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entitled 'Waters and Wetlands: Corps of Engineers Needs to Better 
Support Its Decisions for Not Asserting Jurisdiction' which was 
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Report to the Ranking Minority Member, Committee on Homeland Security 
and Governmental Affairs, U.S. Senate: 

September 2005: 

Waters and Wetlands: 

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

[Hyperlink, http://www.gao.gov/cgi-bin/getrpt?GAO-05-870]: 

GAO Highlights: 

Highlights of GAO-05-870, a report to the Ranking Minority Member, 
Committee on Homeland Security and Governmental Affairs, U.S. Senate: 

Why GAO Did This Study: 

Section 404 of the Clean Water Act prohibits the discharge of dredged 
or fill material into federally regulated waters without first 
obtaining a U.S. Army Corps of Engineers (Corps) permit. Before 2001, 
the Corps asserted jurisdiction over most waters, including isolated, 
intrastate, nonnavigable waters, if migratory birds could use them. 
However, in January 2001, the U.S. Supreme Court concluded that the 
Corps exceeded its authority in asserting jurisdiction over such waters 
based solely on their use by birds. GAO was asked to examine, among 
other things, the (1) processes and data the Corps uses for making 
jurisdictional determinations; (2) extent to which the Corps documents 
decisions that it does not have jurisdiction; (3) extent to which the 
Corps is using its remaining authority to assert jurisdiction over 
isolated, intrastate, nonnavigable waters; and (4) extent to which the 
Corps and the Environmental Protection Agency (EPA) are collecting data 
to assess the impact of the court’s January 2001 ruling. 

What GAO Found: 

The five Corps districts included in GAO’s review generally used 
similar processes and data sources for making jurisdictional 
determinations. After the districts receive a request for a 
determination, a project manager will review the submitted data for 
completeness, request additional data from the applicant, as necessary, 
and analyze the data to decide whether any waters are jurisdictional 
under the act. Data reviewed by project managers include photographs 
and topographic, soils, and wetland inventory maps that show, among 
other things, where the proposed project is located, whether other 
agencies have identified waters on the property, and whether there 
appears to be a basis for waters to be considered federally regulated 
under the act. Site visits are generally conducted when maps and 
photographs are not sufficiently detailed to make determinations. 

While GAO found that the Corps generally documents its rationale for 
asserting jurisdiction over waters or wetlands, it does not prepare 
similar documentation for nonjurisdictional determinations. Such 
rationales are important because determinations can be challenged by 
property owners and the public. GAO found that only 5 percent or less 
of the files in four of the five districts contained a detailed 
rationale, while 31 percent of the files in the fifth district 
contained such a rationale. The percentage of files that contained no 
rationale whatsoever as to why the Corps did not assert jurisdiction 
ranged from a low of 12 percent to a high of 49 percent in the five 
districts. The remaining files contained partial rationales. 

Following the Supreme Court’s January 2001 ruling, the Corps is 
generally not asserting jurisdiction over isolated, intrastate, 
nonnavigable waters using its remaining authority. Since January 2003, 
EPA and the Corps have required field staff to obtain headquarters 
approval to assert jurisdiction over waters based solely on links to 
interstate commerce. Only eight cases have been submitted, and none of 
these cases have resulted in a decision to assert jurisdiction. 
According to project managers, they are reluctant to assert 
jurisdiction over these kinds of waters because of the lack of guidance 
from headquarters and perceptions that they should not be doing so. 
Although the Corps has drafted a memorandum that contains guidance for 
the districts, EPA and the Corps have not yet reached agreement on the 
content of the document. 

At EPA’s request, over the last year, the Corps has collected data on 
field staffs’ nonjurisdictional determinations, including limited data 
on wetlands impacted by the court’s ruling. However, officials 
acknowledge that these data will be inadequate to assess the impacts of 
the ruling on wetlands jurisdiction. As a result, neither agency has 
conducted or plans to conduct an in-depth analysis of data already 
collected and they are re-examining their data collection efforts. 
Moreover, neither agency believes that an effective approach to fully 
assess the impacts of the ruling can be easily implemented because it 
would be resource intensive to do so and would require a vast array of 
data, some of which are not readily available. 

What GAO Recommends: 

GAO is recommending that the Corps require detailed rationales for 
nonjurisdictional decisions and finalize with EPA the additional 
guidance to help the districts make certain jurisdictional decisions. 

In commenting on the report, the Corps and EPA generally agreed with 
GAO’s recommendations. 

www.gao.gov/cgi-bin/getrpt?GAO-05-870. 

To view the full product, including the scope and methodology, click on 
the link above. For more information, contact Anu K. Mittal at (202) 
512-3641 or mittala@gao.gov. 

[End of section] 

Contents: 

Letter: 

Results in Brief: 

Background: 

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

Corps Districts Generally Do Not Document Their Rationales for 
Nonjurisdictional Determinations: 

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

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

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

Conclusions: 

Recommendations for Executive Action: 

Agency Comments and Our Evaluation: 

Appendixes: 

Appendix I: Scope and Methodology: 

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

Appendix III: Comments from the Department of the Army: 

Appendix IV: Comments from the Environmental Protection Agency: 

Appendix V: GAO Contact and Staff Acknowledgments: 

Tables: 

Table 1: Nonjurisdictional Determination Files Reviewed in Five Corps 
Districts: 

Table 2: Project Files That Contained Topographic Maps, by District: 

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

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

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

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

Table 7: Project Proponents That Relied on the Use of Consultants, by 
District: 

Table 8: Projects Where the Project Manager Conducted a Site Visit, by 
District: 

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

Table 10: Files That Contained a Basis for the Determination in the 
Five Corps Districts: 

Table 11: Files That Contained No, a Partial, or a Detailed Rationale 
in the Five Corps Districts: 

Figures: 

Figure 1: Map of Corps Divisions and Districts That GAO Reviewed: 

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

Figure 3: Examples of Potentially Isolated Waters That May Be More at 
Risk for a Nonjurisdictional Determination as a Result of SWANCC: 

Figure 4: Topographic Maps Showing Project Location and Detailed 
Surface Contours: 

Figure 5: A Soil Survey Map the Corps Used to Make a Jurisdictional 
Determination: 

Figure 6: A National Wetlands Inventory Map the Corps Used to Make a 
Jurisdictional Determination: 

Figure 7: Examples of Detailed Rationales Used by Two Corps Districts: 

Figure 8: Examples of Partial Rationales Used by Two Corps Districts: 

Figure 9: Examples of No Rationales Used by Two Corps Districts: 

Abbreviations: 

EPA: Environmental Protection Agency: 

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

Letter September 9, 2005: 

The Honorable Joseph I. Lieberman: 
Ranking Minority Member: 
Committee on Homeland Security and Governmental Affairs: 
United States Senate: 

Dear Senator Lieberman: 

Section 404 of the Clean Water Act prohibits most discharges of dredged 
or fill material into "waters of the United States" without first 
obtaining a permit from the U.S. Army Corps of Engineers (Corps). 
"Waters of the United States" include, among other things, navigable 
waters; interstate waters; intrastate waters, such as 
wetlands,[Footnote 1] that if used or degraded, could affect interstate 
commerce; tributaries of these waters; and wetlands adjacent to these 
waters. Section 404 is intended to restore and maintain the physical, 
chemical, and biological integrity of the nation's waters while 
allowing reasonable development, and as such, it is the nation's 
primary wetlands protection program under the act. Each year, the Corps 
receives thousands of permit applications from project proponents, such 
as private property owners and developers, seeking to place fill 
material into waters or wetlands in order to build houses, golf 
courses, or commercial buildings, as well as to conduct other 
activities. 

The first step in the regulatory process is to determine whether there 
are any waters or wetlands on a project site and, if so, whether they 
are "waters of the United States." The Corps determines whether it has 
jurisdiction over waters and wetlands by documenting their connections 
to navigable waters or interstate commerce, or by determining if the 
wetlands are adjacent to other "waters of the United States." If the 
Corps determines that a water or wetland is subject to federal 
jurisdiction under the act, project proponents who seek to fill in 
waters or wetlands as part of any developmental activities must first 
obtain a permit. As part of the permit evaluation process, the Corps 
requires that project proponents avoid, minimize, and compensate for 
the destruction or degradation of waters that fall under federal 
jurisdiction. A project proponent who disagrees with the Corps' 
jurisdictional determination can file an administrative appeal 
challenging the determination. 

In 1986, the Corps stated in a preamble to the wetlands program 
regulations that it would assert federal jurisdiction over waters that 
are or would be used as, among other things, habitat by birds protected 
by migratory bird treaties.[Footnote 2] This statement became known as 
the "migratory bird rule," and under it, the Corps could potentially 
assert jurisdiction over almost any body of water or wetland in the 
United States. In January 2001, however, in Solid Waste Agency of 
Northern Cook County v. United States Army Corps of Engineers 
(SWANCC),[Footnote 3] the Supreme Court concluded that the Corps had 
exceeded its authority in asserting jurisdiction over isolated, 
intrastate, nonnavigable waters based solely on their use as habitat by 
migratory birds. 

Following the decision, in January 2003, the Corps and the 
Environmental Protection Agency (EPA), which has primary authority and 
responsibility for implementing the Clean Water Act, issued a joint 
memorandum discussing the ruling's potential implications for federal 
jurisdiction under the Clean Water Act.[Footnote 4] This memorandum 
stated that although SWANCC specifically involves isolated, intrastate, 
nonnavigable waters used as habitat by migratory birds, it raises 
questions about what connections, if any, to interstate commerce could 
be used to assert jurisdiction over isolated, intrastate, nonnavigable 
waters. Consequently, the memorandum instructed field staff to seek 
formal project-specific headquarters approval prior to asserting 
jurisdiction over isolated, intrastate, nonnavigable waters on the sole 
basis of the Corps' regulations at 33 C.F.R. § 328.3(a)(3). Under this 
section, federal jurisdiction extends to all waters, such as intrastate 
lakes and wetlands, if the use, degradation, or destruction of these 
waters could affect interstate commerce. In the aftermath of the SWANCC 
ruling, questions have been raised not only about which isolated, 
intrastate, nonnavigable waters and wetlands are now considered 
jurisdictional under the act, but also about the indirect impact of the 
ruling on the Corps' resources for making determinations. 

In February 2004, we reported that, since SWANCC, Corps districts have 
not consistently interpreted and applied federal regulations that 
define jurisdictional waters, including wetlands.[Footnote 5] Because 
of these inconsistencies, we reported it was unclear whether different 
jurisdictional determinations would be made under similar situations. 

For this study, you asked us to determine (1) the processes and data 
the Corps uses to make jurisdictional determinations; (2) the extent to 
which the Corps documents its decisions when it concludes that it does 
not have jurisdiction over certain waters and wetlands 
(nonjurisdictional determinations); (3) the process the Corps uses to 
allocate resources for making jurisdictional determinations; (4) the 
extent to which the Corps is asserting jurisdiction over isolated, 
intrastate, nonnavigable waters using its remaining authority in 33 
C.F.R. § 328.3(a)(3); and (5) the extent to which the Corps and EPA are 
collecting data to assess the impact of SWANCC. 

To examine these issues, we selected 5 of the Corps' 38 district 
offices--Chicago; Galveston, Texas; Jacksonville, Florida; Omaha, 
Nebraska; and St. Paul--from which to obtain detailed information. We 
selected 4 of these 5 districts because they made more 
nonjurisdictional determinations than any of the other 38 districts. We 
selected the fifth district--Galveston--because it also accounted for a 
large number of nonjurisdictional determinations and was located in a 
different geographic region than the other four districts. Altogether, 
these five districts accounted for 58 percent of the nonjurisdictional 
determinations the Corps made between April and December 2004. This 
time period was selected because prior to April 2004, data on the 
Corps' nonjurisdictional determinations were not readily available. We 
interviewed Corps officials in the selected districts, including 
project managers who make jurisdictional and nonjurisdictional 
determinations and appeals review officers who review appeals of 
determinations. We also reviewed 770 files for jurisdictional 
determination requests or permit applications for which Corps project 
managers determined there was no federal jurisdiction. In reviewing the 
Corps' nonjurisdictional determinations, we did not review other key 
aspects of the program, such as the Corps' permitting process. Appendix 
I provides a more detailed description of our scope and methodology. We 
performed our work from June 2004 through July 2005 in accordance with 
generally accepted government auditing standards. 

Results in Brief: 

Each of the five Corps districts we visited generally used a similar 
process and similar data sources for making jurisdictional 
determinations. This process involves four steps: (1) receiving a 
request for a jurisdictional determination or a permit application; (2) 
reviewing the submitted information for completeness; (3) requesting 
additional data from the project proponent, as necessary; and (4) 
analyzing the data to determine if the waters or wetlands are regulated 
under the Clean Water Act. Corps districts frequently use data from 
topographic, soil, and wetland inventory maps, as well as photographs 
to make these determinations. These data show, among other things, 
where the proposed project is located and whether there appears to be a 
basis for waters or wetlands to be federally regulated under the act, 
such as whether the site's elevations would allow water on the site to 
flow into "waters of the United States." According to Corps project 
managers, they generally visit project sites when photographs and maps 
do not provide sufficiently detailed information about the potential 
for a surface-water connection, such as through a culvert or shallow 
ditch, between any waters or wetlands located on the project site and 
off-site waters. In addition, they said a number of factors influence 
the types and amounts of data they review, such as the size and value 
of resources at risk and their confidence in the capability and 
integrity of any consultants the project proponents may have hired to 
prepare their permit applications. 

Corps records provide limited information on the rationale for its 
decisions not to assert jurisdiction over certain waters and wetlands. 
Since August 2004, the Corps has required that project files include a 
standardized form that provides basic information about the project 
site. This form was developed to increase the level of consistency, 
predictability, and openness in the districts' reporting practices on 
jurisdictional determinations. The form also requires that project 
managers provide a rationale for their decisions to assert jurisdiction 
but does not require a similar rationale for nonjurisdictional 
determinations. A headquarters senior regulatory program manager told 
us that a rationale for nonjurisdictional determinations is not 
required because it was assumed that this information would be included 
elsewhere in the file. According to Corps appeals review officers and 
the Chief of the Regulatory Branch, all files should contain a 
detailed, site-specific rationale that explains how and why the 
determination was made, so that the Corps can quickly and easily 
respond to any inquiry about their determinations. For example, the 
Corps has received several requests from environmental groups for 
information on all nonjurisdictional determinations made by its 38 
districts. We found that only 5 percent or less of the files in four of 
the five districts contained a detailed rationale, while 31 percent of 
the files in the fifth district contained such a rationale. The 
percentage of files that contained no rationale whatsoever as to why 
the Corps did not assert jurisdiction ranged from a low of 12 percent 
to a high of 49 percent in the five districts. The remaining files 
contained partial rationales. 

For the five districts we examined, resource allocations for making 
jurisdictional determinations were generally included as part of the 
resources allocated to permit processing. These allocations are based 
on historical allocations and regulatory program priorities, such as 
issuing permits in a timely manner. According to district officials, 
although they do not know how much time is spent conducting 
jurisdictional determinations, their ability to effectively perform 
certain activities, such as conducting site visits, has been impacted 
in the past several years because their workloads have increased and 
their budgets have not kept pace. For example, officials in several 
districts told us that they have been unable to visit many project 
sites even though site visits may be the best way to determine whether 
a water or wetland is jurisdictional. In 2004, the Corps initiated a 
project to obtain detailed estimates on the amount of time required to 
carry out various aspects of the regulatory program, including making 
jurisdictional determinations. In 2005, the Corps used preliminary 
results of this project, in part, to allocate total resources for 
fiscal year 2005 to the different districts. According to Corps 
officials, these estimates will be refined as the agency gains more 
experience in using them. However, we found that the agency will 
continue to face challenges in using these estimates to develop budget 
proposals and allocate resources because the Corps' current data 
management systems do not yet provide accurate and complete data on the 
various activities undertaken by each of the districts, including 
making jurisdictional determinations. The Corps is currently phasing in 
a new data management system, which is due to be implemented by the end 
of fiscal year 2006 and which should provide much of the data needed. 

Subsequent to the SWANCC ruling, the Corps is generally not asserting 
jurisdiction over isolated, intrastate, nonnavigable waters using its 
remaining authority in 33 C.F.R. § 328.3(a)(3). In our 2004 report, we 
found that between January 2003 and January 2004, the districts sought 
to use this provision to assert jurisdiction only eight times. Neither 
EPA nor the Corps authorized use of this provision as the sole basis 
for asserting jurisdiction in six of these cases, while two are still 
pending. Since January 2004, a Corps official stated that no additional 
requests have been submitted to headquarters. In the five districts we 
reviewed, Corps officials said they generally do not consider seeking 
jurisdiction over isolated, intrastate, nonnavigable waters on the sole 
basis of 33 C.F.R. § 328.3(a)(3) because (1) headquarters has not 
provided detailed guidance on when it is appropriate to use this 
provision; (2) they believe that headquarters does not want them to use 
this provision; (3) they were concerned about the amount of time that 
might be required for a decision from headquarters; or (4) few 
isolated, intrastate, nonnavigable waters were in their districts whose 
use, degradation, or destruction could affect interstate commerce. In 
January 2005, the Corps drafted a memorandum of agreement that 
establishes procedures and clarifies the process for field staff on the 
use of 33 C.F.R. § 328.3(a)(3) to assert jurisdiction. It also 
establishes a process for the Corps and EPA to consult on such 
requests, including time frames for responding to a request. As of July 
2005, EPA and the Corps had not yet finalized the agreement. 

Neither the Corps nor EPA is collecting data to fully assess the impact 
of SWANCC on federal jurisdiction over isolated, intrastate, 
nonnavigable waters or wetlands. The Corps is collecting some data for 
EPA on its nonjurisdictional determinations in an effort to obtain 
information to respond to congressional, project proponent, and public 
concerns about how field offices are applying the SWANCC ruling. 
However, the data being collected are incomplete and of limited use to 
assess the impact of SWANCC on the nation's aquatic resources. 
Specifically, these data do not (1) reflect the actual size of waters 
or wetlands that the Corps considers nonjurisdictional; (2) indicate 
the precise size of the waters or wetlands that are being degraded or 
destroyed; or (3) indicate the functional value of the waters or 
wetlands, such as their use as habitat for plant or animal species or 
as storage for storm-water runoff. Given the limitations of these data 
and current resource constraints, neither the Corps nor EPA have 
conducted or plan to conduct an in-depth analysis of data already 
collected, and both agencies are re-examining their data collection 
efforts. Moreover, due to current resource constraints and the vast 
amount of data that would be needed, agency officials do not believe 
that an appropriate approach can be easily developed that would allow 
them to fully assess the impact of SWANCC on federal jurisdiction of 
waters and wetlands. 

To provide greater transparency in the Corps' processes for making 
nonjurisdictional determinations, we are recommending that the 
Secretary of the Army require the Corps to include in its project files 
explanations for nonjurisdictional determinations as it does for its 
jurisdictional determinations, and that these explanations be detailed 
and site-specific. We are also recommending that the Secretary of the 
Army, through the Corps, and the Administrator of EPA complete the 
process of jointly developing procedures for districts to follow when 
they would like to assert jurisdiction based solely on 33 C.F.R. § 
328.3(a)(3). In commenting on the report, the agencies generally agreed 
with our recommendations. 

Background: 

The Clean Water Act prohibits the discharge of pollutants into 
"navigable waters," which are defined in the act as "waters of the 
United States," without a permit. The act's objective is to restore and 
maintain the chemical, physical, and biological integrity of the 
nation's waters. Congress's intent in passing the act was to establish 
an all-encompassing program of water pollution regulation. To this end, 
the act establishes several programs and authorizations designed to 
protect "waters of the United States," including: 

* section 303, which calls for development of water quality standards 
for "waters of the United States"; 

* section 311, which establishes a program for preventing, preparing 
for, and responding to oil spills that occur in "waters of the United 
States"; 

* section 401, which establishes authority for state water quality 
certification of federally issued permits that may result in any 
discharge into "waters of the United States"; 

* section 402, which establishes a permitting system to regulate point 
source discharges of pollutants into "waters of the United 
States";[Footnote 6], [Footnote 7] and: 

* section 404, which prohibits the discharge of dredged or fill 
material into "waters of the United States" without a permit from the 
Corps.[Footnote 8] 

EPA has primary responsibility for carrying out the act, including 
final administrative responsibility for interpreting "waters of the 
United States," a term that governs the scope of all other programs 
under the Clean Water Act.[Footnote 9] EPA and Corps regulations define 
"waters of the United States" for which a section 404 permit must be 
obtained to include, among other things, (1) interstate waters; (2) 
waters that are or could be used in interstate commerce; (3) waters, 
such as wetlands, whose use or degradation could affect interstate 
commerce; (4) tributaries of these waters; and (5) wetlands adjacent to 
these waters, other than waters that are themselves wetlands. In 
addition to the Clean Water Act, some state and local governments have 
developed programs to protect waters, including wetlands, either under 
state statutes or local ordinances or by assuming responsibility for 
section 404 permitting responsibilities.[Footnote 10] 

EPA established, in consultation with the Corps, the substantive 
environmental protection standards that project proponents must meet to 
obtain a permit for discharging dredged or fill material into "waters 
of the United States," while the Corps administers the permitting 
responsibilities of the program. The day-to-day responsibilities for 
implementing the section 404 program have been delegated to 38 Corps 
district offices, with the Corps' divisions and headquarters providing 
oversight of the program. In fiscal year 2005, the Corps' regulatory 
program budget was $144 million--a 2 percent increase over its fiscal 
year 2004 funding level.[Footnote 11] The districts processed about 
86,000 permits in fiscal year 2003. Figure 1 shows the locations of 5 
of the 8 Corps divisions and 38 districts that we contacted as part of 
our review. These include the Chicago, Galveston, Jacksonville, Omaha, 
and St. Paul districts. 

Figure 1: Map of Corps Divisions and Districts That GAO Reviewed: 

[See PDF for image] 

[End of figure] 

The first step in the regulatory process is to determine whether there 
is any water or wetland[Footnote 12] on the project site and, if so, 
whether the water or wetland is a "water of the United States." The 
Corps determines if the water or wetland is a "water of the United 
States" and, thus, whether it has jurisdiction, by documenting any 
connections of the water or wetland on the site to any downstream 
navigable water or interstate commerce, or by determining if the 
wetland is adjacent to these waters. If the Corps determines that a 
water or wetland is jurisdictional but a project proponent disagrees, 
the proponent can file an administrative appeal challenging the Corps' 
determination. Appeals review officers, located at Corps divisions, are 
responsible for reviewing the administrative records for approved 
jurisdictional determinations and determining if the appeals have 
merit. Project proponents may also subsequently file legal actions in 
federal court if they disagree with the Corps' final decision on an 
appeal. Figure 2 shows the Corps' decision-making process for a 
jurisdictional determination. 

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

[See PDF for image] 

[End of figure] 

If the waters or wetlands are found to be jurisdictional, project 
proponents who want to discharge dredged or fill material into waters 
or wetlands as part of development activities on the property may be 
required to submit an application to obtain a 404 permit.[Footnote 13] 
In evaluating permit applications, the Corps requires the project 
proponent to take actions to avoid, minimize, and compensate for the 
potential impact of destroying or degrading "waters of the United 
States." Under guidelines issued by EPA, the Corps may not authorize a 
discharge of dredged or fill material if there is a practicable 
alternative that would have less significant adverse environmental 
consequences.[Footnote 14] According to the Corps, under this 
regulation, it can only authorize the least environmentally damaging, 
practicable alternative. 

The Corps' implementation of the section 404 program changed 
significantly in January 2001 when the Supreme Court ruled in SWANCC 
that the Clean Water Act did not authorize the Corps to require a 
permit for filling an isolated, intrastate, nonnavigable water where 
the sole basis for the Corps to assert regulatory authority was that 
the water had been used as habitat by migratory birds.[Footnote 15] 
This provision, included in a preamble to regulations issued in 1986, 
indicated that jurisdictional waters include waters that "are or would 
be used as habitat by birds protected by migratory bird treaties," or 
that "are or would be used as habitat by other migratory birds that 
cross state lines."[Footnote 16],[Footnote 17] Under this 
interpretation, nearly all waters and wetlands in the United States 
were potentially subject to the Corps' jurisdiction. According to the 
Chief of the Regulatory Branch, certain categories of waters or 
wetlands may be more at risk for a determination of no jurisdiction as 
a result of SWANCC. These potentially geographically isolated waters 
include prairie potholes, playa lakes, and vernal pools. (See fig. 3.) 

Figure 3: Examples of Potentially Isolated Waters That May Be More at 
Risk for a Nonjurisdictional Determination as a Result of SWANCC: 

[See PDF for image] 

[End of figure] 

The extent to which the reasoning in SWANCC applies to waters other 
than those specifically at issue in that case has been the subject of 
considerable debate in the courts[Footnote 18] and among the public. 
Some groups have argued that SWANCC precludes the Corps from regulating 
virtually all isolated, intrastate, nonnavigable waters, as well as 
nonnavigable tributaries to navigable waters, while others have argued 
that it merely prohibits the regulation of isolated, intrastate, 
nonnavigable waters and wetlands solely on the basis of their use as 
habitat by migratory birds. In January 2003, the Corps and EPA issued a 
joint memorandum to clarify the impacts of the SWANCC ruling on federal 
jurisdiction over waters and wetlands. The guidance called for Corps 
and EPA field staff to continue to assert jurisdiction over traditional 
navigable waters, their tributaries, and adjacent wetlands. It also 
directed field staff to make jurisdictional determinations on a case- 
by-case basis, considering the guidance in the memorandum, applicable 
regulations, and any relevant court decisions. It also noted that in 
light of SWANCC, it is uncertain whether there remains any basis for 
jurisdiction over any isolated, intrastate, nonnavigable waters. While 
the SWANCC ruling specifically addressed the use of migratory birds as 
a basis for asserting jurisdiction over these waters, it did not 
address other bases cited in Corps regulations as examples for 
asserting jurisdiction. These bases include intrastate waters whose 
use, degradation, or destruction could affect interstate commerce, 
including waters (1) that are or could be used by interstate or foreign 
travelers for recreational or other purposes, (2) from which fish or 
shellfish are or could be taken and sold in interstate or foreign 
commerce, or (3) that are used or could be used for industrial purposes 
by industries in interstate commerce. Because of this uncertainty, the 
memorandum instructed the field staff to seek formal project-specific 
headquarters approval prior to asserting jurisdiction over such waters 
based solely on links to interstate commerce. 

While EPA and Corps regulations provide a framework for determining 
which waters are within federal jurisdiction, they leave room for 
judgment and interpretation by the Corps districts when considering 
jurisdiction over, for example, adjacent wetlands, tributaries, and 
ditches and other man-made conveyances. Before SWANCC, the Corps 
generally did not have to be concerned with such factors as adjacency, 
tributaries, and other aspects of connection with an interstate or 
navigable water body if the wetland or water body qualified as a 
jurisdictional water on the basis of its use as habitat by migratory 
birds. In our February 2004 report, we found that Corps districts and 
staff interpreted and applied federal regulations differently when 
determining what wetlands and other waters fall within federal 
jurisdiction. For example, districts differ in their use of proximity 
as a factor in making determinations. One district required that the 
isolated water be within 200 feet of other "waters of the United 
States"; another required a distance of 500; and still others had no 
minimum requirement. We concluded that it was unclear whether or to 
what degree these variations would result in different jurisdictional 
determinations in similar situations, in part, because Corps staff 
consider many factors when making these determinations. In addition, 
few Corps districts make public the documentation that specifies the 
interpretation and application of the regulations they used to 
determine whether a water or wetland is jurisdictional. Consequently, 
project proponents may not clearly understand their responsibilities 
under section 404 of the Clean Water Act. We recommended, among other 
things, that the Corps survey district offices to determine how they 
are interpreting and applying the regulations and evaluate if 
differences need to be resolved. In response, the Corps conducted a 
preliminary survey in 2004 and a more detailed survey in 2005. As of 
July 2005, the Corps was in the process of evaluating the districts' 
responses to the 2005 survey. 

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

Each of the five Corps districts we visited generally used a similar 
process and similar data sources for making jurisdictional 
determinations. The districts use a four-step process that consists of 
(1) receiving a request for a jurisdictional determination or a permit 
application; (2) reviewing the submitted information for completeness; 
(3) requesting additional data from the project proponent, as 
necessary; and (4) analyzing the data to determine if the waters or 
wetlands are regulated under the Clean Water Act. Corps districts also 
used similar data to make these determinations, which frequently 
included topographic, soil, and wetland inventory maps as well as 
photographs. These data show, among other things, where the proposed 
project is located and whether there appears to be a basis, such as 
whether the site's elevations would allow water on the site to flow 
into "waters of the United States," for a water to be regulated. The 
Corps generally conducts site visits when these data do not 
sufficiently demonstrate the nature and extent of any connection 
between an on-site water to a "water of the United States." According 
to Corps project managers, a number of factors influence the types and 
amounts of data they review, such as the size and value of resources at 
risk and their confidence in the capability and integrity of any 
consultants the project proponents have hired to prepare their permit 
applications. 

Corps Districts Use a Four-Step Process to Make Jurisdictional 
Determinations: 

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

* Receiving a request for a jurisdictional determination or a permit 
application. The request is submitted by a project proponent, who may 
be a property owner or the owner's authorized agent, such as a 
consultant, or a developer. At a minimum, the request must clearly 
identify the property and the boundaries of the project site--either 
with a site location map or with another map that defines the project 
boundaries--as well as the name of the project proponent, a person to 
contact, and permission to go onto the project site in the event that a 
site visit is to be conducted. 

* Reviewing the submitted information for completeness. The project 
manager assigned to the project reviews the information to ensure that 
the request is signed by the project proponent and that it contains the 
minimum required information. The project manager also reviews the 
information to ensure that it is sufficient to locate the property. The 
amount and type of information the Corps requests that the project 
proponent submit may vary by type of applicant and project as well as 
the extent and functional values of the water resources that may be 
impacted. For example, residential homeowners who are requesting a 
determination for their home sites are generally not expected to submit 
more than the minimum amount of information. In contrast, the districts 
may request much more detailed information from consultants who are 
preparing jurisdictional requests or permit applications for commercial 
property owners. For example, the Jacksonville District recommends that 
requests be accompanied by aerial photographs; a legible survey, plat 
drawing, or other parcel plan showing the dimensions of the property; 
and a list of other maps that provide additional information about the 
project site such as the types of soils at the site. 

* Requesting additional data from the project proponent, as necessary. 
If project managers find that information submitted does not 
sufficiently identify the property or the nature of the project, they 
will informally or formally request additional information. The Corps 
will not proceed with a jurisdictional determination until it has 
received all requested information. 

* Analyzing the data to determine if the Corps has jurisdiction. Once 
the requested information has been received, the project manager will 
analyze the data to determine if the waters or wetlands on the project 
site are connected to any downstream navigable waters that could be or 
are used for interstate commerce, or adjacent to such waters. If the 
Corps has jurisdiction, it defines the limits of federal jurisdiction 
by, for example, identifying high tide lines or ordinary high water 
marks. If the waters include wetlands, the project manager must also 
identify the boundaries of the wetlands--that is, conduct what is known 
as a wetland delineation.[Footnote 19] 

Corps Districts Use Similar Data Sources to Make Jurisdictional 
Determinations: 

Project managers in the five districts we visited generally use similar 
data sources to make their jurisdictional determinations. The most 
commonly used data include the following: 

* Topographic maps. Topographic maps show the shape of the Earth's 
surface through contour lines, which are imaginary lines that join 
points of equal elevation on land. Such contours make it possible to 
measure the height of hills and mountains and the depth of swales and 
valleys. Widely spaced contours or an absence of contours means that 
the ground slope is relatively level. Contours that are very close 
together represent steep slopes. It is often possible to use contours 
to determine the direction of water flow, and potential connections to 
other waters. Topographic maps also show symbols representing features 
such as roads, railroads, streets, buildings, lakes, streams, 
irrigation ditches, and vegetation. In the five districts we reviewed, 
590 of the 770 jurisdictional determination request or permit 
application files where the Corps' project managers determined there 
was no federal jurisdiction included a topographic map. This ranged 
from a low of 64 percent of the Jacksonville District's files (89 of 
140 files) to a high of 89 percent of both the Galveston District's (58 
of 65) and the St. Paul District's (140 of 158) files. (App. II 
contains district-specific information on, among other things, the 
number of files that contained different types of data.) Figure 4 shows 
topographic maps used to identify a project location as well as the 
detailed surface contours of the project site. 

Figure 4: Topographic Maps Showing Project Location and Detailed 
Surface Contours: 

[See PDF for image] 

[End of figure] 

* Soil survey maps. A soil survey map shows the types or properties of 
soil on a project site. There are over 20,000 different kinds of soil 
in the United States and they differ depending on how, where, and when 
they were formed. Soil is altered by the interactions of climate, 
surface contours, and living organisms over time and has many 
properties that fluctuate with the seasons. For example, it may be 
alternately cold and warm or dry and moist. Similarly, the amount of 
organic matter will fluctuate over time. Such maps can help indicate 
whether waters or wetlands on a project site have any hydrologic 
relationship or connection. In the five districts we reviewed, 404 of 
the 770 files included a soil survey map. This ranged from a low of 17 
percent of the Omaha District's files (43 of 257) to a high of 82 
percent of the Chicago District's files (123 of 150). Figure 5 shows a 
soil survey map superimposed onto an aerial photograph. The project 
location is the same as in figure 4. 

Figure 5: A Soil Survey Map the Corps Used to Make a Jurisdictional 
Determination: 

[See PDF for image] 

[End of figure] 

* National Wetlands Inventory maps. A wetlands inventory map indicates 
the potential and approximate location of waters or wetlands as well as 
wetland types. Most of these maps were produced using aerial 
photography from the 1980s. The maps also classify the wetlands by 
type, such as a forested wetland or a scrub and shrub wetland. In the 
five districts we reviewed, 401 of the 770 files included a wetlands 
inventory map. This ranged from a low of 11 percent of the Jacksonville 
District's files (15 of 140) to a high of 90 percent of the Chicago 
District's files (135 of 150). Figure 6 shows a wetlands inventory map 
superimposed onto an aerial photograph. 

Figure 6: A National Wetlands Inventory Map the Corps Used to Make a 
Jurisdictional Determination: 

[See PDF for image] 

[End of figure] 

* Photographs. The Corps can use aerial and ground photographs to 
determine if waters or wetlands are located on a project site and to 
identify other structures on the site that may provide pathways for 
water to travel from one water body to another. Such photographs are 
available from a number of sources, including the project proponents. 
In addition, aerial photographs are available from the Department of 
Agriculture's Natural Resources Conservation Service showing wetlands 
on private farms that, in return for federal subsidies, have been 
preserved instead of being turned into cropland. In the five districts 
we reviewed, 562 of the 770 files included aerial photographs. This 
ranged from a low of 44 percent of the Omaha District's files (112 of 
257) to a high of 91 percent of both the Chicago District's (137 of 
150) and the Galveston District's (59 of 65) files. Similarly, 320 of 
the 770 files included ground photographs. This ranged from a low of 26 
percent of the Jacksonville District's files (36 of 140) to a high of 
63 percent of the Chicago District's files (95 of 150). 

The Corps uses these maps and photographs not only to provide unique 
information about the site but also to corroborate information about a 
site. For example, the Corps can compare National Wetlands Inventory 
maps with topographic maps to help confirm whether there are waters or 
wetlands on a project site. The National Wetlands Inventory map could 
also alert the Corps to the types of waters or wetlands on the site. If 
the land has been used for growing crops, the Corps can obtain Natural 
Resources Conservation Service aerial photographs to determine if that 
agency has verified the existence of wetlands on that particular site. 
This information can then be used in examining aerial or site 
photographs provided by the project proponent. 

Currently, project managers can use online resources for much of the 
data they need to make jurisdictional determinations. For example, many 
topographic maps and aerial photographs are available through online 
sources. In addition, project managers in all of the districts we 
visited can retrieve more sophisticated versions of aerial photographs, 
such as color-infrared photographs and digital orthophoto quadrangles, 
which are computer-generated images of aerial photographs that have 
been enhanced to better view the ground. Similarly, project managers in 
all five districts have the ability to superimpose different maps, such 
as soil survey maps, onto aerial photographs. In some cases, they can 
produce one map that shows the topography, wetlands, and soils present 
on a property. According to several project managers we contacted, this 
ability provides them with a more comprehensive view of the status of 
waters or wetlands at individual project sites. 

As can be seen in the following examples, some districts may also use 
other data sources that are specific to their district in making 
jurisdictional determinations. 

* The Galveston District relies on maps that designate flood-prone 
areas--areas that are likely to be flooded. These maps, produced by the 
Federal Emergency Management Agency, are used for insurance purposes. 
According to the Galveston District's policy, if a water or wetland is 
in an area designated by the agency as a flood zone, the water or 
wetland will generally be considered adjacent and fall within the 
Corps' jurisdiction. 

* The St. Paul District relies on the Southeastern Wisconsin Regional 
Planning Commission as a resource for maps for seven counties, which 
include the city of Milwaukee. The commission prepares maps for a 
variety of purposes, such as transportation planning. The maps include 
topographic maps as well as existing land-use maps, some of which 
identify waters and wetlands. Its digital land-use inventory is updated 
every 5 years. In addition, the state of Wisconsin compiles its own 
wetland inventory maps and, as a result, Corps project managers may 
rely less on National Wetlands Inventory maps when determining 
jurisdiction. Similarly, the state of Minnesota has developed public 
waters inventory maps that Corps project managers can access. 

* In the Chicago District, which encompasses six counties, project 
managers can rely on more detailed wetland identification maps that 
some of the counties have prepared with funding received from EPA as 
part of its Advance Identification of Disposal Areas program.[Footnote 
20] 

According to project managers, the number of data sources and the 
specific data they use to make a jurisdictional determination can vary, 
depending on the nature of the data and the project site. For example, 
according to one project manager, if the project site is a 5-acre flat 
piece of property that contains a one-quarter-acre wetland, and the 
nearest tributary to a "water of the United States" is 5 miles away, 
the project manager would not necessarily decide to visit the site to 
make a determination that the wetland was not jurisdictional. In 
contrast, according to this project manager, a 1,000-acre site that has 
25 different waters and wetlands totaling 200 acres and a series of 
ditches, and is near a tributary to a "water of the United States," 
could warrant several site visits. 

The use of a consultant to prepare a jurisdictional determination 
request or a permit application can also affect the Corps' decision on 
what data to review. Each district maintains a list of consultants whom 
residential homeowners and developers can use, although the Corps does 
not advocate or recommend specific consultants or require that only 
those consultants on its lists be used. As a result, the list can 
contain a number of consultants with varying levels of technical 
expertise. According to several project managers, if they have 
extensive experience with a particular consultant and trust that 
consultant's work, they are more likely to limit their review to the 
data submitted with the request, including any data on the types of 
soils, plants, and hydrology the consultant may have collected for use 
in delineating wetlands, along with questioning the consultant rather 
than independently verifying the information with their own data 
sources. In the five districts we reviewed, consultant data were 
submitted for 571 of the 770 projects whose files we reviewed.[Footnote 
21] The percentage of projects where consultant data were submitted 
varied by district, from a low of 55 percent of the Omaha District's 
projects (140 of 255 files) to a high of 94 percent of the Jacksonville 
District's projects (131 of 140 files). 

Several project managers cautioned that the data represented by the 
maps and photographs are, at times, not accurate because the data are 
old or have not been verified by the agencies that prepared the maps 
and photographs. As noted above, many National Wetlands Inventory maps 
were prepared based on aerial photography from the 1980s. In addition, 
because of the large scale of the maps, they do not always accurately 
capture all wetlands, particularly wetland types that are difficult to 
detect from aerial photographs, such as small forested wetlands. 
Further, in some instances the maps and photographs do not provide 
clear evidence of whether a water or wetland is jurisdictional. In such 
cases, project managers told us that site visits are the best data 
source for making a determination. This is particularly common for 
projects located near a roadway or an area that has been extensively 
developed. Similarly, features such as culverts and low-lying areas 
that would often serve to connect an otherwise isolated water to a 
jurisdictional water are not always visible in topographic maps, and 
aerial photographs and a site visit may be the only means of 
determining whether such connections do in fact exist. 

Other factors that influence whether a site visit is conducted, 
according to Corps project managers, include: 

* the proximity of the project site to the Corps' office and resources 
available to travel to the site, 

* the nature of the topography and the number of waters or wetlands 
that appear to be on the project site, 

* a project manager's familiarity with the geographic area where the 
project is being undertaken, 

* the potential for public concern over the proposed project, 

* the size of the waters or wetlands on the project site and their 
value, 

* the extent to which the data from all of the different data sources 
independently confirm the existence and nature of waters or wetlands on 
a project site as well as whether they are connected to "waters of the 
United States," and: 

* the existence of any other federal, state, or local agency that may 
have oversight responsibility for waters or wetlands at the project 
site and whether officials from those agencies visited the site. 

In our review of project files, we found that project managers 
conducted site visits for 412 of the 770 projects whose files we 
reviewed. However, the extent to which site visits were conducted 
varied considerably by district, from a low of 34 percent of the St. 
Paul District's projects (53 of 158 files) to a high of 84 percent of 
the Chicago District's projects (124 of 148 files). This variability 
can be attributed, in part, to the size of the districts--the St. Paul 
District covers a broad area encompassing two states whereas the 
Chicago District covers only six counties in one state. 

Corps Districts Generally Do Not Document Their Rationales for 
Nonjurisdictional Determinations: 

Corps records provide limited information on the rationale that the 
project managers used when deciding not to assert jurisdiction over 
certain waters and wetlands. In August 2004, the Corps required that 
project managers include a standardized form in each of the project 
files. The form provides basic information about the project site and 
requires project mangers to provide rationales for their decisions to 
assert jurisdiction; however, rationales are not required for their 
nonjurisdictional determinations because it is assumed that this 
information would be included elsewhere in the project files. Corps 
appeals review officers and the Chief of the Regulatory Branch said 
that all files should contain rationales that are site-specific and 
provide the reasoning and evidence used to make the determination. 
However, the majority of the files we reviewed contained either 
rationales that provided little site-specific information about why the 
project managers made nonjurisdictional determinations or no 
explanations whatsoever. 

In August 2004, to improve the consistency, predictability, and 
openness of jurisdictional determination reporting practices, the Corps 
required that files contain a standardized form that is to include 
basic information about the project site, such as the location and size 
of the project. The form is also to be used by project managers to 
clearly indicate what data were used in making a determination and the 
bases for the determination--that is, the specific federal regulations 
that allowed the Corps to assert or precluded it from asserting 
jurisdiction. While the form requires that project managers include a 
rationale for asserting jurisdiction over waters on a project site, the 
form does not require that a rationale be included for a 
nonjurisdictional determination. According to the headquarters senior 
regulatory program manager responsible for overseeing jurisdictional 
determinations, the August 2004 form does not require that project 
managers include a rationale for their nonjurisdictional determinations 
because it was assumed that more detailed information would be included 
elsewhere in the project file. 

Corps appeals review officers we contacted said it is important for 
Corps files to contain the information specified on the August 2004 
form. However, these officials told us it is important that all files, 
including nonjurisdictional determination files, contain detailed, site-
specific rationales that provide the reasoning and evidence used to 
conclude whether the waters or wetlands were within federal 
jurisdiction in the event an appeal was filed, the project manager 
changed, or the Corps received a public inquiry. Corps appeals review 
officers said that a rationale should consist of (1) a detailed, site- 
specific commentary on how the on-site water does or does not connect 
with "waters of the United States"; (2) a description of what the data 
reviewed indicate; (3) a summary of the relevant hydrological 
conditions at the site; (4) a reference to any district-specific policy 
on asserting jurisdiction over waters that are considered adjacent to 
"waters of the United States" or navigable; and (5) a reason why the 
Corps concluded that the water is or is not jurisdictional. 

The Chief of the Regulatory Branch echoed the position of the appeals 
review officers. He told us it is important that the file support the 
Corps' decision, particularly given public concern about the effect 
that SWANCC may have had on isolated, intrastate, nonnavigable waters. 
For example, since SWANCC, the Corps has received Freedom of 
Information Act requests from several environmental groups seeking 
information on nonjurisdictional determinations made by each of the 
Corps' districts. The Chief of the Branch stated that the Corps must be 
able to respond quickly to such public inquiries and its decisions must 
be transparent and fully supported if the agency expects the public to 
have confidence in its regulatory decisions. 

However, we found that not all project managers are including a 
detailed rationale in the project files. Of the 770 nonjurisdictional 
determination files we reviewed, only 53 included a detailed rationale 
in the file. This ranged from a low of 4 percent of the Omaha 
District's files (11 of 257) to a high of 31 percent of the Galveston 
District's files (20 of 65). The examples in figure 7 illustrate site- 
specific rationales that explain how and why the Corps determined that 
it did not have jurisdiction. 

Figure 7: Examples of Detailed Rationales Used by Two Corps Districts: 

[See PDF for image] 

[End of figure] 

Unlike the examples in figure 7, most of the files--526--included only 
partial rationales that provide little in-depth, site-specific 
information that the project manager relied upon to conclude that the 
water is isolated. This ranged from a low of 46 percent of the Chicago 
District's files (69 of 150) to a high of 83 percent of the 
Jacksonville District's files (116 of 140). Figure 8 provides two 
examples of partial rationales. 

Figure 8: Examples of Partial Rationales Used by Two Corps Districts: 

[See PDF for image] 

[End of figure] 

Many of the files we reviewed--191--did not contain any rationale to 
support the conclusion that the waters or wetlands under review were 
isolated. The percentage of files that contained no rationale also 
varied by district and ranged from a low of 12 percent of the 
Jacksonville District's files (17 of 140) to a high of 49 percent of 
the Chicago District's files (74 of 150). Two examples of files with no 
rationale that we reviewed are presented in figure 9. 

Figure 9: Examples of No Rationales Used by Two Corps Districts: 

[See PDF for image] 

[End of figure] 

Although we did not assess the accuracy of the determinations made by 
the Corps in these cases, we are concerned that a lack of a detailed 
rationale limits the transparency of the Corps' decision-making process 
and inhibits its ability to quickly respond to public inquiries and 
related challenges. 

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

The Corps does not separately allocate resources for jurisdictional 
determinations but instead includes these resources in the total 
available for issuing permits. Corps headquarters allocates resources 
to its eight divisions based primarily on the level they have received 
in prior years, and these divisions, in turn, allocate resources to the 
38 districts on the same basis. The districts then allocate resources 
to carry out the regulatory program based on guidance issued in 1999. 
However, this guidance does not provide a separate program activity for 
jurisdictional determinations. Instead, the guidance directs the 
districts to allocate 60 percent to 80 percent of their resources to 
evaluating permits and 10 percent to 25 percent to ensuring that 
project proponents are in compliance with permit requirements. 
According to the Corps, about 80 percent of Corps resources are 
allocated to permitting, about 15 percent are allocated to enforcement 
and compliance, and about 5 percent are allocated to other 
activities.[Footnote 22] In four of the five districts we visited, 
staff responsible for evaluating permits perform jurisdictional 
determinations, while in the remaining district--Galveston-- 
jurisdictional determinations are the responsibility of the compliance 
staff. 

District officials stated they do not know how much time is spent 
conducting jurisdictional determinations but that over the past several 
years their workloads have increased because of several factors, 
including SWANCC, while their budgets have not kept pace.[Footnote 23] 
As a result, they said their ability to effectively perform regulatory 
program activities, including making jurisdictional determinations, has 
been impacted, as can be seen in the following examples. 

* Omaha District officials said that because of budget constraints and 
heavy workloads, the district is unable to visit most project sites in 
evaluating permits and making jurisdictional determinations. The 
district is responsible for six states, and while it has an office in 
each of the states, site visits can frequently entail significant 
travel costs. While project managers can occasionally obtain district 
approval to visit project sites, because of funding constraints they 
will do so only for large projects that potentially affect valuable 
water resources. Although district officials told us that site visits 
are not always necessary, they stressed that site visits may be the 
best way to determine if the water or wetland is jurisdictional because 
the maps and other data that project managers review in the office may 
not clearly indicate whether connections to other waters exist. 

* In the Galveston District, officials told us that, in the past, their 
project managers' workload averaged about 60 regulatory projects at any 
given time, but this workload is now significantly more. One project 
manager estimated that his workload is about four times greater than it 
should be. As a result, project managers are unable to make as many 
site visits as they have in the past. While Galveston District 
officials agreed with Omaha District officials that site visits are not 
always necessary, they pointed out that nonjurisdictional 
determinations can be difficult to make and that site visits may be 
needed to verify that the waters or wetlands at a project site are 
isolated. According to the Corps Regulatory Branch Chief, the Corps' 
workload has also increased because the complexity of each project has 
increased, and, as a result, more projects require that the Corps 
consult with other agencies, such as the Department of the Interior's 
Fish and Wildlife Service, because of concerns about threatened or 
endangered species that may inhabit the project sites. 

In January 2003, the Inspector General also reported resource 
constraints as an issue affecting the Corps' ability to effectively 
manage permit workloads.[Footnote 24] Resource constraints, according 
to the Regulatory Branch Chief, are having an even greater impact on 
the program because of the lack of reliable information on the number 
of regulatory activities that are accomplished and the amount of 
resources that are needed to accomplish those activities. To obtain 
better information, in 2004, the Corps initiated a Workload Indicator 
Project. This project is intended to address two issues: (1) the 
agencywide imbalance between resources and workload and (2) district- 
level imbalances between resources and workloads. The project is also 
intended to link resources to measurable performance goals. As part of 
the project, in October 2004, Corps headquarters asked the districts to 
provide estimates on how much time is needed to complete 21 regulatory 
program tasks, such as making jurisdictional determinations, along with 
103 associated subtasks, such as conducting a site visit as part of 
making a jurisdictional determination. 

According to the Chief of the Regulatory Branch, the estimates that the 
districts provided varied widely and will need to be refined over time. 
For example, some of these differences reflected the different nature 
of work required in some districts. In one district with many 
threatened and endangered species, the district estimated that it 
needed substantially more resources to evaluate permits because of the 
increased staff and time required to address environmental concerns. 
Other districts, such as those that cover wide geographic areas, 
estimated that they needed more resources to conduct site visits 
because of the additional time and travel costs to conduct them. 
However, this official said that some differences may reflect 
inaccurate estimates of the time required to complete some of the tasks 
or subtasks because districts have never had to break down their 
workload in such detail. Despite the preliminary nature of the 
estimates, the Corps used them in fiscal year 2005 to allocate a 1 
percent across-the-board regulatory program funding level increase to 
the districts. Based on the results of the Workload Indicator Project, 
eight districts were each allocated an additional $120,000 to, among 
other things, address their workload and performance. According to the 
Chief of the Regulatory Branch, the Workload Indicator Project 
estimates will be refined over time as the agency gains more experience 
using them, and it is believed that this effort will go a long way in 
supporting future budget requests. 

We identified several additional challenges that the Corps will face as 
it incorporates the workload indicator estimates when developing budget 
proposals and allocating resources to the districts. First, the Corps' 
data management systems cannot yet provide accurate and complete 
information on the number of regulatory actions, including 
jurisdictional determinations, completed by each district. The Corps is 
currently phasing in a new data management system that, according to 
agency officials, should be able to provide the required information, 
although it will not provide 100 percent of the data the agency 
believes necessary to make management decisions. According to the Chief 
of the Regulatory Branch, this system is expected to be fully 
operational by the end of fiscal year 2006 if the Corps receives the 
funding needed to correct user accessibility and data integration 
problems and fully implement it. The Corps is also exploring options 
for obtaining the additional data it may need to bridge the gap between 
the data management system and its proposed process for allocating 
resources. Second, the Corps will need time to make the transition from 
its current allocation method--based on historic allocations--to a 
method that is performance-based and reflects districts' actual 
workloads. According to the Chief of the Regulatory Branch, a 
performance-based allocation process could result in shifting resources 
among districts. As noted above, the Corps allocates resources to its 
eight divisions based primarily on the levels they have received in 
prior years. According to the Corps, the divisions are then responsible 
for managing their resources and workloads from a regional perspective. 
According to Corps headquarters senior regulatory program managers, the 
divisions will be expected to reallocate resources among the districts 
to better meet individual district workloads and performance levels-- 
such as, for example, issuing permits within specified time frames. 
Such resource reallocations could be accomplished by temporarily 
assigning project managers to districts that are experiencing larger 
workloads or poorer performance levels, or by having districts send 
permit applications to other districts for evaluation. 

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

The Corps is generally not using 33 C.F.R. § 328.3(a)(3) as the sole 
basis to assert jurisdiction over isolated, intrastate, nonnavigable 
waters. In February 2004, we reported that between January 2003 and 
January 2004, the districts sought formal project-specific headquarters 
approval a total of eight times before attempting to assert 
jurisdiction over isolated, intrastate, nonnavigable waters based 
solely on 33 C.F.R. § 328.3(a)(3). According to EPA officials, in three 
of the cases, the agencies ultimately determined that the waters in 
question were "waters of the United States" based on factors other than 
those identified in that regulatory provision. In two cases, the Corps 
and EPA determined that the waters in question were not jurisdictional; 
and, in another case, the district withdrew its request for 
headquarters approval. Two of the cases have yet to be resolved, even 
after 1-1/2 years, according to the senior regulatory program manager 
who is the focal point for coordinating such cases. 

This official told us that no additional requests to use this section 
of the regulations as the sole basis to assert jurisdiction have been 
submitted to headquarters since January 2004. Corps district officials 
told us they generally do not consider seeking jurisdiction over any 
isolated, intrastate, nonnavigable waters on the sole basis of 33 
C.F.R. § 328.3(a)(3) primarily because (1) headquarters has not 
provided detailed guidance on when it is appropriate to use this 
provision; (2) district offices believe that headquarters does not want 
them to assert jurisdiction over these waters or wetlands; (3) district 
offices are concerned about the amount of time that might be required 
for a decision from headquarters; or (4) few isolated, intrastate, 
nonnavigable waters were in their districts whose use, degradation, or 
destruction could affect interstate commerce. Because of concern about 
using 33 C.F.R. § 328.3(a)(3), Corps officials in the St. Paul, Omaha, 
and Jacksonville districts told us that they limit asserting 
jurisdiction over isolated and intrastate waters only when public boat 
ramps are present to provide access to these waters. 

The senior regulatory program manager acknowledged that the lack of 
guidance and the lengthy time frames for receiving headquarters 
approval may have caused some districts to be reluctant to use 33 
C.F.R. § 328.3(a)(3) as the sole basis for asserting jurisdiction. To 
clarify the process for seeking guidance and to establish time frames 
for obtaining headquarters approval, in January 2005, the Corps drafted 
a memorandum of agreement that (1) identifies a process for the Corps 
and EPA to follow when consulting on such requests, including 
procedures to follow when the agencies disagree; (2) lists the types of 
documentation that districts are to submit along with their referrals; 
and (3) establishes time frames for responding to the districts. This 
draft memorandum was shared with EPA in March 2005. As of July 2005, 
the two agencies agree that it would be helpful to develop additional 
guidance for the districts that would provide a clear understanding for 
using this section of the regulations. However, the agencies have yet 
to resolve differences regarding the content of the memorandum. This is 
delaying finalizing the memorandum, and, while discussions are 
continuing, the agencies have set no time frame for resolving these 
differences. 

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

Neither the Corps nor EPA is collecting data to fully assess the impact 
of SWANCC on waters and wetlands that no longer fall under federal 
jurisdiction. The Corps began collecting data in April 2004, at EPA's 
request, in an effort to respond to congressional, project proponent, 
and public concerns about how field offices are applying the SWANCC 
ruling. However, the data being collected are limited and of 
questionable value for use in assessing the impact of SWANCC on aquatic 
resources. The agencies would like to collect better data, but these 
data are either not available or would be difficult to obtain. 
According to Corps and EPA officials, limited resources prevent them 
from collecting the additional data and conducting an in-depth analysis 
that would be required to fully assess the impact of SWANCC. 

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

Neither the Corps nor EPA is collecting data that would allow a full 
assessment of the impact of the SWANCC ruling on isolated, intrastate, 
nonnavigable waters. In January 2003, EPA and the Corps requested that 
the public provide them with information, data, and comments on, among 
other things, the amount of wetland acreage potentially affected by the 
SWANCC ruling, as well as the function and values of wetlands and other 
waters that might be affected by the SWANCC ruling.[Footnote 25] The 
Corps and EPA received about 130,000 comments, including those from 
states that estimated that many of the intrastate, nonnavigable waters 
in their states would be considered isolated as a result of the ruling. 
For example, Wisconsin estimated that of its 5.3 million acres of 
wetlands, about 1.1 million would no longer fall under federal 
jurisdiction. Texas estimated that because only about 21 percent of its 
80,000 miles of rivers and streams were perennial, approximately 79 
percent would not be considered navigable and thus subject to federal 
regulation. Similarly, Texas estimated that some of its 304,000 acres 
of inland lakes and reservoirs would no longer be subject to federal 
regulation.[Footnote 26] 

To obtain information to respond to congressional, project proponent, 
and public concerns about how field offices are applying the SWANCC 
ruling, in October 2003, the Corps agreed to an EPA request to document 
all nonjurisdictional determinations. Specifically, beginning in April 
2004, the Corps agreed to have district offices fill out a form for 
each project where the project managers make a nonjurisdictional 
determination and report these on a quarterly basis for 1 year. In 
requesting this information, EPA stated that it would, among other 
things, (1) better enable an assessment of the extent and nature of 
resources impacted by SWANCC, (2) help foster consistent and sound 
decision-making, and (3) help identify issues that might benefit from 
increased headquarters attention or guidance. These nonjurisdictional 
determination forms are being posted on each district's Web site. 
According to a senior regulatory program manager, even though the 
initial 1-year period has elapsed, for the near future the Corps is 
continuing to fill out the form to collect the data. The data being 
collected include: 

* the estimated size of the isolated water or wetland; 

* the approximate size of the project site and its latitude and 
longitude; 

* the name of the waterway where the project site is located; 

* the type of water, such as prairie pothole, playa lake, vernal pool, 
or wetland; 

* whether the water or wetland might be used as habitat for birds 
protected by migratory bird treaties or other migratory birds that 
cross state lines; 

* whether the water would be used as habitat for endangered species; 
and: 

* if the water or wetland is used to irrigate crops sold in interstate 
commerce. 

However, the data being collected by the Corps and EPA is inadequate to 
fully assess the impact of SWANCC on isolated, intrastate, nonnavigable 
waters. Specifically, the data being collected do not reflect the 
actual size of the nonjurisdictional water or wetland or the amount of 
the water or wetland that may be impacted by the project. The data 
collection form directs the project managers to categorize the size of 
the wetland found to be nonjurisdictional as being less than 1 acre, 1 
to 3 acres, 3 to 5 acres, 5 to 10 acres, 10 to 25 acres, 25 to 50 
acres, or greater than 50 acres. Moreover we noted differences in the 
way that project managers are recording the acreage. For example, some 
project managers are including specific information on the number and 
actual size of the wetlands, while others are merely placing checkmarks 
in one of the categories. Additionally, some project managers are 
classifying almost all of the nonjurisdictional waters as wetlands even 
though they may not meet the Corps' definition of a wetland, thereby 
obscuring impacts of SWANCC to both wetland and nonwetland waters. 
Further, the form asks only for the general size of the waters or 
wetlands found to be nonjurisdictional, and not what portion of the 
waters or wetlands on the site will be degraded or destroyed by the 
development. According to project managers, they may not have specific 
information on the project planned by the project proponent at the time 
of the jurisdictional determination and, as a result, may be unable to 
determine how the project will affect the waters or wetlands on the 
site. Further, if none of the waters or wetlands on a project site are 
jurisdictional, a permit is not required under the Clean Water Act, and 
thus, project managers may have little information, if any, about 
specific plans for any eventual development on the site. 

The data being collected on the form also may not provide reliable or 
sufficient information on the functional value of the waters. While the 
form requires that project managers indicate whether the water is or 
could be used as habitat by migratory birds or endangered species, the 
form may not be capturing reliable information because the project 
managers may not always know this information. One project manager said 
he has no expertise on the birds that are protected by migratory bird 
treaties or which species might be endangered; as a result, he was 
unsure how to fill out the form. According to another project manager, 
the staff was discouraged from indicating whether the water could be 
used as habitat by birds or other species unless they had proof that it 
was actually used in this manner. As a result, the data collected by 
the Corps may not accurately reflect the number of instances where the 
Corps has determined that waters and wetlands are nonjurisdictional but 
they may be, or are used as, among other things, habitat by migratory 
birds. 

According to Corps and EPA officials, while they have analyzed some of 
the data collected, to date, limited resources prevent them from 
conducting a more in-depth analysis of the data to assess the impact of 
SWANCC on aquatic resources. Because of limited resources, according to 
a senior regulatory program manager and EPA officials, neither agency 
is planning to conduct a more in-depth analysis of data already 
collected. Even though the 1-year data collection period has expired, 
the Corps is still using the form to collect data for the near term. 
The Corps is, however, re-examining its data collection effort by, for 
example, revising the form, in coordination with EPA, to both shorten 
it and capture more relevant data. According to the senior regulatory 
program manager working on this effort, one of the issues needing to be 
resolved is what data are most relevant. Both EPA and Corps officials 
recognize that the data being collected has its limitations, but they 
stated they did not want any data collection effort to be overly 
burdensome on project managers, given the limited resources available 
to collect and record the data. In addition, a Corps senior regulatory 
program manager said the agency has no mandated authority to further 
collect and analyze the data for nonjurisdictional determinations once 
that determination has been made. Further, doing so only detracts from 
its primary mission of evaluating permits. 

Additional Data Needed to Assess the Impact of SWANCC Is Not Readily 
Available: 

The type of data that would need to be collected to fully assess the 
impact of SWANCC on aquatic resources are either not readily available 
or would take extensive resource investments that neither EPA nor the 
Corps has. For example, data are needed on waters or wetlands that are 
impacted without notification to either the Corps or EPA. According to 
officials from both agencies, since SWANCC, project proponents do not 
always contact the Corps for a jurisdictional determination. Instead, 
they proceed with site development without any notification. Currently, 
neither the Corps nor EPA has a means to determine the extent to which 
this occurs. 

For those project proponents who do notify the Corps, data challenges 
remain extensive. According to several project managers, the Corps 
would need to collect data on the exact acreage of the water determined 
to be isolated, but collecting this information may be problematic if 
the project proponent does not provide it because the Corps lacks 
resources to measure waters over which it has no jurisdiction. Other 
project managers said that data would need to be collected on the 
extent to which the waters, even though they may not have a surface- 
water connection to other waters, are nearby other waters--all of which 
may have an underground water connection. Data are also necessary on 
the nature of the functional value these water systems provide. Several 
other project managers indicated that data would be needed on the 
extent and nature of waters that were considered jurisdictional prior 
to SWANCC to provide a baseline to measure the impact of SWANCC. 
However, project managers said these types of data are either not 
readily obtainable or available. Project managers' concerns about the 
need for additional data were also echoed in a journal of the Society 
of Wetland Scientists. In a series of articles on SWANCC, the society 
identified information gaps and areas for future research that could 
help assess the impact of SWANCC.[Footnote 27] These include the lack 
of (1) a consistent definition of an isolated wetland; (2) knowledge of 
the number and area of isolated wetlands in the United States; (3) 
information on the diversity of isolated wetlands relative to each 
other and to other ecosystems; (4) knowledge about other federal, 
state, tribal, and local programs that may protect isolated wetlands; 
and (5) information on how isolated wetlands, wetland complexes, and 
other at-risk waters contribute, hydrologically, chemically, and 
biologically to "waters of the United States." 

Neither agency believes that it is possible to easily develop and 
readily implement a realistic approach that would allow them to fully 
assess the impact of the ruling on federal jurisdiction under the Clean 
Water Act, given the lack of some data, the vast amount of data that 
would be needed to assess the impact of SWANCC, and current resource 
constraints. However, according to EPA officials, even though the 
agencies may not be able to conduct a thorough assessment of the 
impacts of SWANCC on the nation's aquatic resources, it is important to 
collect data on the number and nature of the Corps' nonjurisdictional 
determinations and make this data publicly available to increase the 
transparency and predictability of nonjurisdictional decisions. 
However, the data collected should not, according to some project 
managers, mislead the public into erroneously concluding what impact 
SWANCC has had on isolated, intrastate, nonnavigable waters. 

Conclusions: 

In the aftermath of SWANCC, the Corps has taken some positive steps to 
increase the consistency, predictability, and openness of its 
jurisdictional determinations. However, although the Corps now requires 
its project managers to include rationales in their files that explain 
how and why the decision that certain waters or wetlands fall within 
federal jurisdiction was made, it does not require similar rationales 
for nonjurisdictional determinations. As stated by Corps appeals review 
officers and the Chief of the Regulatory Branch, the Corps should 
require detailed rationales for all jurisdictional determinations and 
not just those where it is asserting jurisdiction. Without this 
information in the file, the Corps will not be able to easily replicate 
its decisions, limiting its ability to quickly respond to an appeal or 
public inquiry. Furthermore, the lack of guidance from headquarters and 
the lengthy time frames that may be involved in receiving a decision 
from headquarters have discouraged Corps districts from asserting 
jurisdiction using the provisions under 33 C.F.R. § 328.3(a)(3). Since 
January 2001, the Corps and EPA have not been able to agree on the 
procedures the districts should follow when requesting the use of this 
provision to assert jurisdiction and have been unable to develop a 
process for the Corps and EPA to follow when consulting on such 
requests. Until the agencies finalize these procedures, Corps districts 
will have little incentive to use 33 C.F.R. § 328.3(a)(3) as a basis 
for asserting jurisdiction over certain waters and wetlands that may, 
in fact, be subject to Clean Water Act requirements. 

Recommendations for Executive Action: 

To provide greater transparency in the Corps' processes for making 
nonjurisdictional determinations, we are recommending that the 
Secretary of the Army require the Corps to include in its project files 
explanations for nonjurisdictional determinations, as it does for 
jurisdictional determinations, and that these explanations be detailed 
and site-specific. 

To help provide greater clarity to the districts when using 33 C.F.R. § 
328.3(a)(3) as the sole basis for asserting jurisdiction, we are also 
recommending that the Secretary of the Army, through the Corps, and the 
Administrator of EPA complete the process of jointly developing 
procedures that, at a minimum, include guidance for the type of 
information that districts should submit to headquarters, actions each 
agency is responsible for taking, time frames for each agency to 
complete their reviews, and provisions for resolving any interagency 
disagreement. 

Agency Comments and Our Evaluation: 

We provided a draft of this report to the Secretary of the Department 
of Defense and the Administrator of EPA for review and comment. Both 
the Department of Defense and EPA concurred with the report's findings 
and recommendations. In its comments, the Department of Defense stated 
that it is working with EPA to further streamline reporting 
requirements and improve documentation required to support all 
determinations. The department also pointed out that negotiations are 
ongoing to develop procedures for field staff to use when relying on 33 
C.F.R. § 328.3(a)(3) as the sole basis for asserting jurisdiction. In 
its written comments, EPA pointed out that the Corps' practice of 
collecting and posting nonjurisdictional determination information on 
the districts' Web sites has been a part of the two agencies' goal to 
increase transparency, predictability, and consistency of the 
regulatory program. EPA also noted that an important step in achieving 
this goal is for Corps districts and EPA regional offices to work 
closely together on cases involving geographically isolated waters. EPA 
commented that the process for doing so should allow the agencies to 
ensure more consistent application of the regulations, while taking 
into account all relevant information about a particular body of water. 
Both the Department of Defense and EPA provided technical comments and 
clarifications which we incorporated, as appropriate. The Department of 
Defense's and EPA's written comments are presented in appendixes III 
and IV, respectively. 

As agreed with your office, unless you publicly announce the contents 
of this report earlier, we plan no further distribution until 30 days 
from the report date. At that time, we will send copies to interested 
congressional committees and Members of Congress; the Secretary of 
Defense; the Administrator, EPA; and the Chief of Engineers and 
Commander, U.S. Army Corps of Engineers. We will also make copies 
available to others upon request. In addition, the report will be 
available at no charge on GAO's Web site at [Hyperlink, 
http://www.gao.gov]. 

If you or your staff have any questions about this report, please 
contact me at (202) 512-3841 or [Hyperlink, mittala@gao.gov]. Contact 
points for our Offices of Congressional Relations and Public Affairs 
may be found on the last page of this report. GAO staff who made major 
contributions to this report are listed in appendix V. 

Sincerely yours, 

Signed by: 

Anu K. Mittal: 
Director, Natural Resources and Environment: 

[End of section] 

Appendixes: 

Appendix I: Scope and Methodology: 

To identify the processes and data the U.S. Army Corps of Engineers 
(the Corps) uses to make jurisdictional determinations, we reviewed 
federal regulations and the Corps' related guidance. We also 
interviewed Corps officials in headquarters and 5 of the Corps' 38 
districts--Chicago; Galveston, Texas; Jacksonville, Florida; Omaha, 
Nebraska; and St. Paul. We selected 4 of the 5 districts because they 
made more nonjurisdictional determinations between April and December 
2004 than any of the other 38 districts. We selected the fifth 
district--Galveston--because it also accounted for a large number of 
nonjurisdictional determinations and was located in a geographic region 
different than the other four districts. Altogether, these five 
districts accounted for 58 percent of the nonjurisdictional 
determinations the Corps made between April and December 2004. This 
time period was selected because data on the Corps' nonjurisdictional 
determinations were not readily available before April 2004. 

To determine the extent to which the Corps documents its decisions when 
it concludes that it does not have jurisdiction over certain waters and 
wetlands, we reviewed 770 project files in the five selected districts 
where the agency determined, between April and December 2004, that it 
did not have jurisdiction over some or all of the waters on those 
project sites. Specifically, we reviewed 150 files in the Chicago 
District, 65 in the Galveston District, 140 in the Jacksonville 
District, 257 in the Omaha District, and 158 in the St. Paul District. 
We used a data collection instrument to record specific data for each 
of the files, such as whether a site visit was conducted, a consultant 
was used by the project proponent, the project manager indicated what 
data were reviewed in the course of making a determination, and the 
different types of data that were included in the file. We also 
interviewed appeals review officers who review project files in the 
five districts to determine what documentation they believe is 
necessary to include in project files. We obtained this information 
from the appeals review officers because, until promulgating a 
standardized form in August 2004, the Corps had no guidance on what 
information on jurisdictional determinations should be contained in 
project files. Further, the Corps has no guidance on what a rationale 
should include. In addition, we contacted the appeals review officers 
because they are the agency's internal quality assurance check to 
ensure that the Corps' administrative records fully support 
jurisdictional determinations. We used the appeals review officers' 
views on what information should be included in project files, 
including what constitutes a detailed rationale, as criteria in 
reviewing the files and categorizing each of the 770 files as having no 
rationale, a partial rationale, or a detailed rationale. To ensure that 
our initial file reviews were accurate, we randomly selected a minimum 
of 10 percent of the files and independently reviewed them a second 
time by comparing the information recorded in the data collection 
instrument to the original file to ensure that the information entered 
into the data collection instrument was accurate and that our 
assessment of the project manager's rationale was reasonable. In 
reviewing the project files and analyzing project managers' rationales, 
we did not evaluate whether project managers' determinations were 
correct. We also did not evaluate whether the information available to 
the project managers in making their jurisdictional determinations was 
sufficient. 

To identify the process the Corps uses to allocate resources for making 
jurisdictional determinations, we reviewed its standard operating 
procedures and related guidance for carrying out the Corps' section 404 
regulatory program. We also interviewed Corps officials who are 
responsible, in headquarters and each of the five selected districts, 
for preparing resource estimates for carrying out the program. In 
addition, we obtained data on the number of resources allocated to the 
Corps and each of the districts as well as workload data, including the 
number of determinations made by the districts, for fiscal years 2002 
and 2003. Finally, to obtain a broad overview of the program, we 
obtained historical program statistics for fiscal years 1997 through 
2004. 

To determine the extent to which the Corps is asserting jurisdiction 
over isolated, intrastate, nonnavigable waters using its remaining 
authority in 33 C.F.R. § 328.3(a)(3), we interviewed Corps and 
Environmental Protection Agency (EPA) officials in headquarters to 
identify the number and nature of cases that have been submitted to 
headquarters between January 2003 and July 2005 for approval. We also 
interviewed district officials to determine the circumstances under 
which they would ask to assert jurisdiction using these Corps 
regulations and whether they had sought formal project-specific 
headquarters approval prior to using them. 

To determine the extent to which the Corps and EPA are collecting data 
to assess the impact of Solid Waste Agency of Northern Cook County v. 
U.S. Army Corps of Engineers (SWANCC), we interviewed Corps and EPA 
officials at their respective headquarters to identify what actions 
have been taken or are planned to assess the impact. We also obtained 
and reviewed forms being used to collect data on nonjurisdictional 
determinations made since April 2004. In addition, we interviewed Corps 
project managers to determine their views on the impact of SWANCC, 
whether data being collected were sufficient to assess the impact of 
SWANCC, and what data should be analyzed to assess the impact. 

We conducted our work from June 2004 through July 2005 in accordance 
with generally accepted government auditing standards. 

[End of section] 

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

This appendix provides detailed information on the results of our 
review of 770 files in five Corps district offices--Chicago; Galveston, 
Texas; Jacksonville, Florida; Omaha, Nebraska; and St. Paul. Table 1 
summarizes the number of nonjurisdictional determination files we 
reviewed in the five districts. 

Table 1: Nonjurisdictional Determination Files Reviewed in Five Corps 
Districts: 

Corps district: Chicago; 
Number of files reviewed: 150. 

Corps district: Galveston; 
Number of files reviewed: 65. 

Corps district: Jacksonville; 
Number of files reviewed: 140. 

Corps district: Omaha; 
Number of files reviewed: 257. 

Corps district: St. Paul; 
Number of files reviewed: 158. 

Total; 
Number of files reviewed: 770. 

Source: GAO analysis of Corps project files. 

[End of table] 

Tables 2 through 6 summarize the types of data we found in the files we 
reviewed in the five districts. 

Table 2: Project Files That Contained Topographic Maps, by District: 

Corps district: Chicago; 
Files that contained topographic maps: Yes: Number: 119; 
Files that contained topographic maps: Yes: Percent: 79.3%; 
Files that contained topographic maps: No: Number: 31; 
Files that contained topographic maps: No: Percent: 20.7%; 
Total: 150. 

Corps district: Galveston; 
Files that contained topographic maps: Yes: Number: 58; 
Files that contained topographic maps: Yes: Percent: 89.2%; 
Files that contained topographic maps: No: Number: 7; 
Files that contained topographic maps: No: Percent: 10.8%; 
Total: 65. 

Corps district: Jacksonville; 
Files that contained topographic maps: Yes: Number: 89; 
Files that contained topographic maps: Yes: Percent: 63.6%; 
Files that contained topographic maps: No: Number: 51; 
Files that contained topographic maps: No: Percent: 36.4%; 
Total: 140. 

Corps district: Omaha; 
Files that contained topographic maps: Yes: Number: 184; 
Files that contained topographic maps: Yes: Percent: 71.6%; 
Files that contained topographic maps: No: Number: 73; 
Files that contained topographic maps: No: Percent: 28.4%; 
Total: 257. 

Corps district: St. Paul; 
Files that contained topographic maps: Yes: Number: 140; 
Files that contained topographic maps: Yes: Percent: 88.6%; 
Files that contained topographic maps: No: Number: 18; 
Files that contained topographic maps: No: Percent: 11.4%; 
Total: 158. 

Source: GAO analysis of Corps project files. 

[End of table] 

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

Corps district: Chicago; 
Files that contained soils survey maps: Yes: Number: 123; 
Files that contained soils survey maps: Yes: Percent: 82.0%; 
Files that contained soils survey maps: No: Number: 27; 
Files that contained soils survey maps: No: Percent: 18.0%; 
Total: 150. 

Corps district: Galveston; 
Files that contained soils survey maps: Yes: Number: 39; 
Files that contained soils survey maps: Yes: Percent: 60.0%; 
Files that contained soils survey maps: No: Number: 26; 
Files that contained soils survey maps: No: Percent: 40.0%; 
Total: 65. 

Corps district: Jacksonville; 
Files that contained soils survey maps: Yes: Number: 75; 
Files that contained soils survey maps: Yes: Percent: 53.6%; 
Files that contained soils survey maps: No: Number: 65; 
Files that contained soils survey maps: No: Percent: 46.4%; 
Total: 140. 

Corps district: Omaha; 
Files that contained soils survey maps: Yes: Number: 43; 
Files that contained soils survey maps: Yes: Percent: 16.7%; 
Files that contained soils survey maps: No: Number: 214; 
Files that contained soils survey maps: No: Percent: 83.3%; 
Total: 257. 

Corps district: St. Paul; 
Files that contained soils survey maps: Yes: Number: 124; 
Files that contained soils survey maps: Yes: Percent: 78.5%; 
Files that contained soils survey maps: No: Number: 34; 
Files that contained soils survey maps: No: Percent: 21.5%; 
Total: 158. 

Source: GAO analysis of Corps project files. 

[End of table] 

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

Corps district: Chicago; 
Files that contained wetlands inventory maps: Yes: Number: 135; 
Files that contained wetlands inventory maps: Yes: Percent: 90.0%; 
Files that contained wetlands inventory maps: No: Number: 15; 
Files that contained wetlands inventory maps: No: Percent: 10.0%; 
Total: 150. 

Corps district: Galveston; 
Files that contained wetlands inventory maps: Yes: Number: 38; 
Files that contained wetlands inventory maps: Yes: Percent: 58.5%; 
Files that contained wetlands inventory maps: No: Number: 27; 
Files that contained wetlands inventory maps: No: Percent: 41.5%; 
Total: 65. 

Corps district: Jacksonville; 
Files that contained wetlands inventory maps: Yes: Number: 15; 
Files that contained wetlands inventory maps: Yes: Percent: 10.7%; 
Files that contained wetlands inventory maps: No: Number: 125; 
Files that contained wetlands inventory maps: No: Percent: 89.3%; 
Total: 140. 

Corps district: Omaha; 
Files that contained wetlands inventory maps: Yes: Number: 94; 
Files that contained wetlands inventory maps: Yes: Percent: 36.6%; 
Files that contained wetlands inventory maps: No: Number: 163; 
Files that contained wetlands inventory maps: No: Percent: 63.4%; 
Total: 257. 

Corps district: St. Paul; 
Files that contained wetlands inventory maps: Yes: Number: 119; 
Files that contained wetlands inventory maps: Yes: Percent: 75.3%; 
Files that contained wetlands inventory maps: No: Number: 39; 
Files that contained wetlands inventory maps: No: Percent: 24.7%; 
Total: 158. 

Source: GAO analysis of Corps project files. 

[End of table] 

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

Corps district: Chicago; 
Files that contained aerial photographs: Yes: Number: 137; 
Files that contained aerial photographs: Yes: Percent: 91.3%; 
Files that contained aerial photographs: No: Number: 13; 
Files that contained aerial photographs: No: Percent: 8.7%; 
Total: 150. 

Corps district: Galveston; 
Files that contained aerial photographs: Yes: Number: 59; 
Files that contained aerial photographs: Yes: Percent: 90.8%; 
Files that contained aerial photographs: No: Number: 6; 
Files that contained aerial photographs: No: Percent: 9.2%; 
Total: 65. 

Corps district: Jacksonville; 
Files that contained aerial photographs: Yes: Number: 119; 
Files that contained aerial photographs: Yes: Percent: 85.0%; 
Files that contained aerial photographs: No: Number: 21; 
Files that contained aerial photographs: No: Percent: 15.0%; 
Total: 140. 

Corps district: Omaha; 
Files that contained aerial photographs: Yes: Number: 112; 
Files that contained aerial photographs: Yes: Percent: 43.6%; 
Files that contained aerial photographs: No: Number: 145; 
Files that contained aerial photographs: No: Percent: 56.4%; 
Total: 257. 

Corps district: St. Paul; 
Files that contained aerial photographs: Yes: Number: 135; 
Files that contained aerial photographs: Yes: Percent: 85.4%; 
Files that contained aerial photographs: No: Number: 23; 
Files that contained aerial photographs: No: Percent: 14.6%; 
Total: 158. 

Source: GAO analysis of Corps project files. 

[End of table] 

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

Corps district: Chicago; 
Files that contained ground photographs: Yes: Number: 95; 
Files that contained ground photographs: Yes: Percent: 63.3%; 
Files that contained ground photographs: No: Number: 55; 
Files that contained ground photographs: No: Percent: 36.7%; 
Total: 150. 

Corps district: Galveston; 
Files that contained ground photographs: Yes: Number: 35; 
Files that contained ground photographs: Yes: Percent: 53.9%; 
Files that contained ground photographs: No: Number: 30; 
Files that contained ground photographs: No: Percent: 46.2%; 
Total: 65. 

Corps district: Jacksonville; 
Files that contained ground photographs: Yes: Number: 36; 
Files that contained ground photographs: Yes: Percent: 25.7%; 
Files that contained ground photographs: No: Number: 104; 
Files that contained ground photographs: No: Percent: 74.3%; 
Total: 140. 

Corps district: Omaha; 
Files that contained ground photographs: Yes: Number: 103; 
Files that contained ground photographs: Yes: Percent: 40.1%; 
Files that contained ground photographs: No: Number: 154; 
Files that contained ground photographs: No: Percent: 59.9%; 
Total: 257. 

Corps district: St. Paul; 
Files that contained ground photographs: Yes: Number: 51; 
Files that contained ground photographs: Yes: Percent: 32.3%; 
Files that contained ground photographs: No: Number: 107; 
Files that contained ground photographs: No: Percent: 67.7%; 
Total: 158. 

Source: GAO analysis of Corps project files. 

[End of table] 

Most of the project proponents relied on the use of consultants to 
prepare or help prepare their jurisdictional requests or permit 
applications. The Omaha District had the fewest number of requests or 
applications that were prepared, in part, by consultants. Table 7 
summarizes the number of project proponents that relied on the use of 
consultants. 

Table 7: Project Proponents That Relied on the Use of Consultants, by 
District: 

Corps district: Chicago; 
Consultant used: Yes: Number: 140; 
Consultant used: Yes: Percent: 93.3%; 
Consultant used: No: Number: 10; 
Consultant used: No: Percent: 6.7%; 
Total: 150. 

Corps district: Galveston; 
Consultant used: Yes: Number: 47; 
Consultant used: Yes: Percent: 72.3%; 
Consultant used: No: Number: 18; 
Consultant used: No: Percent: 27.7%; 
Total: 65. 

Corps district: Jacksonville; 
Consultant used: Yes: Number: 131; 
Consultant used: Yes: Percent: 93.6%; 
Consultant used: No: Number: 9; 
Consultant used: No: Percent: 6.4%; 
Total: 140. 

Corps district: Omaha; 
Consultant used: Yes: Number: 140; 
Consultant used: Yes: Percent: 54.9%; 
Consultant used: No: Number: 115; 
Consultant used: No: Percent: 45.1%; 
Total: 255[A]. 

Corps district: St. Paul; 
Consultant used: Yes: Number: 113; 
Consultant used: Yes: Percent: 71.5%; 
Consultant used: No: Number: 45; 
Consultant used: No: Percent: 28.5%; 
Total: 158. 

Source: GAO analysis of Corps project files. 

[A] We were unable to determine whether two project proponents relied 
on the use of consultants. 

[End of table] 

Project managers can conduct site visits in the course of making their 
jurisdictional determinations. The percentage of projects where site 
visits were conducted varied by district, with fewer site visits being 
conducted in St. Paul and Omaha. The St. Paul District encompasses two 
states, while the Omaha District has all or portions of six states. 
More site visits were conducted in the Chicago District, which covers a 
six-county area. The Jacksonville District also conducted site visits 
for the majority of its determinations. Even though this district 
encompasses the entire state, it has 12 field offices located around 
the state to reduce the geographic distance to project sites. Table 8 
summarizes the number of projects where project managers conducted a 
site visit in each of the districts we visited. 

Table 8: Projects Where the Project Manager Conducted a Site Visit, by 
District: 

Corps district: Chicago; 
Site visit conducted: Yes: Number: 124; 
Site visit conducted: Yes: Percent: 83.8%; 
Site visit conducted: No: Number: 24; 
Site visit conducted: No: Percent: 16.2%; 
Total: 148[A]. 

Corps district: Galveston; 
Site visit conducted: Yes: Number: 30; 
Site visit conducted: Yes: Percent: 46.2%; 
Site visit conducted: No: Number: 35; 
Site visit conducted: No: Percent: 53.8%; 
Total: 65. 

Corps district: Jacksonville; 
Site visit conducted: Yes: Number: 95; 
Site visit conducted: Yes: Percent: 68.8%; 
Site visit conducted: No: Number: 43; 
Site visit conducted: No: Percent: 31.2%; 
Total: 138[A]. 

Corps district: Omaha; 
Site visit conducted: Yes: Number: 110; 
Site visit conducted: Yes: Percent: 43.5%; 
Site visit conducted: No: Number: 143; 
Site visit conducted: No: Percent: 56.5%; 
Total: 253[B]. 

Corps district: St. Paul; 
Site visit conducted: Yes: Number: 53; 
Site visit conducted: Yes: Percent: 33.5%; 
Site visit conducted: No: Number: 105; 
Site visit conducted: No: Percent: 66.5%; 
Total: 158. 

Source: GAO analysis of Corps project files. 

[A] We were unable to determine if site visits were conducted on two 
projects. 

[B] We were unable to determine if site visits were conducted on four 
projects. 

[End of table] 

According to Corps appeals review officers, project files should 
clearly identify what data were used by project managers in the course 
of making their determinations, so that the data can be readily 
replicated if necessary. Even so, districts varied widely in the extent 
to which the project files contained this clear identification, as 
shown in table 9. Of all the districts, the Chicago District clearly 
identified the data used in almost all of the project files we 
reviewed. 

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

Corps district: Chicago; 
Amount of data clearly identified by the project manager: None: Number: 
0; 
Amount of data clearly identified by the project manager: None: 
Percent: 0.0%; 
Amount of data clearly identified by the project manager: Some: Number: 
4; 
Amount of data clearly identified by the project manager: Some: 
Percent: 2.7%; 
Amount of data clearly identified by the project manager: All: Number: 
146; 
Amount of data clearly identified by the project manager: All: Percent: 
97.3%; 
Amount of data clearly identified by the project manager: Total number: 
150. 

Corps district: Galveston; 
Amount of data clearly identified by the project manager: None: Number: 
21; 
Amount of data clearly identified by the project manager: None: 
Percent: 32.3%; 
Amount of data clearly identified by the project manager: Some: Number: 
25; 
Amount of data clearly identified by the project manager: Some: 
Percent: 38.4%; 
Amount of data clearly identified by the project manager: All: Number: 
19; 
Amount of data clearly identified by the project manager: All: Percent: 
29.2%; 
Amount of data clearly identified by the project manager: Total number: 
65. 

Corps district: Jacksonville; 
Amount of data clearly identified by the project manager: None: Number: 
40; 
Amount of data clearly identified by the project manager: None: 
Percent: 28.6%; 
Amount of data clearly identified by the project manager: Some: Number: 
55; 
Amount of data clearly identified by the project manager: Some: 
Percent: 39.3%; 
Amount of data clearly identified by the project manager: All: Number: 
45; 
Amount of data clearly identified by the project manager: All: Percent: 
32.1%; 
Amount of data clearly identified by the project manager: Total number: 
140. 

Corps district: Omaha; 
Amount of data clearly identified by the project manager: None: Number: 
139; 
Amount of data clearly identified by the project manager: None: 
Percent: 54.1%; 
Amount of data clearly identified by the project manager: Some: Number: 
112; 
Amount of data clearly identified by the project manager: Some: 
Percent: 43.6%; 
Amount of data clearly identified by the project manager: All: Number: 
6; 
Amount of data clearly identified by the project manager: All: Percent: 
2.3%; 
Amount of data clearly identified by the project manager: Total number: 
257. 

Corps district: St. Paul; 
Amount of data clearly identified by the project manager: None: Number: 
62; 
Amount of data clearly identified by the project manager: None: 
Percent: 39.2%; 
Amount of data clearly identified by the project manager: Some: Number: 
86; 
Amount of data clearly identified by the project manager: Some: 
Percent: 54.4%; 
Amount of data clearly identified by the project manager: All: Number: 
10; 
Amount of data clearly identified by the project manager: All: Percent: 
6.3%; 
Amount of data clearly identified by the project manager: Total number: 
158. 

Source: GAO analysis of Corps project files. 

[End of table] 

According to Corps appeals review officers, project files should also 
contain a basis for asserting or not asserting jurisdiction over any 
water or wetland on the project site. A basis is the regulatory 
authority used for asserting jurisdiction, or the reason for not 
asserting jurisdiction. As shown in table 10, almost all of the files 
we reviewed contained the basis for the determinations. 

Table 10: Files That Contained a Basis for the Determination in the 
Five Corps Districts: 

Corps district: Chicago; 
Basis for determination: Yes: Number: 150; 
Basis for determination: Yes: Percent: 100%; 
Basis for determination: No: Number: 0; 
Basis for determination: No: Percent: 0.0%; 
Total: 150. 

Corps district: Galveston; 
Basis for determination: Yes: Number: 63; 
Basis for determination: Yes: Percent: 96.9%; 
Basis for determination: No: Number: 2; 
Basis for determination: No: Percent: 3.1%; 
Total: 65. 

Corps district: Jacksonville; 
Basis for determination: Yes: Number: 140; 
Basis for determination: Yes: Percent: 100%; 
Basis for determination: No: Number: 0; 
Basis for determination: No: Percent: 0.0%; 
Total: 140. 

Corps district: Omaha; 
Basis for determination: Yes: Number: 247; 
Basis for determination: Yes: Percent: 96.1%; 
Basis for determination: No: Number: 10; 
Basis for determination: No: Percent: 3.9%; 
Total: 257. 

Corps district: St. Paul; 
Basis for determination: Yes: Number: 147; 
Basis for determination: Yes: Percent: 93.0%; 
Basis for determination: No: Number: 11; 
Basis for determination: No: Percent: 7.0%; 
Total: 158. 

Source: GAO analysis of Corps project files. 

[End of table] 

According to Corps appeals review officers, in addition to a clear 
identification of data used and a basis for the determination, project 
files should contain a detailed rationale for the determination. A 
detailed rationale is one that is site-specific, references data used 
and how that data led to the project manager's conclusion, and cites 
district policy with respect to district-specific practices for 
asserting jurisdiction over waters, such as what conditions must be met 
for a water to be adjacent to a "water of the United States." Few 
files, however, contained a detailed rationale. The Galveston District 
had the largest percentage of project files that contained a detailed 
rationale. Table 11 summarizes the types of rationales included in the 
project files we reviewed in the five districts. 

Table 11: Files That Contained No, a Partial, or a Detailed Rationale 
in the Five Corps Districts: 

Corps district: Chicago; 
Type of rationale included by the project manager: None: Number: 74; 
Type of rationale included by the project manager: None: Percent: 
49.3%; 
Type of rationale included by the project manager: Partial: Number: 69; 
Type of rationale included by the project manager: Partial: Percent: 
46.0%; 
Type of rationale included by the project manager: Detailed: Number: 7; 
Type of rationale included by the project manager: Detailed: Percent: 
4.7%; 
Type of rationale included by the project manager: Total number: 150. 

Corps district: Galveston; 
Type of rationale included by the project manager: None: Number: 11; 
Type of rationale included by the project manager: None: Percent: 
16.9%; 
Type of rationale included by the project manager: Partial: Number: 34; 
Type of rationale included by the project manager: Partial: Percent: 
52.3%; 
Type of rationale included by the project manager: Detailed: Number: 
20; 
Type of rationale included by the project manager: Detailed: Percent: 
30.8%; 
Type of rationale included by the project manager: Total number: 65. 

Corps district: Jacksonville; 
Type of rationale included by the project manager: None: Number: 17; 
Type of rationale included by the project manager: None: Percent: 
12.1%; 
Type of rationale included by the project manager: Partial: Number: 
116; 
Type of rationale included by the project manager: Partial: Percent: 
82.9%; 
Type of rationale included by the project manager: Detailed: Number: 7; 
Type of rationale included by the project manager: Detailed: Percent: 
5.0%; 
Type of rationale included by the project manager: Total number: 140. 

Corps district: Omaha; 
Type of rationale included by the project manager: None: Number: 67; 
Type of rationale included by the project manager: None: Percent: 
26.1%; 
Type of rationale included by the project manager: Partial: Number: 
179; 
Type of rationale included by the project manager: Partial: Percent: 
69.6%; 
Type of rationale included by the project manager: Detailed: Number: 
11; 
Type of rationale included by the project manager: Detailed: Percent: 
4.3%; 
Type of rationale included by the project manager: Total number: 257. 

Corps district: St. Paul; 
Type of rationale included by the project manager: None: Number: 22; 
Type of rationale included by the project manager: None: Percent: 
13.9%; 
Type of rationale included by the project manager: Partial: Number: 
128; 
Type of rationale included by the project manager: Partial: Percent: 
81.0%; 
Type of rationale included by the project manager: Detailed: Number: 8; 
Type of rationale included by the project manager: Detailed: Percent: 
5.1%; 
Type of rationale included by the project manager: Total number: 158. 

Source: GAO analysis of Corps project files. 

[End of table] 

[End of section] 

Appendix III: Comments from the Department of the Army: 

DEPARTMENT OF THE ARMY: 
OFFICE OF THE ASSISTANT SECRETARY: 
CIVIL WORKS: 
108 ARMY PENTAGON: 
WASHINGTON DC 20310-0108: 

Ms. Anu Mittal: 
Director:
Natural Resource and Environment: 
U.S. General Accountability Office: 
441 G Street, N.W.
Washington, D.C. 20548-1000: 

August 19, 2005: 

Dear Ms. Mittal: 

This is our response to the Government Accountability Office (GAO) 
draft report, "WATERS AND WETLANDS: Corps of Engineers Needs to Better 
Support Its Decisions for Not Asserting Jurisdiction," dated September 
2005, (GAO-05-870). 

The GAO report was prepared to examine the: (1) process and data the 
Corps of Engineers (Corps) uses for making jurisdictional 
determinations; (2) extent to which the Corps documents decisions that 
it does not have jurisdiction; (3) extent to which the Corps is using 
its remaining authority to assert jurisdiction over certain isolated, 
intrastate, non-navigable waters; and (4) extent to which the Corps and 
the Environmental Protection Agency (EPA) are collecting data to assess 
the impact of the U.S. Supreme Court decision in Solid Waste Agency of 
Northern Cook County v. U.S. Army Corps of Engineers, 531 U.S. 159 
(2001) (SWANCC). The report identifies that Corps project managers will 
use existing data sources to preliminarily assess jurisdiction. When 
the existing data cannot support a determination, the report notes that 
Corps project managers then will conduct a field visit to support a 
determination. In general, the report concludes that more documentation 
is provided and available in project files for determinations of 
jurisdiction as compared to determinations of no jurisdiction. In 
addition, the report indicates that the Corps is not asserting 
jurisdiction generally over isolated, intrastate, non-navigable waters 
using its remaining authorities, due to a lack of guidance from Army 
Corps of Engineers Headquarters (HQ) and perceptions that they should 
not be doing so. And finally, the report notes that limited information 
is being collected to comprehensively assess the impacts of SWANCC. As 
a consequence of this investigation, the GAO recommends that the Corps 
require district offices to include detailed rationales for non 
jurisdictional determinations in their files and finalize with the EPA 
the additional guidance that will help the districts make certain 
jurisdictional determinations. 

In April 2004, the Corps in concert with the EPA developed a reporting 
sheet to document determinations of no jurisdiction. Information 
included on the sheet includes basic information about the project 
site, onsite resource types and projected sizes, and basis for not 
asserting jurisdiction over the onsite resources. The objective of this 
reporting sheet was to develop procedures to improve the consistency, 
predictability, and openness of jurisdictional determination reporting 
practices. By documenting determinations of no jurisdiction, as based 
on the sole use of the Migratory Bird Rule, we are establishing a 
baseline record for evaluations reviewed by the Corps field staff. It 
is important to note that this reporting sheet was not developed to 
comprehensively assess the aquatic resource impacts of SWANCC. Due to 
overall positive response from the public on the reporting sheet, the 
Corps, in August 2005 established a second reporting sheet to 
standardize documentation requirements for all determinations of 
jurisdiction. In addition, district offices were required to make these 
forms publicly available on their local regulatory web pages. Based on 
the data collected and gaps identified over the past year, we have 
engaged in discussions with the EPA to further streamline reporting 
requirements as well as improve documentation required to support a 
decision. Again, these final actions will be made available to the 
public. 

On January 31, 2005, the Army, to further encourage district field 
staff to seek HQ-level review for determinations under 33 C.F.R. 328.3 
(a)(3) provided the EPA with a draft Memorandum of Agreement (MOA) to 
establish a procedure for HQ-level review to determine whether a 
particular waterbody or wetland is subject to Clean Water Act (CWA) 
jurisdiction under 33 C.F.R. 328.3 (a)(3). The procedure outlined in 
the MOA provides a predictable and consistent approach for reviewing 
CWA jurisdiction over these waters in a timely manner and ensure the 
review process is open to the public. We will continue to work with EPA 
in developing an instrument to support the review process recommended 
in the January 15, 2003 Advance Notice of Proposed Rulemaking guidance. 

The Assistant Secretary of the Army (Civil Works) and the Army Corps of 
Engineers generally concur with your findings regarding practices for 
determining and documenting CWA jurisdiction. With respect to the 
recommendations, we have had several discussions with the EPA to 
identify measures to streamline as well as improve reporting 
requirements for determinations of jurisdiction. Additional discussions 
have occurred with the EPA to develop procedures to support 
determinations under 33 C.F.R. 328.3(a)(3)(i)-(iii). In both cases, 
negotiations are ongoing. Our goal is to develop processes and 
reporting strategies to ensure the Corps achieves the highest level of 
consistency and predictability possible given inherently different 
characteristics of aquatic resources in different locations, while 
providing the public with the greatest opportunity for understanding 
the basis for jurisdictional determinations so that full compliance 
with the CWA is encouraged, with the goal of increasing the 
effectiveness, efficiency and responsiveness of the Army's regulatory 
program. 

Very truly yours, 

Signed by: 

John Paul Woodley, Jr.: 
Assistant Secretary of the Army:
(Civil Works): 

Enclosure: 

GAO DRAFT REPORT - DATED SEPTEMBER 2005 GAO-05-870: 

"WATERS AND WETLANDS: Corps of Engineers Needs to Better Support Its 
Decisions for Not Asserting Jurisdiction": 

ASSISTANT SECRETARY OF THE ARMY (CIVIL WORKS) COMMENTS TO THE 
RECOMMENDATIONS: 

RECOMMENDATION 1: The GAO recommended that the Corps require district 
offices to include detailed rationales for non jurisdictional 
determinations in their files. 

ASSISTANT SECRETARY OF THE ARMY (CIVIL WORKS): We concur with your 
recommendation. To support this recommendation, it is important to note 
that the Corps and the EPA have had several discussions to date on how 
to streamline the reporting process for determinations of jurisdiction. 
It is envisioned that the Jurisdictional Information Sheet and the Non- 
Jurisdictional Information Sheet will be combined to report all data on 
one reporting sheet. Additional revisions will occur to further support 
the decision-making process, based on data collected and gaps 
identified over the previous year. In addition, information obtained 
from the Corps comprehensive survey conducted to support the "WATERS 
AND WETLANDS: Corps of Engineers Needs To Evaluate its District Office 
Practices in Determining Jurisdiction," will be used to further clarify 
reporting requirements. Our goal is to develop a reporting strategy to 
ensure the Corps is achieving the highest level of consistency and 
predictability possible, while providing the public with the greatest 
opportunity for understanding the basis for jurisdictional 
determinations so that full compliance with the Clean Water Act is 
encouraged. 

RECOMMENDATION 2: The GAO recommended that the Corps finalize with EPA 
the additional guidance that will help the districts make certain 
jurisdictional determinations under 33 C.F.R. 328.3(a)(3)(i)-(iii). 

ASSISTANT SECRETARY OF THE ARMY (CIVIL WORKS): We concur with your 
recommendation, and we will continue to work with the EPA to finalize a 
procedure to support a HQ-level determination under 33 C.F.R. 
328.3(a)(3)(i)-(iii). The guidance shall identify information to be 
submitted from the field to support a HQ-level review and outline HQ- 
level review procedures that establish processing requirements and 
timelines, with the goal of increasing the effectiveness, efficiency 
and responsiveness of the regulatory program. 

[End of section] 

Appendix IV: Comments from the Environmental Protection Agency: 

UNITED STATES ENVIRONMENTAL PROTECTION AGENCY:
OFFICE OF WATER:
WASHINGTON, D.C. 20460: 

AUG 15 2005: 

Ms. Ann K. Mittal:
Director, Natural Resources and Environment:
United States Government Accountability Office (GAO): 
Washington, DC 20548: 

Dear Ms. Mittal: 

Thank you for the opportunity to review and comment on the draft report 
entitled "Corps of Engineers Needs to Better Support Its Decisions for 
Not asserting Jurisdiction." The draft report focuses on implementation 
of the Clean Water Act (CWA) section 404 program, with particular focus 
on determinations of whether particular waters are subject to CWA 
jurisdiction after the U.S. Supreme Court decision in Solid Waste 
Agency of Northern Cook County (SWANCC). The Environmental Protection 
Agency (EPA) welcomes an opportunity to comment on the report, and to 
provide the broader CWA perspective for its discussion. 

The CWA section 404 program requires permits for discharges of dredged 
or fill material into "waters of the US." The draft GAO report 
emphasizes the challenges faced by Corps of Engineers Districts since 
the SWANCC decision, which held that the CWA does not authorize 
protection of isolated, intrastate, non-navigable waters based solely 
on the presence of migratory birds. While the SWANCC decision did not 
create the programmatic and scientific challenges posed by 
jurisdictional determinations (e.g., what factors are relevant in 
determining whether a water is tributary), the decision did highlight 
areas of the existing regulations that had previously not been the 
focus of scrutiny. 

The Corps of Engineers and EPA are committed to improving the 
transparency, predictability, and consistency of the CWA section 404 
program. The agencies have taken a number of steps towards this goal. 

One such step is the Corps District practice of collecting and posting 
on their websites information regarding determinations that a 
particular water is non jurisdictional. The form used for non 
jurisdictional postings calls for the precise location of the aquatic 
resource in question, name of regulatory project manager, whether field 
visits were conducted as part of the analysis, general information on 
the type and extent of aquatic resources, and an assessment of whether 
"Migratory Bird Rule" factors were potentially present at the site. 

The draft GAO report criticizes the Corps no jurisdiction form, 
concluding that it collects insufficient data to provide a 
comprehensive assessment, but instead focuses on the legal rationale 
that is the basis for the jurisdiction decision. EPA agrees that files 
should contain complete data to support the decision and the technical 
and legal basis for non jurisdictional decisions. National use of a 
form and public posting on the internet helps the Corps, EPA, and the 
general public better understand the basis and reasoning for District 
no-jurisdiction determinations. Prior to the Corps Districts' 
systematic use and posting of the no-jurisdiction form, findings of no-
jurisdiction were dispersed throughout District Office files, often in 
hardcopy only, and effectively unavailable for broader analysis or 
ready public access. Development and continued use of the no-
jurisdiction form has been an important part of the two agencies' 
efforts to increase transparency, predictability, and consistency of 
the section 404 program. EPA has analyzed the data and is using it in 
internal program management. 

Another important step in those efforts is to work closely with field 
staff in Corps Districts and EPA Regional offices regarding 
jurisdictional calls involving geographically isolated waters, which is 
the category of waters at issue in SWANCC. As the draft GAO report 
recognizes, field staff are to obtain formal headquarters approval 
prior to asserting CWA jurisdiction over intrastate, isolated, non- 
navigable waters based solely on links to interstate commerce. This 
process was designed to allow the agencies to ensure more consistent 
application of the regulations, while taking into account all relevant 
information about a particular body of water. 

We agree with the draft GAO report's emphasis on the importance of 
effective data collection and management, and public access to 
jurisdictional and other permitting decisions. The Corps is in the 
process of enhancing and standardizing incorporation of its permit 
program data into its new nationwide Ombil Regulatory Module (ORM) 
database. Plans are also underway to geospatially-enable data 
management and permit decision support in an enhanced system currently 
described as Geospatial-ORM, or g-ORM. A central part of upgrading ORM 
to g-ORM is establishing mechanisms, such as web services and internet 
mapping tools, to share wetland and aquatic resource permit data 
collected by the Corps with State, Tribal and local resource agencies 
and the public. EPA is working with the Corps as it makes the 
nationwide conversion to ORM and the subsequent upgrade to g-ORM, 
providing some funding but particularly by analyzing potential ways in 
which g-ORM can be integrated with EPA's Watershed Assessment, Tracking 
and Environmental Results (WATERS) database. WATERS is an information 
system that coordinates and summarizes information about water quality 
and administrative determinations (such as identification of 
impairments pursuant to CWA Section 303(d). EPA and the Corps believe 
that integrating this information will improve understanding of the 
impacts of decisions on aquatic resources. 

In closing, EPA appreciates the information provided in the draft 
report. We are committed to taking actions that further advance 
transparency, predictability, and consistency of the CWA section 404 
program. 

Thank you again for the opportunity to comment on your draft report. 

Sincerely, 

Signed for: 

Diane Regas, Director:
Office of Wetlands, Oceans, and Watersheds: 

[End of section] 

Appendix V: GAO Contact and Staff Acknowledgments: 

GAO Contact: 

Anu K. Mittal, (202) 512-3841: 

Staff Acknowledgments: 

In addition to the contact named above, Doreen Feldman, Curtis Groves, 
Anne Rhodes-Kline, Sherry McDonald, Ken McDowell, Marcia Brouns 
McWreath, Greg Peterson, Jerry Sandau, Carol Hernstadt Shulman, and 
Rebecca Spithill made key contributions to this report. 

(360477): 

FOOTNOTES 

[1] Wetlands are areas that are inundated or saturated with surface or 
groundwater at a frequency and duration sufficient to support 
vegetation adapted for life in saturated soil conditions. Wetlands 
include swamps, marshes, bogs, and similar areas. Wetlands play 
valuable ecological roles by reducing flood risks, recharging water 
supplies, improving water quality, and providing habitats for fish, 
aquatic birds, and other plants and animals, including a number of 
endangered species. 

[2] 51 Fed. Reg. 41206 (Nov. 13, 1986). 

[3] 531 U.S. 159 (2001). 

[4] This joint memorandum was issued as part of an Advance Notice of 
Proposed Rulemaking. 68 Fed. Reg. 1991 (Jan. 15, 2003). 

[5] GAO, Waters and Wetlands: Corps of Engineers Needs to Evaluate Its 
District Office Practices in Determining Jurisdiction, GAO-04-297 
(Washington, D.C.: Feb. 27, 2004). 

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

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

[8] Section 404(e) authorizes the Corps to develop general permits for 
categories of activities having minimal adverse environmental impact. 
Section 404(f) identifies activities exempt from the permitting 
requirement, including certain ongoing farming activities. Section 
404(g) establishes a process by which states (and tribes) may assume 
the section 404 permitting program. 

[9] 43 Op. Atty. Gen. 197 (1979). 

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

[11] Funds are also used for issuing permits under the Rivers and 
Harbors Act of 1899 (33 U.S.C. § 403), which, among other things, 
prohibits the building of structures that could impede navigation, 
unless approved; and the Marine Protection, Research and Sanctuaries 
Act of 1972 as amended (33 U.S.C. § 1413), which requires permits for 
transporting dredged material for ocean dumping. 

[12] To be considered a wetland, the water must generally meet the 
guidelines set forth in the Corps' 1987 Corps of Engineers Wetlands 
Delineation Manual, which addresses hydrology, soils, and plants. 

[13] Permits are not required for exempt activities under section 
404(f), such as certain ongoing farming and silviculture operations. A 
general permit may be available as an alternative to an individual 
permit for a project which involves activities that the Corps has 
determined have minimal adverse effects, both individually and 
cumulatively. The vast majority of projects permitted each year are 
covered by such general permits. 

[14] 40 C.F.R. § 230.10(a). 

[15] SWANCC involved an abandoned sand and gravel pit, containing 
several permanent and seasonal ponds at which migratory bird species 
had been observed. In striking down the migratory bird rule, the 
Supreme Court stated that Congress's use of the phrase "waters of the 
United States" to define navigable waters did not constitute a "basis 
for reading the term 'navigable waters' out of the statute" and that 
"it is one thing to give a word limited effect and quite another to 
give it no effect whatever." 431 U.S. at 172. 

[16] The preamble also addressed (1) waters that are or would be used 
as habitat for endangered species, and (2) waters used to irrigate 
crops sold in interstate commerce. 

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

[18] Since SWANCC, several federal appellate courts have considered the 
scope of Clean Water Act jurisdiction in cases other than those 
involving the migratory bird rule. A majority of the courts have read 
the SWANCC decision narrowly. These courts (the fourth, sixth, seventh, 
and ninth circuit courts of appeals) have found, for example, that 
SWANCC only affects isolated waters and that jurisdiction can be 
asserted over waters that have indirect hydrological connections, such 
as by drainage ditches, canals, or pipes, with navigable waters. The 
fifth circuit court interprets the decision broadly, allowing 
jurisdiction to be asserted only if the body of water is actually 
navigable or directly adjacent to a navigable body of water, which 
could limit jurisdiction over tributaries and wetlands. 

[19] The Corps generally requires that wetlands meet three conditions: 
(1) frequent or prolonged presence of water at or near the soil 
surface, (2) hydric soils that form under flooded or saturated 
conditions, and (3) plants that are adapted to live in these types of 
soil. 

[20] The Advance Identification of Disposal Areas program identifies 
wetlands and other waters that are generally suitable for the discharge 
of dredged and fill material. The information developed by this program 
can then be used by local governments to aid in zoning, permitting, and 
land acquisition decisions. 

[21] While we were able to determine when consultant data were 
submitted for these projects, we were unable to determine the extent to 
which project managers used these data in making their determinations. 

[22] The Corps is in the process of revising this guidance that could 
affect the allocation of resources committed to each of the regulatory 
program's activities. 

[23] While additional funding has been requested, these funds have not 
been appropriated. For example, in fiscal year 2005, the regulatory 
program requested $150 million but received only $144 million. 

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

[25] 68 Fed. Reg. 1991 (Jan. 15, 2003). 

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

[27] "Isolated wetlands: state-of-the-science and future directions," 
Wetlands, vol. 23, no. 3 (September 2003). The society was formed to 
promote the exchange of scientific information related to wetlands and 
operates as a charitable and educational organization. 

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