Waters and Wetlands: Corps of Engineers Needs to Ensure That Permit Decisions Made Using Funds from Nonfederal Public Entities Are Transparent and Impartial

The Corps issued revised guidance on October 1, 2008, that improves on the prior guidance and addresses a number of points we raised in our May 2007 report. Specifically, the revised guidance includes a list of acceptable activities for which section 214 funds can be used and more explicitly describes the circumstances under which funds can be accepted. In addition, the section of the revised guidance related to accountability has been revised, and additional items that need to be tracked and reported to the Corps headquarters on an annual basis are now delineated. These items include performance metrics and a statement certifying that all project managers are aware of and trained on the requirements contained in the guidance. Furthermore, the Corps also significantly expanded upon the requirements in the guidance related to impartial decision making. Specifically, under the revised guidance, participating Corps districts are to ensure that all documents involved in the decision-making process are reviewed and approved by someone at least one level higher than the program manager who is funded by the authority. In addition, the guidance now requires that all final permit decisions need to be updated monthly on the district's Web page in an area separate from any other final actions and that the decision be clearly identifiable as being for projects funded through the WRDA section 214 authority.

We believe the Corps has taken appropriate steps to ensure that the documentation that district officials include in project files will justify and support their permitting decisions. Specifically, the Corps has completed a checklist, or template, of the decision documents necessary to support its general, or nationwide, permitting process. In addition, the Corps completed a template for its standard permits decision-making process that includes additional elements necessary to document compliance with the National Environmental Policy Act and other relevant statutes and regulations. As part of its efforts to develop these decision document templates, the Corps completed an analysis of all nationwide permitting processes in December 2008 and incorporated the results of this analysis into these templates to help ensure consistent and complete support documentation.

The Corps held training sessions in August 2007 and May 2008 at national conferences attended by all regulatory staff, during which the following topics relating to the section 214 permitting authority were discussed and clarified: the revised guidance in draft form, expectations regarding impartial decision making and disclosure of decisions to the public, and the annual reporting process. Furthermore, discussion of the WRDA section 214 program was also included in the curriculum for a development course to help train new regulatory chiefs. As part of its dissemination efforts for the revised guidance, the Corps also sent a memo to regulatory chiefs across all Corps districts and divisions highlighting sections of the guidance where clarifications were made that could impact the districts' implementation of the section 214 authority. Among the items highlighted were the increased annual reporting requirements designed to improve the Corps' ability to assess the program's impacts.

In our 2010 review of the Corps' efforts to implement our recommendation, we found that the Corps had taken some positive steps to address our concerns regarding oversight of Water Resources Development Act section 214 authority, but that the Corps' actions had fallen short in two significant areas: (1) ensuring the quality and thoroughness of the annual reports and (2) improving the transparency of decision making to the public by clearly posting public notices of funding decisions on the district Web sites. Our 2011 review of these two items indicates that the Corps has addressed our concerns and has made significant progress in these two areas. First, the Corps issued a memorandum detailing annual reporting expectations, as well as a template for the annual reports to follow to make it easier to monitor that key aspects of the section 214 authority. Second, the Corps finalized and issued a new decision document template that addresses prior concerns with lack of standardization in decision making. Third, the Corps standardized training materials to ensure that all staff were adequately and consistently being trained on the requirements associated with section 214 authority. Finally, our review of annual reports for FY2010 indicates that almost all of the 19 Corps Districts that have entered into section 214 agreements had fully complied with the annual reporting guidance and template; any deviations were minor in nature. In addition, nearly all of these District's Web sites clearly identify where information on and decisions regarding section 214 authority can be found.