United States Government Accountability Office

Washington, DC 20548 

February 19, 2010 

The Honorable James L. Oberstar 

Chairman 

Committee on Transportation and Infrastructure 

House of Representatives 

Subject: Status of U.S. Army Corps of Engineers Efforts to Implement GAO’s 2007 

Recommendations Regarding Its Section 214 Authority

Dear Mr. Chairman: 

When cities, counties, or other nonfederal public entities propose public works 

projects that could degrade or damage federally regulated waters and wetlands, such 

as road construction and sewer line construction or maintenance, they must obtain a 

permit from the U.S. Army Corps of Engineers (Corps) before proceeding. Under 

authorities delegated to the Corps from Section 404 of the Clean Water Act,1 the 

agency is responsible for regulating activities that may impact wetlands, streams, and 

other waters throughout much of the United States and it decides whether to allow 

such activities to occur. To obtain the Corps’ approval, the nonfederal public entity, 

like any other property owner, must submit a permit application that contains a 

description of the proposed project, including its purpose and location, and other 

information the Corps needs to evaluate how the project will affect wetlands and 

other federally regulated waters. Once the Corps receives all of the required 

information from the applicant, the permit review process begins. 

Some policymakers and others have expressed concerns that the Corps’ permit 

process takes too long and has significantly delayed some public works projects. In 

2000, the Congress included a provision in the Water Resources and Development Act 

(WRDA) to expedite permit processing for nonfederal public entities. Specifically, 

section 214 of the act authorizes the Secretary of the Army, after providing public 

notice, to accept and expend funds from nonfederal public entities—known as 

funding entities—to expedite the evaluation of permit applications that fall under the 

jurisdiction of the Department of the Army. As we reported in May 2007,2

 these funds 

 

1

Section 404 of the Clean Water Act generally prohibits the discharge of dredged or fill material into 

waters of the United States without first obtaining a permit from the Corps. 

2

GAO, Waters and Wetlands: Corps of Engineers Needs to Ensure That Permit Decisions Made Using 

Funds from Nonfederal Public Entities Are Transparent and Impartial, GAO-07-478 (Washington, 

D.C.: May 16, 2007). 

GAO-10-385R Water and Wetland Permitting 
primarily go toward supporting the salaries of Corps program managers who will 

dedicate their efforts to reviewing the permit applications from funding entities. The 

act also requires the Secretary to ensure that the funds accepted will not impact 

impartial decision making with respect to permit approvals. The Secretary of the 

Army has delegated this authority to the Corps and, in turn, the Corps has delegated 

day-to-day responsibility for implementing the section 214 authority to its 38 districts, 

which have responsibility for processing permit applications. 

In our May 2007 report, we reviewed Corps permitting activities using the WRDA 

section 214 authority. As a result of this review, we recommended that the Secretary 

of the Army direct the Corps of Engineers to take the following four actions: 

• clarify the guidance that the districts must follow when evaluating permit 

applications under the section 214 authority, 

• clarify the documentation that district officials must include in project files to 

justify and support their decisions, 

• provide training to district officials to ensure that they are aware of the 

requirements that apply to permits processed under the section 214 authority, and 

• develop an effective oversight approach that will ensure that the districts are 

following all the appropriate requirements when evaluating projects under the 

section 214 authority. 

When we first reviewed the Corps implementation of the section 214 authority at the 

end of fiscal year 2006, four districts were using this authority and had executed 

agreements with 13 entities.3 At the end of fiscal year 2009, the program had 

expanded significantly and 17 districts were using this authority and had executed 

agreements with 36 entities. Total amount of expended funds through these 

agreements in fiscal year 2009 was almost $4 million.4 

The WRDA section 214 authority was originally set to expire at the end of fiscal year 

2003; however, this temporary authority has been extended several times, most 

recently until December 2009. As the Congress considers whether to authorize 

continued use of this authority, you asked us to review the progress the Corps has 

made in implementing our May 2007 recommendations. 

To assess the Corps’ efforts to implement our recommendations, we reviewed the 

agency’s policy and guidance documents, fiscal year 2008 and 2009 annual reports 

submitted to Corps headquarters by Corps districts that are using this authority, and 

recommendation status updates provided by the Corps to the DOD Inspector 

 

3

From December 2001 through September 2006, nonfederal public entities provided over $2 million in 

section 214 funds to the four Corps districts with whom they had section 214 agreements. 

4

One of the 17 districts did not supply funding figures in its annual report. Four districts reported data 

for their state’s fiscal year of July 2008 through June 2009. 

Page 2 GAO-10-385R Water and Wetland Permitting
General. In addition, we interviewed Corp regulatory program managers about steps 

taken to refine guidance, train district officials, and oversee participating districts’ 

implementation of the WRDA section 214 authority. 

We conducted our work from October 2009 to January 2010 in accordance with all 

sections of GAO’s Quality Assurance Framework that are relevant to our objectives. 

The framework requires that we plan and perform the engagement to obtain 

sufficient and appropriate evidence to meet our stated objectives and to discuss any 

limitations in our work. We believe that this information and data obtained, and the 

analysis conducted, provide a reasonable basis for any findings and conclusions in 

this product. 

On November 9, 2009, we briefed your office on the preliminary results of our review. 

As agreed with our office, we subsequently updated our results to incorporate the 

most recent set of annual report submissions from the Corps districts that are using 

this authority. This letter summarizes the information presented in the briefing and 

from our additional review and officially transmits the updated briefing slides in the 

enclosure. 

Corps Implementation of Our 2007 Recommendations 

We believe that the Corps has implemented three of the four recommendations that 

we made in May 2007. For the one remaining recommendation, while the Corps has 

taken some steps, we believe that more action is needed for the agency to be fully 

responsive to our recommendation. Specifically, we found the following. 

The Corps has implemented our recommendation to clarify the guidance that the 

districts must follow for section 214 permit applications. On October 1, 2008, the 

Corps issued revised guidance that improves on the prior guidance and addresses a 

number of the points we raised in our May 2007 report. 

• The revised guidance includes a list of acceptable activities for which section 

214 funds can be used and more explicitly describes the circumstances under 

which funds can be accepted. For example, the guidance now specifically 

states that funds can be accepted if (1) they will expedite permit processing 

for the funding entity, (2) the district can ensure decision making will be 

impartial and not affected by receipt of the funds, and (3) accepting the funds 

will not slow down evaluation of other permits. 

• The section of the revised guidance related to accountability has been revised, 

and additional items that need to be tracked and reported to Corps 

headquarters on an annual basis are now delineated. Additional items include 

performance metrics for evaluating the effectiveness of the use of the funds 

and a statement certifying that all project managers funded under the section 

214 authority are aware of and trained on the requirements contained in the 

guidance. 

Page 3 GAO-10-385R Water and Wetland Permitting
• The Corps also significantly expanded upon the requirements in the guidance 

related to impartial decisionmaking. Specifically, under the revised guidance, 

participating Corps districts are to ensure that all documents involved in the 

decision-making process, including the supporting documents and issued 

permit, are reviewed and approved by someone at least one level higher than 

the program manager who is funded by the authority. In addition, the 

guidance now requires that all final permit decisions need to be updated 

monthly on the district’s Web page in an area separate from any other final 

actions and that the decision be clearly identifiable as being for projects 

funded through the WRDA section 214 authority. 

The Corps has clarified the documentation that must be included in section 214 

project files. We believe that the Corps has taken appropriate steps to ensure that 

the documentation that district officials include in project files will justify and 

support their permitting decisions. Specifically, the Corps has completed a checklist, 

or template, of the decision documents necessary to support its general, or 

nationwide, permitting process, and it tested this tool in some of its districts.5

 In 

addition, the Corps recently completed a template for its standard permits decisionmaking process that includes additional elements necessary to document compliance 

with the National Environmental Policy Act and other relevant statutes and 

regulations. As part of its efforts to develop these decision document templates, the 

Corps completed an analysis of all national permitting processes in December 2008 

and incorporated the results of this analysis into these templates to help ensure 

consistent and complete support documentation. A Corps official said that they 

intend to release these new templates for immediate use at an upcoming executive 

regulatory seminar and branch chief annual meeting. During these sessions, the 

official said that the templates will be discussed and instructions on their use 

provided. 

The Corps has provided training on the section 214 authority. The Corps held 

training sessions in August 2007 and May 2008 at national conferences attended by all 

regulatory staff, during which the following topics relating to the section 214 

authority were discussed and clarified: the revised guidance in draft form, 

expectations regarding impartial decision making and disclosure of decisions to the 

public, and the annual reporting process. Furthermore, discussion of the WRDA 

section 214 program was also included in the curriculum for a development course to 

help train new regulatory chiefs. As part of its dissemination efforts for the revised 

guidance, the Corps also sent a memo to regulatory chiefs across all Corps districts 

and divisions highlighting sections of the guidance where clarifications were made 

that could impact the districts’ implementation of the section 214 authority. Among 

the items highlighted were the increased annual reporting requirements designed to 

 

5

The Corps issues a number of different permits, each with its own application and review process. 

General, or nationwide, permits are for projects that are likely to have only minimal impacts on water 

and wetland resources, and their review process is limited. In contrast, standard permits are issued 

for projects that could have substantial impacts on water and wetland resources; the review process 

for these permits is more extensive. 

Page 4 GAO-10-385R Water and Wetland Permitting
improve the Corps’ ability to assess the program’s impacts. In addition, Corps district 

commanders now need to affirm that their program managers who are funded 

through section 214 are fully aware of and trained on the relevant guidance. 

The Corps has not fully implemented an effective oversight approach for the section 

214 authority. Although the Corps has taken some steps to improve its oversight of 

the districts’ implementation of the section 214 authority since our May 2007 report, 

we believe that the Corps has not yet fully implemented our recommendation. More 

specifically, the Corps has taken some positive steps by expanding the revised 

guidance with regard to impartial decision making and annual reporting and by 

enforcing the submission of the annual reports. Furthermore, the Corps has taken 

steps to ensure that the funds identified as being from WRDA section 214 sources are 

tracked and accounted for separately. However, the Corps’ actions have fallen short 

in two significant oversight areas: (1) ensuring the quality and thoroughness of the 

annual reports and (2) improving the transparency of decision making to the public 

by clearly posting public notices of funding decisions on the district Web sites. 

• Annual reporting. Although districts were to submit annual reports 

describing their use of the section 214 authority since 2001, no districts had 

done so until 2008. Our review of the fiscal year 2008 and 2009 annual reports, 

each due by November 1 of the respective year, indicates that compliance with 

the reporting elements delineated in the revised guidance has been uneven 

across the districts. While almost all the districts complied with the 

requirements to include in the report the amount, type, and source of accepted 

and expended funds and an analysis of issues related to impartial decision 

making, few districts included performance metrics and an evaluation of the 

program’s effectiveness. In addition, most districts confined their assessment 

of the degree to which funds expedited the permit review process to a brief 

qualitative discussion and only four districts attempted to compute the actual 

time it took to process permits to ensure that the program met the goal of 

expediting permit processing for funding entities without negatively impacting 

evaluation of other permit applications. 

• Transparency of decision making. Under the Corps’ revised guidance, all 

WRDA section 214 funding decisions are to be posted online “in an area 

separate from any other final actions, clearly identifiable as being for projects 

funded by this authority.” However, our review of the participating districts’ 

Web sites found that such postings were not clearly and consistently done. As 

of January 17, 2010, while we were able to locate section 214 agreements on 

the Web sites of 15 of the 17 districts, not all of these were in accordance with 

the guidance. Specifically, many were not in a separate area from other 

actions or clearly identifiable as being related to the section 214 authority. 

Page 5 GAO-10-385R Water and Wetland Permitting
Agency Comments 

We provided the Corps with a draft of this report and obtained oral comments at a 

meeting with a Deputy Chief for Regulatory Programs. In commenting on the report, 

this official generally concurred with the conclusions reached and said that the Corps 

is taking additional steps to address the remaining recommendation to develop an 

effective oversight approach. Specifically, the official stated that starting with the 

fiscal year 2010 annual reporting cycle, the Corps will require that districts submit 

their reports using a standard template to ensure that each required element is being 

fully reported on. In addition, the Corps headquarters will be instituting quarterly 

calls with Corps division and district regulatory officials and section 214 WRDA 

program managers to discuss progress made in meeting section 214 performance 

measures, such as timeliness of the permit processing. This official also said 

headquarters will continue to work with district officials to ensure that information 

about WRDA section 214 agreements is posted clearly on the district Web sites and is 

easily accessible by the public. In addition to providing information about actions 

underway to address the recommendations, the Corps official also provided technical 

comments, which we incorporated as appropriate. 

_________________________ 

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, the Corps, and 

other interested parties. In addition, the report will be available at no charge on the 

GAO Web site at http://www.gao.gov. 

If you or your staff have questions about this report, please contact me at 202-512-

3841 or mittala@gao.gov. Contact points for our Offices of Congressional Relations 

and Public Affairs may be found on the last page of this report. Key contributors to 

this report were Elizabeth Erdmann (Assistant Director), Janice Ceperich, Nancy 

Crothers, Carol Kolarik, and Lisa Vojta. 

Sincerely yours, 

Ms. Anu K. Mittal 

Director, Natural Resources 

 and Environment 

Enclosure 

Page 6 GAO-10-385R Water and Wetland Permitting
1

WRDA Section 214 Update

Briefing for House Transportation and 

Infrastructure Committee

November 9, 2009

(updated January 14, 2010)

Enclosure I

Page 7 GAO-10-385R Water and Wetland Permitting
2

Current Status of Section 214 ProgramPositions, Agreements, Entities, and Funding

For each fiscal year, the number of fully funded positions, 

districts using the section 214 authority, and entities with 

agreements is as follows:

• FY2006 – 10 positions across 4 districts; 13 entities

• FY2007 – 15 positions across 6 districts; 17 entities

• FY2008 – 39 positions across 12 districts; 30 entities

• FY2009 – 49 positions across 17 districts; 36 entities

• Total amount of expended funds in FY2009 was almost $4 

million. (Figure excludes expenditures from 1 of the 17 districts that did 

not supply such figures in their annual reports. Four districts reported data 

for fiscal year of July 2008 through June 2009.)

Page 8 GAO-10-385R Water and Wetland Permitting
3

GAO Recommendations in GAO-07-478

• To ensure that the permits processed under the section 214 

authority comply with federal regulations and guidance, we 

recommended that the U.S. Army Corps of Engineers 

(Corps) take the following four actions:

(1) Clarify the guidance that the districts must follow when 

evaluating permit applications under section 214.

(2) Clarify the documentation that districts must 

include in project files to justify and support their 

decisions.

Page 9 GAO-10-385R Water and Wetland Permitting
4

GAO Recommendations (continued)

(3) Provide training to district officials to ensure that they are 

aware of the requirements that apply to permits 

processed under the section 214 authority.

(4) Develop an effective oversight approach that will ensure 

that the districts are following all the appropriate 

requirements when evaluating projects under the 

section 214 authority.

Page 10 GAO-10-385R Water and Wetland Permitting
5

Status - Recommendation 1: Clarify 

guidance

• The Corps has implemented this recommendation.

• The Corps issued revised guidance on October 1, 2008. A 

section by section review demonstrates an improvement over 

prior guidance in a number of significant ways:

• Expanded list of acceptable activities for funding.

• Additional language making it clear that the Corps can 

accept funds if (1) they expedite processing of permits, 

(2) the district can ensure impartial decision making, and 

(3) accepting funds will not slow evaluation of other 

permits.

• Clarified the conditions a private entity can be involved in 

with regard to submissions under a funded agreement. 

Page 11 GAO-10-385R Water and Wetland Permitting
6

Status - Recommendation 1 (continued)

• Most significant changes made to “Accountability” and 

“Impartiality” sections of the guidance

• Accountability - expanded list of items that need to be 

included in annual reports. Now includes performance metrics used to evaluate effectiveness of fund usage and a statement certifying that all funded project managers are aware of and trained on 214 guidance.

• Impartiality - significantly expanded this section, including clarification that (1) all decision documents and permits must be reviewed and signed by a manager one-level- above reviewer, and (2) final permit decisions need to be 

updated monthly on the district’s Web page in an area 

that is separate from other final actions and clearly identifiable as section 214 authority.

Page 12 GAO-10-385R Water and Wetland Permitting
7

Status - Recommendation 2: Clarify 

documentation to support decisions

• The Corps has implemented this recommendation.

• The Corps completed a checklist/template of documentation 

necessary to support

• nationwide permits and has tested it in the Northwestern Division, and 

• standard permits, including additional elements required to 

demonstration compliance with the National Environmental Policy Act 

and other statutes. 

• Templates will be released for use by all districts in February 2010.

• Both templates are the result of a district-level analysis completed 

in 2008, which helped ensure the development of consistent and 

complete support documentation for all major permit categories, 

according to the Corps.

Page 13 GAO-10-385R Water and Wetland Permitting
8

Status - Recommendation 3: Provide 

training on section 214 authority

• The Corps has largely implemented this recommendation.

• A training session was held in August 2007 at the National 

Regulatory Conference for all Corps regulatory staff. According to 

the Corps, during the session,

• draft revised guidance was discussed,

• expectations regarding impartial decision making and disclosure of decisions to public was discussed, and 

• the annual reporting process was clarified.

• Also, a training session on applicable section 214 guidance and 

draft revised guidance was held at the National Regulatory 

Conference in May 2008 and at the pilot class of a new regulatory 

chiefs development course. According to the Corps, the training 

focused on the guidance, implementation, and performance related

to the section 214 program.

Page 14 GAO-10-385R Water and Wetland Permitting
9

Status - Recommendation 3 (continued)

• E-mail announcement to all regulatory chiefs on October 1, 

2008, announcing and disseminating revised section 214 

guidance. Message highlighted sections of the guidance 

where clarifications were made that could impact the districts’ 

implementation of the program, such as

• Increased upward reporting requirements to improve their ability to assess the program’s impacts,

• Expanded impartial decision-making section to define procedures and review requirements, and

• Reaffirmation that all regulatory chiefs with funded section 214 positions will be required to certify that funded program managers are appropriately trained on guidance.

Page 15 GAO-10-385R Water and Wetland Permitting
10

Status - Recommendation 4: Develop 

Oversight Approach for 214 Authority

• This recommendation has not yet been fully implemented.

• The Corps has taken some valuable steps, such as

• Expanding the section of guidance that relates to impartial 

decision making was expanded to be more explicit about who 

needs to review documentation and permit decisions,

• Enforcing since FY2008, the requirement for all districts with 

section 214 agreements to submit annual reports to 

Headquarters, and 

• Clarifying through a July 2008 memo to all regulatory chiefs the

accounting codes to be used to track reimbursable funds. A 

funding code was specifically identified for section 214 funding

sources.

Page 16 GAO-10-385R Water and Wetland Permitting
11

Status - Recommendation 4 (continued)

• However, we also found uneven compliance by the 17 

districts with agreements with the reporting requirements in 

the guidance for the FY2009 reports submitted to 

Headquarters.

• While almost all districts complied with the requirements to 

include the amount, type, and source of accepted and 

expended funds and an analysis of issues related to impartial 

decision making, few districts included performance metrics 

and an evaluation of the program’s effectiveness. 

• Only 4 districts computed the actual time it took to process 

permits to ensure that the program met the goal of expediting 

permit processing for funding entities without negatively 

impacting evaluation of other permit application.

Page 17 GAO-10-385R Water and Wetland Permitting
Page 18 GAO-10-385R Water and Wetland Permitting

12

Status - Recommendation 4 (continued)

• According to the Corps, HQ’s Regulatory Office conducts 

quarterly checks on District Web sites to ensure that section 

214 agreements are clearly posted in accordance with the 

guidance.

• Our review on January 15, 2010, did not find this to be 

consistently the case. We found agreements for 15 of the 17 

District sites, but not all would be qualified as being “in an area 

separate from any other final actions, clearly identifiable as 

being for projects funded by this authority” as the guidance 

states.

(361146)

(361146) 
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