Waters and Wetlands:

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

GAO-05-870: Published: Sep 9, 2005. Publicly Released: Oct 11, 2005.

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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.

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.

Recommendations for Executive Action

  1. Status: Closed - Implemented

    Comments: On December 2, 2008, the Department of the the Army and EPA issued a memorandum that provides guidance to the EPA regions and Corps Districts for implementing the Supreme Court's decision in the consolidated cases Rapanosv United States and Carabell v United States. The guidance requires Corps districts to include all pertinent documentation and analyses for a given jurisdictional determination be reflected in the administrative record and clearly demonstrate the basis for asserting or declining Clean Water Act jurisdiction. According to the guidance, the administrative record should, to the maximum extent practicable, (1) explain the rationale for the determination and (2) disclose the data and information relied upon. If applicable, the record should also explain what data or information received greater or lesser weight, and what professional judgment or assumptions were used in reaching the determination.

    Recommendation: To provide greater transparency in the Corps' processes for making nonjurisdictional determinations, the Secretary of the Army should 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.

    Agency Affected: Department of Defense: Department of the Army

  2. Status: Closed - Implemented

    Comments: On June 5, 2007, EPA and the Corps issued joint guidance for coordinating jurisdictional determinations (JDs) under Clean Water Act. The guidance included procedures to be followed for determinations made for for intra-state, non-navigable, isolated waters potentially covered under 33 C.F.R. 328.3(a)(3). The procedures describe the documentation that the Corps district should provide to submit to EPA Headquarters and regional offices and timeframes for completing reviews and resolving interagency disagreements. For example, if either Corps HQ or EPA HQ choose to initiate a joint HQ review of a particular JD involving an intrastate, non-navigable, isolated, the guidance specifies that the joint HQ review must be initiated within 21 calendar days of when the district provided copies of the draft JD to the EPA Region and Corps HQ. The guidance also contains procedures and specific time frames for initiating discussion to resolve issues at the local level, elevating the review of a jurisdictional review to headquarters, and resolving agency disagreements.

    Recommendation: 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, the Secretary of the Army, through the Corps, and the Administrator of EPA should 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 Affected: Department of Defense: Department of the Army

  3. Status: Closed - Implemented

    Comments: On June 5, 2007, EPA and the Corps issued joint guidance for coordinating jurisdictional determinations (JDs) under Clean Water Act. The guidance included procedures to be followed for determinations made for for intra-state, non-navigable, isolated waters potentially covered under 33 C.F.R. 328.3(a)(3). The procedures describe the documentation that the Corps district should provide to submit to EPA Headquarters and regional offices and timeframes for completing reviews and resolving interagency disagreements. For example, if either Corps HQ or EPA HQ choose to initiate a joint HQ review of a particular JD involving an intrastate, non-navigable, isolated, the guidance specifies that the joint HQ review must be initiated within 21 calendar days of when the district provided copies of the draft JD to the EPA Region and Corps HQ. The guidance also contains procedures and specific time frames for initiating discussion to resolve issues at the local level, elevating the review of a jurisdictional review to headquarters, and resolving agency disagreements.

    Recommendation: 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, the Secretary of the Army, through the Corps, and the Administrator of EPA should 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 Affected: Department of Defense: Department of the Army

 

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