Waters and Wetlands: Corps of Engineers Needs to Better Support Its Decisions for Not Asserting Jurisdiction
Published: 2005-09-09T00:00:00

Fast Facts:

Highlights:
section_title: Why GAO Did This Study
paragraphs: 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.
section_title: What GAO Found
paragraphs: 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.

section_title: Letter
paragraphs: 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, that if used or degraded, could  affect interstate commerce; tributaries of these waters; and wetlands  adjacent to these waters. Section 404 is intended to restore and maintain  the physical, chemical, and biological integrity of the nation’s waters while  allowing reasonable development, and as such, it is the nation’s primary  wetlands protection program under the act. Each year, the Corps receives  thousands of permit applications from project proponents, such as private  property owners and developers, seeking to place fill material into waters  or wetlands in order to build houses, golf courses, or commercial buildings,  as well as to conduct other activities.
The first step in the regulatory process is to determine whether there are  any waters or wetlands on a project site and, if so, whether they are “waters  of the United States.” The Corps determines whether it has jurisdiction  over waters and wetlands by documenting their connections to navigable  waters or interstate commerce, or by determining if the wetlands are  adjacent to other “waters of the United States.” If the Corps determines  that a water or wetland is subject to federal jurisdiction under the act,  project proponents who seek to fill in waters or wetlands as part of any  developmental activities must first obtain a permit. As part of the permit  evaluation process, the Corps requires that project proponents avoid,  minimize, and compensate for the destruction or degradation of waters  that fall under federal jurisdiction. A project proponent who disagrees with  the Corps’ jurisdictional determination can file an administrative appeal  challenging the determination.
In 1986, the Corps stated in a preamble to the wetlands program  regulations that it would assert federal jurisdiction over waters that are or  would be used as, among other things, habitat by birds protected by  migratory bird treaties. 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), 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. This memorandum stated that although SWANCC  specifically involves isolated, intrastate, nonnavigable waters used as  habitat by migratory birds, it raises questions about what connections, if  any, to interstate commerce could be used to assert jurisdiction over  isolated, intrastate, nonnavigable waters. Consequently, the memorandum  instructed field staff to seek formal project-specific headquarters approval  prior to asserting jurisdiction over isolated, intrastate, nonnavigable waters  on the sole basis of the Corps’ regulations at 33 C.F.R. § 328.3(a)(3). Under  this section, federal jurisdiction extends to all waters, such as intrastate  lakes and wetlands, if the use, degradation, or destruction of these waters  could affect interstate commerce. In the aftermath of the SWANCC ruling,  questions have been raised not only about which isolated, intrastate,  nonnavigable waters and wetlands are now considered jurisdictional under  the act, but also about the indirect impact of the ruling on the Corps’  resources for making determinations.
In February 2004, we reported that, since SWANCC, Corps districts have  not consistently interpreted and applied federal regulations that define  jurisdictional waters, including wetlands. Because of these  inconsistencies, we reported it was unclear whether different jurisdictional  determinations would be made under similar situations.
For this study, you asked us to determine (1) the processes and data the  Corps uses to make jurisdictional determinations; (2) the extent to which  the Corps documents its decisions when it concludes that it does not have  jurisdiction over certain waters and wetlands (nonjurisdictional  determinations); (3) the process the Corps uses to allocate resources for  making jurisdictional determinations; (4) the extent to which the Corps is  asserting jurisdiction over isolated, intrastate, nonnavigable waters using  its remaining authority in 33 C.F.R. § 328.3(a)(3); and (5) the extent to  which the Corps and EPA are collecting data to assess the impact of  SWANCC.
To examine these issues, we selected 5 of the Corps’ 38 district offices— Chicago; Galveston, Texas; Jacksonville, Florida; Omaha, Nebraska; and St.  Paul—from which to obtain detailed information. We selected 4 of these 5  districts because they made more nonjurisdictional determinations than  any of the other 38 districts. We selected the fifth district—Galveston— because it also accounted for a large number of nonjurisdictional  determinations and was located in a different geographic region than the  other four districts. Altogether, these five districts accounted for 58 percent  of the nonjurisdictional determinations the Corps made between April and  December 2004. This time period was selected because prior to April 2004,  data on the Corps’ nonjurisdictional determinations were not readily  available. We interviewed Corps officials in the selected districts, including  project managers who make jurisdictional and nonjurisdictional  determinations and appeals review officers who review appeals of  determinations. We also reviewed 770 files for jurisdictional determination  requests or permit applications for which Corps project managers  determined there was no federal jurisdiction. In reviewing the Corps’  nonjurisdictional determinations, we did not review other key aspects of  the program, such as the Corps’ permitting process. Appendix I provides a  more detailed description of our scope and methodology. We performed  our work from June 2004 through July 2005 in accordance with generally  accepted government auditing standards.
subsections: section_title: Background
paragraphs: Point source discharges are those that emanate from discrete conveyances such as pipes or  man-made ditches. section 404, which prohibits the discharge of dredged or fill material  into “waters of the United States” without a permit from the Corps.
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. 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.
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. The  districts processed about 86,000 permits in fiscal year 2003. Figure 1 shows  the locations of 5 of the 8 Corps divisions and 38 districts that we contacted  as part of our review. These include the Chicago, Galveston, Jacksonville,  Omaha, and St. Paul districts.
The first step in the regulatory process is to determine whether there is any  water or wetland 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.
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. 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. According to the Corps, under this  regulation, it can only authorize the least environmentally damaging,  practicable alternative.
The preamble also addressed (1) waters that are or would be used as habitat for  endangered species, and (2) waters used to irrigate crops sold in interstate commerce.
EPA 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.)
The extent to which the reasoning in SWANCC applies to waters other than  those specifically at issue in that case has been the subject of considerable  debate in the courts and among the public. Some groups have argued that  SWANCC precludes the Corps from regulating virtually all isolated,  intrastate, nonnavigable waters, as well as nonnavigable tributaries to  navigable waters, while others have argued that it merely prohibits the  regulation of isolated, intrastate, nonnavigable waters and wetlands solely  on the basis of their use as habitat by migratory birds. In January 2003, the  Corps and EPA issued a joint memorandum to clarify the impacts of the  SWANCC ruling on federal jurisdiction over waters and wetlands. The  guidance called for Corps and EPA field staff to continue to assert  jurisdiction over traditional navigable waters, their tributaries, and  adjacent wetlands. It also directed field staff to make jurisdictional  determinations on a case-by-case basis, considering the guidance in the  memorandum, applicable regulations, and any relevant court decisions. It  also noted that in light of SWANCC, it is uncertain whether there remains  any basis for jurisdiction over any isolated, intrastate, nonnavigable waters.  While the SWANCC ruling specifically addressed the use of migratory birds  as a basis for asserting jurisdiction over these waters, it did not address  other bases cited in Corps regulations as examples for asserting  jurisdiction. These bases include intrastate waters whose use, degradation,  or destruction could affect interstate commerce, including waters (1) that  are or could be used by interstate or foreign travelers for recreational or  other purposes, (2) from which fish or shellfish are or could be taken and  sold in interstate or foreign commerce, or (3) that are used or could be  used for industrial purposes by industries in interstate commerce. Because  of this uncertainty, the memorandum instructed the field staff to seek  formal project-specific headquarters approval prior to asserting  jurisdiction over such waters based solely on links to interstate commerce.
While EPA and Corps regulations provide a framework for determining  which waters are within federal jurisdiction, they leave room for judgment  and interpretation by the Corps districts when considering jurisdiction  over, for example, adjacent wetlands, tributaries, and ditches and other  man-made conveyances. Before SWANCC, the Corps generally did not have  to be concerned with such factors as adjacency, tributaries, and other  aspects of connection with an interstate or navigable water body if the  wetland or water body qualified as a jurisdictional water on the basis of its  use as habitat by migratory birds. In our February 2004 report, we found  that Corps districts and staff interpreted and applied federal regulations  differently when determining what wetlands and other waters fall within  federal jurisdiction. For example, districts differ in their use of proximity as  a factor in making determinations. One district required that the isolated  water be within 200 feet of other “waters of the United States”; another  required a distance of 500; and still others had no minimum requirement.  We concluded that it was unclear whether or to what degree these  variations would result in different jurisdictional determinations in similar  situations, in part, because Corps staff consider many factors when making  these determinations. In addition, few Corps districts make public the  documentation that specifies the interpretation and application of the  regulations they used to determine whether a water or wetland is  jurisdictional. Consequently, project proponents may not clearly  understand their responsibilities under section 404 of the Clean Water Act.  We recommended, among other things, that the Corps survey district  offices to determine how they are interpreting and applying the regulations  and evaluate if differences need to be resolved. In response, the Corps  conducted a preliminary survey in 2004 and a more detailed survey in 2005.  As of July 2005, the Corps was in the process of evaluating the districts’  responses to the 2005 survey.
section_title: Corps Districts Generally Use Similar Processes and Data Sources When Making Jurisdictional Determinations
paragraphs: 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.
subsections: section_title: Corps Districts Use a Four- Step Process to Make Jurisdictional Determinations
paragraphs: In making jurisdictional determinations, project managers in each of the  five districts we visited proceed through the following four steps:  Receiving a request for a jurisdictional determination or a permit  application. The request is submitted by a project proponent, who may  be a property owner or the owner’s authorized agent, such as a  consultant, or a developer. At a minimum, the request must clearly  identify the property and the boundaries of the project site—either with  a site location map or with another map that defines the project  boundaries—as well as the name of the project proponent, a person to  contact, and permission to go onto the project site in the event that a  site visit is to be conducted.
Reviewing the submitted information for completeness. The project  manager assigned to the project reviews the information to ensure that  the request is signed by the project proponent and that it contains the  minimum required information. The project manager also reviews the  information to ensure that it is sufficient to locate the property. The  amount and type of information the Corps requests that the project  proponent submit may vary by type of applicant and project as well as  the extent and functional values of the water resources that may be  impacted. For example, residential homeowners who are requesting a  determination for their home sites are generally not expected to submit  more than the minimum amount of information. In contrast, the districts  may request much more detailed information from consultants who are  preparing jurisdictional requests or permit applications for commercial  property owners. For example, the Jacksonville District recommends  that requests be accompanied by aerial photographs; a legible survey,  plat drawing, or other parcel plan showing the dimensions of the  property; and a list of other maps that provide additional information  about the project site such as the types of soils at the site.
Requesting additional data from the project proponent, as necessary.
If project managers find that information submitted does not sufficiently  identify the property or the nature of the project, they will informally or  formally request additional information. The Corps will not proceed  with a jurisdictional determination until it has received all requested  information.
Analyzing the data to determine if the Corps has jurisdiction. Once  the requested information has been received, the project manager will  analyze the data to determine if the waters or wetlands on the project  site are connected to any downstream navigable waters that could be or  are used for interstate commerce, or adjacent to such waters. If the  Corps has jurisdiction, it defines the limits of federal jurisdiction by, for  example, identifying high tide lines or ordinary high water marks. If the  waters include wetlands, the project manager must also identify the  boundaries of the wetlands—that is, conduct what is known as a  wetland delineation.
section_title: Corps Districts Use Similar Data Sources to Make Jurisdictional Determinations
paragraphs: Project managers in the five districts we visited generally use similar data  sources to make their jurisdictional determinations. The most commonly  used data include the following:  Topographic maps. Topographic maps show the shape of the Earth’s  surface through contour lines, which are imaginary lines that join points  of equal elevation on land. Such contours make it possible to measure  the height of hills and mountains and the depth of swales and valleys.  Widely spaced contours or an absence of contours means that the  ground slope is relatively level. Contours that are very close together  represent steep slopes. It is often possible to use contours to determine  the direction of water flow, and potential connections to other waters.  Topographic maps also show symbols representing features such as  roads, railroads, streets, buildings, lakes, streams, irrigation ditches, and  vegetation. In the five districts we reviewed, 590 of the 770 jurisdictional  determination request or permit application files where the Corps’  project managers determined there was no federal jurisdiction included  a topographic map. This ranged from a low of 64 percent of the  Jacksonville District’s files (89 of 140 files) to a high of 89 percent of  both the Galveston District’s (58 of 65) and the St. Paul District’s (140 of  158) files. (App. II contains district-specific information on, among other  things, the number of files that contained different types of data.) Figure  4 shows topographic maps used to identify a project location as well as  the detailed surface contours of the project site.
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.
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.
Photographs. The Corps can use aerial and ground photographs to  determine if waters or wetlands are located on a project site and to  identify other structures on the site that may provide pathways for  water to travel from one water body to another. Such photographs are  available from a number of sources, including the project proponents. In  addition, aerial photographs are available from the Department of  Agriculture’s Natural Resources Conservation Service showing wetlands  on private farms that, in return for federal subsidies, have been  preserved instead of being turned into cropland. In the five districts we  reviewed, 562 of the 770 files included aerial photographs. This ranged  from a low of 44 percent of the Omaha District’s files (112 of 257) to a  high of 91 percent of both the Chicago District’s (137 of 150) and the  Galveston District’s (59 of 65) files. Similarly, 320 of the 770 files  included ground photographs. This ranged from a low of 26 percent of  the Jacksonville District’s files (36 of 140) to a high of 63 percent of the  Chicago District’s files (95 of 150).
The Corps uses these maps and photographs not only to provide unique  information about the site but also to corroborate information about a site.  For example, the Corps can compare National Wetlands Inventory maps  with topographic maps to help confirm whether there are waters or  wetlands on a project site. The National Wetlands Inventory map could also  alert the Corps to the types of waters or wetlands on the site. If the land has  been used for growing crops, the Corps can obtain Natural Resources  Conservation Service aerial photographs to determine if that agency has  verified the existence of wetlands on that particular site. This information  can then be used in examining aerial or site photographs provided by the  project proponent.
Currently, project managers can use online resources for much of the data  they need to make jurisdictional determinations. For example, many  topographic maps and aerial photographs are available through online  sources. In addition, project managers in all of the districts we visited can  retrieve more sophisticated versions of aerial photographs, such as color- infrared photographs and digital orthophoto quadrangles, which are  computer-generated images of aerial photographs that have been enhanced  to better view the ground. Similarly, project managers in all five districts  have the ability to superimpose different maps, such as soil survey maps,  onto aerial photographs. In some cases, they can produce one map that  shows the topography, wetlands, and soils present on a property. According  to several project managers we contacted, this ability provides them with a  more comprehensive view of the status of waters or wetlands at individual  project sites.
As can be seen in the following examples, some districts may also use other  data sources that are specific to their district in making jurisdictional  determinations.
The Galveston District relies on maps that designate flood-prone  areas—areas that are likely to be flooded. These maps, produced by the  Federal Emergency Management Agency, are used for insurance  purposes. According to the Galveston District’s policy, if a water or  wetland is in an area designated by the agency as a flood zone, the water  or wetland will generally be considered adjacent and fall within the  Corps’ jurisdiction.
The St. Paul District relies on the Southeastern Wisconsin Regional  Planning Commission as a resource for maps for seven counties, which  include the city of Milwaukee. The commission prepares maps for a  variety of purposes, such as transportation planning. The maps include  topographic maps as well as existing land-use maps, some of which  identify waters and wetlands. Its digital land-use inventory is updated  every 5 years. In addition, the state of Wisconsin compiles its own  wetland inventory maps and, as a result, Corps project managers may  rely less on National Wetlands Inventory maps when determining  jurisdiction. Similarly, the state of Minnesota has developed public  waters inventory maps that Corps project managers can access.
In the Chicago District, which encompasses six counties, project  managers can rely on more detailed wetland identification maps that  some of the counties have prepared with funding received from EPA as  part of its Advance Identification of Disposal Areas program.
According to project managers, the number of data sources and the  specific data they use to make a jurisdictional determination can vary,  depending on the nature of the data and the project site. For example,  according to one project manager, if the project site is a 5-acre flat piece of  property that contains a one-quarter-acre wetland, and the nearest tributary  to a “water of the United States” is 5 miles away, the project manager would  not necessarily decide to visit the site to make a determination that the  wetland was not jurisdictional. In contrast, according to this project  manager, a 1,000-acre site that has 25 different waters and wetlands totaling  200 acres and a series of ditches, and is near a tributary to a “water of the  United States,” could warrant several site visits.
The use of a consultant to prepare a jurisdictional determination request or  a permit application can also affect the Corps’ decision on what data to  review. Each district maintains a list of consultants whom residential  homeowners and developers can use, although the Corps does not  advocate or recommend specific consultants or require that only those  consultants on its lists be used. As a result, the list can contain a number of  consultants with varying levels of technical expertise. According to several  project managers, if they have extensive experience with a particular  consultant and trust that consultant’s work, they are more likely to limit  their review to the data submitted with the request, including any data on  the types of soils, plants, and hydrology the consultant may have collected  for use in delineating wetlands, along with questioning the consultant  rather than independently verifying the information with their own data  sources. In the five districts we reviewed, consultant data were submitted  for 571 of the 770 projects whose files we reviewed. The percentage of  projects where consultant data were submitted varied by district, from a  low of 55 percent of the Omaha District’s projects (140 of 255 files) to a  high of 94 percent of the Jacksonville District’s projects (131 of 140 files).
Several project managers cautioned that the data represented by the maps  and photographs are, at times, not accurate because the data are old or  have not been verified by the agencies that prepared the maps and  photographs. As noted above, many National Wetlands Inventory maps  were prepared based on aerial photography from the 1980s. In addition,  because of the large scale of the maps, they do not always accurately  capture all wetlands, particularly wetland types that are difficult to detect  from aerial photographs, such as small forested wetlands. Further, in some  instances the maps and photographs do not provide clear evidence of  whether a water or wetland is jurisdictional. In such cases, project  managers told us that site visits are the best data source for making a  determination. This is particularly common for projects located near a  roadway or an area that has been extensively developed. Similarly, features  such as culverts and low-lying areas that would often serve to connect an  otherwise isolated water to a jurisdictional water are not always visible in  topographic maps, and aerial photographs and a site visit may be the only  means of determining whether such connections do in fact exist.
Other factors that influence whether a site visit is conducted, according to  Corps project managers, include   the proximity of the project site to the Corps’ office and resources  available to travel to the site,   the nature of the topography and the number of waters or wetlands that  appear to be on the project site,   a project manager’s familiarity with the geographic area where the  project is being undertaken,   the potential for public concern over the proposed project,   the size of the waters or wetlands on the project site and their value,  the extent to which the data from all of the different data sources  independently confirm the existence and nature of waters or wetlands  on a project site as well as whether they are connected to “waters of the  United States,” and   the existence of any other federal, state, or local agency that may have  oversight responsibility for waters or wetlands at the project site and  whether officials from those agencies visited the site.
In our review of project files, we found that project managers conducted  site visits for 412 of the 770 projects whose files we reviewed. However, the  extent to which site visits were conducted varied considerably by district,  from a low of 34 percent of the St. Paul District’s projects (53 of 158 files) to  a high of 84 percent of the Chicago District’s projects (124 of 148 files). This  variability can be attributed, in part, to the size of the districts—the St. Paul  District covers a broad area encompassing two states whereas the Chicago  District covers only six counties in one state.
section_title: Corps Districts Generally Do Not Document Their Rationales for Nonjurisdictional Determinations
paragraphs: 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.
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.
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.
Although we did not assess the accuracy of the determinations made by the  Corps in these cases, we are concerned that a lack of a detailed rationale  limits the transparency of the Corps’ decision-making process and inhibits  its ability to quickly respond to public inquiries and related challenges.
section_title: The Corps Generally Allocates Resources for Making Jurisdictional Determinations as Part of the Permitting Process
paragraphs: 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. 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. As a result, they said  their ability to effectively perform regulatory program activities, including  making jurisdictional determinations, has been impacted, as can be seen in  the following examples.
Omaha District officials said that because of budget constraints and  heavy workloads, the district is unable to visit most project sites in  evaluating permits and making jurisdictional determinations. The  district is responsible for six states, and while it has an office in each of  the states, site visits can frequently entail significant travel costs. While  project managers can occasionally obtain district approval to visit  project sites, because of funding constraints they will do so only for  large projects that potentially affect valuable water resources. Although  district officials told us that site visits are not always necessary, they  stressed that site visits may be the best way to determine if the water or  wetland is jurisdictional because the maps and other data that project  managers review in the office may not clearly indicate whether  connections to other waters exist.
In the Galveston District, officials told us that, in the past, their project  managers’ workload averaged about 60 regulatory projects at any given  time, but this workload is now significantly more. One project manager  estimated that his workload is about four times greater than it should  be. As a result, project managers are unable to make as many site visits  as they have in the past. While Galveston District officials agreed with  Omaha District officials that site visits are not always necessary, they  pointed out that nonjurisdictional determinations can be difficult to  make and that site visits may be needed to verify that the waters or  wetlands at a project site are isolated. According to the Corps  Regulatory Branch Chief, the Corps’ workload has also increased  because the complexity of each project has increased, and, as a result,  more projects require that the Corps consult with other agencies, such  as the Department of the Interior’s Fish and Wildlife Service, because of  concerns about threatened or endangered species that may inhabit the  project sites.
In January 2003, the Inspector General also reported resource constraints  as an issue affecting the Corps’ ability to effectively manage permit  workloads. Resource constraints, according to the Regulatory Branch  Chief, are having an even greater impact on the program because of the  lack of reliable information on the number of regulatory activities that are  accomplished and the amount of resources that are needed to accomplish  those activities. To obtain better information, in 2004, the Corps initiated a  Workload Indicator Project. This project is intended to address two issues:   (1) the agencywide imbalance between resources and workload and (2)  district-level imbalances between resources and workloads. The project is  also intended to link resources to measurable performance goals. As part  of the project, in October 2004, Corps headquarters asked the districts to  provide estimates on how much time is needed to complete 21 regulatory  program tasks, such as making jurisdictional determinations, along with  103 associated subtasks, such as conducting a site visit as part of making a  jurisdictional determination.
According to the Chief of the Regulatory Branch, the estimates that the  districts provided varied widely and will need to be refined over time. For  example, some of these differences reflected the different nature of work  required in some districts. In one district with many threatened and  endangered species, the district estimated that it needed substantially more  resources to evaluate permits because of the increased staff and time  required to address environmental concerns. Other districts, such as those  that cover wide geographic areas, estimated that they needed more  resources to conduct site visits because of the additional time and travel  costs to conduct them. However, this official said that some differences  may reflect inaccurate estimates of the time required to complete some of  the tasks or subtasks because districts have never had to break down their  workload in such detail. Despite the preliminary nature of the estimates,  the Corps used them in fiscal year 2005 to allocate a 1 percent across-the- board regulatory program funding level increase to the districts. Based on  the results of the Workload Indicator Project, eight districts were each  allocated an additional $120,000 to, among other things, address their  workload and performance. According to the Chief of the Regulatory  Branch, the Workload Indicator Project estimates will be refined over time  as the agency gains more experience using them, and it is believed that this  effort will go a long way in supporting future budget requests.
We identified several additional challenges that the Corps will face as it  incorporates the workload indicator estimates when developing budget  proposals and allocating resources to the districts. First, the Corps’ data  management systems cannot yet provide accurate and complete  information on the number of regulatory actions, including jurisdictional  determinations, completed by each district. The Corps is currently phasing  in a new data management system that, according to agency officials,  should be able to provide the required information, although it will not  provide 100 percent of the data the agency believes necessary to make  management decisions. According to the Chief of the Regulatory Branch,  this system is expected to be fully operational by the end of fiscal year 2006  if the Corps receives the funding needed to correct user accessibility and  data integration problems and fully implement it. The Corps is also  exploring options for obtaining the additional data it may need to bridge  the gap between the data management system and its proposed process for  allocating resources. Second, the Corps will need time to make the  transition from its current allocation method—based on historic  allocations—to a method that is performance-based and reflects districts’  actual workloads. According to the Chief of the Regulatory Branch, a  performance-based allocation process could result in shifting resources  among districts. As noted above, the Corps allocates resources to its eight  divisions based primarily on the levels they have received in prior years.  According to the Corps, the divisions are then responsible for managing  their resources and workloads from a regional perspective. According to  Corps headquarters senior regulatory program managers, the divisions will  be expected to reallocate resources among the districts to better meet  individual district workloads and performance levels—such as, for  example, issuing permits within specified time frames. Such resource  reallocations could be accomplished by temporarily assigning project  managers to districts that are experiencing larger workloads or poorer  performance levels, or by having districts send permit applications to other  districts for evaluation.
section_title: The Corps Is Generally Not Using 33 C.F.R. § 328.3(a)(3) to Assert Jurisdiction
paragraphs: The Corps is generally not using 33 C.F.R. § 328.3(a)(3) as the sole basis to  assert jurisdiction over isolated, intrastate, nonnavigable waters. In  February 2004, we reported that between January 2003 and January 2004,  the districts sought formal project-specific headquarters approval a total of  eight times before attempting to assert jurisdiction over isolated, intrastate,  nonnavigable waters based solely on 33 C.F.R. § 328.3(a)(3). According to  EPA officials, in three of the cases, the agencies ultimately determined that  the waters in question were “waters of the United States” based on factors  other than those identified in that regulatory provision. In two cases, the  Corps and EPA determined that the waters in question were not  jurisdictional; and, in another case, the district withdrew its request for  headquarters approval. Two of the cases have yet to be resolved, even after  1-1/2 years, according to the senior regulatory program manager who is the  focal point for coordinating such cases.
This official told us that no additional requests to use this section of the  regulations as the sole basis to assert jurisdiction have been submitted to  headquarters since January 2004. Corps district officials told us they  generally do not consider seeking jurisdiction over any isolated, intrastate,  nonnavigable waters on the sole basis of 33 C.F.R. § 328.3(a)(3) primarily  because (1) headquarters has not provided detailed guidance on when it is  appropriate to use this provision; (2) district offices believe that  headquarters does not want them to assert jurisdiction over these waters or  wetlands; (3) district offices are concerned about the amount of time that  might be required for a decision from headquarters; or (4) few isolated,  intrastate, nonnavigable waters were in their districts whose use,  degradation, or destruction could affect interstate commerce. Because of  concern about using 33 C.F.R. § 328.3(a)(3), Corps officials in the St. Paul,  Omaha, and Jacksonville districts told us that they limit asserting  jurisdiction over isolated and intrastate waters only when public boat  ramps are present to provide access to these waters.
The senior regulatory program manager acknowledged that the lack of  guidance and the lengthy time frames for receiving headquarters approval  may have caused some districts to be reluctant to use 33 C.F.R. §  328.3(a)(3) as the sole basis for asserting jurisdiction. To clarify the process  for seeking guidance and to establish time frames for obtaining  headquarters approval, in January 2005, the Corps drafted a memorandum  of agreement that (1) identifies a process for the Corps and EPA to follow  when consulting on such requests, including procedures to follow when the  agencies disagree; (2) lists the types of documentation that districts are to  submit along with their referrals; and (3) establishes time frames for  responding to the districts. This draft memorandum was shared with EPA  in March 2005. As of July 2005, the two agencies agree that it would be  helpful to develop additional guidance for the districts that would provide a  clear understanding for using this section of the regulations. However, the  agencies have yet to resolve differences regarding the content of the  memorandum. This is delaying finalizing the memorandum, and, while  discussions are continuing, the agencies have set no time frame for  resolving these differences.
section_title: Agencies Are Not Collecting Data to Fully Assess the Impact of SWANCC
paragraphs: Neither the Corps nor EPA is collecting data to fully assess the impact of  SWANCC on waters and wetlands that no longer fall under federal  jurisdiction. The Corps began collecting data in April 2004, at EPA’s request,  in an effort to respond to congressional, project proponent, and public  concerns about how field offices are applying the SWANCC ruling.  However, the data being collected are limited and of questionable value for  use in assessing the impact of SWANCC on aquatic resources. The agencies  would like to collect better data, but these data are either not available or  would be difficult to obtain. According to Corps and EPA officials, limited  resources prevent them from collecting the additional data and conducting  an in-depth analysis that would be required to fully assess the impact of  SWANCC.
subsections: section_title: Data Being Collected Is Inadequate to Fully Assess the Impact of SWANCC
paragraphs: 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. 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.
To obtain information to respond to congressional, project proponent, and  public concerns about how field offices are applying the SWANCC ruling, in  October 2003, the Corps agreed to an EPA request to document all  nonjurisdictional determinations. Specifically, beginning in April 2004, the  Corps agreed to have district offices fill out a form for each project where  the project managers make a nonjurisdictional determination and report  these on a quarterly basis for 1 year. In requesting this information, EPA  stated that it would, among other things, (1) better enable an assessment of  the extent and nature of resources impacted by SWANCC, (2) help foster  consistent and sound decision-making, and (3) help identify issues that  might benefit from increased headquarters attention or guidance. These  nonjurisdictional determination forms are being posted on each district’s  Web site. According to a senior regulatory program manager, even though  the initial 1-year period has elapsed, for the near future the Corps is  continuing to fill out the form to collect the data. The data being collected  include    the estimated size of the isolated water or wetland;  the approximate size of the project site and its latitude and longitude;   the name of the waterway where the project site is located;   the type of water, such as prairie pothole, playa lake, vernal pool, or   whether the water or wetland might be used as habitat for birds  protected by migratory bird treaties or other migratory birds that cross  state lines;   whether the water would be used as habitat for endangered species; and  if the water or wetland is used to irrigate crops sold in interstate  commerce.
However, the data being collected by the Corps and EPA is inadequate to  fully assess the impact of SWANCC on isolated, intrastate, nonnavigable  waters. Specifically, the data being collected do not reflect the actual size  of the nonjurisdictional water or wetland or the amount of the water or  wetland that may be impacted by the project. The data collection form  directs the project managers to categorize the size of the wetland found to  be nonjurisdictional as being less than 1 acre, 1 to 3 acres, 3 to 5 acres, 5 to  10 acres, 10 to 25 acres, 25 to 50 acres, or greater than 50 acres. Moreover  we noted differences in the way that project managers are recording the  acreage. For example, some project managers are including specific  information on the number and actual size of the wetlands, while others are  merely placing checkmarks in one of the categories. Additionally, some  project managers are classifying almost all of the nonjurisdictional waters  as wetlands even though they may not meet the Corps’ definition of a  wetland, thereby obscuring impacts of SWANCC to both wetland and  nonwetland waters. Further, the form asks only for the general size of the  waters or wetlands found to be nonjurisdictional, and not what portion of  the waters or wetlands on the site will be degraded or destroyed by the  development. According to project managers, they may not have specific  information on the project planned by the project proponent at the time of  the jurisdictional determination and, as a result, may be unable to  determine how the project will affect the waters or wetlands on the site.  Further, if none of the waters or wetlands on a project site are  jurisdictional, a permit is not required under the Clean Water Act, and thus,  project managers may have little information, if any, about specific plans  for any eventual development on the site.
The data being collected on the form also may not provide reliable or  sufficient information on the functional value of the waters. While the form  requires that project managers indicate whether the water is or could be  used as habitat by migratory birds or endangered species, the form may not  be capturing reliable information because the project managers may not  always know this information. One project manager said he has no  expertise on the birds that are protected by migratory bird treaties or  which species might be endangered; as a result, he was unsure how to fill  out the form. According to another project manager, the staff was  discouraged from indicating whether the water could be used as habitat by  birds or other species unless they had proof that it was actually used in this  manner. As a result, the data collected by the Corps may not accurately  reflect the number of instances where the Corps has determined that  waters and wetlands are nonjurisdictional but they may be, or are used as,  among other things, habitat by migratory birds.
According to Corps and EPA officials, while they have analyzed some of the  data collected, to date, limited resources prevent them from conducting a  more in-depth analysis of the data to assess the impact of SWANCC on  aquatic resources. Because of limited resources, according to a senior  regulatory program manager and EPA officials, neither agency is planning  to conduct a more in-depth analysis of data already collected. Even though  the 1-year data collection period has expired, the Corps is still using the  form to collect data for the near term. The Corps is, however, re-examining  its data collection effort by, for example, revising the form, in coordination  with EPA, to both shorten it and capture more relevant data. According to  the senior regulatory program manager working on this effort, one of the  issues needing to be resolved is what data are most relevant. Both EPA and  Corps officials recognize that the data being collected has its limitations,  but they stated they did not want any data collection effort to be overly  burdensome on project managers, given the limited resources available to  collect and record the data. In addition, a Corps senior regulatory program  manager said the agency has no mandated authority to further collect and  analyze the data for nonjurisdictional determinations once that  determination has been made. Further, doing so only detracts from its  primary mission of evaluating permits.
section_title: Additional Data Needed to Assess the Impact of SWANCC Is Not Readily Available
paragraphs: 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. These include the  lack of (1) a consistent definition of an isolated wetland; (2) knowledge of  the number and area of isolated wetlands in the United States; (3)  information on the diversity of isolated wetlands relative to each other and  to other ecosystems; (4) knowledge about other federal, state, tribal, and  local programs that may protect isolated wetlands; and (5) information on  how isolated wetlands, wetland complexes, and other at-risk waters  contribute, hydrologically, chemically, and biologically to “waters of the  United States.”
Neither agency believes that it is possible to easily develop and readily  implement a realistic approach that would allow them to fully assess the  impact of the ruling on federal jurisdiction under the Clean Water Act,  given the lack of some data, the vast amount of data that would be needed  to assess the impact of SWANCC, and current resource constraints.  However, according to EPA officials, even though the agencies may not be  able to conduct a thorough assessment of the impacts of SWANCC on the  nation’s aquatic resources, it is important to collect data on the number and  nature of the Corps’ nonjurisdictional determinations and make this data  publicly available to increase the transparency and predictability of  nonjurisdictional decisions. However, the data collected should not,  according to some project managers, mislead the public into erroneously  concluding what impact SWANCC has had on isolated, intrastate,  nonnavigable waters.
section_title: Conclusions
paragraphs: In the aftermath of SWANCC, the Corps has taken some positive steps to  increase the consistency, predictability, and openness of its jurisdictional  determinations. However, although the Corps now requires its project  managers to include rationales in their files that explain how and why the  decision that certain waters or wetlands fall within federal jurisdiction was  made, it does not require similar rationales for nonjurisdictional  determinations. As stated by Corps appeals review officers and the Chief of  the Regulatory Branch, the Corps should require detailed rationales for all  jurisdictional determinations and not just those where it is asserting  jurisdiction. Without this information in the file, the Corps will not be able  to easily replicate its decisions, limiting its ability to quickly respond to an  appeal or public inquiry. Furthermore, the lack of guidance from  headquarters and the lengthy time frames that may be involved in receiving  a decision from headquarters have discouraged Corps districts from  asserting jurisdiction using the provisions under 33 C.F.R. § 328.3(a)(3).  Since January 2001, the Corps and EPA have not been able to agree on the  procedures the districts should follow when requesting the use of this  provision to assert jurisdiction and have been unable to develop a process  for the Corps and EPA to follow when consulting on such requests. Until  the agencies finalize these procedures, Corps districts will have little  incentive to use 33 C.F.R. § 328.3(a)(3) as a basis for asserting jurisdiction  over certain waters and wetlands that may, in fact, be subject to Clean  Water Act requirements.
section_title: Recommendations for Executive Action
paragraphs: To provide greater transparency in the Corps’ processes for making  nonjurisdictional determinations, we are recommending that the Secretary  of the Army require the Corps to include in its project files explanations for  nonjurisdictional determinations, as it does for jurisdictional  determinations, and that these explanations be detailed and site-specific.
To help provide greater clarity to the districts when using 33 C.F.R. §  328.3(a)(3) as the sole basis for asserting jurisdiction, we are also  recommending that the Secretary of the Army, through the Corps, and the  Administrator of EPA complete the process of jointly developing  procedures that, at a minimum, include guidance for the type of  information that districts should submit to headquarters, actions each  agency is responsible for taking, time frames for each agency to complete  their reviews, and provisions for resolving any interagency disagreement.
section_title: Agency Comments and Our Evaluation
paragraphs: We provided a draft of this report to the Secretary of the Department of  Defense and the Administrator of EPA for review and comment. Both the  Department of Defense and EPA concurred with the report’s findings and  recommendations. In its comments, the Department of Defense stated that  it is working with EPA to further streamline reporting requirements and  improve documentation required to support all determinations. The  department also pointed out that negotiations are ongoing to develop  procedures for field staff to use when relying on 33 C.F.R. § 328.3(a)(3) as  the sole basis for asserting jurisdiction. In its written comments, EPA  pointed out that the Corps’ practice of collecting and posting  nonjurisdictional determination information on the districts’ Web sites has  been a part of the two agencies’ goal to increase transparency,  predictability, and consistency of the regulatory program. EPA also noted  that an important step in achieving this goal is for Corps districts and EPA  regional offices to work closely together on cases involving geographically  isolated waters. EPA commented that the process for doing so should allow  the agencies to ensure more consistent application of the regulations, while  taking into account all relevant information about a particular body of  water. Both the Department of Defense and EPA provided technical  comments and clarifications which we incorporated, as appropriate. The  Department of Defense’s and EPA’s written comments are presented in  appendixes III and IV, respectively.
As agreed with your office, unless you publicly announce the contents of  this report earlier, we plan no further distribution until 30 days from the  report date. At that time, we will send copies to interested congressional  committees and Members of Congress; the Secretary of Defense; the  Administrator, EPA; and the Chief of Engineers and Commander, U.S. Army  Corps of Engineers. We will also make copies available to others upon  request. In addition, the report will be available at no charge on GAO’s Web  site at http://www.gao.gov.
If you or your staff have any questions about this report, please contact me  at (202) 512-3841 or mittala@gao.gov. Contact points for our Offices of  Congressional Relations and Public Affairs may be found on the last page  of this report. GAO staff who made major contributions to this report are  listed in appendix V.
section_title: Scope and Methodology
paragraphs: To identify the processes and data the U.S. Army Corps of Engineers (the  Corps) uses to make jurisdictional determinations, we reviewed federal  regulations and the Corps’ related guidance. We also interviewed Corps  officials in headquarters and 5 of the Corps’ 38 districts—Chicago;  Galveston, Texas; Jacksonville, Florida; Omaha, Nebraska; and St. Paul. We  selected 4 of the 5 districts because they made more nonjurisdictional  determinations between April and December 2004 than any of the other 38  districts. We selected the fifth district—Galveston—because it also  accounted for a large number of nonjurisdictional determinations and was  located in a geographic region different than the other four districts.  Altogether, these five districts accounted for 58 percent of the  nonjurisdictional determinations the Corps made between April and  December 2004. This time period was selected because data on the Corps’  nonjurisdictional determinations were not readily available before April  2004.
To determine the extent to which the Corps documents its decisions when  it concludes that it does not have jurisdiction over certain waters and  wetlands, we reviewed 770 project files in the five selected districts where  the agency determined, between April and December 2004, that it did not  have jurisdiction over some or all of the waters on those project sites.  Specifically, we reviewed 150 files in the Chicago District, 65 in the  Galveston District, 140 in the Jacksonville District, 257 in the Omaha  District, and 158 in the St. Paul District. We used a data collection  instrument to record specific data for each of the files, such as whether a  site visit was conducted, a consultant was used by the project proponent,  the project manager indicated what data were reviewed in the course of  making a determination, and the different types of data that were included  in the file. We also interviewed appeals review officers who review project  files in the five districts to determine what documentation they believe is  necessary to include in project files. We obtained this information from the  appeals review officers because, until promulgating a standardized form in  August 2004, the Corps had no guidance on what information on  jurisdictional determinations should be contained in project files. Further,  the Corps has no guidance on what a rationale should include. In addition,  we contacted the appeals review officers because they are the agency’s  internal quality assurance check to ensure that the Corps’ administrative  records fully support jurisdictional determinations. We used the appeals  review officers’ views on what information should be included in project  files, including what constitutes a detailed rationale, as criteria in reviewing  the files and categorizing each of the 770 files as having no rationale, a  partial rationale, or a detailed rationale. To ensure that our initial file  reviews were accurate, we randomly selected a minimum of 10 percent of  the files and independently reviewed them a second time by comparing the  information recorded in the data collection instrument to the original file to  ensure that the information entered into the data collection instrument was  accurate and that our assessment of the project manager’s rationale was  reasonable. In reviewing the project files and analyzing project managers’  rationales, we did not evaluate whether project managers’ determinations  were correct. We also did not evaluate whether the information available to  the project managers in making their jurisdictional determinations was  sufficient.
To identify the process the Corps uses to allocate resources for making  jurisdictional determinations, we reviewed its standard operating  procedures and related guidance for carrying out the Corps’ section 404  regulatory program. We also interviewed Corps officials who are  responsible, in headquarters and each of the five selected districts, for  preparing resource estimates for carrying out the program. In addition, we  obtained data on the number of resources allocated to the Corps and each  of the districts as well as workload data, including the number of  determinations made by the districts, for fiscal years 2002 and 2003. Finally,  to obtain a broad overview of the program, we obtained historical program  statistics for fiscal years 1997 through 2004.
To determine the extent to which the Corps is asserting jurisdiction over  isolated, intrastate, nonnavigable waters using its remaining authority in 33  C.F.R. § 328.3(a)(3), we interviewed Corps and Environmental Protection  Agency (EPA) officials in headquarters to identify the number and nature of  cases that have been submitted to headquarters between January 2003 and  July 2005 for approval. We also interviewed district officials to determine  the circumstances under which they would ask to assert jurisdiction using  these Corps regulations and whether they had sought formal project- specific headquarters approval prior to using them.
To determine the extent to which the Corps and EPA are collecting data to  assess the impact of Solid Waste Agency of Northern Cook County v. U.S.  Army Corps of Engineers (SWANCC), we interviewed Corps and EPA  officials at their respective headquarters to identify what actions have been  taken or are planned to assess the impact. We also obtained and reviewed  forms being used to collect data on nonjurisdictional determinations made  since April 2004. In addition, we interviewed Corps project managers to  determine their views on the impact of SWANCC, whether data being  collected were sufficient to assess the impact of SWANCC, and what data  should be analyzed to assess the impact.
We conducted our work from June 2004 through July 2005 in accordance  with generally accepted government auditing standards.
section_title: Data Contained in Corps Files on Nonjurisdictional Determinations in Five District Offices
paragraphs: 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.
Tables 2 through 6 summarize the types of data we found in the files we  reviewed in the five districts.
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.
Project managers can conduct site visits in the course of making their  jurisdictional determinations. The percentage of projects where site visits  were conducted varied by district, with fewer site visits being conducted in  St. Paul and Omaha. The St. Paul District encompasses two states, while  the Omaha District has all or portions of six states. More site visits were  conducted in the Chicago District, which covers a six-county area. The  Jacksonville District also conducted site visits for the majority of its  determinations. Even though this district encompasses the entire state, it  has 12 field offices located around the state to reduce the geographic  distance to project sites. Table 8 summarizes the number of projects where  project managers conducted a site visit in each of the districts we visited.
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.
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.
According to Corps appeals review officers, in addition to a clear  identification of data used and a basis for the determination, project files  should contain a detailed rationale for the determination. A detailed  rationale is one that is site-specific, references data used and how that data  led to the project manager’s conclusion, and cites district policy with  respect to district-specific practices for asserting jurisdiction over waters,  such as what conditions must be met for a water to be adjacent to a “water  of the United States.” Few files, however, contained a detailed rationale.  The Galveston District had the largest percentage of project files that  contained a detailed rationale. Table 11 summarizes the types of rationales  included in the project files we reviewed in the five districts.
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