 214 applications decreased--as
compared with the median processing time for the 3 years prior to the
section 214 program. Therefore, while the decrease for these applicants
appears consistent with the goal of ensuring that the section 214
authority does not introduce delays for non-section 214 applicants, it
is not necessarily proof that the district met this goal. The section
214 authority may have introduced delays, but these delays could have
been more than offset by the streamlined consultation process that
began close to when the section 214 authority became available.
* The Los Angeles District had processed only 11 permit applications
using section 214 funds at the time of our review. These few permits
may be outliers and may not accurately represent what processing times
will be in the long-term for permits processed using section 214 funds.
The impact the section 214 authority has, if any, on processing times
may become more apparent as the district processes a larger number of
permit applications using section 214 funds.
Officials Cited Other Benefits of Using the Section 214 Authority:
Officials from the Corps and from nonfederal public entities that
entered into section 214 agreements with the Corps told us that they
believe the use of the section 214 authority has significantly
expedited processing of permits for these applicants. For example,
Sacramento officials said the project managers dedicated to working on
section 214 applications typically work on two to three times fewer
permits, at any given time, than the other project managers. As a
result, they have more time to review section 214 permit applications
and determine more quickly whether they are complete. These officials
said that, by contrast, it can take several weeks for other project
managers to review permit applications for completeness.
Officials from the Corps and nonfederal public entities that we spoke
with also cited other benefits of the section 214 authority including
the following:
Project prioritization. Nonfederal public entities that enter into
section 214 agreements with the Corps may specify which permit
applications they want the Corps to complete first and which projects
can wait. Officials from participating nonfederal public entities told
us that being able to set priorities for projects in this manner has
allowed them to receive permits for their most important projects
quickly. For example, officials from Elk Grove, Calif., said that, in
2004, city employees discovered that an old culvert was at risk of
collapsing during a heavy rainstorm. City officials told the Corps'
Sacramento District that repairing the culvert was a top priority for
them and, as a result, were able to get the permit needed to complete
the repairs before the next large storm.
Enhanced communication. Officials from both the Corps and nonfederal
public entities said that the section 214 authority has helped improve
communication between them. For example, Corps officials in the Seattle
District said that the section 214 funding has enabled project mangers
to meet with the applicants before they submit their applications.
During these preapplication meetings, the Corps officials and the
applicants discuss ways to design the project to avoid impacting
important resources and increasing the likelihood of receiving a
permit. Officials from participating entities said that these
conversations have reduced the overall costs of completing their
projects because these conversations have enabled them to submit
initial project designs that are more likely to receive approval,
thereby avoiding costly revisions and project delays.
Increased staffing. Corps district officials said the section 214 funds
have provided a valuable way for them to augment their regulatory
staff, particularly given the large permit workloads these districts
face. As we discussed earlier, each district has used the section 214
funds received from the nonfederal public entities to add between one
and four project managers to its regulatory staff.
District Officials Also Identified Several Challenges to Implementing
the Section 214 Authority:
Corps officials have faced the following challenges when implementing
the section 214 authority:
Insufficient permit workloads. Officials in each of the four districts
said that, when they first started using the section 214 authority,
they expected each participating entity to submit enough applications
to keep one project manager busy full-time. However, this has not
happened in any of the four districts. Insufficient section 214 permit
workloads have caused particular problems in two districts. In the
Seattle District, the permit workloads have been so small from some
entities that the revenues generated from the agreement have not
justified the costs of negotiating and establishing the agreement to
accept section 214 funds. As a result, the Seattle District decided
eventually not to renew agreements with some entities and is
considering not entering into any new agreements unless they can
sustain at least half a full-time equivalent staff worth of work from
each agreement. Similarly, in the Sacramento District, an insufficient
section 214 permit workload has meant that section 214 project managers
have had to work on some non-section 214 permit applications to
maintain a full workload. According to officials in the Sacramento
District, this arrangement has meant that non-section 214 applications
experienced some processing delays because project managers stopped
working on them when higher priority section 214 applications came in.
To avoid the need to make choices between section 214 and other
applications, the Sacramento District is currently considering
assigning all section 214 applications to a small pool of project
managers who will work exclusively on section 214 permit applications.
Delays in replacing project managers. Officials in the Sacramento
District said that they were unable to hire new project managers to
replace the ones they had transferred to work primarily on section 214
applications as quickly as they had anticipated. This lag in hiring
project managers delayed permit processing for some non-section 214
applications because it meant that fewer staff hours could be devoted
to processing these applications. According to these officials, one
main reason for the hiring lag was that the district did not begin
looking for new employees until after it had signed the section 214
agreements and transferred experienced project managers into the new
positions. The district is considering adjusting its hiring policy to
transfer experienced project managers into the new section 214
positions only after it has hired employees to fill the non-section 214
positions.
Decrease in project manager expertise. The Corps districts that
received section 214 funds typically replaced more experienced project
managers that were transferred to work primarily on the section 214
permit applications with new staff. Sacramento District officials said
that this practice has decreased the overall level of expertise devoted
to processing non-section 214 permit applications, which has both
delayed processing for some of these applications and overburdened the
experienced project managers who have remained to process non-section
214 applications. To help increase the skill level of the new staff,
the district now requires experienced project managers to mentor new
employees. Officials from the Seattle and Los Angeles districts said
that, while their section 214 application workload is not yet large
enough to significantly deplete the expertise devoted to non-section
214 applications, this could become a problem if the number of
applications and agreements continues to rise.
When Using Section 214 Funds, the Districts Generally Followed the
Permit Review Process for Standard Permits, but It Is Unclear Whether
They Did So for Nationwide Permits:
Three districts that used section 214 funds to process standard permits
generally followed the permit review process, but one district did not
follow all the required steps. Specifically, the Sacramento District
did not comply with the Corps' process that requires the districts to
sufficiently demonstrate why the projects they approve are in the
public interest. The four districts also used section 214 funds to
approve projects using nationwide permits, however, we could only
confirm that the Jacksonville and Seattle districts had generally
followed the review process for these types of projects and could not
make this determination for the Los Angeles and Sacramento districts
because their files had limited permit documentation. Detailed results
of our file reviews are presented in appendix II.
Two of the Three Districts That Processed Standard Permit Applications
under the Section 214 Authority Generally Followed the Permit Review
Process:
The Jacksonville and Seattle districts followed all of the six key
steps in the permit review process for standard permit applications
that they processed using section 214 funds. Specifically, these
districts (1) ensured that the project proposed in the permit
application would not harm threatened or endangered species; (2)
analyzed whether alternative designs that would have fewer impacts to
aquatic resources were feasible; (3) ensured the project would not
violate state water quality standards; (4) evaluated likely impacts to
historic properties; (5) evaluated likely impacts to a wide range of
other factors, from recreation to energy needs; and (6) balanced the
project's benefits against its detriments, when applicable, and
concluded that the project would not be contrary to the public
interest. In contrast, the Sacramento District followed five of the six
steps but did not follow the last step for the standard permits it
processed using section 214 funds. As a result, for the projects for
which it approved standard permits, the Sacramento District did not
show that the adverse effects of the projects were outweighed by the
positive impacts of the projects and did not conclude that the projects
were in the public interest.
Officials in the Sacramento District recognize that they did not
complete the sixth step of the review process, as required, and said
that this happened because the section 214 project managers who
processed these applications were relatively new to the district and
were not fully aware of the requirement. These officials also said that
a major reason why the project managers were unaware of the requirement
is that, while the Corps guidance describes documentation requirements
for standard permits in general terms, Corps headquarters has not
provided explicit guidance that would clearly show project managers how
to document their decisions. Corps headquarters recognizes that more
explicit guidance would help ensure consistency across its districts
and is in the process of developing a template for a standard decision
document for all districts to use. However, since the template is not
yet complete, we could not assess whether it will provide sufficient
detail to prevent the types of lapses we observed in the Sacramento
District from occurring again.
Lack of Documentation for Projects Approved Using Nationwide Permits
Inhibits the Assessment of the Process for Two of the Four Districts:
For the projects that the four districts reviewed and approved using
section 214 funds under the Corps' nationwide permits, we found that
the Jacksonville and Seattle districts generally followed the steps
that are key to the review process. Specifically, of their nationwide
permit decisions, the Jacksonville and Seattle districts (1) evaluated
100 percent and 79 percent, respectively, of the proposed projects to
ensure they met the terms and conditions of the relevant nationwide
permit(s) and (2) ensured that 90 percent and 96 percent, respectively,
of the projects they evaluated would not harm endangered species. For
the remaining permit applications, there was not enough documentation
in the permit files for us to determine whether Jacksonville and
Seattle district officials had complied with these two requirements. In
contrast, we were unable to make a determination of the extent to which
the Los Angeles and Sacramento districts had evaluated projects for
compliance with the terms and conditions of the nationwide permit(s)
because only 3 percent of their files contained enough evidence. In
addition, 31 percent of the permit files in the Sacramento District
also did not contain evidence that the district had considered the
impacts of the proposed projects on endangered species. In the Los
Angeles District, however, most files did contain evidence that
officials had considered the impacts of the proposed projects on
endangered species.
We found that the districts vary in their level of documentation for
projects approved using nationwide permits because, unlike standard
permits, Corps headquarters has not developed uniform documentation
standards for the districts to follow when making these decisions. In
the absence of such guidance, the Seattle and Jacksonville districts
have developed local standards that are more stringent than those in
Los Angeles or Sacramento. Corps headquarters officials recognize that
consistent documentation is needed to ensure permit decisions are both
transparent and legally defensible and have begun to develop Corps-wide
standards. However, because the Corps has not completed these
standards, we could not determine to what extent they will require
districts to fully document the basis for their determinations that the
projects meet the terms and conditions of the nationwide permit(s) they
used to approve the projects, and whether these requirements will
alleviate the concerns we identified.
The Districts Varied in Their Compliance with the Corps' Additional
Requirements for Ensuring Impartiality of Decisions Made Using Section
214 Funds:
The districts were uneven in their adherence to the additional
requirements established by the Corps to ensure that permit decisions
made using section 214 funds were impartial and transparent. Two of the
districts--Sacramento and Seattle--more often met both requirements,
while the Jacksonville and Los Angeles districts rarely did. Corps
officials cited several reasons for the variance in their adherence to
the additional requirements.
In addition to following the established permit review processes
discussed in the prior section of this report, Corps districts must
meet two other requirements designed to ensure the impartiality and
transparency of decisions made using section 214 funds. First, a Corps
official senior to the decision maker must review the final permit
decision (higher level review) and second, the district must post its
final decision to the district's Web site. However, as shown in table
7, our review of the applications reviewed and approved by the four
districts that used section 214 funds, indicates significant variations
in the extent to which each district complied with these two additional
requirements.
Table 7: Extent to Which Four Corps Districts Adhered to the Additional
Requirements for Processing Section 214 Permits:
Requirement: Higher level review-standard permits;
Jacksonville: 50%;
Los Angeles: a;
Sacramento: 100%;
Seattle: 0%.
Requirement: Higher level review-nationwide permits;
Jacksonville: 0%;
Los Angeles: 9%;
Sacramento: 86%;
Seattle: 78%.
Requirement: Higher level review-both permit types;
Jacksonville: 8%;
Los Angeles: 9%;
Sacramento: 87%;
Seattle: 65%.
Requirement: Post permit decisions to Web page;
Jacksonville: 0%;
Los Angeles: 0%;
Sacramento: 74%;
Seattle: 85%.
Source: GAO analysis of Corps data.
[A] The Los Angeles District had not processed any standard permits
using section 214 funds at the time of our review.
[End of table]
According to district officials, the following factors contributed to
why the districts varied in the extent to which they adhered to the
additional Corps requirements for ensuring that section 214 permit
decisions are impartial.
* Different interpretations of the applicability of the requirements.
Officials in the Los Angeles and Jacksonville districts told us that
they had believed the additional requirements did not apply to projects
approved using nationwide permits, which constitute the bulk of the
permit applications processed in their districts using section 214
funds. According to these officials, they had believed the requirements
applied only to new permit decisions and, since approvals under
existing nationwide permits did not count as new permit decisions, the
requirements did not apply to such approvals. Corps headquarters
officials and legal counsel do not agree with the districts'
interpretation and said that the additional requirements apply to all
permit types including approvals using nationwide permits. Los Angeles
District officials told us that they have subsequently changed their
position and plan to apply the requirements to nationwide permits in
the future, but Jacksonville District officials have not changed their
position.
* Varying awareness of the requirements. The project manager
responsible for processing section 214 permit applications in the Los
Angeles District told us that he was unaware of the higher level review
requirement and, therefore, did not adhere to it. Similarly, the
project manager responsible for section 214 applications in the
Jacksonville District told us she was unaware of the Web-posting
requirement. In contrast, project managers in the other two districts
were aware of both of the requirements and, as a result, did comply
with them more often.
* Lack of specificity as to what higher level review entails. Corps
headquarters guidance does not specify which documents the senior level
officials must review and sign to meet the higher level review
requirement. While Seattle District officials thought that it was
sufficient for senior officials to review and sign the documents
supporting standard permit decisions, Corps headquarters officials told
us that it is the final permit document itself--not the supporting
documents--that must be reviewed and signed. We noted during our
review, that while many standard permits in the Seattle District did
not receive higher level review in accordance with headquarters
requirements, they frequently did have decision documents reviewed by a
Corps official senior to the official who would typically review those
documents. According to Seattle District officials, it is more
important for a reviewer to review the decision documents than the
issued permit since the decision documents provide the rationale for
why the project manager arrived at the decision to issue the permit
while the permit itself is largely pro forma.
* Lack of compliance with annual reporting requirement. Corps guidance
calls for annual reports on the districts' implementation of the
section 214 authority to be submitted to headquarters. However,
according to the head of the Corps' Regulatory Branch, no reports have
been submitted since the section 214 authority was first used in 2001.
If this guidance had been followed, we believe that Corps headquarters
may have been alerted to the fact that some districts were not fully
meeting the additional requirements and could have taken actions needed
to resolve this lack of compliance.
Conclusions:
When the Congress enacted the section 214 authority in 2000, it was to
help expedite the permit review process for nonfederal public entities.
Since that time, a handful of nonfederal public entities have taken
advantage of the authority and believe that it has been beneficial to
them. These nonfederal entities had entered into agreements with four
Corps districts that had actually received and used section 214 funds
to process permit applications at the time of our review. However, the
experiences of these four districts indicate that implementation of the
section 214 authority has been uneven. We identified a number of areas
where improved oversight is needed to ensure that decisions made using
the authority adhere to established permit processing regulations and
guidance and are also impartial and transparent. Specifically, we found
evidence to suggest that the district officials do not know what
guidance they are to follow, do not know how to document the decisions
that they make, and do not know which special requirements apply to the
permit applications that they review under the section 214 authority.
Because it appears that there is significant potential for many more
Corps districts to begin accepting funds under the section 214
authority, and many are already poised to do so, we believe that it is
imperative for Corps headquarters to address the concerns that have
already been identified at the four districts that have used the
section 214 authority to process permit applications.
Recommendations for Executive Action:
To ensure that the permits processed under the section 214 authority
comply with federal regulations and guidance, we are recommending that
the Secretary of the Army direct the Corps of Engineers to take the
following four actions:
* clarify the guidance that the districts must follow when evaluating
permit applications under the section 214 authority,
* clarify the documentation that district officials must include in
project files to justify and support their decisions,
* provide training to district officials to ensure that they are aware
of the requirements that apply to permits processed under the section
214 authority, and:
* develop an effective oversight approach that will ensure that the
districts are following all the appropriate requirements when
evaluating projects under the section 214 authority.
Agency Comments and Our Evaluation:
We provided a draft of this report to the Secretary of the Department
of Defense for review and comment. The Department of Defense generally
concurred with the report's recommendations and described actions that
it is implementing to address them. In its written comments, the
department stated that by December 2007 the Corps plans to issue
revised guidance for the districts to follow when using section 214
funds that clarifies, among other things, the types of permit decisions
that require higher level review and what documents must be reviewed
and signed by an official senior to the decision maker. The department
also indicated that the Corps is developing a national template that
standardizes the documentation required to support standard permit
decisions and will develop similar documentation requirements for
projects approved with nationwide permits. In addition, the department
noted that project managers that evaluate permit applications using
section 214 funds and their management will be required to attend
annual briefings on Corps guidance for implementing section 214 and
that the Corps will conduct annual reviews that will focus on the
districts' compliance with the guidance and documentation protocols.
The Department of Defense's written comments are presented in appendix
III.
As agreed with your office, unless you publicly announce the contents
of this report earlier, we plan no further distribution for 30 days
from the report date. At that time, we will send copies of this report
to the Secretary of Defense; the Secretary of the Army; the Chief of
Engineers and Commander, U.S. Army Corps of Engineers; and interested
congressional committees. We will also make copies available to others
upon request. In addition, the report will also be available at no
charge on the GAO Web site at http://www.gao.gov.
If you or your staff have any questions about this report, please
contact me at (202) 512-3841 or mittala@gao.gov. Contact points for our
Offices of Congressional Relations and Public Affairs may be found on
the last page of this report. GAO staff who made major contributions to
this report are listed in appendix IV.
Sincerely yours,
Signed by:
Anu K. Mittal:
Director, Natural Resources and Environment:
[End of section]
Appendix I: Objectives, Scope, and Methodology:
In 2000, the Congress, through section 214 of the Water Resources and
Development Act, authorized the Secretary of the Army, after providing
public notice, to accept and expend funds from nonfederal public
entities to expedite the evaluation of permit applications that fall
under the jurisdiction of the Department of the Army. The act also
requires the Secretary to ensure that the funds accepted will not
impact impartial decision making with respect to permit approvals. This
responsibility has been delegated by the Department of the Army to the
Corps of Engineers (Corps). In this context, we were asked to review
the (1) extent to which Corps districts have entered into agreements
with nonfederal public entities to receive section 214 funds since 2001
and how many permit applications the Corps has evaluated using these
funds, (2) amount of section 214 funds the Corps has received and how
it has used these funds, (3) extent to which permit processing times
have changed since the Corps began using section 214 funds, (4) extent
to which the Corps districts have followed the basic permit review
processes when evaluating applications using section 214 funds, and (5)
extent to which the districts have met the additional requirements for
ensuring that permit decisions made using the section 214 funds are
impartial and transparent.
To determine the extent to which Corps districts entered into section
214 agreements with nonfederal public entities, we contacted each of
the 38 Corps districts responsible for issuing regulatory permits under
section 404 of the Clean Water Act to identify those districts that had
entered into such agreements since the authority was available. We
visited each of the four districts that had entered into such
agreements and evaluated the permit applications that had been
processed under these agreements as of August 2006. These districts
were Jacksonville, Fla; Los Angeles and Sacramento, Calif; and Seattle,
Wash. At each district, we reviewed the legal agreements between the
Corps and nonfederal entities to identify the entities that had entered
into such agreements and the date the agreements went into effect. To
determine how many permit applications the districts evaluated using
section 214 funds, we obtained and reviewed the Corps' files for all
but one of the permit applications that the districts evaluated using
section 214 funds. We did not review one of the applications because
the Seattle District was unable to locate the file. Table 8 shows the
number of permit files we reviewed at each of the four districts. We
used a data collection instrument (DCI) to extract key pieces of
information from each permit file, including the name of the applicant,
the type of project seeking approval, and the type of permit the Corps
used to authorize the proposed project. An independent analyst verified
the accuracy of the data we entered for each permit file. We also
interviewed Corps officials in each of the four districts, as well as
representatives from at least one of the nonfederal entities
participating in the section 214 program in each district, to gain
their perspectives on the benefits and any challenges of implementing
the section 214 authority.
Table 8: Permit Files Reviewed by GAO at the Four Corps Districts That
Used Section 214 Funds to Evaluate Permit Applications Between December
2001 and August 2006:
Corps district: Jacksonville;
Number of files reviewed: 12.
Corps district: Los Angeles;
Number of files reviewed: 14.
Corps district: Sacramento;
Number of files reviewed: 31.
Corps district: Seattle;
Number of files reviewed: 129.
Corps district: Total;
Number of files reviewed: 186.
Source: GAO analysis of Corps permit files.
[End of table]
To determine whether the use of the section 214 authority may expand in
the future, we surveyed the 34 districts that had not used section 214
funds to evaluate permit applications to determine their reasons for
not doing so and their plans, if any, for using such funds in the
future; 28 districts (82 percent) responded to our survey. The
practical difficulties of conducting any survey may introduce errors,
commonly referred to as nonsampling errors. For example, differences in
how a particular question is interpreted can introduce unwanted
variability into the survey results. To minimize nonsampling error, an
independent survey specialist reviewed the survey for clarity and
independence before we sent it out. We also pretested the survey with
Corps officials in two districts. During these pretests, we asked each
official to complete the survey as they would when they received it. We
then solicited feedback to ensure that the questions were clear and
unambiguous and that the survey was independent and unbiased. Based on
pretest feedback, we made changes to the survey, as appropriate.
To determine the amount of section 214 funding the Corps has received
and how it has used these funds, we obtained and analyzed financial
data covering fiscal years 2001 through 2006 from each of the four
participating districts. The data, which came from the Corps of
Engineers' Financial Management System (CEFMS), specify the amounts of
section 214 funding the districts had received since the program began
and the major categories of expenditures. District officials told us
the number of full-time-equivalent staff the districts procured using
these funds. A full-time-equivalent staff generally consists of one or
more employed individuals who collectively complete 2,080 work hours in
a given year. Therefore, either one full-time employee, or two half-
time employees, equal one full-time equivalent staff. We reviewed the
financial data related to the receipt and expenditure of section 214
funds and determined they were sufficiently reliable for our purposes.
We did not, however, audit the Corps' financial statements to verify
that the Corps expended funds as recorded in the CEFMS reports.
To determine the extent to which permit processing times have changed
since the Corps began using section 214 funds, we obtained permit
processing data from three of the four participating districts: Los
Angeles, Sacramento, and Seattle. The data in these districts, which
came from the Corps' Regulatory Analysis and Management System
database, were sufficiently reliable for our purposes. We did not
analyze processing times in the Jacksonville District because officials
in this district told us their processing time data were for not
reliable for permits issued in 2002 and 2003.[Footnote 4] The
processing time data that we used from the three districts that had
reliable data included permits that each district issued in the 3 years
prior to the district's first use of section 214 funds to the time of
our review. We calculated median permit processing times before and
after the districts began using section 214 funds. We chose the median
over the mean because the median is more resistant to the effects of
outliers; for example, a few permits that took a relatively longer
amount of time to process will impact the mean more than the median. We
assigned a permit to the before or after category by comparing the date
a Corps district issued a permit with the date it first began using the
section 214 authority--permits that a district issued after it began
using the authority were assigned to the after category. We also
analyzed an alternative approach: assigning before or after based on
the date that the Corps began processing the permit. However, we
determined this method made the post-section 214 processing times
appear artificially low because it excluded permits that were still
ongoing at the time of our review. Therefore, we did not present the
results from this alternative analysis in the report.
Our results show the processing time for nationwide permits, which
constituted 82 percent of the total number of permits the districts
processed using section 214 funds. We did not analyze processing times
for other types of permits (e.g., standard or letters of permission)
since the Corps had not processed enough of permits of these types for
us to calculate accurate processing times under the section 214
authority. We defined processing times to be the number of days between
when the Corps first received a permit application and when it issued a
final permit. This definition is different from the Corps' because the
Corps defines processing time as the number of days between when it
receives a complete application and when it issues a permit. We chose a
definition that would allow us to maximize our chances of observing the
effects of the section 214 program.
To determine the extent to which the Corps followed the existing permit
review processes, we first identified key steps for processing permits.
Specifically, we identified six key steps for standard permits and two
key steps for nationwide permits. We selected these steps because the
districts must complete each one before issuing a permit and, for the
standard permits, the Corps identified the steps as important
"safeguards" for ensuring objectivity in its permit decisions. We did
not include some steps that the Corps identified as "safeguards"
because (1) the districts do not have to complete these steps for every
permit application or (2) the steps are outside of the districts'
responsibility, e.g., the Environmental Protection Agency can, at its
discretion, review and revoke the Corps' permit decisions. In each
district, we reviewed all but two of the files for projects the Corps
authorized using nationwide and standard permits. We did not review one
file because the Corps processed the permit application under emergency
procedures, which are substantially different from the regular review
procedures. We did not review the other file because the Seattle
district was unable to locate the file. Table 9 shows the number of
permit files reviewed for adherence to existing Corps review processes.
Table 10 presents a complete list of the information we collected with
our DCI. We did not review the files for other types of permits that
the Corps may also use--letters of permission and regional general
permits--because they undergo different review procedures and
constituted less than 5 percent of permits evaluated using section 214
funds. During our file reviews, we used our DCI to record whether the
permit file contained evidence that the district followed each of the
key steps in the permit review process. We also reviewed the files for
evidence that the Corps met the two additional requirements to ensure
that decisions for permits processed with section 214 funds were made
impartially and were transparent--that is, that the permit decision
received higher level review and was posted to the Corps district's Web
site. An independent analyst verified the accuracy of the data entered
for each permit file.
Table 9: Number of Permit Files GAO Reviewed for Evidence of Adherence
to the Corps' Permit Review Processes and the Two Additional
Requirements for Permit Applications Evaluated Using Section 214 Funds:
Corps district: Jacksonville;
Number of files reviewed: 12.
Corps district: Los Angeles;
Number of files reviewed: 11.
Corps district: Sacramento;
Number of files reviewed: 31.
Corps district: Seattle;
Number of files reviewed: 124.
Corps district: Total;
Number of files reviewed: 178.
Source: GAO analysis of Corps permit files.
[End of table]
Table 10: Information GAO Extracted from Section 214 Permit Files:
Type of permit files: All files;
Information collected:
* Name of applicant.
* Name of nonfederal entity under whose agreement the permit
application received expedited review.
* Corps district that processed the application.
* Type of project described in the permit application.
* Date permit was issued.
* Type of permit issued.
Type of permit files: Files for projects authorized using nationwide or
standard permits;
Information collected:
* Whether the signatures on the final permit indicate that the permit
was reviewed by a Corps official senior to the decision maker.
* Whether the permit decision was posted on the Corps district's Web
site.
Type of permit files: Only files for projects authorized using
nationwide permits;
Information collected:
* Whether there was evidence that the Corps followed each of two steps
we identified as key to the review process for nationwide permits, and,
if so, the type of evidence.
Type of permit files: Only files for projects authorized using standard
permits;
Information collected:
* Whether there was evidence that the Corps followed each of six steps
we identified as key to the review process for standard permits, and,
if so, the type of evidence.
Source: GAO.
[End of table]
We performed our work between April 2006 and April 2007 in accordance
with generally accepted government auditing standards.
[End of section]
Appendix II: Results of GAO's Review of Corps Permit Files for
Districts That Used Section 214 Authority Between 2001 and 2006:
This appendix presents the results of our file review at the four Corps
districts--Jacksonville, Fla; Los Angeles and Sacramento, Calif; and
Seattle, Wash.--that used section 214 funds to evaluate permit
applications between December 2001 and August 2006. The results of our
review for permit applications approved using standard permits are
presented in table 11. The Los Angeles District is not included in
table 11 because it had not used section 214 funds to evaluate any
standard permit applications at the time of our review. Results of our
review for permit applications approved using nationwide permits are
presented in table 12.
Table 11: Results of GAO's Review of the Districts' Adherence to Six
Key Steps in the Permit Review Process When Using Section 214 Funds to
Evaluate Standard Permit Applications:
Key step in the standard permit review process: Ensured the project
would not harm threatened or endangered species;
Number of permit files with evidence that the district followed the key
step in the standard permit review process: Jacksonville: 2;
Number of permit files with evidence that the district followed the key
step in the standard permit review process: Sacramento: 2;
Number of permit files with evidence that the district followed the key
step in the standard permit review process: Seattle: 22.
Key step in the standard permit review process: Analyzed whether
alternative project designs that would have fewer impacts to aquatic
resources were feasible;
Number of permit files with evidence that the district followed the key
step in the standard permit review process: Jacksonville: 2;
Number of permit files with evidence that the district followed the key
step in the standard permit review process: Sacramento: 2;
Number of permit files with evidence that the district followed the key
step in the standard permit review process: Seattle: 20[A].
Key step in the standard permit review process: Ensured the project
would not violate state water quality standards;
Number of permit files with evidence that the district followed the key
step in the standard permit review process: Jacksonville: 2;
Number of permit files with evidence that the district followed the key
step in the standard permit review process: Sacramento: 2;
Number of permit files with evidence that the district followed the key
step in the standard permit review process: Seattle: 22.
Key step in the standard permit review process: Evaluated the project's
likely impacts to historic properties;
Number of permit files with evidence that the district followed the key
step in the standard permit review process: Jacksonville: 2;
Number of permit files with evidence that the district followed the key
step in the standard permit review process: Sacramento: 2;
Number of permit files with evidence that the district followed the key
step in the standard permit review process: Seattle: 22.
Key step in the standard permit review process: Analyzed impacts to a
range of other factors, from recreation to energy needs;
Number of permit files with evidence that the district followed the key
step in the standard permit review process: Jacksonville: 2;
Number of permit files with evidence that the district followed the key
step in the standard permit review process: Sacramento: 2;
Number of permit files with evidence that the district followed the key
step in the standard permit review process: Seattle: 22.
Key step in the standard permit review process: Demonstrated that the
benefits of the proposed project outweigh its detriments (when
applicable[B] ) and that the project was not contrary to the public
interest;
Number of permit files with evidence that the district followed the key
step in the standard permit review process: Jacksonville: 2;
Number of permit files with evidence that the district followed the key
step in the standard permit review process: Sacramento: 0;
Number of permit files with evidence that the district followed the key
step in the standard permit review process: Seattle: 22.
Key step in the standard permit review process: Number of permit files
reviewed;
Number of permit files with evidence that the district followed the key
step in the standard permit review process: Jacksonville: 2;
Number of permit files with evidence that the district followed the key
step in the standard permit review process: Sacramento: 2;
Number of permit files with evidence that the district followed the key
step in the standard permit review process: Seattle: 22.
Source: GAO analysis of Corps permit files.
[A] This analysis of alternative project designs was not relevant for
two permit files. Specifically, this analysis is only required for
permits issued under authority of section 404 of the Clean Water Act.
Two permit files were issued under authority of section 10 of the
Rivers and Harbors Act and did not require such an analysis.
[B] An analysis showing that a project's benefits outweighs its
detriments is only relevant if the Corps has concluded that the project
will have some detrimental effects. Twenty-four of the twenty-six Corps
permit files avoided the need for such balancing by arguing that the
project would only have positive or minimal effects after considering
mitigation that the applicant proposed to compensate for impacts that
would otherwise be detrimental.
[End of table]
Table 12: Results of GAO's Review of the Districts' Adherence to Two
Key Steps in the Permit Review Process when Using Section 214 Funds to
Evaluate Nationwide Permit Applications:
Key step in the nationwide permit review process: Evaluated proposed
project to ensure it met terms of the nationwide permit(s) used to
authorize the project[A];
Number of permit files with evidence that the districts followed the
key step in the nationwide permit review process: Jacksonville: 10;
Number of permit files with evidence that the districts followed the
key step in the nationwide permit review process: Los Angeles: 0;
Number of permit files with evidence that the districts followed the
key step in the nationwide permit review process: Sacramento: 1;
Number of permit files with evidence that the districts followed the
key step in the nationwide permit review process: Seattle: 81.
Key step in the nationwide permit review process: Ensured the project
would not harm threatened or endangered species[A];
Number of permit files with evidence that the districts followed the
key step in the nationwide permit review process: Jacksonville: 9;
Number of permit files with evidence that the districts followed the
key step in the nationwide permit review process: Los Angeles: 10;
Number of permit files with evidence that the districts followed the
key step in the nationwide permit review process: Sacramento: 20;
Number of permit files with evidence that the districts followed the
key step in the nationwide permit review process: Seattle: 98.
Key step in the nationwide permit review process: Number of permit
files reviewed;
Number of permit files with evidence that the districts followed the
key step in the nationwide permit review process: Jacksonville: 10;
Number of permit files with evidence that the districts followed the
key step in the nationwide permit review process: Los Angeles: 11;
Number of permit files with evidence that the districts followed the
key step in the nationwide permit review process: Sacramento: 29;
Number of permit files with evidence that the districts followed the
key step in the nationwide permit review process: Seattle: 102.
Source: GAO analysis of Corps permit files.
[A] Lack of evidence is not proof that the Corps failed to follow this
step in the permit review process. Neither federal regulations nor
Corps headquarters' guidance requires districts to document their
adherence to these steps. The districts may have followed the steps
without documenting that they did so.
[End of table]
[End of section]
Appendix III: Comments from the Department of Defense:
Department Of The Army:
Office Of The Assistant Secretary Civil Works:
108 Army Pentagon:
Washington DC 20310-0108:
May 08 2007:
Ms. Anu Mittal:
Director:
Natural Resource and Environment:
U.S. Government Accountability Office:
441 G Street, N.W.
Washington, D.C. 20548-1000:
Dear Ms. Mittal:
This is the Department of Defense (DoD) response to the proposed GAO
Report, GAO-07-478, "Waters And Wetlands: Corps of Engineers Needs to
Ensure That Permit Decisions Made Using funds From Nonfederal Public
Entities Are Transparent and Impartial," dated April 25, 2007 (GAO Code
360692).
We generally concur with your recommendations and offer an update on
our efforts to address them, all of which were well underway before
receiving the draft report. The following four items are the actions we
are currently implementing:
1) Revision of the guidance memorandum to Corps Districts entitled, "
Regulatory Program Funds Contributed by Non-Federal Public Entities" to
clarify several items. These items include:
a) Types of authorizations/verifications that require higher level
review:
b) Which documents must be reviewed/signed by the individual completing
the higher level review:
c) What constitutes higher level review:
d) Which permit decisions must be posted on District web pages and for
how long:
e) Content and format of District and Division annual reports to CECW-
OR:
The Corps expects the revised guidance to be signed prior to December
2007.
2) A national template is under development to standardize the
documentation required to support standard permit decisions. It is
anticipated that this template will be released for implementation by
the field by June 2007. In addition, a work group is being formed to
develop a checklist of decision points that must be included in project
files for general/nationwide permits to support general/nationwide
permit verifications. It is expected that the work group will have the
checklist finalized for distribution to the field by November 2007.
3) To address training needs, a session is planned at the National
Regulatory Conference in August 2007 at which the revised guidance,
discussed above, will be discussed with Corps regulators. In addition,
District project managers and their management (those required to
complete higher level reviews) accepting funds from a non-Federal pubic
entity utilizing a section 214 agreement will be required to receive an
annual briefing on the current guidance from Corps Headquarters (or
designee).
4) These annual training sessions will be planned to coincide with
annual process and oversight reviews, also conducted by Corps
Headquarters (or designee), which will focus on ensuring District
compliance with Headquarters implementation guidance and documentation
protocols. It will also provide a direct opportunity for Districts and
Headquarters to further refine process improvements to increase
efficiency while ensuring maximum transparency and impartiality.
In short, we believe the Corps is implementing a number of actions to
address the recommendations in the GAO report and would be more! than
happy to meet with you to discuss details.
Yours very truly,
Signed by:
John Paul Woodley, Jr.
Assistant Secretary of the Army (Civil Works):
[End of section]
Appendix IV: GAO Contact and Staff Acknowledgments:
GAO Contact:
Anu K. Mittal, (202) 512-3841, or mittala@gao.gov:
Staff Acknowledgments:
In addition to the individual named above, Sherry McDonald, Assistant
Director, and Greg Peterson made key contributions to this report.
Nancy Crothers, Melinda Cordero, Brian Chung, Jonathan Dent, Doreen
Feldman, Diana Goody, Janet Frisch, Laura Kisner, Amanda Randolph, and
Rebecca Shea also made important contributions to this report.
We also wish to give special tribute to our dear friend and colleague,
Curtis Groves, who died many years too soon after a long battle with
multiple myeloma near the conclusion of our work.
FOOTNOTES
[1] 33 C.F.R. Parts 320-331.
[2] EPA has overall authority and responsibility for carrying out the
Clean Water Act.
[3] A full-time equivalent staff generally consists of one or more
employed individuals who collectively complete 2,080 work hours in a
given year. Therefore, either one full-time employee, or two half-time
employees, equal one full-time equivalent staff.
[4] The district participated in a pilot project for a new database
during those years and, according to district officials, project
managers were unable to enter processing time data during that time.
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