Waters and Wetlands
Corps of Engineers Needs to Better Support Its Decisions for Not Asserting Jurisdiction Gao ID: GAO-05-870 September 9, 2005Section 404 of the Clean Water Act prohibits the discharge of dredged or fill material into federally regulated waters without first obtaining a U.S. Army Corps of Engineers (Corps) permit. Before 2001, the Corps asserted jurisdiction over most waters, including isolated, intrastate, nonnavigable waters, if migratory birds could use them. However, in January 2001, the U.S. Supreme Court concluded that the Corps exceeded its authority in asserting jurisdiction over such waters based solely on their use by birds. GAO was asked to examine, among other things, the (1) processes and data the Corps uses for making jurisdictional determinations; (2) extent to which the Corps documents decisions that it does not have jurisdiction; (3) extent to which the Corps is using its remaining authority to assert jurisdiction over isolated, intrastate, nonnavigable waters; and (4) extent to which the Corps and the Environmental Protection Agency (EPA) are collecting data to assess the impact of the court's January 2001 ruling.
The five Corps districts included in GAO's review generally used similar processes and data sources for making jurisdictional determinations. After the districts receive a request for a determination, a project manager will review the submitted data for completeness, request additional data from the applicant, as necessary, and analyze the data to decide whether any waters are jurisdictional under the act. Data reviewed by project managers include photographs and topographic, soils, and wetland inventory maps that show, among other things, where the proposed project is located, whether other agencies have identified waters on the property, and whether there appears to be a basis for waters to be considered federally regulated under the act. Site visits are generally conducted when maps and photographs are not sufficiently detailed to make determinations. While GAO found that the Corps generally documents its rationale for asserting jurisdiction over waters or wetlands, it does not prepare similar documentation for nonjurisdictional determinations. Such rationales are important because determinations can be challenged by property owners and the public. GAO found that only 5 percent or less of the files in four of the five districts contained a detailed rationale, while 31 percent of the files in the fifth district contained such a rationale. The percentage of files that contained no rationale whatsoever as to why the Corps did not assert jurisdiction ranged from a low of 12 percent to a high of 49 percent in the five districts. The remaining files contained partial rationales. Following the Supreme Court's January 2001 ruling, the Corps is generally not asserting jurisdiction over isolated, intrastate, nonnavigable waters using its remaining authority. Since January 2003, EPA and the Corps have required field staff to obtain headquarters approval to assert jurisdiction over waters based solely on links to interstate commerce. Only eight cases have been submitted, and none of these cases have resulted in a decision to assert jurisdiction. According to project managers, they are reluctant to assert jurisdiction over these kinds of waters because of the lack of guidance from headquarters and perceptions that they should not be doing so. Although the Corps has drafted a memorandum that contains guidance for the districts, EPA and the Corps have not yet reached agreement on the content of the document. At EPA's request, over the last year, the Corps has collected data on field staffs' nonjurisdictional determinations, including limited data on wetlands impacted by the court's ruling. However, officials acknowledge that these data will be inadequate to assess the impacts of the ruling on wetlands jurisdiction. As a result, neither agency has conducted or plans to conduct an in-depth analysis of data already collected and they are re-examining their data collection efforts. Moreover, neither agency believes that an effective approach to fully assess the impacts of the ruling can be easily implemented because it would be resource intensive to do so and would require a vast array of data, some of which are not readily available.
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-05-870, Waters and Wetlands: Corps of Engineers Needs to Better Support Its Decisions for Not Asserting Jurisdiction
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Report to the Ranking Minority Member, Committee on Homeland Security
and Governmental Affairs, U.S. Senate:
September 2005:
Waters and Wetlands:
Corps of Engineers Needs to Better Support Its Decisions for Not
Asserting Jurisdiction:
[Hyperlink, http://www.gao.gov/cgi-bin/getrpt?GAO-05-870]:
GAO Highlights:
Highlights of GAO-05-870, a report to the Ranking Minority Member,
Committee on Homeland Security and Governmental Affairs, U.S. Senate:
Why GAO Did This Study:
Section 404 of the Clean Water Act prohibits the discharge of dredged
or fill material into federally regulated waters without first
obtaining a U.S. Army Corps of Engineers (Corps) permit. Before 2001,
the Corps asserted jurisdiction over most waters, including isolated,
intrastate, nonnavigable waters, if migratory birds could use them.
However, in January 2001, the U.S. Supreme Court concluded that the
Corps exceeded its authority in asserting jurisdiction over such waters
based solely on their use by birds. GAO was asked to examine, among
other things, the (1) processes and data the Corps uses for making
jurisdictional determinations; (2) extent to which the Corps documents
decisions that it does not have jurisdiction; (3) extent to which the
Corps is using its remaining authority to assert jurisdiction over
isolated, intrastate, nonnavigable waters; and (4) extent to which the
Corps and the Environmental Protection Agency (EPA) are collecting data
to assess the impact of the court‘s January 2001 ruling.
What GAO Found:
The five Corps districts included in GAO‘s review generally used
similar processes and data sources for making jurisdictional
determinations. After the districts receive a request for a
determination, a project manager will review the submitted data for
completeness, request additional data from the applicant, as necessary,
and analyze the data to decide whether any waters are jurisdictional
under the act. Data reviewed by project managers include photographs
and topographic, soils, and wetland inventory maps that show, among
other things, where the proposed project is located, whether other
agencies have identified waters on the property, and whether there
appears to be a basis for waters to be considered federally regulated
under the act. Site visits are generally conducted when maps and
photographs are not sufficiently detailed to make determinations.
While GAO found that the Corps generally documents its rationale for
asserting jurisdiction over waters or wetlands, it does not prepare
similar documentation for nonjurisdictional determinations. Such
rationales are important because determinations can be challenged by
property owners and the public. GAO found that only 5 percent or less
of the files in four of the five districts contained a detailed
rationale, while 31 percent of the files in the fifth district
contained such a rationale. The percentage of files that contained no
rationale whatsoever as to why the Corps did not assert jurisdiction
ranged from a low of 12 percent to a high of 49 percent in the five
districts. The remaining files contained partial rationales.
Following the Supreme Court‘s January 2001 ruling, the Corps is
generally not asserting jurisdiction over isolated, intrastate,
nonnavigable waters using its remaining authority. Since January 2003,
EPA and the Corps have required field staff to obtain headquarters
approval to assert jurisdiction over waters based solely on links to
interstate commerce. Only eight cases have been submitted, and none of
these cases have resulted in a decision to assert jurisdiction.
According to project managers, they are reluctant to assert
jurisdiction over these kinds of waters because of the lack of guidance
from headquarters and perceptions that they should not be doing so.
Although the Corps has drafted a memorandum that contains guidance for
the districts, EPA and the Corps have not yet reached agreement on the
content of the document.
At EPA‘s request, over the last year, the Corps has collected data on
field staffs‘ nonjurisdictional determinations, including limited data
on wetlands impacted by the court‘s ruling. However, officials
acknowledge that these data will be inadequate to assess the impacts of
the ruling on wetlands jurisdiction. As a result, neither agency has
conducted or plans to conduct an in-depth analysis of data already
collected and they are re-examining their data collection efforts.
Moreover, neither agency believes that an effective approach to fully
assess the impacts of the ruling can be easily implemented because it
would be resource intensive to do so and would require a vast array of
data, some of which are not readily available.
What GAO Recommends:
GAO is recommending that the Corps require detailed rationales for
nonjurisdictional decisions and finalize with EPA the additional
guidance to help the districts make certain jurisdictional decisions.
In commenting on the report, the Corps and EPA generally agreed with
GAO‘s recommendations.
www.gao.gov/cgi-bin/getrpt?GAO-05-870.
To view the full product, including the scope and methodology, click on
the link above. For more information, contact Anu K. Mittal at (202)
512-3641 or mittala@gao.gov.
[End of section]
Contents:
Letter:
Results in Brief:
Background:
Corps Districts Generally Use Similar Processes and Data Sources When
Making Jurisdictional Determinations:
Corps Districts Generally Do Not Document Their Rationales for
Nonjurisdictional Determinations:
The Corps Generally Allocates Resources for Making Jurisdictional
Determinations as Part of the Permitting Process:
The Corps Is Generally Not Using 33 C.F.R. § 328.3(a)(3) to Assert
Jurisdiction:
Agencies Are Not Collecting Data to Fully Assess the Impact of SWANCC:
Conclusions:
Recommendations for Executive Action:
Agency Comments and Our Evaluation:
Appendixes:
Appendix I: Scope and Methodology:
Appendix II: Data Contained in Corps Files on Nonjurisdictional
Determinations in Five District Offices:
Appendix III: Comments from the Department of the Army:
Appendix IV: Comments from the Environmental Protection Agency:
Appendix V: GAO Contact and Staff Acknowledgments:
Tables:
Table 1: Nonjurisdictional Determination Files Reviewed in Five Corps
Districts:
Table 2: Project Files That Contained Topographic Maps, by District:
Table 3: Project Files That Contained Soil Survey Maps, by District:
Table 4: Project Files That Contained Wetlands Inventory Maps, by
District:
Table 5: Project Files That Contained Aerial Photographs, by District:
Table 6: Project Files That Contained Ground Photographs, by District:
Table 7: Project Proponents That Relied on the Use of Consultants, by
District:
Table 8: Projects Where the Project Manager Conducted a Site Visit, by
District:
Table 9: Files That Contained a Clear Identification of Data Used in
Making the Determinations:
Table 10: Files That Contained a Basis for the Determination in the
Five Corps Districts:
Table 11: Files That Contained No, a Partial, or a Detailed Rationale
in the Five Corps Districts:
Figures:
Figure 1: Map of Corps Divisions and Districts That GAO Reviewed:
Figure 2: Decision Tree Flow Chart for the Corps' Jurisdictional
Determination Decision-Making Process:
Figure 3: Examples of Potentially Isolated Waters That May Be More at
Risk for a Nonjurisdictional Determination as a Result of SWANCC:
Figure 4: Topographic Maps Showing Project Location and Detailed
Surface Contours:
Figure 5: A Soil Survey Map the Corps Used to Make a Jurisdictional
Determination:
Figure 6: A National Wetlands Inventory Map the Corps Used to Make a
Jurisdictional Determination:
Figure 7: Examples of Detailed Rationales Used by Two Corps Districts:
Figure 8: Examples of Partial Rationales Used by Two Corps Districts:
Figure 9: Examples of No Rationales Used by Two Corps Districts:
Abbreviations:
EPA: Environmental Protection Agency:
SWANCC: Solid Waste Agency of Northern Cook County v. U.S. Army Corps
of Engineers:
Letter September 9, 2005:
The Honorable Joseph I. Lieberman:
Ranking Minority Member:
Committee on Homeland Security and Governmental Affairs:
United States Senate:
Dear Senator Lieberman:
Section 404 of the Clean Water Act prohibits most discharges of dredged
or fill material into "waters of the United States" without first
obtaining a permit from the U.S. Army Corps of Engineers (Corps).
"Waters of the United States" include, among other things, navigable
waters; interstate waters; intrastate waters, such as
wetlands,[Footnote 1] that if used or degraded, could affect interstate
commerce; tributaries of these waters; and wetlands adjacent to these
waters. Section 404 is intended to restore and maintain the physical,
chemical, and biological integrity of the nation's waters while
allowing reasonable development, and as such, it is the nation's
primary wetlands protection program under the act. Each year, the Corps
receives thousands of permit applications from project proponents, such
as private property owners and developers, seeking to place fill
material into waters or wetlands in order to build houses, golf
courses, or commercial buildings, as well as to conduct other
activities.
The first step in the regulatory process is to determine whether there
are any waters or wetlands on a project site and, if so, whether they
are "waters of the United States." The Corps determines whether it has
jurisdiction over waters and wetlands by documenting their connections
to navigable waters or interstate commerce, or by determining if the
wetlands are adjacent to other "waters of the United States." If the
Corps determines that a water or wetland is subject to federal
jurisdiction under the act, project proponents who seek to fill in
waters or wetlands as part of any developmental activities must first
obtain a permit. As part of the permit evaluation process, the Corps
requires that project proponents avoid, minimize, and compensate for
the destruction or degradation of waters that fall under federal
jurisdiction. A project proponent who disagrees with the Corps'
jurisdictional determination can file an administrative appeal
challenging the determination.
In 1986, the Corps stated in a preamble to the wetlands program
regulations that it would assert federal jurisdiction over waters that
are or would be used as, among other things, habitat by birds protected
by migratory bird treaties.[Footnote 2] This statement became known as
the "migratory bird rule," and under it, the Corps could potentially
assert jurisdiction over almost any body of water or wetland in the
United States. In January 2001, however, in Solid Waste Agency of
Northern Cook County v. United States Army Corps of Engineers
(SWANCC),[Footnote 3] the Supreme Court concluded that the Corps had
exceeded its authority in asserting jurisdiction over isolated,
intrastate, nonnavigable waters based solely on their use as habitat by
migratory birds.
Following the decision, in January 2003, the Corps and the
Environmental Protection Agency (EPA), which has primary authority and
responsibility for implementing the Clean Water Act, issued a joint
memorandum discussing the ruling's potential implications for federal
jurisdiction under the Clean Water Act.[Footnote 4] This memorandum
stated that although SWANCC specifically involves isolated, intrastate,
nonnavigable waters used as habitat by migratory birds, it raises
questions about what connections, if any, to interstate commerce could
be used to assert jurisdiction over isolated, intrastate, nonnavigable
waters. Consequently, the memorandum instructed field staff to seek
formal project-specific headquarters approval prior to asserting
jurisdiction over isolated, intrastate, nonnavigable waters on the sole
basis of the Corps' regulations at 33 C.F.R. § 328.3(a)(3). Under this
section, federal jurisdiction extends to all waters, such as intrastate
lakes and wetlands, if the use, degradation, or destruction of these
waters could affect interstate commerce. In the aftermath of the SWANCC
ruling, questions have been raised not only about which isolated,
intrastate, nonnavigable waters and wetlands are now considered
jurisdictional under the act, but also about the indirect impact of the
ruling on the Corps' resources for making determinations.
In February 2004, we reported that, since SWANCC, Corps districts have
not consistently interpreted and applied federal regulations that
define jurisdictional waters, including wetlands.[Footnote 5] Because
of these inconsistencies, we reported it was unclear whether different
jurisdictional determinations would be made under similar situations.
For this study, you asked us to determine (1) the processes and data
the Corps uses to make jurisdictional determinations; (2) the extent to
which the Corps documents its decisions when it concludes that it does
not have jurisdiction over certain waters and wetlands
(nonjurisdictional determinations); (3) the process the Corps uses to
allocate resources for making jurisdictional determinations; (4) the
extent to which the Corps is asserting jurisdiction over isolated,
intrastate, nonnavigable waters using its remaining authority in 33
C.F.R. § 328.3(a)(3); and (5) the extent to which the Corps and EPA are
collecting data to assess the impact of SWANCC.
To examine these issues, we selected 5 of the Corps' 38 district
offices--Chicago; Galveston, Texas; Jacksonville, Florida; Omaha,
Nebraska; and St. Paul--from which to obtain detailed information. We
selected 4 of these 5 districts because they made more
nonjurisdictional determinations than any of the other 38 districts. We
selected the fifth district--Galveston--because it also accounted for a
large number of nonjurisdictional determinations and was located in a
different geographic region than the other four districts. Altogether,
these five districts accounted for 58 percent of the nonjurisdictional
determinations the Corps made between April and December 2004. This
time period was selected because prior to April 2004, data on the
Corps' nonjurisdictional determinations were not readily available. We
interviewed Corps officials in the selected districts, including
project managers who make jurisdictional and nonjurisdictional
determinations and appeals review officers who review appeals of
determinations. We also reviewed 770 files for jurisdictional
determination requests or permit applications for which Corps project
managers determined there was no federal jurisdiction. In reviewing the
Corps' nonjurisdictional determinations, we did not review other key
aspects of the program, such as the Corps' permitting process. Appendix
I provides a more detailed description of our scope and methodology. We
performed our work from June 2004 through July 2005 in accordance with
generally accepted government auditing standards.
Results in Brief:
Each of the five Corps districts we visited generally used a similar
process and similar data sources for making jurisdictional
determinations. This process involves four steps: (1) receiving a
request for a jurisdictional determination or a permit application; (2)
reviewing the submitted information for completeness; (3) requesting
additional data from the project proponent, as necessary; and (4)
analyzing the data to determine if the waters or wetlands are regulated
under the Clean Water Act. Corps districts frequently use data from
topographic, soil, and wetland inventory maps, as well as photographs
to make these determinations. These data show, among other things,
where the proposed project is located and whether there appears to be a
basis for waters or wetlands to be federally regulated under the act,
such as whether the site's elevations would allow water on the site to
flow into "waters of the United States." According to Corps project
managers, they generally visit project sites when photographs and maps
do not provide sufficiently detailed information about the potential
for a surface-water connection, such as through a culvert or shallow
ditch, between any waters or wetlands located on the project site and
off-site waters. In addition, they said a number of factors influence
the types and amounts of data they review, such as the size and value
of resources at risk and their confidence in the capability and
integrity of any consultants the project proponents may have hired to
prepare their permit applications.
Corps records provide limited information on the rationale for its
decisions not to assert jurisdiction over certain waters and wetlands.
Since August 2004, the Corps has required that project files include a
standardized form that provides basic information about the project
site. This form was developed to increase the level of consistency,
predictability, and openness in the districts' reporting practices on
jurisdictional determinations. The form also requires that project
managers provide a rationale for their decisions to assert jurisdiction
but does not require a similar rationale for nonjurisdictional
determinations. A headquarters senior regulatory program manager told
us that a rationale for nonjurisdictional determinations is not
required because it was assumed that this information would be included
elsewhere in the file. According to Corps appeals review officers and
the Chief of the Regulatory Branch, all files should contain a
detailed, site-specific rationale that explains how and why the
determination was made, so that the Corps can quickly and easily
respond to any inquiry about their determinations. For example, the
Corps has received several requests from environmental groups for
information on all nonjurisdictional determinations made by its 38
districts. We found that only 5 percent or less of the files in four of
the five districts contained a detailed rationale, while 31 percent of
the files in the fifth district contained such a rationale. The
percentage of files that contained no rationale whatsoever as to why
the Corps did not assert jurisdiction ranged from a low of 12 percent
to a high of 49 percent in the five districts. The remaining files
contained partial rationales.
For the five districts we examined, resource allocations for making
jurisdictional determinations were generally included as part of the
resources allocated to permit processing. These allocations are based
on historical allocations and regulatory program priorities, such as
issuing permits in a timely manner. According to district officials,
although they do not know how much time is spent conducting
jurisdictional determinations, their ability to effectively perform
certain activities, such as conducting site visits, has been impacted
in the past several years because their workloads have increased and
their budgets have not kept pace. For example, officials in several
districts told us that they have been unable to visit many project
sites even though site visits may be the best way to determine whether
a water or wetland is jurisdictional. In 2004, the Corps initiated a
project to obtain detailed estimates on the amount of time required to
carry out various aspects of the regulatory program, including making
jurisdictional determinations. In 2005, the Corps used preliminary
results of this project, in part, to allocate total resources for
fiscal year 2005 to the different districts. According to Corps
officials, these estimates will be refined as the agency gains more
experience in using them. However, we found that the agency will
continue to face challenges in using these estimates to develop budget
proposals and allocate resources because the Corps' current data
management systems do not yet provide accurate and complete data on the
various activities undertaken by each of the districts, including
making jurisdictional determinations. The Corps is currently phasing in
a new data management system, which is due to be implemented by the end
of fiscal year 2006 and which should provide much of the data needed.
Subsequent to the SWANCC ruling, the Corps is generally not asserting
jurisdiction over isolated, intrastate, nonnavigable waters using its
remaining authority in 33 C.F.R. § 328.3(a)(3). In our 2004 report, we
found that between January 2003 and January 2004, the districts sought
to use this provision to assert jurisdiction only eight times. Neither
EPA nor the Corps authorized use of this provision as the sole basis
for asserting jurisdiction in six of these cases, while two are still
pending. Since January 2004, a Corps official stated that no additional
requests have been submitted to headquarters. In the five districts we
reviewed, Corps officials said they generally do not consider seeking
jurisdiction over isolated, intrastate, nonnavigable waters on the sole
basis of 33 C.F.R. § 328.3(a)(3) because (1) headquarters has not
provided detailed guidance on when it is appropriate to use this
provision; (2) they believe that headquarters does not want them to use
this provision; (3) they were concerned about the amount of time that
might be required for a decision from headquarters; or (4) few
isolated, intrastate, nonnavigable waters were in their districts whose
use, degradation, or destruction could affect interstate commerce. In
January 2005, the Corps drafted a memorandum of agreement that
establishes procedures and clarifies the process for field staff on the
use of 33 C.F.R. § 328.3(a)(3) to assert jurisdiction. It also
establishes a process for the Corps and EPA to consult on such
requests, including time frames for responding to a request. As of July
2005, EPA and the Corps had not yet finalized the agreement.
Neither the Corps nor EPA is collecting data to fully assess the impact
of SWANCC on federal jurisdiction over isolated, intrastate,
nonnavigable waters or wetlands. The Corps is collecting some data for
EPA on its nonjurisdictional determinations in an effort to obtain
information to respond to congressional, project proponent, and public
concerns about how field offices are applying the SWANCC ruling.
However, the data being collected are incomplete and of limited use to
assess the impact of SWANCC on the nation's aquatic resources.
Specifically, these data do not (1) reflect the actual size of waters
or wetlands that the Corps considers nonjurisdictional; (2) indicate
the precise size of the waters or wetlands that are being degraded or
destroyed; or (3) indicate the functional value of the waters or
wetlands, such as their use as habitat for plant or animal species or
as storage for storm-water runoff. Given the limitations of these data
and current resource constraints, neither the Corps nor EPA have
conducted or plan to conduct an in-depth analysis of data already
collected, and both agencies are re-examining their data collection
efforts. Moreover, due to current resource constraints and the vast
amount of data that would be needed, agency officials do not believe
that an appropriate approach can be easily developed that would allow
them to fully assess the impact of SWANCC on federal jurisdiction of
waters and wetlands.
To provide greater transparency in the Corps' processes for making
nonjurisdictional determinations, we are recommending that the
Secretary of the Army require the Corps to include in its project files
explanations for nonjurisdictional determinations as it does for its
jurisdictional determinations, and that these explanations be detailed
and site-specific. We are also recommending that the Secretary of the
Army, through the Corps, and the Administrator of EPA complete the
process of jointly developing procedures for districts to follow when
they would like to assert jurisdiction based solely on 33 C.F.R. §
328.3(a)(3). In commenting on the report, the agencies generally agreed
with our recommendations.
Background:
The Clean Water Act prohibits the discharge of pollutants into
"navigable waters," which are defined in the act as "waters of the
United States," without a permit. The act's objective is to restore and
maintain the chemical, physical, and biological integrity of the
nation's waters. Congress's intent in passing the act was to establish
an all-encompassing program of water pollution regulation. To this end,
the act establishes several programs and authorizations designed to
protect "waters of the United States," including:
* section 303, which calls for development of water quality standards
for "waters of the United States";
* section 311, which establishes a program for preventing, preparing
for, and responding to oil spills that occur in "waters of the United
States";
* section 401, which establishes authority for state water quality
certification of federally issued permits that may result in any
discharge into "waters of the United States";
* section 402, which establishes a permitting system to regulate point
source discharges of pollutants into "waters of the United
States";[Footnote 6], [Footnote 7] and:
* section 404, which prohibits the discharge of dredged or fill
material into "waters of the United States" without a permit from the
Corps.[Footnote 8]
EPA has primary responsibility for carrying out the act, including
final administrative responsibility for interpreting "waters of the
United States," a term that governs the scope of all other programs
under the Clean Water Act.[Footnote 9] EPA and Corps regulations define
"waters of the United States" for which a section 404 permit must be
obtained to include, among other things, (1) interstate waters; (2)
waters that are or could be used in interstate commerce; (3) waters,
such as wetlands, whose use or degradation could affect interstate
commerce; (4) tributaries of these waters; and (5) wetlands adjacent to
these waters, other than waters that are themselves wetlands. In
addition to the Clean Water Act, some state and local governments have
developed programs to protect waters, including wetlands, either under
state statutes or local ordinances or by assuming responsibility for
section 404 permitting responsibilities.[Footnote 10]
EPA established, in consultation with the Corps, the substantive
environmental protection standards that project proponents must meet to
obtain a permit for discharging dredged or fill material into "waters
of the United States," while the Corps administers the permitting
responsibilities of the program. The day-to-day responsibilities for
implementing the section 404 program have been delegated to 38 Corps
district offices, with the Corps' divisions and headquarters providing
oversight of the program. In fiscal year 2005, the Corps' regulatory
program budget was $144 million--a 2 percent increase over its fiscal
year 2004 funding level.[Footnote 11] The districts processed about
86,000 permits in fiscal year 2003. Figure 1 shows the locations of 5
of the 8 Corps divisions and 38 districts that we contacted as part of
our review. These include the Chicago, Galveston, Jacksonville, Omaha,
and St. Paul districts.
Figure 1: Map of Corps Divisions and Districts That GAO Reviewed:
[See PDF for image]
[End of figure]
The first step in the regulatory process is to determine whether there
is any water or wetland[Footnote 12] on the project site and, if so,
whether the water or wetland is a "water of the United States." The
Corps determines if the water or wetland is a "water of the United
States" and, thus, whether it has jurisdiction, by documenting any
connections of the water or wetland on the site to any downstream
navigable water or interstate commerce, or by determining if the
wetland is adjacent to these waters. If the Corps determines that a
water or wetland is jurisdictional but a project proponent disagrees,
the proponent can file an administrative appeal challenging the Corps'
determination. Appeals review officers, located at Corps divisions, are
responsible for reviewing the administrative records for approved
jurisdictional determinations and determining if the appeals have
merit. Project proponents may also subsequently file legal actions in
federal court if they disagree with the Corps' final decision on an
appeal. Figure 2 shows the Corps' decision-making process for a
jurisdictional determination.
Figure 2: Decision Tree Flow Chart for the Corps' Jurisdictional
Determination Decision-Making Process:
[See PDF for image]
[End of figure]
If the waters or wetlands are found to be jurisdictional, project
proponents who want to discharge dredged or fill material into waters
or wetlands as part of development activities on the property may be
required to submit an application to obtain a 404 permit.[Footnote 13]
In evaluating permit applications, the Corps requires the project
proponent to take actions to avoid, minimize, and compensate for the
potential impact of destroying or degrading "waters of the United
States." Under guidelines issued by EPA, the Corps may not authorize a
discharge of dredged or fill material if there is a practicable
alternative that would have less significant adverse environmental
consequences.[Footnote 14] According to the Corps, under this
regulation, it can only authorize the least environmentally damaging,
practicable alternative.
The Corps' implementation of the section 404 program changed
significantly in January 2001 when the Supreme Court ruled in SWANCC
that the Clean Water Act did not authorize the Corps to require a
permit for filling an isolated, intrastate, nonnavigable water where
the sole basis for the Corps to assert regulatory authority was that
the water had been used as habitat by migratory birds.[Footnote 15]
This provision, included in a preamble to regulations issued in 1986,
indicated that jurisdictional waters include waters that "are or would
be used as habitat by birds protected by migratory bird treaties," or
that "are or would be used as habitat by other migratory birds that
cross state lines."[Footnote 16],[Footnote 17] Under this
interpretation, nearly all waters and wetlands in the United States
were potentially subject to the Corps' jurisdiction. According to the
Chief of the Regulatory Branch, certain categories of waters or
wetlands may be more at risk for a determination of no jurisdiction as
a result of SWANCC. These potentially geographically isolated waters
include prairie potholes, playa lakes, and vernal pools. (See fig. 3.)
Figure 3: Examples of Potentially Isolated Waters That May Be More at
Risk for a Nonjurisdictional Determination as a Result of SWANCC:
[See PDF for image]
[End of figure]
The extent to which the reasoning in SWANCC applies to waters other
than those specifically at issue in that case has been the subject of
considerable debate in the courts[Footnote 18] and among the public.
Some groups have argued that SWANCC precludes the Corps from regulating
virtually all isolated, intrastate, nonnavigable waters, as well as
nonnavigable tributaries to navigable waters, while others have argued
that it merely prohibits the regulation of isolated, intrastate,
nonnavigable waters and wetlands solely on the basis of their use as
habitat by migratory birds. In January 2003, the Corps and EPA issued a
joint memorandum to clarify the impacts of the SWANCC ruling on federal
jurisdiction over waters and wetlands. The guidance called for Corps
and EPA field staff to continue to assert jurisdiction over traditional
navigable waters, their tributaries, and adjacent wetlands. It also
directed field staff to make jurisdictional determinations on a case-
by-case basis, considering the guidance in the memorandum, applicable
regulations, and any relevant court decisions. It also noted that in
light of SWANCC, it is uncertain whether there remains any basis for
jurisdiction over any isolated, intrastate, nonnavigable waters. While
the SWANCC ruling specifically addressed the use of migratory birds as
a basis for asserting jurisdiction over these waters, it did not
address other bases cited in Corps regulations as examples for
asserting jurisdiction. These bases include intrastate waters whose
use, degradation, or destruction could affect interstate commerce,
including waters (1) that are or could be used by interstate or foreign
travelers for recreational or other purposes, (2) from which fish or
shellfish are or could be taken and sold in interstate or foreign
commerce, or (3) that are used or could be used for industrial purposes
by industries in interstate commerce. Because of this uncertainty, the
memorandum instructed the field staff to seek formal project-specific
headquarters approval prior to asserting jurisdiction over such waters
based solely on links to interstate commerce.
While EPA and Corps regulations provide a framework for determining
which waters are within federal jurisdiction, they leave room for
judgment and interpretation by the Corps districts when considering
jurisdiction over, for example, adjacent wetlands, tributaries, and
ditches and other man-made conveyances. Before SWANCC, the Corps
generally did not have to be concerned with such factors as adjacency,
tributaries, and other aspects of connection with an interstate or
navigable water body if the wetland or water body qualified as a
jurisdictional water on the basis of its use as habitat by migratory
birds. In our February 2004 report, we found that Corps districts and
staff interpreted and applied federal regulations differently when
determining what wetlands and other waters fall within federal
jurisdiction. For example, districts differ in their use of proximity
as a factor in making determinations. One district required that the
isolated water be within 200 feet of other "waters of the United
States"; another required a distance of 500; and still others had no
minimum requirement. We concluded that it was unclear whether or to
what degree these variations would result in different jurisdictional
determinations in similar situations, in part, because Corps staff
consider many factors when making these determinations. In addition,
few Corps districts make public the documentation that specifies the
interpretation and application of the regulations they used to
determine whether a water or wetland is jurisdictional. Consequently,
project proponents may not clearly understand their responsibilities
under section 404 of the Clean Water Act. We recommended, among other
things, that the Corps survey district offices to determine how they
are interpreting and applying the regulations and evaluate if
differences need to be resolved. In response, the Corps conducted a
preliminary survey in 2004 and a more detailed survey in 2005. As of
July 2005, the Corps was in the process of evaluating the districts'
responses to the 2005 survey.
Corps Districts Generally Use Similar Processes and Data Sources When
Making Jurisdictional Determinations:
Each of the five Corps districts we visited generally used a similar
process and similar data sources for making jurisdictional
determinations. The districts use a four-step process that consists of
(1) receiving a request for a jurisdictional determination or a permit
application; (2) reviewing the submitted information for completeness;
(3) requesting additional data from the project proponent, as
necessary; and (4) analyzing the data to determine if the waters or
wetlands are regulated under the Clean Water Act. Corps districts also
used similar data to make these determinations, which frequently
included topographic, soil, and wetland inventory maps as well as
photographs. These data show, among other things, where the proposed
project is located and whether there appears to be a basis, such as
whether the site's elevations would allow water on the site to flow
into "waters of the United States," for a water to be regulated. The
Corps generally conducts site visits when these data do not
sufficiently demonstrate the nature and extent of any connection
between an on-site water to a "water of the United States." According
to Corps project managers, a number of factors influence the types and
amounts of data they review, such as the size and value of resources at
risk and their confidence in the capability and integrity of any
consultants the project proponents have hired to prepare their permit
applications.
Corps Districts Use a Four-Step Process to Make Jurisdictional
Determinations:
In making jurisdictional determinations, project managers in each of
the five districts we visited proceed through the following four steps:
* Receiving a request for a jurisdictional determination or a permit
application. The request is submitted by a project proponent, who may
be a property owner or the owner's authorized agent, such as a
consultant, or a developer. At a minimum, the request must clearly
identify the property and the boundaries of the project site--either
with a site location map or with another map that defines the project
boundaries--as well as the name of the project proponent, a person to
contact, and permission to go onto the project site in the event that a
site visit is to be conducted.
* Reviewing the submitted information for completeness. The project
manager assigned to the project reviews the information to ensure that
the request is signed by the project proponent and that it contains the
minimum required information. The project manager also reviews the
information to ensure that it is sufficient to locate the property. The
amount and type of information the Corps requests that the project
proponent submit may vary by type of applicant and project as well as
the extent and functional values of the water resources that may be
impacted. For example, residential homeowners who are requesting a
determination for their home sites are generally not expected to submit
more than the minimum amount of information. In contrast, the districts
may request much more detailed information from consultants who are
preparing jurisdictional requests or permit applications for commercial
property owners. For example, the Jacksonville District recommends that
requests be accompanied by aerial photographs; a legible survey, plat
drawing, or other parcel plan showing the dimensions of the property;
and a list of other maps that provide additional information about the
project site such as the types of soils at the site.
* Requesting additional data from the project proponent, as necessary.
If project managers find that information submitted does not
sufficiently identify the property or the nature of the project, they
will informally or formally request additional information. The Corps
will not proceed with a jurisdictional determination until it has
received all requested information.
* Analyzing the data to determine if the Corps has jurisdiction. Once
the requested information has been received, the project manager will
analyze the data to determine if the waters or wetlands on the project
site are connected to any downstream navigable waters that could be or
are used for interstate commerce, or adjacent to such waters. If the
Corps has jurisdiction, it defines the limits of federal jurisdiction
by, for example, identifying high tide lines or ordinary high water
marks. If the waters include wetlands, the project manager must also
identify the boundaries of the wetlands--that is, conduct what is known
as a wetland delineation.[Footnote 19]
Corps Districts Use Similar Data Sources to Make Jurisdictional
Determinations:
Project managers in the five districts we visited generally use similar
data sources to make their jurisdictional determinations. The most
commonly used data include the following:
* Topographic maps. Topographic maps show the shape of the Earth's
surface through contour lines, which are imaginary lines that join
points of equal elevation on land. Such contours make it possible to
measure the height of hills and mountains and the depth of swales and
valleys. Widely spaced contours or an absence of contours means that
the ground slope is relatively level. Contours that are very close
together represent steep slopes. It is often possible to use contours
to determine the direction of water flow, and potential connections to
other waters. Topographic maps also show symbols representing features
such as roads, railroads, streets, buildings, lakes, streams,
irrigation ditches, and vegetation. In the five districts we reviewed,
590 of the 770 jurisdictional determination request or permit
application files where the Corps' project managers determined there
was no federal jurisdiction included a topographic map. This ranged
from a low of 64 percent of the Jacksonville District's files (89 of
140 files) to a high of 89 percent of both the Galveston District's (58
of 65) and the St. Paul District's (140 of 158) files. (App. II
contains district-specific information on, among other things, the
number of files that contained different types of data.) Figure 4 shows
topographic maps used to identify a project location as well as the
detailed surface contours of the project site.
Figure 4: Topographic Maps Showing Project Location and Detailed
Surface Contours:
[See PDF for image]
[End of figure]
* Soil survey maps. A soil survey map shows the types or properties of
soil on a project site. There are over 20,000 different kinds of soil
in the United States and they differ depending on how, where, and when
they were formed. Soil is altered by the interactions of climate,
surface contours, and living organisms over time and has many
properties that fluctuate with the seasons. For example, it may be
alternately cold and warm or dry and moist. Similarly, the amount of
organic matter will fluctuate over time. Such maps can help indicate
whether waters or wetlands on a project site have any hydrologic
relationship or connection. In the five districts we reviewed, 404 of
the 770 files included a soil survey map. This ranged from a low of 17
percent of the Omaha District's files (43 of 257) to a high of 82
percent of the Chicago District's files (123 of 150). Figure 5 shows a
soil survey map superimposed onto an aerial photograph. The project
location is the same as in figure 4.
Figure 5: A Soil Survey Map the Corps Used to Make a Jurisdictional
Determination:
[See PDF for image]
[End of figure]
* National Wetlands Inventory maps. A wetlands inventory map indicates
the potential and approximate location of waters or wetlands as well as
wetland types. Most of these maps were produced using aerial
photography from the 1980s. The maps also classify the wetlands by
type, such as a forested wetland or a scrub and shrub wetland. In the
five districts we reviewed, 401 of the 770 files included a wetlands
inventory map. This ranged from a low of 11 percent of the Jacksonville
District's files (15 of 140) to a high of 90 percent of the Chicago
District's files (135 of 150). Figure 6 shows a wetlands inventory map
superimposed onto an aerial photograph.
Figure 6: A National Wetlands Inventory Map the Corps Used to Make a
Jurisdictional Determination:
[See PDF for image]
[End of figure]
* Photographs. The Corps can use aerial and ground photographs to
determine if waters or wetlands are located on a project site and to
identify other structures on the site that may provide pathways for
water to travel from one water body to another. Such photographs are
available from a number of sources, including the project proponents.
In addition, aerial photographs are available from the Department of
Agriculture's Natural Resources Conservation Service showing wetlands
on private farms that, in return for federal subsidies, have been
preserved instead of being turned into cropland. In the five districts
we reviewed, 562 of the 770 files included aerial photographs. This
ranged from a low of 44 percent of the Omaha District's files (112 of
257) to a high of 91 percent of both the Chicago District's (137 of
150) and the Galveston District's (59 of 65) files. Similarly, 320 of
the 770 files included ground photographs. This ranged from a low of 26
percent of the Jacksonville District's files (36 of 140) to a high of
63 percent of the Chicago District's files (95 of 150).
The Corps uses these maps and photographs not only to provide unique
information about the site but also to corroborate information about a
site. For example, the Corps can compare National Wetlands Inventory
maps with topographic maps to help confirm whether there are waters or
wetlands on a project site. The National Wetlands Inventory map could
also alert the Corps to the types of waters or wetlands on the site. If
the land has been used for growing crops, the Corps can obtain Natural
Resources Conservation Service aerial photographs to determine if that
agency has verified the existence of wetlands on that particular site.
This information can then be used in examining aerial or site
photographs provided by the project proponent.
Currently, project managers can use online resources for much of the
data they need to make jurisdictional determinations. For example, many
topographic maps and aerial photographs are available through online
sources. In addition, project managers in all of the districts we
visited can retrieve more sophisticated versions of aerial photographs,
such as color-infrared photographs and digital orthophoto quadrangles,
which are computer-generated images of aerial photographs that have
been enhanced to better view the ground. Similarly, project managers in
all five districts have the ability to superimpose different maps, such
as soil survey maps, onto aerial photographs. In some cases, they can
produce one map that shows the topography, wetlands, and soils present
on a property. According to several project managers we contacted, this
ability provides them with a more comprehensive view of the status of
waters or wetlands at individual project sites.
As can be seen in the following examples, some districts may also use
other data sources that are specific to their district in making
jurisdictional determinations.
* The Galveston District relies on maps that designate flood-prone
areas--areas that are likely to be flooded. These maps, produced by the
Federal Emergency Management Agency, are used for insurance purposes.
According to the Galveston District's policy, if a water or wetland is
in an area designated by the agency as a flood zone, the water or
wetland will generally be considered adjacent and fall within the
Corps' jurisdiction.
* The St. Paul District relies on the Southeastern Wisconsin Regional
Planning Commission as a resource for maps for seven counties, which
include the city of Milwaukee. The commission prepares maps for a
variety of purposes, such as transportation planning. The maps include
topographic maps as well as existing land-use maps, some of which
identify waters and wetlands. Its digital land-use inventory is updated
every 5 years. In addition, the state of Wisconsin compiles its own
wetland inventory maps and, as a result, Corps project managers may
rely less on National Wetlands Inventory maps when determining
jurisdiction. Similarly, the state of Minnesota has developed public
waters inventory maps that Corps project managers can access.
* In the Chicago District, which encompasses six counties, project
managers can rely on more detailed wetland identification maps that
some of the counties have prepared with funding received from EPA as
part of its Advance Identification of Disposal Areas program.[Footnote
20]
According to project managers, the number of data sources and the
specific data they use to make a jurisdictional determination can vary,
depending on the nature of the data and the project site. For example,
according to one project manager, if the project site is a 5-acre flat
piece of property that contains a one-quarter-acre wetland, and the
nearest tributary to a "water of the United States" is 5 miles away,
the project manager would not necessarily decide to visit the site to
make a determination that the wetland was not jurisdictional. In
contrast, according to this project manager, a 1,000-acre site that has
25 different waters and wetlands totaling 200 acres and a series of
ditches, and is near a tributary to a "water of the United States,"
could warrant several site visits.
The use of a consultant to prepare a jurisdictional determination
request or a permit application can also affect the Corps' decision on
what data to review. Each district maintains a list of consultants whom
residential homeowners and developers can use, although the Corps does
not advocate or recommend specific consultants or require that only
those consultants on its lists be used. As a result, the list can
contain a number of consultants with varying levels of technical
expertise. According to several project managers, if they have
extensive experience with a particular consultant and trust that
consultant's work, they are more likely to limit their review to the
data submitted with the request, including any data on the types of
soils, plants, and hydrology the consultant may have collected for use
in delineating wetlands, along with questioning the consultant rather
than independently verifying the information with their own data
sources. In the five districts we reviewed, consultant data were
submitted for 571 of the 770 projects whose files we reviewed.[Footnote
21] The percentage of projects where consultant data were submitted
varied by district, from a low of 55 percent of the Omaha District's
projects (140 of 255 files) to a high of 94 percent of the Jacksonville
District's projects (131 of 140 files).
Several project managers cautioned that the data represented by the
maps and photographs are, at times, not accurate because the data are
old or have not been verified by the agencies that prepared the maps
and photographs. As noted above, many National Wetlands Inventory maps
were prepared based on aerial photography from the 1980s. In addition,
because of the large scale of the maps, they do not always accurately
capture all wetlands, particularly wetland types that are difficult to
detect from aerial photographs, such as small forested wetlands.
Further, in some instances the maps and photographs do not provide
clear evidence of whether a water or wetland is jurisdictional. In such
cases, project managers told us that site visits are the best data
source for making a determination. This is particularly common for
projects located near a roadway or an area that has been extensively
developed. Similarly, features such as culverts and low-lying areas
that would often serve to connect an otherwise isolated water to a
jurisdictional water are not always visible in topographic maps, and
aerial photographs and a site visit may be the only means of
determining whether such connections do in fact exist.
Other factors that influence whether a site visit is conducted,
according to Corps project managers, include:
* the proximity of the project site to the Corps' office and resources
available to travel to the site,
* the nature of the topography and the number of waters or wetlands
that appear to be on the project site,
* a project manager's familiarity with the geographic area where the
project is being undertaken,
* the potential for public concern over the proposed project,
* the size of the waters or wetlands on the project site and their
value,
* the extent to which the data from all of the different data sources
independently confirm the existence and nature of waters or wetlands on
a project site as well as whether they are connected to "waters of the
United States," and:
* the existence of any other federal, state, or local agency that may
have oversight responsibility for waters or wetlands at the project
site and whether officials from those agencies visited the site.
In our review of project files, we found that project managers
conducted site visits for 412 of the 770 projects whose files we
reviewed. However, the extent to which site visits were conducted
varied considerably by district, from a low of 34 percent of the St.
Paul District's projects (53 of 158 files) to a high of 84 percent of
the Chicago District's projects (124 of 148 files). This variability
can be attributed, in part, to the size of the districts--the St. Paul
District covers a broad area encompassing two states whereas the
Chicago District covers only six counties in one state.
Corps Districts Generally Do Not Document Their Rationales for
Nonjurisdictional Determinations:
Corps records provide limited information on the rationale that the
project managers used when deciding not to assert jurisdiction over
certain waters and wetlands. In August 2004, the Corps required that
project managers include a standardized form in each of the project
files. The form provides basic information about the project site and
requires project mangers to provide rationales for their decisions to
assert jurisdiction; however, rationales are not required for their
nonjurisdictional determinations because it is assumed that this
information would be included elsewhere in the project files. Corps
appeals review officers and the Chief of the Regulatory Branch said
that all files should contain rationales that are site-specific and
provide the reasoning and evidence used to make the determination.
However, the majority of the files we reviewed contained either
rationales that provided little site-specific information about why the
project managers made nonjurisdictional determinations or no
explanations whatsoever.
In August 2004, to improve the consistency, predictability, and
openness of jurisdictional determination reporting practices, the Corps
required that files contain a standardized form that is to include
basic information about the project site, such as the location and size
of the project. The form is also to be used by project managers to
clearly indicate what data were used in making a determination and the
bases for the determination--that is, the specific federal regulations
that allowed the Corps to assert or precluded it from asserting
jurisdiction. While the form requires that project managers include a
rationale for asserting jurisdiction over waters on a project site, the
form does not require that a rationale be included for a
nonjurisdictional determination. According to the headquarters senior
regulatory program manager responsible for overseeing jurisdictional
determinations, the August 2004 form does not require that project
managers include a rationale for their nonjurisdictional determinations
because it was assumed that more detailed information would be included
elsewhere in the project file.
Corps appeals review officers we contacted said it is important for
Corps files to contain the information specified on the August 2004
form. However, these officials told us it is important that all files,
including nonjurisdictional determination files, contain detailed, site-
specific rationales that provide the reasoning and evidence used to
conclude whether the waters or wetlands were within federal
jurisdiction in the event an appeal was filed, the project manager
changed, or the Corps received a public inquiry. Corps appeals review
officers said that a rationale should consist of (1) a detailed, site-
specific commentary on how the on-site water does or does not connect
with "waters of the United States"; (2) a description of what the data
reviewed indicate; (3) a summary of the relevant hydrological
conditions at the site; (4) a reference to any district-specific policy
on asserting jurisdiction over waters that are considered adjacent to
"waters of the United States" or navigable; and (5) a reason why the
Corps concluded that the water is or is not jurisdictional.
The Chief of the Regulatory Branch echoed the position of the appeals
review officers. He told us it is important that the file support the
Corps' decision, particularly given public concern about the effect
that SWANCC may have had on isolated, intrastate, nonnavigable waters.
For example, since SWANCC, the Corps has received Freedom of
Information Act requests from several environmental groups seeking
information on nonjurisdictional determinations made by each of the
Corps' districts. The Chief of the Branch stated that the Corps must be
able to respond quickly to such public inquiries and its decisions must
be transparent and fully supported if the agency expects the public to
have confidence in its regulatory decisions.
However, we found that not all project managers are including a
detailed rationale in the project files. Of the 770 nonjurisdictional
determination files we reviewed, only 53 included a detailed rationale
in the file. This ranged from a low of 4 percent of the Omaha
District's files (11 of 257) to a high of 31 percent of the Galveston
District's files (20 of 65). The examples in figure 7 illustrate site-
specific rationales that explain how and why the Corps determined that
it did not have jurisdiction.
Figure 7: Examples of Detailed Rationales Used by Two Corps Districts:
[See PDF for image]
[End of figure]
Unlike the examples in figure 7, most of the files--526--included only
partial rationales that provide little in-depth, site-specific
information that the project manager relied upon to conclude that the
water is isolated. This ranged from a low of 46 percent of the Chicago
District's files (69 of 150) to a high of 83 percent of the
Jacksonville District's files (116 of 140). Figure 8 provides two
examples of partial rationales.
Figure 8: Examples of Partial Rationales Used by Two Corps Districts:
[See PDF for image]
[End of figure]
Many of the files we reviewed--191--did not contain any rationale to
support the conclusion that the waters or wetlands under review were
isolated. The percentage of files that contained no rationale also
varied by district and ranged from a low of 12 percent of the
Jacksonville District's files (17 of 140) to a high of 49 percent of
the Chicago District's files (74 of 150). Two examples of files with no
rationale that we reviewed are presented in figure 9.
Figure 9: Examples of No Rationales Used by Two Corps Districts:
[See PDF for image]
[End of figure]
Although we did not assess the accuracy of the determinations made by
the Corps in these cases, we are concerned that a lack of a detailed
rationale limits the transparency of the Corps' decision-making process
and inhibits its ability to quickly respond to public inquiries and
related challenges.
The Corps Generally Allocates Resources for Making Jurisdictional
Determinations as Part of the Permitting Process:
The Corps does not separately allocate resources for jurisdictional
determinations but instead includes these resources in the total
available for issuing permits. Corps headquarters allocates resources
to its eight divisions based primarily on the level they have received
in prior years, and these divisions, in turn, allocate resources to the
38 districts on the same basis. The districts then allocate resources
to carry out the regulatory program based on guidance issued in 1999.
However, this guidance does not provide a separate program activity for
jurisdictional determinations. Instead, the guidance directs the
districts to allocate 60 percent to 80 percent of their resources to
evaluating permits and 10 percent to 25 percent to ensuring that
project proponents are in compliance with permit requirements.
According to the Corps, about 80 percent of Corps resources are
allocated to permitting, about 15 percent are allocated to enforcement
and compliance, and about 5 percent are allocated to other
activities.[Footnote 22] In four of the five districts we visited,
staff responsible for evaluating permits perform jurisdictional
determinations, while in the remaining district--Galveston--
jurisdictional determinations are the responsibility of the compliance
staff.
District officials stated they do not know how much time is spent
conducting jurisdictional determinations but that over the past several
years their workloads have increased because of several factors,
including SWANCC, while their budgets have not kept pace.[Footnote 23]
As a result, they said their ability to effectively perform regulatory
program activities, including making jurisdictional determinations, has
been impacted, as can be seen in the following examples.
* Omaha District officials said that because of budget constraints and
heavy workloads, the district is unable to visit most project sites in
evaluating permits and making jurisdictional determinations. The
district is responsible for six states, and while it has an office in
each of the states, site visits can frequently entail significant
travel costs. While project managers can occasionally obtain district
approval to visit project sites, because of funding constraints they
will do so only for large projects that potentially affect valuable
water resources. Although district officials told us that site visits
are not always necessary, they stressed that site visits may be the
best way to determine if the water or wetland is jurisdictional because
the maps and other data that project managers review in the office may
not clearly indicate whether connections to other waters exist.
* In the Galveston District, officials told us that, in the past, their
project managers' workload averaged about 60 regulatory projects at any
given time, but this workload is now significantly more. One project
manager estimated that his workload is about four times greater than it
should be. As a result, project managers are unable to make as many
site visits as they have in the past. While Galveston District
officials agreed with Omaha District officials that site visits are not
always necessary, they pointed out that nonjurisdictional
determinations can be difficult to make and that site visits may be
needed to verify that the waters or wetlands at a project site are
isolated. According to the Corps Regulatory Branch Chief, the Corps'
workload has also increased because the complexity of each project has
increased, and, as a result, more projects require that the Corps
consult with other agencies, such as the Department of the Interior's
Fish and Wildlife Service, because of concerns about threatened or
endangered species that may inhabit the project sites.
In January 2003, the Inspector General also reported resource
constraints as an issue affecting the Corps' ability to effectively
manage permit workloads.[Footnote 24] Resource constraints, according
to the Regulatory Branch Chief, are having an even greater impact on
the program because of the lack of reliable information on the number
of regulatory activities that are accomplished and the amount of
resources that are needed to accomplish those activities. To obtain
better information, in 2004, the Corps initiated a Workload Indicator
Project. This project is intended to address two issues: (1) the
agencywide imbalance between resources and workload and (2) district-
level imbalances between resources and workloads. The project is also
intended to link resources to measurable performance goals. As part of
the project, in October 2004, Corps headquarters asked the districts to
provide estimates on how much time is needed to complete 21 regulatory
program tasks, such as making jurisdictional determinations, along with
103 associated subtasks, such as conducting a site visit as part of
making a jurisdictional determination.
According to the Chief of the Regulatory Branch, the estimates that the
districts provided varied widely and will need to be refined over time.
For example, some of these differences reflected the different nature
of work required in some districts. In one district with many
threatened and endangered species, the district estimated that it
needed substantially more resources to evaluate permits because of the
increased staff and time required to address environmental concerns.
Other districts, such as those that cover wide geographic areas,
estimated that they needed more resources to conduct site visits
because of the additional time and travel costs to conduct them.
However, this official said that some differences may reflect
inaccurate estimates of the time required to complete some of the tasks
or subtasks because districts have never had to break down their
workload in such detail. Despite the preliminary nature of the
estimates, the Corps used them in fiscal year 2005 to allocate a 1
percent across-the-board regulatory program funding level increase to
the districts. Based on the results of the Workload Indicator Project,
eight districts were each allocated an additional $120,000 to, among
other things, address their workload and performance. According to the
Chief of the Regulatory Branch, the Workload Indicator Project
estimates will be refined over time as the agency gains more experience
using them, and it is believed that this effort will go a long way in
supporting future budget requests.
We identified several additional challenges that the Corps will face as
it incorporates the workload indicator estimates when developing budget
proposals and allocating resources to the districts. First, the Corps'
data management systems cannot yet provide accurate and complete
information on the number of regulatory actions, including
jurisdictional determinations, completed by each district. The Corps is
currently phasing in a new data management system that, according to
agency officials, should be able to provide the required information,
although it will not provide 100 percent of the data the agency
believes necessary to make management decisions. According to the Chief
of the Regulatory Branch, this system is expected to be fully
operational by the end of fiscal year 2006 if the Corps receives the
funding needed to correct user accessibility and data integration
problems and fully implement it. The Corps is also exploring options
for obtaining the additional data it may need to bridge the gap between
the data management system and its proposed process for allocating
resources. Second, the Corps will need time to make the transition from
its current allocation method--based on historic allocations--to a
method that is performance-based and reflects districts' actual
workloads. According to the Chief of the Regulatory Branch, a
performance-based allocation process could result in shifting resources
among districts. As noted above, the Corps allocates resources to its
eight divisions based primarily on the levels they have received in
prior years. According to the Corps, the divisions are then responsible
for managing their resources and workloads from a regional perspective.
According to Corps headquarters senior regulatory program managers, the
divisions will be expected to reallocate resources among the districts
to better meet individual district workloads and performance levels--
such as, for example, issuing permits within specified time frames.
Such resource reallocations could be accomplished by temporarily
assigning project managers to districts that are experiencing larger
workloads or poorer performance levels, or by having districts send
permit applications to other districts for evaluation.
The Corps Is Generally Not Using 33 C.F.R. § 328.3(a)(3) to Assert
Jurisdiction:
The Corps is generally not using 33 C.F.R. § 328.3(a)(3) as the sole
basis to assert jurisdiction over isolated, intrastate, nonnavigable
waters. In February 2004, we reported that between January 2003 and
January 2004, the districts sought formal project-specific headquarters
approval a total of eight times before attempting to assert
jurisdiction over isolated, intrastate, nonnavigable waters based
solely on 33 C.F.R. § 328.3(a)(3). According to EPA officials, in three
of the cases, the agencies ultimately determined that the waters in
question were "waters of the United States" based on factors other than
those identified in that regulatory provision. In two cases, the Corps
and EPA determined that the waters in question were not jurisdictional;
and, in another case, the district withdrew its request for
headquarters approval. Two of the cases have yet to be resolved, even
after 1-1/2 years, according to the senior regulatory program manager
who is the focal point for coordinating such cases.
This official told us that no additional requests to use this section
of the regulations as the sole basis to assert jurisdiction have been
submitted to headquarters since January 2004. Corps district officials
told us they generally do not consider seeking jurisdiction over any
isolated, intrastate, nonnavigable waters on the sole basis of 33
C.F.R. § 328.3(a)(3) primarily because (1) headquarters has not
provided detailed guidance on when it is appropriate to use this
provision; (2) district offices believe that headquarters does not want
them to assert jurisdiction over these waters or wetlands; (3) district
offices are concerned about the amount of time that might be required
for a decision from headquarters; or (4) few isolated, intrastate,
nonnavigable waters were in their districts whose use, degradation, or
destruction could affect interstate commerce. Because of concern about
using 33 C.F.R. § 328.3(a)(3), Corps officials in the St. Paul, Omaha,
and Jacksonville districts told us that they limit asserting
jurisdiction over isolated and intrastate waters only when public boat
ramps are present to provide access to these waters.
The senior regulatory program manager acknowledged that the lack of
guidance and the lengthy time frames for receiving headquarters
approval may have caused some districts to be reluctant to use 33
C.F.R. § 328.3(a)(3) as the sole basis for asserting jurisdiction. To
clarify the process for seeking guidance and to establish time frames
for obtaining headquarters approval, in January 2005, the Corps drafted
a memorandum of agreement that (1) identifies a process for the Corps
and EPA to follow when consulting on such requests, including
procedures to follow when the agencies disagree; (2) lists the types of
documentation that districts are to submit along with their referrals;
and (3) establishes time frames for responding to the districts. This
draft memorandum was shared with EPA in March 2005. As of July 2005,
the two agencies agree that it would be helpful to develop additional
guidance for the districts that would provide a clear understanding for
using this section of the regulations. However, the agencies have yet
to resolve differences regarding the content of the memorandum. This is
delaying finalizing the memorandum, and, while discussions are
continuing, the agencies have set no time frame for resolving these
differences.
Agencies Are Not Collecting Data to Fully Assess the Impact of SWANCC:
Neither the Corps nor EPA is collecting data to fully assess the impact
of SWANCC on waters and wetlands that no longer fall under federal
jurisdiction. The Corps began collecting data in April 2004, at EPA's
request, in an effort to respond to congressional, project proponent,
and public concerns about how field offices are applying the SWANCC
ruling. However, the data being collected are limited and of
questionable value for use in assessing the impact of SWANCC on aquatic
resources. The agencies would like to collect better data, but these
data are either not available or would be difficult to obtain.
According to Corps and EPA officials, limited resources prevent them
from collecting the additional data and conducting an in-depth analysis
that would be required to fully assess the impact of SWANCC.
Data Being Collected Is Inadequate to Fully Assess the Impact of
SWANCC:
Neither the Corps nor EPA is collecting data that would allow a full
assessment of the impact of the SWANCC ruling on isolated, intrastate,
nonnavigable waters. In January 2003, EPA and the Corps requested that
the public provide them with information, data, and comments on, among
other things, the amount of wetland acreage potentially affected by the
SWANCC ruling, as well as the function and values of wetlands and other
waters that might be affected by the SWANCC ruling.[Footnote 25] The
Corps and EPA received about 130,000 comments, including those from
states that estimated that many of the intrastate, nonnavigable waters
in their states would be considered isolated as a result of the ruling.
For example, Wisconsin estimated that of its 5.3 million acres of
wetlands, about 1.1 million would no longer fall under federal
jurisdiction. Texas estimated that because only about 21 percent of its
80,000 miles of rivers and streams were perennial, approximately 79
percent would not be considered navigable and thus subject to federal
regulation. Similarly, Texas estimated that some of its 304,000 acres
of inland lakes and reservoirs would no longer be subject to federal
regulation.[Footnote 26]
To obtain information to respond to congressional, project proponent,
and public concerns about how field offices are applying the SWANCC
ruling, in October 2003, the Corps agreed to an EPA request to document
all nonjurisdictional determinations. Specifically, beginning in April
2004, the Corps agreed to have district offices fill out a form for
each project where the project managers make a nonjurisdictional
determination and report these on a quarterly basis for 1 year. In
requesting this information, EPA stated that it would, among other
things, (1) better enable an assessment of the extent and nature of
resources impacted by SWANCC, (2) help foster consistent and sound
decision-making, and (3) help identify issues that might benefit from
increased headquarters attention or guidance. These nonjurisdictional
determination forms are being posted on each district's Web site.
According to a senior regulatory program manager, even though the
initial 1-year period has elapsed, for the near future the Corps is
continuing to fill out the form to collect the data. The data being
collected include:
* the estimated size of the isolated water or wetland;
* the approximate size of the project site and its latitude and
longitude;
* the name of the waterway where the project site is located;
* the type of water, such as prairie pothole, playa lake, vernal pool,
or wetland;
* whether the water or wetland might be used as habitat for birds
protected by migratory bird treaties or other migratory birds that
cross state lines;
* whether the water would be used as habitat for endangered species;
and:
* if the water or wetland is used to irrigate crops sold in interstate
commerce.
However, the data being collected by the Corps and EPA is inadequate to
fully assess the impact of SWANCC on isolated, intrastate, nonnavigable
waters. Specifically, the data being collected do not reflect the
actual size of the nonjurisdictional water or wetland or the amount of
the water or wetland that may be impacted by the project. The data
collection form directs the project managers to categorize the size of
the wetland found to be nonjurisdictional as being less than 1 acre, 1
to 3 acres, 3 to 5 acres, 5 to 10 acres, 10 to 25 acres, 25 to 50
acres, or greater than 50 acres. Moreover we noted differences in the
way that project managers are recording the acreage. For example, some
project managers are including specific information on the number and
actual size of the wetlands, while others are merely placing checkmarks
in one of the categories. Additionally, some project managers are
classifying almost all of the nonjurisdictional waters as wetlands even
though they may not meet the Corps' definition of a wetland, thereby
obscuring impacts of SWANCC to both wetland and nonwetland waters.
Further, the form asks only for the general size of the waters or
wetlands found to be nonjurisdictional, and not what portion of the
waters or wetlands on the site will be degraded or destroyed by the
development. According to project managers, they may not have specific
information on the project planned by the project proponent at the time
of the jurisdictional determination and, as a result, may be unable to
determine how the project will affect the waters or wetlands on the
site. Further, if none of the waters or wetlands on a project site are
jurisdictional, a permit is not required under the Clean Water Act, and
thus, project managers may have little information, if any, about
specific plans for any eventual development on the site.
The data being collected on the form also may not provide reliable or
sufficient information on the functional value of the waters. While the
form requires that project managers indicate whether the water is or
could be used as habitat by migratory birds or endangered species, the
form may not be capturing reliable information because the project
managers may not always know this information. One project manager said
he has no expertise on the birds that are protected by migratory bird
treaties or which species might be endangered; as a result, he was
unsure how to fill out the form. According to another project manager,
the staff was discouraged from indicating whether the water could be
used as habitat by birds or other species unless they had proof that it
was actually used in this manner. As a result, the data collected by
the Corps may not accurately reflect the number of instances where the
Corps has determined that waters and wetlands are nonjurisdictional but
they may be, or are used as, among other things, habitat by migratory
birds.
According to Corps and EPA officials, while they have analyzed some of
the data collected, to date, limited resources prevent them from
conducting a more in-depth analysis of the data to assess the impact of
SWANCC on aquatic resources. Because of limited resources, according to
a senior regulatory program manager and EPA officials, neither agency
is planning to conduct a more in-depth analysis of data already
collected. Even though the 1-year data collection period has expired,
the Corps is still using the form to collect data for the near term.
The Corps is, however, re-examining its data collection effort by, for
example, revising the form, in coordination with EPA, to both shorten
it and capture more relevant data. According to the senior regulatory
program manager working on this effort, one of the issues needing to be
resolved is what data are most relevant. Both EPA and Corps officials
recognize that the data being collected has its limitations, but they
stated they did not want any data collection effort to be overly
burdensome on project managers, given the limited resources available
to collect and record the data. In addition, a Corps senior regulatory
program manager said the agency has no mandated authority to further
collect and analyze the data for nonjurisdictional determinations once
that determination has been made. Further, doing so only detracts from
its primary mission of evaluating permits.
Additional Data Needed to Assess the Impact of SWANCC Is Not Readily
Available:
The type of data that would need to be collected to fully assess the
impact of SWANCC on aquatic resources are either not readily available
or would take extensive resource investments that neither EPA nor the
Corps has. For example, data are needed on waters or wetlands that are
impacted without notification to either the Corps or EPA. According to
officials from both agencies, since SWANCC, project proponents do not
always contact the Corps for a jurisdictional determination. Instead,
they proceed with site development without any notification. Currently,
neither the Corps nor EPA has a means to determine the extent to which
this occurs.
For those project proponents who do notify the Corps, data challenges
remain extensive. According to several project managers, the Corps
would need to collect data on the exact acreage of the water determined
to be isolated, but collecting this information may be problematic if
the project proponent does not provide it because the Corps lacks
resources to measure waters over which it has no jurisdiction. Other
project managers said that data would need to be collected on the
extent to which the waters, even though they may not have a surface-
water connection to other waters, are nearby other waters--all of which
may have an underground water connection. Data are also necessary on
the nature of the functional value these water systems provide. Several
other project managers indicated that data would be needed on the
extent and nature of waters that were considered jurisdictional prior
to SWANCC to provide a baseline to measure the impact of SWANCC.
However, project managers said these types of data are either not
readily obtainable or available. Project managers' concerns about the
need for additional data were also echoed in a journal of the Society
of Wetland Scientists. In a series of articles on SWANCC, the society
identified information gaps and areas for future research that could
help assess the impact of SWANCC.[Footnote 27] These include the lack
of (1) a consistent definition of an isolated wetland; (2) knowledge of
the number and area of isolated wetlands in the United States; (3)
information on the diversity of isolated wetlands relative to each
other and to other ecosystems; (4) knowledge about other federal,
state, tribal, and local programs that may protect isolated wetlands;
and (5) information on how isolated wetlands, wetland complexes, and
other at-risk waters contribute, hydrologically, chemically, and
biologically to "waters of the United States."
Neither agency believes that it is possible to easily develop and
readily implement a realistic approach that would allow them to fully
assess the impact of the ruling on federal jurisdiction under the Clean
Water Act, given the lack of some data, the vast amount of data that
would be needed to assess the impact of SWANCC, and current resource
constraints. However, according to EPA officials, even though the
agencies may not be able to conduct a thorough assessment of the
impacts of SWANCC on the nation's aquatic resources, it is important to
collect data on the number and nature of the Corps' nonjurisdictional
determinations and make this data publicly available to increase the
transparency and predictability of nonjurisdictional decisions.
However, the data collected should not, according to some project
managers, mislead the public into erroneously concluding what impact
SWANCC has had on isolated, intrastate, nonnavigable waters.
Conclusions:
In the aftermath of SWANCC, the Corps has taken some positive steps to
increase the consistency, predictability, and openness of its
jurisdictional determinations. However, although the Corps now requires
its project managers to include rationales in their files that explain
how and why the decision that certain waters or wetlands fall within
federal jurisdiction was made, it does not require similar rationales
for nonjurisdictional determinations. As stated by Corps appeals review
officers and the Chief of the Regulatory Branch, the Corps should
require detailed rationales for all jurisdictional determinations and
not just those where it is asserting jurisdiction. Without this
information in the file, the Corps will not be able to easily replicate
its decisions, limiting its ability to quickly respond to an appeal or
public inquiry. Furthermore, the lack of guidance from headquarters and
the lengthy time frames that may be involved in receiving a decision
from headquarters have discouraged Corps districts from asserting
jurisdiction using the provisions under 33 C.F.R. § 328.3(a)(3). Since
January 2001, the Corps and EPA have not been able to agree on the
procedures the districts should follow when requesting the use of this
provision to assert jurisdiction and have been unable to develop a
process for the Corps and EPA to follow when consulting on such
requests. Until the agencies finalize these procedures, Corps districts
will have little incentive to use 33 C.F.R. § 328.3(a)(3) as a basis
for asserting jurisdiction over certain waters and wetlands that may,
in fact, be subject to Clean Water Act requirements.
Recommendations for Executive Action:
To provide greater transparency in the Corps' processes for making
nonjurisdictional determinations, we are recommending that the
Secretary of the Army require the Corps to include in its project files
explanations for nonjurisdictional determinations, as it does for
jurisdictional determinations, and that these explanations be detailed
and site-specific.
To help provide greater clarity to the districts when using 33 C.F.R. §
328.3(a)(3) as the sole basis for asserting jurisdiction, we are also
recommending that the Secretary of the Army, through the Corps, and the
Administrator of EPA complete the process of jointly developing
procedures that, at a minimum, include guidance for the type of
information that districts should submit to headquarters, actions each
agency is responsible for taking, time frames for each agency to
complete their reviews, and provisions for resolving any interagency
disagreement.
Agency Comments and Our Evaluation:
We provided a draft of this report to the Secretary of the Department
of Defense and the Administrator of EPA for review and comment. Both
the Department of Defense and EPA concurred with the report's findings
and recommendations. In its comments, the Department of Defense stated
that it is working with EPA to further streamline reporting
requirements and improve documentation required to support all
determinations. The department also pointed out that negotiations are
ongoing to develop procedures for field staff to use when relying on 33
C.F.R. § 328.3(a)(3) as the sole basis for asserting jurisdiction. In
its written comments, EPA pointed out that the Corps' practice of
collecting and posting nonjurisdictional determination information on
the districts' Web sites has been a part of the two agencies' goal to
increase transparency, predictability, and consistency of the
regulatory program. EPA also noted that an important step in achieving
this goal is for Corps districts and EPA regional offices to work
closely together on cases involving geographically isolated waters. EPA
commented that the process for doing so should allow the agencies to
ensure more consistent application of the regulations, while taking
into account all relevant information about a particular body of water.
Both the Department of Defense and EPA provided technical comments and
clarifications which we incorporated, as appropriate. The Department of
Defense's and EPA's written comments are presented in appendixes III
and IV, respectively.
As agreed with your office, unless you publicly announce the contents
of this report earlier, we plan no further distribution until 30 days
from the report date. At that time, we will send copies to interested
congressional committees and Members of Congress; the Secretary of
Defense; the Administrator, EPA; and the Chief of Engineers and
Commander, U.S. Army Corps of Engineers. We will also make copies
available to others upon request. In addition, the report will be
available at no charge on GAO's Web site at [Hyperlink,
http://www.gao.gov].
If you or your staff have any questions about this report, please
contact me at (202) 512-3841 or [Hyperlink, 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 V.
Sincerely yours,
Signed by:
Anu K. Mittal:
Director, Natural Resources and Environment:
[End of section]
Appendixes:
Appendix I: Scope and Methodology:
To identify the processes and data the U.S. Army Corps of Engineers
(the Corps) uses to make jurisdictional determinations, we reviewed
federal regulations and the Corps' related guidance. We also
interviewed Corps officials in headquarters and 5 of the Corps' 38
districts--Chicago; Galveston, Texas; Jacksonville, Florida; Omaha,
Nebraska; and St. Paul. We selected 4 of the 5 districts because they
made more nonjurisdictional determinations between April and December
2004 than any of the other 38 districts. We selected the fifth
district--Galveston--because it also accounted for a large number of
nonjurisdictional determinations and was located in a geographic region
different than the other four districts. Altogether, these five
districts accounted for 58 percent of the nonjurisdictional
determinations the Corps made between April and December 2004. This
time period was selected because data on the Corps' nonjurisdictional
determinations were not readily available before April 2004.
To determine the extent to which the Corps documents its decisions when
it concludes that it does not have jurisdiction over certain waters and
wetlands, we reviewed 770 project files in the five selected districts
where the agency determined, between April and December 2004, that it
did not have jurisdiction over some or all of the waters on those
project sites. Specifically, we reviewed 150 files in the Chicago
District, 65 in the Galveston District, 140 in the Jacksonville
District, 257 in the Omaha District, and 158 in the St. Paul District.
We used a data collection instrument to record specific data for each
of the files, such as whether a site visit was conducted, a consultant
was used by the project proponent, the project manager indicated what
data were reviewed in the course of making a determination, and the
different types of data that were included in the file. We also
interviewed appeals review officers who review project files in the
five districts to determine what documentation they believe is
necessary to include in project files. We obtained this information
from the appeals review officers because, until promulgating a
standardized form in August 2004, the Corps had no guidance on what
information on jurisdictional determinations should be contained in
project files. Further, the Corps has no guidance on what a rationale
should include. In addition, we contacted the appeals review officers
because they are the agency's internal quality assurance check to
ensure that the Corps' administrative records fully support
jurisdictional determinations. We used the appeals review officers'
views on what information should be included in project files,
including what constitutes a detailed rationale, as criteria in
reviewing the files and categorizing each of the 770 files as having no
rationale, a partial rationale, or a detailed rationale. To ensure that
our initial file reviews were accurate, we randomly selected a minimum
of 10 percent of the files and independently reviewed them a second
time by comparing the information recorded in the data collection
instrument to the original file to ensure that the information entered
into the data collection instrument was accurate and that our
assessment of the project manager's rationale was reasonable. In
reviewing the project files and analyzing project managers' rationales,
we did not evaluate whether project managers' determinations were
correct. We also did not evaluate whether the information available to
the project managers in making their jurisdictional determinations was
sufficient.
To identify the process the Corps uses to allocate resources for making
jurisdictional determinations, we reviewed its standard operating
procedures and related guidance for carrying out the Corps' section 404
regulatory program. We also interviewed Corps officials who are
responsible, in headquarters and each of the five selected districts,
for preparing resource estimates for carrying out the program. In
addition, we obtained data on the number of resources allocated to the
Corps and each of the districts as well as workload data, including the
number of determinations made by the districts, for fiscal years 2002
and 2003. Finally, to obtain a broad overview of the program, we
obtained historical program statistics for fiscal years 1997 through
2004.
To determine the extent to which the Corps is asserting jurisdiction
over isolated, intrastate, nonnavigable waters using its remaining
authority in 33 C.F.R. § 328.3(a)(3), we interviewed Corps and
Environmental Protection Agency (EPA) officials in headquarters to
identify the number and nature of cases that have been submitted to
headquarters between January 2003 and July 2005 for approval. We also
interviewed district officials to determine the circumstances under
which they would ask to assert jurisdiction using these Corps
regulations and whether they had sought formal project-specific
headquarters approval prior to using them.
To determine the extent to which the Corps and EPA are collecting data
to assess the impact of Solid Waste Agency of Northern Cook County v.
U.S. Army Corps of Engineers (SWANCC), we interviewed Corps and EPA
officials at their respective headquarters to identify what actions
have been taken or are planned to assess the impact. We also obtained
and reviewed forms being used to collect data on nonjurisdictional
determinations made since April 2004. In addition, we interviewed Corps
project managers to determine their views on the impact of SWANCC,
whether data being collected were sufficient to assess the impact of
SWANCC, and what data should be analyzed to assess the impact.
We conducted our work from June 2004 through July 2005 in accordance
with generally accepted government auditing standards.
[End of section]
Appendix II: Data Contained in Corps Files on Nonjurisdictional
Determinations in Five District Offices:
This appendix provides detailed information on the results of our
review of 770 files in five Corps district offices--Chicago; Galveston,
Texas; Jacksonville, Florida; Omaha, Nebraska; and St. Paul. Table 1
summarizes the number of nonjurisdictional determination files we
reviewed in the five districts.
Table 1: Nonjurisdictional Determination Files Reviewed in Five Corps
Districts:
Corps district: Chicago;
Number of files reviewed: 150.
Corps district: Galveston;
Number of files reviewed: 65.
Corps district: Jacksonville;
Number of files reviewed: 140.
Corps district: Omaha;
Number of files reviewed: 257.
Corps district: St. Paul;
Number of files reviewed: 158.
Total;
Number of files reviewed: 770.
Source: GAO analysis of Corps project files.
[End of table]
Tables 2 through 6 summarize the types of data we found in the files we
reviewed in the five districts.
Table 2: Project Files That Contained Topographic Maps, by District:
Corps district: Chicago;
Files that contained topographic maps: Yes: Number: 119;
Files that contained topographic maps: Yes: Percent: 79.3%;
Files that contained topographic maps: No: Number: 31;
Files that contained topographic maps: No: Percent: 20.7%;
Total: 150.
Corps district: Galveston;
Files that contained topographic maps: Yes: Number: 58;
Files that contained topographic maps: Yes: Percent: 89.2%;
Files that contained topographic maps: No: Number: 7;
Files that contained topographic maps: No: Percent: 10.8%;
Total: 65.
Corps district: Jacksonville;
Files that contained topographic maps: Yes: Number: 89;
Files that contained topographic maps: Yes: Percent: 63.6%;
Files that contained topographic maps: No: Number: 51;
Files that contained topographic maps: No: Percent: 36.4%;
Total: 140.
Corps district: Omaha;
Files that contained topographic maps: Yes: Number: 184;
Files that contained topographic maps: Yes: Percent: 71.6%;
Files that contained topographic maps: No: Number: 73;
Files that contained topographic maps: No: Percent: 28.4%;
Total: 257.
Corps district: St. Paul;
Files that contained topographic maps: Yes: Number: 140;
Files that contained topographic maps: Yes: Percent: 88.6%;
Files that contained topographic maps: No: Number: 18;
Files that contained topographic maps: No: Percent: 11.4%;
Total: 158.
Source: GAO analysis of Corps project files.
[End of table]
Table 3: Project Files That Contained Soil Survey Maps, by District:
Corps district: Chicago;
Files that contained soils survey maps: Yes: Number: 123;
Files that contained soils survey maps: Yes: Percent: 82.0%;
Files that contained soils survey maps: No: Number: 27;
Files that contained soils survey maps: No: Percent: 18.0%;
Total: 150.
Corps district: Galveston;
Files that contained soils survey maps: Yes: Number: 39;
Files that contained soils survey maps: Yes: Percent: 60.0%;
Files that contained soils survey maps: No: Number: 26;
Files that contained soils survey maps: No: Percent: 40.0%;
Total: 65.
Corps district: Jacksonville;
Files that contained soils survey maps: Yes: Number: 75;
Files that contained soils survey maps: Yes: Percent: 53.6%;
Files that contained soils survey maps: No: Number: 65;
Files that contained soils survey maps: No: Percent: 46.4%;
Total: 140.
Corps district: Omaha;
Files that contained soils survey maps: Yes: Number: 43;
Files that contained soils survey maps: Yes: Percent: 16.7%;
Files that contained soils survey maps: No: Number: 214;
Files that contained soils survey maps: No: Percent: 83.3%;
Total: 257.
Corps district: St. Paul;
Files that contained soils survey maps: Yes: Number: 124;
Files that contained soils survey maps: Yes: Percent: 78.5%;
Files that contained soils survey maps: No: Number: 34;
Files that contained soils survey maps: No: Percent: 21.5%;
Total: 158.
Source: GAO analysis of Corps project files.
[End of table]
Table 4: Project Files That Contained Wetlands Inventory Maps, by
District:
Corps district: Chicago;
Files that contained wetlands inventory maps: Yes: Number: 135;
Files that contained wetlands inventory maps: Yes: Percent: 90.0%;
Files that contained wetlands inventory maps: No: Number: 15;
Files that contained wetlands inventory maps: No: Percent: 10.0%;
Total: 150.
Corps district: Galveston;
Files that contained wetlands inventory maps: Yes: Number: 38;
Files that contained wetlands inventory maps: Yes: Percent: 58.5%;
Files that contained wetlands inventory maps: No: Number: 27;
Files that contained wetlands inventory maps: No: Percent: 41.5%;
Total: 65.
Corps district: Jacksonville;
Files that contained wetlands inventory maps: Yes: Number: 15;
Files that contained wetlands inventory maps: Yes: Percent: 10.7%;
Files that contained wetlands inventory maps: No: Number: 125;
Files that contained wetlands inventory maps: No: Percent: 89.3%;
Total: 140.
Corps district: Omaha;
Files that contained wetlands inventory maps: Yes: Number: 94;
Files that contained wetlands inventory maps: Yes: Percent: 36.6%;
Files that contained wetlands inventory maps: No: Number: 163;
Files that contained wetlands inventory maps: No: Percent: 63.4%;
Total: 257.
Corps district: St. Paul;
Files that contained wetlands inventory maps: Yes: Number: 119;
Files that contained wetlands inventory maps: Yes: Percent: 75.3%;
Files that contained wetlands inventory maps: No: Number: 39;
Files that contained wetlands inventory maps: No: Percent: 24.7%;
Total: 158.
Source: GAO analysis of Corps project files.
[End of table]
Table 5: Project Files That Contained Aerial Photographs, by District:
Corps district: Chicago;
Files that contained aerial photographs: Yes: Number: 137;
Files that contained aerial photographs: Yes: Percent: 91.3%;
Files that contained aerial photographs: No: Number: 13;
Files that contained aerial photographs: No: Percent: 8.7%;
Total: 150.
Corps district: Galveston;
Files that contained aerial photographs: Yes: Number: 59;
Files that contained aerial photographs: Yes: Percent: 90.8%;
Files that contained aerial photographs: No: Number: 6;
Files that contained aerial photographs: No: Percent: 9.2%;
Total: 65.
Corps district: Jacksonville;
Files that contained aerial photographs: Yes: Number: 119;
Files that contained aerial photographs: Yes: Percent: 85.0%;
Files that contained aerial photographs: No: Number: 21;
Files that contained aerial photographs: No: Percent: 15.0%;
Total: 140.
Corps district: Omaha;
Files that contained aerial photographs: Yes: Number: 112;
Files that contained aerial photographs: Yes: Percent: 43.6%;
Files that contained aerial photographs: No: Number: 145;
Files that contained aerial photographs: No: Percent: 56.4%;
Total: 257.
Corps district: St. Paul;
Files that contained aerial photographs: Yes: Number: 135;
Files that contained aerial photographs: Yes: Percent: 85.4%;
Files that contained aerial photographs: No: Number: 23;
Files that contained aerial photographs: No: Percent: 14.6%;
Total: 158.
Source: GAO analysis of Corps project files.
[End of table]
Table 6: Project Files That Contained Ground Photographs, by District:
Corps district: Chicago;
Files that contained ground photographs: Yes: Number: 95;
Files that contained ground photographs: Yes: Percent: 63.3%;
Files that contained ground photographs: No: Number: 55;
Files that contained ground photographs: No: Percent: 36.7%;
Total: 150.
Corps district: Galveston;
Files that contained ground photographs: Yes: Number: 35;
Files that contained ground photographs: Yes: Percent: 53.9%;
Files that contained ground photographs: No: Number: 30;
Files that contained ground photographs: No: Percent: 46.2%;
Total: 65.
Corps district: Jacksonville;
Files that contained ground photographs: Yes: Number: 36;
Files that contained ground photographs: Yes: Percent: 25.7%;
Files that contained ground photographs: No: Number: 104;
Files that contained ground photographs: No: Percent: 74.3%;
Total: 140.
Corps district: Omaha;
Files that contained ground photographs: Yes: Number: 103;
Files that contained ground photographs: Yes: Percent: 40.1%;
Files that contained ground photographs: No: Number: 154;
Files that contained ground photographs: No: Percent: 59.9%;
Total: 257.
Corps district: St. Paul;
Files that contained ground photographs: Yes: Number: 51;
Files that contained ground photographs: Yes: Percent: 32.3%;
Files that contained ground photographs: No: Number: 107;
Files that contained ground photographs: No: Percent: 67.7%;
Total: 158.
Source: GAO analysis of Corps project files.
[End of table]
Most of the project proponents relied on the use of consultants to
prepare or help prepare their jurisdictional requests or permit
applications. The Omaha District had the fewest number of requests or
applications that were prepared, in part, by consultants. Table 7
summarizes the number of project proponents that relied on the use of
consultants.
Table 7: Project Proponents That Relied on the Use of Consultants, by
District:
Corps district: Chicago;
Consultant used: Yes: Number: 140;
Consultant used: Yes: Percent: 93.3%;
Consultant used: No: Number: 10;
Consultant used: No: Percent: 6.7%;
Total: 150.
Corps district: Galveston;
Consultant used: Yes: Number: 47;
Consultant used: Yes: Percent: 72.3%;
Consultant used: No: Number: 18;
Consultant used: No: Percent: 27.7%;
Total: 65.
Corps district: Jacksonville;
Consultant used: Yes: Number: 131;
Consultant used: Yes: Percent: 93.6%;
Consultant used: No: Number: 9;
Consultant used: No: Percent: 6.4%;
Total: 140.
Corps district: Omaha;
Consultant used: Yes: Number: 140;
Consultant used: Yes: Percent: 54.9%;
Consultant used: No: Number: 115;
Consultant used: No: Percent: 45.1%;
Total: 255[A].
Corps district: St. Paul;
Consultant used: Yes: Number: 113;
Consultant used: Yes: Percent: 71.5%;
Consultant used: No: Number: 45;
Consultant used: No: Percent: 28.5%;
Total: 158.
Source: GAO analysis of Corps project files.
[A] We were unable to determine whether two project proponents relied
on the use of consultants.
[End of table]
Project managers can conduct site visits in the course of making their
jurisdictional determinations. The percentage of projects where site
visits were conducted varied by district, with fewer site visits being
conducted in St. Paul and Omaha. The St. Paul District encompasses two
states, while the Omaha District has all or portions of six states.
More site visits were conducted in the Chicago District, which covers a
six-county area. The Jacksonville District also conducted site visits
for the majority of its determinations. Even though this district
encompasses the entire state, it has 12 field offices located around
the state to reduce the geographic distance to project sites. Table 8
summarizes the number of projects where project managers conducted a
site visit in each of the districts we visited.
Table 8: Projects Where the Project Manager Conducted a Site Visit, by
District:
Corps district: Chicago;
Site visit conducted: Yes: Number: 124;
Site visit conducted: Yes: Percent: 83.8%;
Site visit conducted: No: Number: 24;
Site visit conducted: No: Percent: 16.2%;
Total: 148[A].
Corps district: Galveston;
Site visit conducted: Yes: Number: 30;
Site visit conducted: Yes: Percent: 46.2%;
Site visit conducted: No: Number: 35;
Site visit conducted: No: Percent: 53.8%;
Total: 65.
Corps district: Jacksonville;
Site visit conducted: Yes: Number: 95;
Site visit conducted: Yes: Percent: 68.8%;
Site visit conducted: No: Number: 43;
Site visit conducted: No: Percent: 31.2%;
Total: 138[A].
Corps district: Omaha;
Site visit conducted: Yes: Number: 110;
Site visit conducted: Yes: Percent: 43.5%;
Site visit conducted: No: Number: 143;
Site visit conducted: No: Percent: 56.5%;
Total: 253[B].
Corps district: St. Paul;
Site visit conducted: Yes: Number: 53;
Site visit conducted: Yes: Percent: 33.5%;
Site visit conducted: No: Number: 105;
Site visit conducted: No: Percent: 66.5%;
Total: 158.
Source: GAO analysis of Corps project files.
[A] We were unable to determine if site visits were conducted on two
projects.
[B] We were unable to determine if site visits were conducted on four
projects.
[End of table]
According to Corps appeals review officers, project files should
clearly identify what data were used by project managers in the course
of making their determinations, so that the data can be readily
replicated if necessary. Even so, districts varied widely in the extent
to which the project files contained this clear identification, as
shown in table 9. Of all the districts, the Chicago District clearly
identified the data used in almost all of the project files we
reviewed.
Table 9: Files That Contained a Clear Identification of Data Used in
Making the Determinations:
Corps district: Chicago;
Amount of data clearly identified by the project manager: None: Number:
0;
Amount of data clearly identified by the project manager: None:
Percent: 0.0%;
Amount of data clearly identified by the project manager: Some: Number:
4;
Amount of data clearly identified by the project manager: Some:
Percent: 2.7%;
Amount of data clearly identified by the project manager: All: Number:
146;
Amount of data clearly identified by the project manager: All: Percent:
97.3%;
Amount of data clearly identified by the project manager: Total number:
150.
Corps district: Galveston;
Amount of data clearly identified by the project manager: None: Number:
21;
Amount of data clearly identified by the project manager: None:
Percent: 32.3%;
Amount of data clearly identified by the project manager: Some: Number:
25;
Amount of data clearly identified by the project manager: Some:
Percent: 38.4%;
Amount of data clearly identified by the project manager: All: Number:
19;
Amount of data clearly identified by the project manager: All: Percent:
29.2%;
Amount of data clearly identified by the project manager: Total number:
65.
Corps district: Jacksonville;
Amount of data clearly identified by the project manager: None: Number:
40;
Amount of data clearly identified by the project manager: None:
Percent: 28.6%;
Amount of data clearly identified by the project manager: Some: Number:
55;
Amount of data clearly identified by the project manager: Some:
Percent: 39.3%;
Amount of data clearly identified by the project manager: All: Number:
45;
Amount of data clearly identified by the project manager: All: Percent:
32.1%;
Amount of data clearly identified by the project manager: Total number:
140.
Corps district: Omaha;
Amount of data clearly identified by the project manager: None: Number:
139;
Amount of data clearly identified by the project manager: None:
Percent: 54.1%;
Amount of data clearly identified by the project manager: Some: Number:
112;
Amount of data clearly identified by the project manager: Some:
Percent: 43.6%;
Amount of data clearly identified by the project manager: All: Number:
6;
Amount of data clearly identified by the project manager: All: Percent:
2.3%;
Amount of data clearly identified by the project manager: Total number:
257.
Corps district: St. Paul;
Amount of data clearly identified by the project manager: None: Number:
62;
Amount of data clearly identified by the project manager: None:
Percent: 39.2%;
Amount of data clearly identified by the project manager: Some: Number:
86;
Amount of data clearly identified by the project manager: Some:
Percent: 54.4%;
Amount of data clearly identified by the project manager: All: Number:
10;
Amount of data clearly identified by the project manager: All: Percent:
6.3%;
Amount of data clearly identified by the project manager: Total number:
158.
Source: GAO analysis of Corps project files.
[End of table]
According to Corps appeals review officers, project files should also
contain a basis for asserting or not asserting jurisdiction over any
water or wetland on the project site. A basis is the regulatory
authority used for asserting jurisdiction, or the reason for not
asserting jurisdiction. As shown in table 10, almost all of the files
we reviewed contained the basis for the determinations.
Table 10: Files That Contained a Basis for the Determination in the
Five Corps Districts:
Corps district: Chicago;
Basis for determination: Yes: Number: 150;
Basis for determination: Yes: Percent: 100%;
Basis for determination: No: Number: 0;
Basis for determination: No: Percent: 0.0%;
Total: 150.
Corps district: Galveston;
Basis for determination: Yes: Number: 63;
Basis for determination: Yes: Percent: 96.9%;
Basis for determination: No: Number: 2;
Basis for determination: No: Percent: 3.1%;
Total: 65.
Corps district: Jacksonville;
Basis for determination: Yes: Number: 140;
Basis for determination: Yes: Percent: 100%;
Basis for determination: No: Number: 0;
Basis for determination: No: Percent: 0.0%;
Total: 140.
Corps district: Omaha;
Basis for determination: Yes: Number: 247;
Basis for determination: Yes: Percent: 96.1%;
Basis for determination: No: Number: 10;
Basis for determination: No: Percent: 3.9%;
Total: 257.
Corps district: St. Paul;
Basis for determination: Yes: Number: 147;
Basis for determination: Yes: Percent: 93.0%;
Basis for determination: No: Number: 11;
Basis for determination: No: Percent: 7.0%;
Total: 158.
Source: GAO analysis of Corps project files.
[End of table]
According to Corps appeals review officers, in addition to a clear
identification of data used and a basis for the determination, project
files should contain a detailed rationale for the determination. A
detailed rationale is one that is site-specific, references data used
and how that data led to the project manager's conclusion, and cites
district policy with respect to district-specific practices for
asserting jurisdiction over waters, such as what conditions must be met
for a water to be adjacent to a "water of the United States." Few
files, however, contained a detailed rationale. The Galveston District
had the largest percentage of project files that contained a detailed
rationale. Table 11 summarizes the types of rationales included in the
project files we reviewed in the five districts.
Table 11: Files That Contained No, a Partial, or a Detailed Rationale
in the Five Corps Districts:
Corps district: Chicago;
Type of rationale included by the project manager: None: Number: 74;
Type of rationale included by the project manager: None: Percent:
49.3%;
Type of rationale included by the project manager: Partial: Number: 69;
Type of rationale included by the project manager: Partial: Percent:
46.0%;
Type of rationale included by the project manager: Detailed: Number: 7;
Type of rationale included by the project manager: Detailed: Percent:
4.7%;
Type of rationale included by the project manager: Total number: 150.
Corps district: Galveston;
Type of rationale included by the project manager: None: Number: 11;
Type of rationale included by the project manager: None: Percent:
16.9%;
Type of rationale included by the project manager: Partial: Number: 34;
Type of rationale included by the project manager: Partial: Percent:
52.3%;
Type of rationale included by the project manager: Detailed: Number:
20;
Type of rationale included by the project manager: Detailed: Percent:
30.8%;
Type of rationale included by the project manager: Total number: 65.
Corps district: Jacksonville;
Type of rationale included by the project manager: None: Number: 17;
Type of rationale included by the project manager: None: Percent:
12.1%;
Type of rationale included by the project manager: Partial: Number:
116;
Type of rationale included by the project manager: Partial: Percent:
82.9%;
Type of rationale included by the project manager: Detailed: Number: 7;
Type of rationale included by the project manager: Detailed: Percent:
5.0%;
Type of rationale included by the project manager: Total number: 140.
Corps district: Omaha;
Type of rationale included by the project manager: None: Number: 67;
Type of rationale included by the project manager: None: Percent:
26.1%;
Type of rationale included by the project manager: Partial: Number:
179;
Type of rationale included by the project manager: Partial: Percent:
69.6%;
Type of rationale included by the project manager: Detailed: Number:
11;
Type of rationale included by the project manager: Detailed: Percent:
4.3%;
Type of rationale included by the project manager: Total number: 257.
Corps district: St. Paul;
Type of rationale included by the project manager: None: Number: 22;
Type of rationale included by the project manager: None: Percent:
13.9%;
Type of rationale included by the project manager: Partial: Number:
128;
Type of rationale included by the project manager: Partial: Percent:
81.0%;
Type of rationale included by the project manager: Detailed: Number: 8;
Type of rationale included by the project manager: Detailed: Percent:
5.1%;
Type of rationale included by the project manager: Total number: 158.
Source: GAO analysis of Corps project files.
[End of table]
[End of section]
Appendix III: Comments from the Department of the Army:
DEPARTMENT OF THE ARMY:
OFFICE OF THE ASSISTANT SECRETARY:
CIVIL WORKS:
108 ARMY PENTAGON:
WASHINGTON DC 20310-0108:
Ms. Anu Mittal:
Director:
Natural Resource and Environment:
U.S. General Accountability Office:
441 G Street, N.W.
Washington, D.C. 20548-1000:
August 19, 2005:
Dear Ms. Mittal:
This is our response to the Government Accountability Office (GAO)
draft report, "WATERS AND WETLANDS: Corps of Engineers Needs to Better
Support Its Decisions for Not Asserting Jurisdiction," dated September
2005, (GAO-05-870).
The GAO report was prepared to examine the: (1) process and data the
Corps of Engineers (Corps) uses for making jurisdictional
determinations; (2) extent to which the Corps documents decisions that
it does not have jurisdiction; (3) extent to which the Corps is using
its remaining authority to assert jurisdiction over certain isolated,
intrastate, non-navigable waters; and (4) extent to which the Corps and
the Environmental Protection Agency (EPA) are collecting data to assess
the impact of the U.S. Supreme Court decision in Solid Waste Agency of
Northern Cook County v. U.S. Army Corps of Engineers, 531 U.S. 159
(2001) (SWANCC). The report identifies that Corps project managers will
use existing data sources to preliminarily assess jurisdiction. When
the existing data cannot support a determination, the report notes that
Corps project managers then will conduct a field visit to support a
determination. In general, the report concludes that more documentation
is provided and available in project files for determinations of
jurisdiction as compared to determinations of no jurisdiction. In
addition, the report indicates that the Corps is not asserting
jurisdiction generally over isolated, intrastate, non-navigable waters
using its remaining authorities, due to a lack of guidance from Army
Corps of Engineers Headquarters (HQ) and perceptions that they should
not be doing so. And finally, the report notes that limited information
is being collected to comprehensively assess the impacts of SWANCC. As
a consequence of this investigation, the GAO recommends that the Corps
require district offices to include detailed rationales for non
jurisdictional determinations in their files and finalize with the EPA
the additional guidance that will help the districts make certain
jurisdictional determinations.
In April 2004, the Corps in concert with the EPA developed a reporting
sheet to document determinations of no jurisdiction. Information
included on the sheet includes basic information about the project
site, onsite resource types and projected sizes, and basis for not
asserting jurisdiction over the onsite resources. The objective of this
reporting sheet was to develop procedures to improve the consistency,
predictability, and openness of jurisdictional determination reporting
practices. By documenting determinations of no jurisdiction, as based
on the sole use of the Migratory Bird Rule, we are establishing a
baseline record for evaluations reviewed by the Corps field staff. It
is important to note that this reporting sheet was not developed to
comprehensively assess the aquatic resource impacts of SWANCC. Due to
overall positive response from the public on the reporting sheet, the
Corps, in August 2005 established a second reporting sheet to
standardize documentation requirements for all determinations of
jurisdiction. In addition, district offices were required to make these
forms publicly available on their local regulatory web pages. Based on
the data collected and gaps identified over the past year, we have
engaged in discussions with the EPA to further streamline reporting
requirements as well as improve documentation required to support a
decision. Again, these final actions will be made available to the
public.
On January 31, 2005, the Army, to further encourage district field
staff to seek HQ-level review for determinations under 33 C.F.R. 328.3
(a)(3) provided the EPA with a draft Memorandum of Agreement (MOA) to
establish a procedure for HQ-level review to determine whether a
particular waterbody or wetland is subject to Clean Water Act (CWA)
jurisdiction under 33 C.F.R. 328.3 (a)(3). The procedure outlined in
the MOA provides a predictable and consistent approach for reviewing
CWA jurisdiction over these waters in a timely manner and ensure the
review process is open to the public. We will continue to work with EPA
in developing an instrument to support the review process recommended
in the January 15, 2003 Advance Notice of Proposed Rulemaking guidance.
The Assistant Secretary of the Army (Civil Works) and the Army Corps of
Engineers generally concur with your findings regarding practices for
determining and documenting CWA jurisdiction. With respect to the
recommendations, we have had several discussions with the EPA to
identify measures to streamline as well as improve reporting
requirements for determinations of jurisdiction. Additional discussions
have occurred with the EPA to develop procedures to support
determinations under 33 C.F.R. 328.3(a)(3)(i)-(iii). In both cases,
negotiations are ongoing. Our goal is to develop processes and
reporting strategies to ensure the Corps achieves the highest level of
consistency and predictability possible given inherently different
characteristics of aquatic resources in different locations, while
providing the public with the greatest opportunity for understanding
the basis for jurisdictional determinations so that full compliance
with the CWA is encouraged, with the goal of increasing the
effectiveness, efficiency and responsiveness of the Army's regulatory
program.
Very truly yours,
Signed by:
John Paul Woodley, Jr.:
Assistant Secretary of the Army:
(Civil Works):
Enclosure:
GAO DRAFT REPORT - DATED SEPTEMBER 2005 GAO-05-870:
"WATERS AND WETLANDS: Corps of Engineers Needs to Better Support Its
Decisions for Not Asserting Jurisdiction":
ASSISTANT SECRETARY OF THE ARMY (CIVIL WORKS) COMMENTS TO THE
RECOMMENDATIONS:
RECOMMENDATION 1: The GAO recommended that the Corps require district
offices to include detailed rationales for non jurisdictional
determinations in their files.
ASSISTANT SECRETARY OF THE ARMY (CIVIL WORKS): We concur with your
recommendation. To support this recommendation, it is important to note
that the Corps and the EPA have had several discussions to date on how
to streamline the reporting process for determinations of jurisdiction.
It is envisioned that the Jurisdictional Information Sheet and the Non-
Jurisdictional Information Sheet will be combined to report all data on
one reporting sheet. Additional revisions will occur to further support
the decision-making process, based on data collected and gaps
identified over the previous year. In addition, information obtained
from the Corps comprehensive survey conducted to support the "WATERS
AND WETLANDS: Corps of Engineers Needs To Evaluate its District Office
Practices in Determining Jurisdiction," will be used to further clarify
reporting requirements. Our goal is to develop a reporting strategy to
ensure the Corps is achieving the highest level of consistency and
predictability possible, while providing the public with the greatest
opportunity for understanding the basis for jurisdictional
determinations so that full compliance with the Clean Water Act is
encouraged.
RECOMMENDATION 2: The GAO recommended that the Corps finalize with EPA
the additional guidance that will help the districts make certain
jurisdictional determinations under 33 C.F.R. 328.3(a)(3)(i)-(iii).
ASSISTANT SECRETARY OF THE ARMY (CIVIL WORKS): We concur with your
recommendation, and we will continue to work with the EPA to finalize a
procedure to support a HQ-level determination under 33 C.F.R.
328.3(a)(3)(i)-(iii). The guidance shall identify information to be
submitted from the field to support a HQ-level review and outline HQ-
level review procedures that establish processing requirements and
timelines, with the goal of increasing the effectiveness, efficiency
and responsiveness of the regulatory program.
[End of section]
Appendix IV: Comments from the Environmental Protection Agency:
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY:
OFFICE OF WATER:
WASHINGTON, D.C. 20460:
AUG 15 2005:
Ms. Ann K. Mittal:
Director, Natural Resources and Environment:
United States Government Accountability Office (GAO):
Washington, DC 20548:
Dear Ms. Mittal:
Thank you for the opportunity to review and comment on the draft report
entitled "Corps of Engineers Needs to Better Support Its Decisions for
Not asserting Jurisdiction." The draft report focuses on implementation
of the Clean Water Act (CWA) section 404 program, with particular focus
on determinations of whether particular waters are subject to CWA
jurisdiction after the U.S. Supreme Court decision in Solid Waste
Agency of Northern Cook County (SWANCC). The Environmental Protection
Agency (EPA) welcomes an opportunity to comment on the report, and to
provide the broader CWA perspective for its discussion.
The CWA section 404 program requires permits for discharges of dredged
or fill material into "waters of the US." The draft GAO report
emphasizes the challenges faced by Corps of Engineers Districts since
the SWANCC decision, which held that the CWA does not authorize
protection of isolated, intrastate, non-navigable waters based solely
on the presence of migratory birds. While the SWANCC decision did not
create the programmatic and scientific challenges posed by
jurisdictional determinations (e.g., what factors are relevant in
determining whether a water is tributary), the decision did highlight
areas of the existing regulations that had previously not been the
focus of scrutiny.
The Corps of Engineers and EPA are committed to improving the
transparency, predictability, and consistency of the CWA section 404
program. The agencies have taken a number of steps towards this goal.
One such step is the Corps District practice of collecting and posting
on their websites information regarding determinations that a
particular water is non jurisdictional. The form used for non
jurisdictional postings calls for the precise location of the aquatic
resource in question, name of regulatory project manager, whether field
visits were conducted as part of the analysis, general information on
the type and extent of aquatic resources, and an assessment of whether
"Migratory Bird Rule" factors were potentially present at the site.
The draft GAO report criticizes the Corps no jurisdiction form,
concluding that it collects insufficient data to provide a
comprehensive assessment, but instead focuses on the legal rationale
that is the basis for the jurisdiction decision. EPA agrees that files
should contain complete data to support the decision and the technical
and legal basis for non jurisdictional decisions. National use of a
form and public posting on the internet helps the Corps, EPA, and the
general public better understand the basis and reasoning for District
no-jurisdiction determinations. Prior to the Corps Districts'
systematic use and posting of the no-jurisdiction form, findings of no-
jurisdiction were dispersed throughout District Office files, often in
hardcopy only, and effectively unavailable for broader analysis or
ready public access. Development and continued use of the no-
jurisdiction form has been an important part of the two agencies'
efforts to increase transparency, predictability, and consistency of
the section 404 program. EPA has analyzed the data and is using it in
internal program management.
Another important step in those efforts is to work closely with field
staff in Corps Districts and EPA Regional offices regarding
jurisdictional calls involving geographically isolated waters, which is
the category of waters at issue in SWANCC. As the draft GAO report
recognizes, field staff are to obtain formal headquarters approval
prior to asserting CWA jurisdiction over intrastate, isolated, non-
navigable waters based solely on links to interstate commerce. This
process was designed to allow the agencies to ensure more consistent
application of the regulations, while taking into account all relevant
information about a particular body of water.
We agree with the draft GAO report's emphasis on the importance of
effective data collection and management, and public access to
jurisdictional and other permitting decisions. The Corps is in the
process of enhancing and standardizing incorporation of its permit
program data into its new nationwide Ombil Regulatory Module (ORM)
database. Plans are also underway to geospatially-enable data
management and permit decision support in an enhanced system currently
described as Geospatial-ORM, or g-ORM. A central part of upgrading ORM
to g-ORM is establishing mechanisms, such as web services and internet
mapping tools, to share wetland and aquatic resource permit data
collected by the Corps with State, Tribal and local resource agencies
and the public. EPA is working with the Corps as it makes the
nationwide conversion to ORM and the subsequent upgrade to g-ORM,
providing some funding but particularly by analyzing potential ways in
which g-ORM can be integrated with EPA's Watershed Assessment, Tracking
and Environmental Results (WATERS) database. WATERS is an information
system that coordinates and summarizes information about water quality
and administrative determinations (such as identification of
impairments pursuant to CWA Section 303(d). EPA and the Corps believe
that integrating this information will improve understanding of the
impacts of decisions on aquatic resources.
In closing, EPA appreciates the information provided in the draft
report. We are committed to taking actions that further advance
transparency, predictability, and consistency of the CWA section 404
program.
Thank you again for the opportunity to comment on your draft report.
Sincerely,
Signed for:
Diane Regas, Director:
Office of Wetlands, Oceans, and Watersheds:
[End of section]
Appendix V: GAO Contact and Staff Acknowledgments:
GAO Contact:
Anu K. Mittal, (202) 512-3841:
Staff Acknowledgments:
In addition to the contact named above, Doreen Feldman, Curtis Groves,
Anne Rhodes-Kline, Sherry McDonald, Ken McDowell, Marcia Brouns
McWreath, Greg Peterson, Jerry Sandau, Carol Hernstadt Shulman, and
Rebecca Spithill made key contributions to this report.
(360477):
FOOTNOTES
[1] Wetlands are areas that are inundated or saturated with surface or
groundwater at a frequency and duration sufficient to support
vegetation adapted for life in saturated soil conditions. Wetlands
include swamps, marshes, bogs, and similar areas. Wetlands play
valuable ecological roles by reducing flood risks, recharging water
supplies, improving water quality, and providing habitats for fish,
aquatic birds, and other plants and animals, including a number of
endangered species.
[2] 51 Fed. Reg. 41206 (Nov. 13, 1986).
[3] 531 U.S. 159 (2001).
[4] This joint memorandum was issued as part of an Advance Notice of
Proposed Rulemaking. 68 Fed. Reg. 1991 (Jan. 15, 2003).
[5] GAO, Waters and Wetlands: Corps of Engineers Needs to Evaluate Its
District Office Practices in Determining Jurisdiction, GAO-04-297
(Washington, D.C.: Feb. 27, 2004).
[6] Point source discharges are those that emanate from discrete
conveyances such as pipes or man-made ditches.
[7] States can be authorized to carry out the section 402 program, and,
according to EPA, 42 states administer 402 permits within their
jurisdictions.
[8] Section 404(e) authorizes the Corps to develop general permits for
categories of activities having minimal adverse environmental impact.
Section 404(f) identifies activities exempt from the permitting
requirement, including certain ongoing farming activities. Section
404(g) establishes a process by which states (and tribes) may assume
the section 404 permitting program.
[9] 43 Op. Atty. Gen. 197 (1979).
[10] EPA has authorized two states--New Jersey and Michigan--to
implement their own permitting programs under section 404.
[11] Funds are also used for issuing permits under the Rivers and
Harbors Act of 1899 (33 U.S.C. § 403), which, among other things,
prohibits the building of structures that could impede navigation,
unless approved; and the Marine Protection, Research and Sanctuaries
Act of 1972 as amended (33 U.S.C. § 1413), which requires permits for
transporting dredged material for ocean dumping.
[12] To be considered a wetland, the water must generally meet the
guidelines set forth in the Corps' 1987 Corps of Engineers Wetlands
Delineation Manual, which addresses hydrology, soils, and plants.
[13] Permits are not required for exempt activities under section
404(f), such as certain ongoing farming and silviculture operations. A
general permit may be available as an alternative to an individual
permit for a project which involves activities that the Corps has
determined have minimal adverse effects, both individually and
cumulatively. The vast majority of projects permitted each year are
covered by such general permits.
[14] 40 C.F.R. § 230.10(a).
[15] SWANCC involved an abandoned sand and gravel pit, containing
several permanent and seasonal ponds at which migratory bird species
had been observed. In striking down the migratory bird rule, the
Supreme Court stated that Congress's use of the phrase "waters of the
United States" to define navigable waters did not constitute a "basis
for reading the term 'navigable waters' out of the statute" and that
"it is one thing to give a word limited effect and quite another to
give it no effect whatever." 431 U.S. at 172.
[16] The preamble also addressed (1) waters that are or would be used
as habitat for endangered species, and (2) waters used to irrigate
crops sold in interstate commerce.
[17] EPA made a similar interpretation in preamble language in 1988. 53
Fed. Reg. 20765 (June 6, 1988).
[18] Since SWANCC, several federal appellate courts have considered the
scope of Clean Water Act jurisdiction in cases other than those
involving the migratory bird rule. A majority of the courts have read
the SWANCC decision narrowly. These courts (the fourth, sixth, seventh,
and ninth circuit courts of appeals) have found, for example, that
SWANCC only affects isolated waters and that jurisdiction can be
asserted over waters that have indirect hydrological connections, such
as by drainage ditches, canals, or pipes, with navigable waters. The
fifth circuit court interprets the decision broadly, allowing
jurisdiction to be asserted only if the body of water is actually
navigable or directly adjacent to a navigable body of water, which
could limit jurisdiction over tributaries and wetlands.
[19] The Corps generally requires that wetlands meet three conditions:
(1) frequent or prolonged presence of water at or near the soil
surface, (2) hydric soils that form under flooded or saturated
conditions, and (3) plants that are adapted to live in these types of
soil.
[20] The Advance Identification of Disposal Areas program identifies
wetlands and other waters that are generally suitable for the discharge
of dredged and fill material. The information developed by this program
can then be used by local governments to aid in zoning, permitting, and
land acquisition decisions.
[21] While we were able to determine when consultant data were
submitted for these projects, we were unable to determine the extent to
which project managers used these data in making their determinations.
[22] The Corps is in the process of revising this guidance that could
affect the allocation of resources committed to each of the regulatory
program's activities.
[23] While additional funding has been requested, these funds have not
been appropriated. For example, in fiscal year 2005, the regulatory
program requested $150 million but received only $144 million.
[24] U.S. Army Corps of Engineers, Office of the Engineer Inspector
General, Inspection of the Regulatory Program (Washington, D.C.;
January 2003).
[25] 68 Fed. Reg. 1991 (Jan. 15, 2003).
[26] These estimates were provided to EPA and the Corps in response to
the agencies' January 2003, request for data.
[27] "Isolated wetlands: state-of-the-science and future directions,"
Wetlands, vol. 23, no. 3 (September 2003). The society was formed to
promote the exchange of scientific information related to wetlands and
operates as a charitable and educational organization.
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