Waters and Wetlands: Corps of Engineers Needs to Better Support  
Its Decisions for Not Asserting Jurisdiction (09-SEP-05,	 
GAO-05-870).							 
                                                                 
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. 							 
-------------------------Indexing Terms------------------------- 
REPORTNUM:   GAO-05-870 					        
    ACCNO:   A36219						        
  TITLE:     Waters and Wetlands: Corps of Engineers Needs to Better  
Support Its Decisions for Not Asserting Jurisdiction		 
     DATE:   09/09/2005 
  SUBJECT:   Data collection					 
	     Decision making					 
	     Documentation					 
	     Federal regulations				 
	     Internal controls					 
	     Jurisdictional authority				 
	     Land management					 
	     Policy evaluation					 
	     Water resources conservation			 
	     Environmental monitoring				 
	     Migratory birds					 
	     Water pollution control				 
	     Interagency relations				 
	     Policies and procedures				 
	     Transparency					 
	     Wetlands						 

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GAO-05-870

     

     * 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
     * Contents
          * Results in Brief
          * Background
          * Corps Districts Generally Use Similar Processes and Data Sources
            When Making Jurisdictional Determinations
               * Corps Districts Use a Four- Step Process to Make
                 Jurisdictional Determinations
               * Corps Districts Use Similar Data Sources to Make
                 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. S: 328.3(a)(3) to
            Assert Jurisdiction
          * Agencies Are Not Collecting Data to Fully Assess the Impact of
            SWANCC
               * Data Being Collected Is Inadequate to Fully Assess the
                 Impact of SWANCC
               * Additional Data Needed to Assess the Impact of SWANCC Is Not
                 Readily Available
          * Conclusions
          * Recommendations for Executive Action
          * Agency Comments and Our Evaluation
     * Scope and Methodology
     * Data Contained in Corps Files on Nonjurisdictional Determinations in
       Five District Offices
     * Comments from the Department of the Army
     * Comments from the Environmental Protection Agency
     * GAO Contact and Staff Acknowledgments

                 United States Government Accountability Office

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

                                       a

GAO-05-870

WATERS AND WETLANDS

Corps of Engineers Needs to Better Support Its Decisions for Not Asserting
Jurisdiction

  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.

                 United States Government Accountability Office

Contents

  Letter 1

Results in Brief 4 Background 7 Corps Districts Generally Use Similar
Processes and Data Sources

When Making Jurisdictional Determinations 15 Corps Districts Generally Do
Not Document Their Rationales for

Nonjurisdictional Determinations 27 The Corps Generally Allocates
Resources for Making Jurisdictional

Determinations as Part of the Permitting Process 31 The Corps Is Generally
Not Using 33 C.F.R. S: 328.3(a)(3) to Assert

Jurisdiction 34 Agencies Are Not Collecting Data to Fully Assess the
Impact of

SWANCC 35 Conclusions 40 Recommendations for Executive Action 41 Agency
Comments and Our Evaluation 41

  Appendixes

Appendix I: Scope and Methodology 43 Appendix II: Data Contained in Corps
Files on Nonjurisdictional Determinations in Five District Offices 46
Appendix III: Comments from the Department of the Army 52 Appendix IV:
Comments from the Environmental Protection Agency 55 Appendix V: GAO
Contact and Staff Acknowledgments 57

Table 1: Nonjurisdictional Determination Files Reviewed in Five

  Tables

Corps Districts 46 Table 2: Project Files That Contained Topographic Maps,
by

District 46 Table 3: Project Files That Contained Soil Survey Maps, by

District 47 Table 4: Project Files That Contained Wetlands Inventory Maps,
by

District 47 Table 5: Project Files That Contained Aerial Photographs, by

District 47 Table 6: Project Files That Contained Ground Photographs, by

District 48

                                    Contents

Table 7:  Project Proponents That Relied on the Use of Consultants,   
             by District                                                   48 
Table 8:  Projects Where the Project Manager Conducted a Site         
             Visit, by District                                            49 
Table 9:  Files That Contained a Clear Identification of Data Used in 
             Making the Determinations                                     50 
Table 10: Files That Contained a Basis for the Determination in the   
Five Corps Districts                                                    50 
Table 11: Files That Contained No, a Partial, or a Detailed Rationale 
in the Five Corps Districts                                             51 

Figure 1:

  Figures

Figure 2: Figure 3:

Figure 4: Figure 5: Figure 6: Figure 7: Figure 8: Figure 9:

        Map of Corps Divisions and Districts That GAO            
        Reviewed                                                      9 
        Decision Tree Flow Chart for the Corps' Jurisdictional   
        Determination Decision-Making Process                        11 
        Examples of Potentially Isolated Waters That May Be      
        More at Risk for a Nonjurisdictional Determination as a  
        Result of SWANCC                                             13 
        Topographic Maps Showing Project Location and            
        Detailed Surface Contours                                    18 
        A Soil Survey Map the Corps Used to Make a               
        Jurisdictional Determination                                 20 
        A National Wetlands Inventory Map the Corps Used to      
        Make a Jurisdictional Determination                          22 
        Examples of Detailed Rationales Used by Two Corps        
        Districts                                                    29 
        Examples of Partial Rationales Used by Two Corps         
        Districts                                                    30 
        Examples of No Rationales Used by Two Corps              
        Districts                                                    30 

Contents

    Abbreviations

EPA Environmental Protection Agency

SWANCC Solid Waste Agency of Northern Cook County v. U.S. Army Corps of
Engineers

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protection in the United States. It may be reproduced and distributed in
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                                    Contents

A

United States Government Accountability Office Washington, D.C. 20548

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,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,

1Wetlands 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.

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.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),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.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. S: 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

251 Fed. Reg. 41206 (Nov. 13, 1986). 3531 U.S. 159 (2001). 4This joint
memorandum was issued as part of an Advance Notice of Proposed Rulemaking.

68 Fed. Reg. 1991 (Jan. 15, 2003).

      Page 2 GAO-05-870 Waters and Wetlands

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.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. S: 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

5GAO, 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).

      Page 3 GAO-05-870 Waters and Wetlands

                                Results in Brief

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.

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. S: 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. S: 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.
                S: 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.

                                   Background

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. S: 328.3(a)(3). In
commenting on the report, the agencies generally agreed with our
recommendations.

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

     o section 303, which calls for development of water quality standards
       for "waters of the United States";
     o section 311, which establishes a program for preventing, preparing
       for, and responding to oil spills that occur in "waters of the United
       States";
     o 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";
     o section 402, which establishes a permitting system to regulate point
       source discharges of pollutants into "waters of the United States";6,
       7 and

6Point source discharges are those that emanate from discrete conveyances
such as pipes or man-made ditches.

7States can be authorized to carry out the section 402 program, and,
according to EPA, 42 states administer 402 permits within their
jurisdictions.

Page 7 GAO-05-870 Waters and Wetlands

o  section 404, which prohibits the discharge of dredged or fill material
into "waters of the United States" without a permit from the Corps.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.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.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.11 The districts processed about 86,000 permits in
fiscal year 2003. Figure 1 shows

8Section 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.

943 Op. Atty. Gen. 197 (1979).

10EPA has authorized two states-New Jersey and Michigan-to implement their
own permitting programs under section 404.

11Funds are also used for issuing permits under the Rivers and Harbors Act
of 1899 (33

U.S.C. S: 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. S:
1413), which requires permits for transporting dredged material for ocean
dumping.

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

Source: U.S. Army Corps of Engineers.

The first step in the regulatory process is to determine whether there is
any water or wetland12 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.

12To 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.

Page 10 GAO-05-870 Waters and Wetlands

 Figure 2: Decision Tree Flow Chart for the Corps' Jurisdictional Determination
                            Decision-Making Process

    Appeals review officer remands determination to the Corps district, with
      specific instructions for reconsideration; appeal process completed

               Source: GAO analysis of Corps and EPA regulations.

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.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.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.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."16, 17 Under this
interpretation, nearly all waters and wetlands in the United States were
potentially subject to the

13Permits 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.

1440 C.F.R. S: 230.10(a).

15SWANCC 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.

16The 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.

17EPA made a similar interpretation in preamble language in 1988. 53 Fed.
Reg. 20765 (June 6, 1988).

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

Prairie potholes are found most often in the upper Midwest, especially
Minnesota, North Dakota, South Dakota, and Wisconsin. Many species of
North American waterfowl are dependent on the potholes for breeding and
feeding. In addition to supporting waterfowl, prairie potholes also absorb
surges of rain, snowmelt, and floodwater, reducing the risk and severity
of downstream flooding.

Playa lakes are round hollows in the ground in the southern High Plains of
the United States. They are ephemeral, meaning that they are present only
at certain times of the year. Playas support an array of wildlife.
Waterfowl, mayflies, dragonflies, salamanders, bald eagles, endangered
whooping cranes, jackrabbits, raccoons, and amphibians can all be found at
playa lakes.

Vernal pools occur in the mediterranean climate conditions of the West
Coast. They are covered by shallow water for variable periods from winter
to spring, but may be completely dry for most of the summer and fall.
Vernal pools provide habitat for numerous rare plants and animals that are
able to survive and thrive in these harsh conditions. In addition, birds
such as egrets, ducks, and hawks use vernal pools as a seasonal source of
food and water.

                                  Source: EPA.

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 courts18 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

18Since 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.

  Corps Districts Generally Use Similar Processes and Data Sources When Making
  Jurisdictional Determinations

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.

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-In making jurisdictional determinations,
project managers in each of the five districts we visited proceed through
the following four steps:

    Step Process to Make Jurisdictional

o  Receiving a request for a jurisdictional determination or a permit

Determinations 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.

     o 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.
     o 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.19

Corps Districts Use Similar Project managers in the five districts we
visited generally use similar data sources to make their jurisdictional
determinations. The most commonly

    Data Sources to Make

Jurisdictional used data include the following:

Determinations  o  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

19The 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.

Page 17 GAO-05-870 Waters and Wetlands

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

Sources: St. Paul District; Bonestroo Rosene Anderlik & Associates (topographic
                                     maps).

o  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

Sources: St. Paul District; Bonestroo Rosene Anderlik & Associates (soil
survey map).

o  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

  Sources: St. Paul District; Bonestroo Rosene Anderlik & Associates (wetlands
                                inventory map).

o  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.

     o 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.
     o 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.
     o 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.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

20The 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.

Page 24 GAO-05-870 Waters and Wetlands

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.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

21While 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.

Page 25 GAO-05-870 Waters and Wetlands

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

     o the proximity of the project site to the Corps' office and resources
       available to travel to the site,
     o the nature of the topography and the number of waters or wetlands that
       appear to be on the project site,
     o a project manager's familiarity with the geographic area where the
       project is being undertaken,
     o the potential for public concern over the proposed project,
     o the size of the waters or wetlands on the project site and their
       value,
     o 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
     o 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

    Omaha District

In March and May 2004, the Omaha District conducted site visits as part of
its jurisdictional determination for Twomile Canyon Creek in Boulder
County, Colorado, at the request of the local water district and a
resident. The project entailed constructing a dam to impound water in a
tributary of the creek for municipal use. The file contained the project
manager's notes that indicate the topographic map reviewed showed that
Twomile Canyon Creek terminated at Silver Lake Ditch-a point at which
there was a shut-off gate inlet that prevented the ditch from normally
accepting any creek flow. According to the project manager's notes, while
drainage continued on past the ditch, it was carried by two underground
pipes totaling approximately 500 feet in length before being emptied into
another ditch, which was jurisdictional. However, the project manager's
notes state that the topographic map indicated that the creek did not
continue past the ditch and because there was no surface connection, the
creek was not jurisdictional.

Galveston District

In July 2004, the Galveston District received a jurisdictional request
from a real estate corporation on behalf of the owner of a 5-1/2 acre
property in Montgomery County, Texas. An environmental services company
had surveyed the property and identified about 1-1/2 acres of wetlands on
the project site. The file contained the project manager's notes
summarizing the results of a site visit to the property, which indicate
that it was obvious that a cypress wetland existed along the eastern
property line. According to the project manager's notes, he walked the
entire property to determine if the cypress wetland had a hydrological
connection to another waterway. His notes indicate that he encountered a
man-made ditch along the west side of the property that appeared to have
been built in the past in an attempt to drain the wetland. However, he
noted that the ditch is located at a higher elevation than the cypress
wetland and that it extended to the north through uplands and terminates
at a commercial property. The file indicated that the project manager
found no evidence that the ditch provided either drainage or a
hydrological connection to another waterway. The project manager also
noted that the southern portion of the wetland dead-ends at another
commercial property and speculated that it had probably been previously
filled during its construction. In addition, the project manager's notes
stated that no field evidence could be found that would connect the
wetland to another waterway and, according to the flood insurance map, the
tract is not located in the 100-year floodplain of the San Jacinto River.

Source: GAO analysis of Corps files.

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

    Omaha District

In July 2004, the Omaha District received a request for jurisdictional
determination for a 99acre property in Boulder County, Colorado. The
applicant's consultant identified two wetlands, a stream, and a pond on
the property. The project manager noted in the file that these waters flow
into a municipal storm-water sewer system and thus the wetland is neither
adjacent to nor surface connected to an interstate water.

St. Paul District

In November 2004, the St. Paul District received a jurisdictional
determination request for a 20-acre property in Kenosha County, Wisconsin.
The consultant's delineation report identified one 0.9-acre wetland. In
the file, the project manager noted that the consultant indicated that
there were no surface-water connections between the wetland and a nearby
creek, and that the only potential connection could be provided by a
failing agricultural drainage system underlying the property. The project
manager noted in the file that a review of the available maps and air
photos confirms that the subject wetland is not connected or adjacent to a
water of the United States. In addition, an interstate commerce connection
could not be established. Therefore, the 0.9-acre wetland is isolated and
not subject to Corps jurisdiction.

Source: GAO analysis of Corps files.

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

    Chicago District

In June 2004, the Chicago District received a jurisdictional request for a
1-acre property in DuPage County. According to the developer's consultant,
the property contained a three-quarter-acre wetland and two drainage ways.
The project manager simply noted in the file that the wetland and drainage
ways do not have a surface water connection to a jurisdictional water of
the United States.

Omaha District

In October 2004, the Omaha District received a request for a
jurisdictional determination for a 58-acre property located in Johnson
County, Wyoming, that contained 23 reservoirs, of which 4 were determined
to be nonjurisdictional. The project manager simply noted in the file that
the reservoirs were isolated and did not support any form of interstate
commerce except as potential habitat for migratory birds.

Source: GAO analysis of Corps files.

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

Page 30 GAO-05-870 Waters and Wetlands

  The Corps Generally Allocates Resources for Making Jurisdictional
  Determinations as Part of the Permitting Process

limits the transparency of the Corps' decision-making process and inhibits
its ability to quickly respond to public inquiries and related challenges.

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.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.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.

o  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

22The 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.

23While 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.

Page 31 GAO-05-870 Waters and Wetlands

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.

o  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.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

24U.S. Army Corps of Engineers, Office of the Engineer Inspector General,
Inspection of the Regulatory Program (Washington, D.C.; January 2003).

Page 32 GAO-05-870 Waters and Wetlands

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

  The Corps Is Generally Not Using 33 C.F.R. S: 328.3(a)(3) to Assert
  Jurisdiction

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. S: 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.
S: 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.
S: 328.3(a)(3) primarily because (1) headquarters has not provided
detailed guidance on when it is

  Agencies Are Not Collecting Data to Fully Assess the Impact of SWANCC

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. S: 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. S:
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.

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

    Data Being Collected Is Inadequate to Fully Assess the Impact of SWANCC

an in-depth analysis that would be required 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.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.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

2568 Fed. Reg. 1991 (Jan. 15, 2003).

26These estimates were provided to EPA and the Corps in response to the
agencies' January 2003, request for data.

Page 36 GAO-05-870 Waters and Wetlands

continuing to fill out the form to collect the data. The data being
collected include

     o the estimated size of the isolated water or wetland;
     o the approximate size of the project site and its latitude and
       longitude;
     o the name of the waterway where the project site is located;
     o the type of water, such as prairie pothole, playa lake, vernal pool,
       or wetland;
     o 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;
     o whether the water would be used as habitat for endangered species; and
     o 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.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."

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.

Page 39 GAO-05-870 Waters and Wetlands

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.

In the aftermath of SWANCC, the Corps has taken some positive steps to

  Conclusions

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. S: 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. S:
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. S:
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. S: 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 h ttp://www.gao.gov.

If you or your staff have any questions about this report, please contact
me at (202) 512-3841 or m [email protected]. 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,

Anu K. Mittal

Director, Natural Resources and Environment

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

Appendix I Scope and Methodology

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. S: 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

Appendix I Scope and Methodology

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.

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                                    Number of files reviewed 
Chicago                                                                150 
Galveston                                                               65 
Jacksonville                                                           140 
Omaha                                                                  257 
St. Paul                                                               158 
Total                                                                  770 

Source: GAO analysis of Corps project files.

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

                     Files that contained topographic maps
                                Yes                   No 
Corps district            Number Percent     Number   Percent        Total 
Chicago                      119   79.3            31    20.7          150 
Galveston                     58   89.2             7    10.8           65 
Jacksonville                  89   63.6            51    36.4          140 
Omaha                        184   71.6            73    28.4          257 
St. Paul                     140   88.6            18    11.4          158 

                  Source: GAO analysis of Corps project files.

Appendix II Data Contained in Corps Files on Nonjurisdictional
Determinations in Five District Offices

      Table 3: Project Files That Contained Soil Survey Maps, by District

                     Files that contained soils survey maps
                                Yes                   No 
Corps district            Number Percent     Number   Percent        Total 
Chicago                      123      82.0         27    18.0          150 
Galveston                     39      60.0         26    40.0           65 
Jacksonville                  75      53.6         65    46.4          140 
Omaha                         43      16.7        214    83.3          257 
St. Paul                     124      78.5         34    21.5          158 

                  Source: GAO analysis of Corps project files.

Table 4: Project Files That Contained Wetlands Inventory Maps, by District

                    Files that contained wetlands inventory
                                      maps
                                Yes                   No 
Corps district            Number Percent     Number   Percent        Total 
Chicago                      135   90.0            15    10.0          150 
Galveston                     38   58.5            27    41.5           65 
Jacksonville                  15   10.7           125    89.3          140 
Omaha                         94   36.6           163    63.4          257 
St. Paul                     119   75.3            39    24.7          158 

                  Source: GAO analysis of Corps project files.

     Table 5: Project Files That Contained Aerial Photographs, by District

                    Files that contained aerial photographs

Yes No Corps district Number Percent Number Percent Total

                          Chicago 137 91.3 13 8.7 150

Galveston 59 90.8 6 9.2

Jacksonville 119 85.0 21 15.0

Omaha 112 43.6 145 56.4

St. Paul 135 85.4 23 14.6

Source: GAO analysis of Corps project files.

Appendix II Data Contained in Corps Files on Nonjurisdictional
Determinations in Five District Offices

     Table 6: Project Files That Contained Ground Photographs, by District

                    Files that contained ground photographs
                                Yes                   No 
Corps district            Number Percent     Number   Percent        Total 
Chicago                       95   63.3            55    36.7          150 
Galveston                     35   53.9            30    46.2           65 
Jacksonville                  36   25.7           104    74.3          140 
Omaha                        103   40.1           154    59.9          257 
St. Paul                      51   32.3           107    67.7          158 

Source: GAO analysis of Corps project files.

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

                         Yes                        No
Corps district     Number Percent Consultant used  Number  Percent   Total 
Chicago               140                    93.3       10   6.7       150 
Galveston              47                    72.3       18   27.7       65 
Jacksonville          131                    93.6        9   6.4       140 
Omaha                 140                    54.9      115   45.1     255a 
St. Paul              113                    71.5       45   28.5      158 

Source: GAO analysis of Corps project files.

aWe were unable to determine whether two project proponents relied on the
use of consultants.

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

Appendix II Data Contained in Corps Files on Nonjurisdictional
Determinations in Five District Offices

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

                              Site visit conducted
                                Yes           No         
Corps district            Number Percent     Number   Percent        Total 
Chicago                      124      83.8         24    16.2         148a 
Galveston                     30      46.2         35    53.8           65 
Jacksonville                  95      68.8         43    31.2         138a 
Omaha                        110      43.5        143    56.5         253b 
St. Paul                      53      33.5        105    66.5          158 

Source: GAO analysis of Corps project files.

aWe were unable to determine if site visits were conducted on two
projects. bWe were unable to determine if site visits were conducted on
four projects.

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.

Appendix II Data Contained in Corps Files on Nonjurisdictional Determinations in
                             Five District Offices

Table 9: Files That Contained a Clear Identification of Data Used in Making the
                                 Determinations

            Amount of data clearly identified by the project manager
                       None         Some         All 
                                                                        Total
Corps district   Number  Percent  Number  Percent Number  Percent   number 
Chicago                0   0.0          4   2.7     146     97.3       150 
Galveston             21   32.3        25  38.4     19      29.2        65 
Jacksonville          40   28.6        55  39.3     45      32.1       140 
Omaha                139   54.1       112  43.6      6      2.3        257 
St. Paul              62   39.2        86  54.4     10      6.3        158 

Source: GAO analysis of Corps project files.

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

                            Basis for determination
                                Yes           No         
Corps district            Number Percent     Number   Percent        Total 
Chicago                      150       100          0     0.0          150 
Galveston                     63   96.9             2     3.1           65 
Jacksonville                 140       100          0     0.0          140 
Omaha                        247   96.1            10     3.9          257 
St. Paul                     147   93.0            11     7.0          158 

Source: GAO analysis of Corps project files.

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,

Appendix II Data Contained in Corps Files on Nonjurisdictional Determinations in
                             Five District Offices

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

               Type of rationale included by the project manager
                      None      Partial       Detailed
Corps district   Number Percent Number Percent Number Percent Total number 
Chicago              74  49.3       69  46.0        7     4.7          150 
Galveston            11  16.9       34  52.3       20    30.8           65 
Jacksonville         17  12.1      116  82.9        7     5.0          140 
Omaha                67  26.1      179  69.6       11     4.3          257 
St. Paul             22  13.9      128  81.0        8     5.1          158 

                  Source: GAO analysis of Corps project files.

                                  Appendix III

                    Comments from the Department of the Army

Appendix III Comments from the Department of the Army

Appendix III Comments from the Department of the Army

Appendix IV

Comments from the Environmental Protection Agency

Appendix IV Comments from the Environmental Protection Agency

Appendix V

                     GAO Contact and Staff Acknowledgments

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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.

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Appendix V GAO Contact and Staff Acknowledgments
*** End of document. ***