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                                                           U.S. DEPARTMENT OF COMMERCE
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                                                           PB-275 312

                      Improvements Needed in the Corps of

                      Engineers' Regulatory Program for

                      Protecting the Nation's Waters

                      General Accounting Office, Washington, D C

                                                VI01 OATO  CFENTEP

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                      23 Dec 77

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                                                               PB 275 312
                                   MAY 1 5 1978

                          UNITED S TA TES
          % <                GENERAL ACCOUNTING OFFICE

                       Pr-opLrty Of CSC Library

                          Improvements Needed In The

                          Corps Of Engineers' Regulatory

                          Program For Protecting The

                          Nation's Waters
                          The Corps of Engineers has a broad mandate
                          to protect and conserve the Nation's waters
                          by approving only those activities (i.e., dredg-
                          ing, filling, construction, etc.) that are in the
                          public interest.
                          While some elements of local discretion are
                          necessary in a program of this nature, incon-
                          sistencies and variances between the opera-
                          tions of the Corps' districts have been of such
                          magnitude as to hamper the establishment of         . .  DEPARTMENT OF COMMERCE NOAA
                          an effective nationwide program. The head-        COASTAL SERVICES CENTER
                          quarters and districts will have management       2234 SOUTH HOBSON AVENUE
                          and evaluation difficulties until the Corps       CHARLESTON   SC  29405-2413
                              --defines the geographical boundaries of
                               the program,
                              --provides for consistency by the districts
                               in interpreting and applying regulations
                               and guidelines,
                              --defines the methods to be used to
                               achieve results expected from the pro-
                               gram, and
                              --provides for periodic program evalu-
                               ation.
                          iCED-78-17 REPRODUCED BY                       DECEMBER   23, 1977
                                       NATIONAL TECHNICAL
                                       INFORMATION SERVICE
                                     i   U.S. DEPARTMENT OF COMMERCE
    �I~                                           SPRINGFIELD. VA. 22161                                               ,.
          -6  m                                                                   /

          � .          ... UNITED STATES GENERAL ACCOUNTING OFFICE
                              WASHINGTON, D.C. 20548

    COMMUNITY AND ECONOMIC
     DEVELOPMENT DIVISION

       B-114885

       The Honorable
       The Secretary of the Army

       Dear Mr. Secretary:

            We recently completed a review of the effectiveness of
        the Corps of Engineers' regulatory activities, as related to
       permits authorized under Section 10 of the River and Harbors
       Act of 1899 and under Section 404 of the Federal Water Pollution
       and Control Act Amendments of 1972. Our review included nermit
        actions during the period of July 1, 1974, through September 30,
        1976, as well as subsequent policy changes.

             Sections 404 and 10 give the Corps a broad mandate to
       protect, enhance, and conserve the Nation's waters by aoorovina
       only those activities that are in the public interest. The
       means by which this is to be achieved have not been clearly
        identified. Failure to establish specific criteria and
       guidance has resulted in significant differences in the
       methods and emphasis given by Corps districts in carrying
       out various program operations.

            We were unable to measure the effectiveness of the
       program because the Corps had not (1) defined the qeoa-raohical
       boundaries of the regulatory program, (2) orovided for more
       consistency between districts in interpreting and apDlyinq
        regulations and guidelines, (3) defined methods to be used
        to achieve expected program results, and (4) provided for
       periodic evaluation of the program.

            We performed the review at the Corps headauarters in
       Washington, D.C. and at district offices in New York, Detroit,
       Galveston, New Orleans, and Jacksonville. We also discussed
        the program with officials from the Environjnental Protection
       Agency (EPA), the Department of Interior's Fish and Wildlife
       Service, and the Department of Commerce's Office of Fisheries
        (formerly the National Marine end Fisheries Service) and
       talked with industrial and environmental groups, and with
       various State agencies in New York, Michigan, Texas, Louisiana,
       and Florida.

                                                      CED-78-17
                                                       (08017)

    NEED TO IDENTIFY GEOGRAPHICAL
    BOUNDARIES OF THOSE AREAS
    SUBJECT TO REGULATORY CONTROL

         Corps regulations define, in general terms, qeographic
    areas subject to regulation under its sections 10 and 404
    regulatory authorities. Corps districts are resoonsible for
    identifying specific geographic areas subject to regulation
    in their districts, but few have done so. Instead, the
    districts identify areas on a case-by-case basis upon
    receiving applications and requests for jurisdictional
    decisions or upon asserting jurisdiction in cases where
    work was performed without a Corps Dermit.

         The lack of specifically defined geographical areas
    causes problems for the Corps and other aqencies which assist
    the Corps in reviewing applications and making knowledgeable,
    informed decisions and also subjects the public and others to
    possible innocent violations.  We found that most reoorted
    violations involved individuals who performed work without
    Corps permits. Because these individuals were, in most cases,
    unaware that the areas where they were working required a
    permit, the Corps usually approved an "after-the-fact" permit.

         For example, in the Detroit District a nrooertv owner
    replaced a bulkhead to protect his residential property from
    erosion after the original bulkhead had been damaged by high
    waters. Apparently the applicant did not know that the area
    was subject to Corps regulation. In exolaininq the circum-
    stances, the applicant noted that the replacement was made
    to a structure that had been in place for over 50 years.
    After lengthy permit processing, involving 13 months from
    the time the violation was reported, the property owner was
    issued a permit.

         A Jacksonville District case illustrates how Corps
    personnel and other State and Federal agencies resoonsible
    for evaluating oermits made erroneous decisions because of
    lack of clear designation of areas subject to requlation.  A
    Corps inspector reported a violation involving unauthorized
    placement of fill in an area near the Santa Fe River.
    Subsequent evaluations by other concerned State and Federal
    Agencies confirmed the Corns inspector's contention that the
    fill site appeared to meet veaetative descriotions of a wetland
    area and appeared to be a periodically flooded area, therefore
    requiring a Corps permit. The property owner disagreed and
    refused to apply for a permit. The district submitted the case
    to the U.S. Attorney and requested maximum fines or penalties.

         Subsequently, another Corps inspector visited the area
    during a period of flooding and found that it was not affected

                                  2

    by high waters. The property owner had been correct--his
    activity was not subject to Corps permit requirements. The
    district withdrew its request for legal action.

         Corps headquarters officials are aware of the lack of
    specifically defined geographical areas to be regulated.
    We recognize that defining the areas has been complicated by
     the 1975 court decision expanding Corps permit jurisdiction
    to "all waters of the United States." However, until the
    Corps requires districts to specifically define regulatory
    boundaries, the Corps inspectors and reviewing agencies will
    have difficulty making knowledgeable, informed decisions
    and innocent violations of the regulatory program will
    iPcontinue.  We believe that the Corps' headquarters office
    needs to take a more aggressive posture in ensuring that
    regulatory bogndaries are defined and in oroviding uniform
    guidance to its districts.

    GUIDANCE FOR EVALUATING PERMIT
    APPLICATIONS CAN BE IMPROVED

          In reviewing a permit application, the district regula-
     tory branch determines the type permit required and

         --if a section 10 permit is required, applies regula-
           tions developed by the Corps;

         --if a section 404 permit is required, applies the same
           Corps regulations, as well as guidelines developed by
           the Environmental Protection Agency (EPA).

         CorDs regulations and EPA guidelines provide for many
    different types of considerations to be made in evaluating
    permit applications. In implementing the regulatory program,
    districts differed in their interpretation and aoplication
    of certain of these considerations. Because of these
    differences, applicants submitting similar permit proposals
    are subjected to different degrees of regulation and different
    decisions, and evaluation of the overall regulatory program
     is difficult.

         We believe that the Coros headquarters should provide
    additional guidance to the districts in the following areas.

    Better guidance needed for reviewing
    permit applications in wetlands

         Corps regulations and EPA guidelines both discourage
    activities having detrimental effects on important wetlands.
    Corps regulations provide that no permits are to be issued
    in important wetland areas unless the public interest requires

                                  3

    otherwise or upnless the benefits of the proposal outweigh
    the damages. EPA guidelines provide that discharge of dredge
    material in wetlands is not to be permitted unless there
    are no less damaging alternative sites or unless other
    alternatives are not practicable. Discharge of fill material
    in wetlands is not permitted unless the applicant clearly
    demonstrates the proposed activity is wetland dependent pr
    that other alternatives are not practicable. For both dredge
    and fill material to be discharged in wetlands, there must
    be no unacceptable adverse impact on aquatic resources.

         Although the five districts considered wetlands Protection
    as an objective of the section 404 program, different methods
    were employed by the districts to achieve that objective.
    For example, the method used by the New Orleans District
    was to review alternatives to ensure that applicants used
    the most feasible and least damaging dredging methods and
    disposal locations. In instances where there appeared to
    be no less damaging alternatives, however, the district
    generally approved the activity proposed.  There were no
    denials of any wetland applications in this district during
    our review period. In the Jacksonville District, however,
    officials advised us that the district followed a policy of
    allowing either no fill in wetlands or very minimal fill.
    Minimal fills which were authorized, involved only wetland
    areas defined as nonproductive or of very little benefit.
    Approximately 42 percent of the district's denials involved
    wetland applications.

         Differences in the applications of wetland protection
    measures caused unequal treatment of applicants desiring
    to perform work in wetland areas. For example, in commenting
    on several proposed oil and gas production activities in
    wetlands, the New Orleans District concluded that it was
    not feasible to lessen environmental damage to wetlands by
    requiring applicants to drill and explore multiple locations
    from a single site (directional drilling).  Thus, the district
    approved dredging canals to each drilling location. In one
    case in which the district approved a permit to construct a
    barge canal in wetlands for the purpose of drilling an
    exploratory oil well, the activity involved dredging
    approximately 27,000 cubic yards of material. Subsequently,
    additional wells were drilled involving seven extensions to
    the original canal and an additional 156,000 cubic yards
    of dredge material. In approving the additional plans,
    the New Orleans District accepted the applicant's content.ion
    that directionally drilling the additional wells from a
    single site was not feasible because it would result in
    both increased costs and difficulties in controlling the
    drilling direction and angle.

                                   4

         In the adjoining Galveston District, however, an
    applicant proposed to construct a road through a wetland
    area to a proposed drilling site within the area. District
    officials recommended that the applicant revise his proposal
    and directionally drill to the proposed site from an existing
    roadway and drilling pad. Subsequently, the applicant agreed
    to the district's recommendation, thereby incurring consider-
    able expense to avoid damage to wetlands.

        We believe the above differences demonstrate the need
    for criteria and guidance for evaluating permit applications
    involving wetlands. This would help to avoid varying inter-
    pretations by the districts and would aid management in
    ensuring that uniform application of the criteria is being
    achieved. Without such consistency and uniformity, applicants
    desiring to perform similar work in different wetland areas
    are not assuredof uniform treatment, and the wetlands do
    not receive uniform protection.

    Guidance needed for making
    cumulative impacts assessments

         According to regulations, evaluation of permit applica-
    tions is to include consideration of the probable impact of
    each application in relation to the cumulative effect created
    by other existing and anticipated structures or work in the
    general area. Although requiring this consideration, neither
    the regulations nor management directives specifically provide
    means for identifying and evaluating cumulative effects.

         In a 1976 in-house Corps study, districts identified the
    evaluation of cumulative impacts of proposed works as a major
    district problem. The study showed that this was due to a
    lack of methods or data to perform cumulative impact assess-
    ments. Varying methods are used by districts in determining
    cumulative effects.

         In an application requesting approval to construct a
    recreational housing area, the Jacksonville District
    considered the precedents which might be set and the
    possibility of a proliferation of similar structures if
    the permit was approved. These factors, interpreted as
    cumulative impacts, plus the district finding that the
    success of this activity did not depend on its being in
    the wetlands, resulted in permit denial.

         The Galveston District, on the other hand, approved
    a similar application. The district evaluators recognized
    that there were impacts on the environment but concluded
    that cumulative impacts could not be estimated because no
    specific environmental studies had been done in the area.

                                  5

         For a similar application, the New Orleans District
    found that canal dredge and fill for recreational housing
    in wetlands would pose serious cumulative and environmental
    effects on the ecosystem; however, it approved the applica-
    tion based on economic benefits to be derived. Although
    the New Orleans District identified construction of
    recreational housing in wetlands as an activity causing
    serious cumulative impacts, most applications were approved
    without noting whether cumulative impacts were considered.
    We noted also, that this district is in the process of
    issuing a general permit 1/ for recreational housing.

         The Galveston District noted, in response to an
    in-house Corps questionnaire, that dredging sand and shell
    for industrial uses caused serious cumulative impact. Of
    the 10 sand and shell dredging applications processed in
    the Galveston District during our review period, however,
    six were approved, two were withdrawn by the aoolicants,
    and two were denied because of the adverse impact on fish
    and wildlife.

         In the two cases denied, the district reported that the
    cumulative impacts were unknown. In one of the cases
    approved, on the other hand, the Galveston District reported
    that no adverse cumulative impacts were anticipated; however,
    according to the district's permit branch, the district has
    no means for assessing cumulative impacts.

         Although the five districts recognized that certain
    types of activities cause serious cumulative impacts,
    applications for these activities are usually approved.
    The districts either do not determine cumulative imoacts
    required by regulation or they use different criteria to
    determine them. We believe that additional guidance from
    Corps headquarters on how to make cumulative impact assess-
    ments would prove to be a valuable tool for each district
    to use in protecting the waters in its jurisdiction.

    Better guidance needed for use
    of general and blanket permits

         The Corps has adopted special procedures (general
    permits) and certain districts have adopted other procedures
    (blanket permits) to reduce workloads and make the regulatory
    program more administratively manageable. These procedures
    eliminate the need for individual approval of all permit
    applications. The qeneral permit is used in four of the five

    1/See p. 7 for description of general permits.

                                  6

    districts we reviewed, the blanket permit in three of the
    five. We believe that the Corps can put the qeneral permit
    to more widespread use; however, the Cori-s needs to
    reexamine the use of the blanket permit to determine
    its effectiveness in protecting the public interest.

         The general permit

         Under this procedure a district issues a single Permit,
    after public review and comment, to authorize many similar
    activities which individually and cumulatively are determined
    to have only minimal environmental impacts. Examples of
    how districts use general permits are presented below.

         The New York District issued a general pe rmit for
    submarine and aerial cables. As a result, applicants
    proposing to undertake this type of work notify the district
    engineer of their plans and proceed with the work. In the
    Jacksonville District, on the other hand, a utility company
    submitted 100 applications for aerial power cables which
    were already in place. Since the Jacksonville District
    has no general permit for power cables, the district will
    have to issue public notices and evaluate and consider public
    comments on each of these applications.

         Jacksonville District issued a general permit for private
    piers in October 1975. District officials estimated that
    400 piers were constructed under the general permit through
    September 30, 1976, without evaluation and processing. The
    New Orleans District, on the other hand, does not have a
    general permit for piers and has individually processed
    several hundred applications for private piers even though
    none of these applications was denied.

         In all the cases above, the work was considered minor
    by the district involved. The general permits resulted in
    less time and paperwork for the applicants and reviewinq
    agencies and demonstrated the effectiveness with which
    district operations can be carried out. We believe the
    Corps should pursue the possibilities of expanding the role
    of the general permit in all districts to ensure uniform
    ti'eatment of applicants and more economy and efficiency of
    operations.

         The blanket permit

         Specific authority for issuing blanket permits is not
    provided for in Corps regulations. According to an official
    of one district, authority was "orobably" Provided by Corps
    headquarters in the late 1940s. Headquarters officials stated
    that they were aware of the use of blanket permits but that

                                  7

    there was no specific authorization sanctioning this
    method of issuing permits.

         Under the blanket permit concept, an applicant applies
    for a permit to conduct a variety of oil and gas exploration
    and production activities within a large geographical area.
    After public notice issuance and consideration of comments
    and potential impacts, the district issues a blanket permit.
    The permit does not identify the specific location, nature,
    or type of activity which is to be undertaken.

         individual districts determine the length of time for
    which blanket permits are issued. The New Orleans District
    issued blanket permits for 10-year periods, Galveston District
    3 years, and Jacksonville District approximately 9-year
    periods.

         New Orleans District officials, apparently deciding it
    was necessary to review individual actions under section 404,
    have recently changed their blanket permit policy to exclude
    section 404 actions from the blanket permit authority. The
    Jacksonville District also does not use blanket permits for
    authorizing section 404 activities. The Galveston District
    policies, on the other hand, do not exclude section 404
    activities from the blanket permit, and officials at this
    district stated that no changes to this policy were currently
    being considered.

         We believe that the continued use of blanket permits is
    questionable because (1) the permit does not identify the
    specific location, nature, or type. of activity to be under-
    taken and (2) there appears to be no authority for the use
    of this type of permit. In a Decemfber 2, 1977, letter we asked
    the Chief of Engineers to identify any authority for blanket
    permit use, and to inform us of any actions which are taken
    regarding these permits.

    Guidance needed to ensure
    consistent treatment of violators

         most violations reported by the five districts we visited
    involved failure of individuals to obtain required permits.
    The ultimate disposition of these issues usually resulted in
    "1after-the-fact" permits. During the 27-month review period,
    fou6r Of the districts r'esolved from 87 to 99 percent of the
    violations in this manner. As shown on the next page, however,
    the Jacksonville District resolved only 55 percent by issuing
    permits.

                                  8

                                      Reported Violations
                              July 1, 1974 to September 30, 1976

      Resolution of                    New
    proved violations               Orleans  Galveston    New York  Detroit   Jacksonville

    Number of "after-the-
      fact" permits issued
      to violators                     172       74           117         440           115

    Number of fines                       8      15              0         14             37

    Number of restorations
      required (note a)                  2        3            15          63            96

    Percent resolved by
      fines or restoration               6       23            11          15            63

    Percent resolved by issuing
      an "after-the-fact" permit
      with or without fines             99       96            89          87            55

    a/Restorations involve a requirement that the violato.r
      return the impacted area to a condition existing before
      the unauthorized activity took place.

         Districts are inconsistent in their treatment of
    violators. These inconsistencies exist within as well as
    among districts. The following examples illustrate some of
    the differences found.

         --In the New Orleans District, two individuals were aware
           of the need for a permit but did not obtain one for the
           dredqing operations they performed. One individual was
           fined ($1000) and one was not.

         --In the Galveston District, a violator was required to
           remove, fill, and restore the area along a 120-foot
           drainage canal. In the New Orleans District, another
           violator was not required to remove fill and restore
           the area along a 1.4 mile drainage canal. (Both
           violators were issued after-the-fact permits.)

         --In the Detroit District, about 200 violation cases
           were closed without permit fines or restoration. This
           was due to (1) the cases being about two years old,
           (2) the possibility that the violations may have been
           corrected, and (3) the inspectors reports being
           inadequate.

         We also found that Corps guidance does not specify
    whether program emphasis should be placed on permit
    processing, monitoring and enforcing, or whether each
    function should be given equal emphasis. Currently, the
    districts differ considerably in their interpretation of
    the importance of these functions. For example:

         --Galveston District has no one assigned to the
           monitoring function, whereas the other four districts
           have over 20 percent of their staffs dedicated to this
           function; and

         --Detroit District devotes about 50 percent of its
           staff to processing and evaluating permits, whereas
           the other four districts devote from 20-34 percent to
           this function. Two of these four districts had about
           the same workload and staffing as Detroit.

         We believe that the Corps needs (1) to improve its
    guidance for handling violations so that permit violators
    can be treated more uniformly and equitably and (2) to
    identify the emphasis to be placed on program functions.

                                  10

    Guidance needed to provide better
    information in public notices

         The Corps uses public Participation as a key element
    in evaluating the interest of the public and as a basis
    for making decisions on activities under the regulatory
    program. However, we found cases where Public notices
    of regulatory activities did not provide'enough information
    for the public to make informed comments. We noted that,
    in' many of the 92 public notices we reviewed, pertinent
    information such as the type of area to be impacted was
    not given.

         In the New York District, a public notice described
    a project as involving 24,000 cubic yards of fill in "an
    irregularly shaped area with a offshore face." The Corps
    used this description in the Public notice and the Public
    was not informed that wetlands were involved. The only
    comment received from the public stated that the public
    notice did not provide adequate information upon which
    to form an independent judgement.

         In the New Orleans District, a public notice described
    a proposal as maintenance of a 23,400-foot levee system,
    constructed with 219,000 cubic yards of dredqed material.
    The notice stated that the levee system was to he used to
    protect land for aqricultural Purposes. Although aware that
    the entire 600 acre area involved wetlands which would be
    destroyed, the district did not provide this information in
    its public notice. In contrast, Jacksonville District
    public notices qenerally describe the nature and amount
    of wetlands involved in describing proposed activities.

         We believe that the Corps should institute measures
    to ensure that the districts are providing the public with
    information to evaluate proposed activities.

    IMPROVEMENTS NEEDED IN IDENTIFYING
    METHODS OF ACHIEVING EXPECTED PROGRAM RESULTS

         The methods to be used in achieving expected regulatory
    program results need to be spelled out more soecifically.
    Expected results of the Corps' program are protection,
    enhancement, and conservation of the Nation's waters.
    However, the details of how these expected results are
    to be attained have not been identified so that they could
    be applied uniformly nationwide. Such uniformity is hampered
    due to

         --changes in laws and varying interpretations of those
           laws,

                                 11

         --ambiguity in EPA guidelines and Corps regulations in
          describing how the program is to be carried out, and

         --the Corps' decentralized management of the program.

        We recognize that, due to the above factors and
    conflicting public concerns, the Corps' regulatory program
    has become more complex to implement and administer.

         The original program under Section 10 of the Rivers
    and Harbors Act of 1899 was to ensure, by issuing permits,
    that navigable waterways were not obstructed. The sole
    criterion for permit issuance was that the proposed work
    not impede or obstruct navigation.

         During recent years, supplementary legislation and
    judicial interpretations have required that the Corps
    consider various "public interest" factors in evaluating
    proposed activities, and section 404 of the 1972 Federal
    Water Pollution Control Act Amendments added another permit
    for regulating the discharge of dredge or fill material.

         Because of this legislation and court decisions, the
    Corps issued regulations in 1973 recognizing for the first
    time the Corps' regulatory responsibilities under the 1972
    amendments. The Corps issued revised regulations in July
    1975 after litigation on the 1972 act resulted in an
    expansion of the Corps' jurisdiction under section 404
    of the regulatory program.

         The Corps' 1975 regulations and subsequent regulations
    issued in July 1977 were unclear in indicating how some
    regulated activities were to be evaluated. For example,
    there was no indication as to the weight to be assigned
    in arriving at a decision when navigation and water guality
    interests conflict. Also when energy development needs
    conflict with wetlands protection goals, there is no
    clear indication of how the conflict is to be resolved.

         Corps management recognizes that differences exist
    in the specific methods applied and decisions rendered by
    individual districts. Different districts' methods are
    actually viewed, according to a Corps headquarters official,
    as~a good way to regulate because individual districts are
    "fine-tuned" to their respective areas and interests.
    Although different decisions are rendered by two districts
    evaluating similar proposals, both decisions, according
    to this official, meet the Corps' concept of public interest.
    Corps headquarters, according to this same official, does
    not view these decisions as problems but as indicators of
    district responsiveness to area needs.

                                 12

                   We recognize that local interest considerations are
              very important; however, these interests may not always
              be synonymous with the overall interests of the nation.
               In fact, Corps regulations and EPA guidelines have not clearly
               identified how the local and national interests are to be
              protected nor the methods to be used to reconcile conflicting
               interests.

                    In the absence of clear er definitions, the Corps may
    *          ~~~be performing functions that either need no regulation or
               could be more appropriately handled by the local or state
              authorities. Also individual districts could be approving
              activities which are not in the national interest.

                   We believe that the Corps needs to provide additional
              guidance to the districts as to methods to be used to achieve
              expected program results. If the Corps is unable to reconcile
              the conflicting interests involved or is unable to design
               a methodology for balancing the local and national interests,,
               then it should request additional guidance from the Congress.
              In any event, interpretation of program requirements should
              not be left to ind8ividual Corp~s districts.

              PERIODIC EVALUATION CAN IMPROVE
              MANAGEMENT OF THE PROGRAM

                    Program evaluation is a fundamental part of effective
              program administration and we believe that responsibility
               for evaluations should rest with agency management. However,
              we found that the Corps has not performed an evaluation of
              the regulatory program.

                   The current program relies on individual district
              approaches and considerations, and program diversity is
              accepted. This makes program evaluation difficult especially
               in some of the areas previously discussed, such as wetlands
               protection and cumulative impact assessment. The Corps
              has not yet established a basis for periodically evaluating
              the' overall level of program effectiveness.

                   Since evaluation is an integral part of program
              administration, we believe the Corps should establish a
              requirement for periodic program evaluation. The Corps
              needs these evaluations to assess the program and to provide
              data for better management direction and control.

              CONCLUSIONS

                   The Corps' regulatory program is difficult to manage
              and evaluate because of its ambiguity, size, diversity, and

                                            13

    the variety of approaches the Corps districts use in carrying
    it out.

        While some elements of local discretion are necessary
    in a program of this nature, the inconsistencies and variances
    between the operations of the five districts we reviewed were
    of such magnitude that they hamper the establishment of an
    effective nationwide program. The headquarters and districts
    will have management and evaluation difficulties until the
    Corps accomplishes the following:

         --De~fines the geographical boundaries of the regulatory
           program'. Until this is accomplished, it will be
           difficult for Corps inspectors and reviewing aqencies
           to make knowledgeable, informed decisions, and innocent
           violations of the regulatory program, will continue.

         --Provides for additional guidance to the districts to
           aid them in (1) achieving expected program results
           and (2) interpreting and applying regulations and
           guidelines, specifically concerning wetlands,
           cumulative impact assessments, violations, public
           notices, and general and blanket permits. This can
           minimize differences in treatment of applicants and
           provide a better basis for overall evaluation of the
           program.

         Accomplishment of the above will provide more consistent
    management of the program; however, there also needs to be
    a mechanism set up for overall and district r~roqram evaluation.

    RECOMMENDATIONS

         We recommend that the Secretary of the Army provide for
    improved management and control of the Corps' regulatory
    program by directing the Corps headquarters office to:

         --Take a more agressive posture in ensuring that
           regulatory boundaries are defined and in providing
           additional guidance for districts to use in defining
           geographic boundaries.

         --Provide additional guidance to the districts for
           evaluating permit applications that involve wetlands,
           making cumulative impacts assessments, using general
           and blanket permits, handling violations, and providing
           information to the public on proposed projects.

         --Provide additional guidance to the districts as to the
           methods to be used to achieve expected program results.

                                 14

         --Establish a requirement for and specific guidance
           to conduct periodic program evaluations.

    AGENCY COMMENTS

         We did not request formal comments from the Secretary
    of the Army or the Corps of Engineers but did obtain oral
    comments from the Corps. The Corps officials generally agreed
    with the facts of the report. They stated that there are
    differences in district operations; however, these differences
    do not necessarily constitute problems but are indicative of
    district responsiveness to area needs.

    PENDING LEGISLATION CONCERNING
    THE REGULATORY PROGRAM

         The Conference Committee of the House Committee on Public
    Works and Transportation and the Senate Committee on Environment
    and Public Works recently agreed on a bill (H.R. 3199 - the
    the Clean Water Act of 1977) to amend the Federal Water
    Pollution Control Act. The bill passed Congress on December 15, 1977,
    but had not been signed by the President as of December 19, 1977.
         The bill allows the Secretary of the Army to transfer
    permitting authority to the States for controlling discharge
    of dredged or fill material into navigable waters within the
    State 1/ providing the Governor so desires and the State plan
    is approved by the Environmental Protection Agency (in consulta-
    tion with the Secretary of the Army and the Director, Fish and
    Wildlife Service).

         We believe our recommendations will be applicable under
    such legislation because problems identified in this report
    will continue to exist. Furthermore, differences in program
    operations may be even more pronounced because of the diversity
    of State management.

         As you know, Section 236 of the Legislative Reorganization
    Act of 1970 requires the head of a Federal agency to submit
    a written statement on actions taken on our recommendations to

    1/11 **  (other than those waters which are presently used,
      or are susceptible to use in their natural condition or by
      reasonable improvement as a means to transport interstate
      or foreign commerce shoreward to their ordinary high water
     mark, including all waters which are subject to the ebb
     and flow of the tide shoreward to their mean high water
     mark, or mean higher high water mark on the west coast,
      including wetlands adjacent thereto)***1

                                 15

    the House Committee on Government Operations and the Senate
    Committee on Governmental Affairs not later than 60 days
    after the date of the report and to the House and Senate
    Committees on Appropriations with the agencies' first request
    for appropriations made more than 60 days after the date of
    the report.

        We are sending copies of this report to the four committees
    to set in motion the requirements of section 236. Copies are
    also being sent to cognizant legislative committees; the Acting
    Director, Office of Management and Budget; the heads of
    Departments or Agencies directly involved and the Governors
    of the fifty States.

                                  Sincerely yours,

                                  Henry Eschwege
                                  Director

    Enclosures - 40

                                 16
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