Waters and Wetlands:

Corps of Engineers Needs to Evaluate Its District Office Practices in Determining Jurisdiction

GAO-04-297: Published: Feb 27, 2004. Publicly Released: Mar 3, 2004.

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Each year the U.S. Army Corps of Engineers (Corps) receives thousands of Clean Water Act permit applications from project proponents wishing to fill waters and wetlands. The first step in the permitting process is to determine if the waters and wetlands are jurisdictional. Prior to 2001, if migratory birds used the waters or wetlands as habitat, they were usually jurisdictional. In 2001, the Supreme Court--in Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers (SWANCC)--struck down the migratory bird rule, leaving the Corps to rely on other jurisdictional criteria. GAO was asked to describe the (1) regulations and guidance used to determine jurisdictional waters and wetlands and related developments since SWANCC, (2) extent to which Corps district offices vary in their interpretation of these regulations and guidance, and (3) extent to which Corps district offices document their practices and make this information publicly available.

EPA's and the Corps' regulations defining waters of the United States establish the framework for determining which waters fall within federal jurisdiction. However, the regulations leave room for interpretation by Corps districts when considering (1) adjacent wetlands, (2) tributaries, and (3) ditches and other man-made conveyances. Since the SWANCC decision, the Corps and EPA have provided limited additional guidance to the districts concerning jurisdictional determinations, and the Corps has prohibited the districts from developing new local practices for determining the extent of Clean Water Act regulatory jurisdiction. In January 2003, the Corps and EPA published an Advance Notice of Proposed Rulemaking (ANPRM) soliciting comments on whether there was a need to revise the regulations that define which waters should be subject to federal jurisdiction. The ANPRM generated approximately 133,000 comments representing widely differing views. The agencies decided in December 2003 that they would not proceed with a rulemaking. Additionally, since SWANCC, 11 federal appellate court decisions relating to the extent of jurisdictional waters have been rendered; and 3 of these decisions are on appeal with the Supreme Court, with review denied for 2 others. Corps districts differ in how they interpret and apply the federal regulations when determining which waters and wetlands are subject to federal jurisdiction. For example, one district generally regulates wetlands located within 200 feet of other jurisdictional waters, while other districts consider the proximity of wetlands to other jurisdictional waters without any reference to a specific linear distance. Additionally, some districts assert jurisdiction over all wetlands located in the 100-year floodplain, while others do not consider floodplains as a factor. Although districts used generally similar criteria to identify the jurisdictional limits of tributaries, they used differing approaches in how they apply these criteria. Whether or to what degree individual differences in Corps district office practices would result in different jurisdictional determinations in similar situations is unclear, in part, because Corps staff consider many factors when making these determinations. Nevertheless, Corps headquarters officials stated that GAO had documented enough differences in district office practices to warrant a more comprehensive survey, which would include the other districts not surveyed in this report. This would help to ensure that the Corps is achieving the highest level of consistency possible under the current circumstances. Only 3 of the 16 districts that GAO reviewed made documentation of their practices available to the public. Other districts generally relied on oral communication to convey their practices to interested parties.

Recommendations for Executive Action

  1. Status: Closed - Implemented

    Comments: The Corps has conducted two surveys of its district offices to determine whether the districts are interpreting and applying federal regulations differently when making jurisdictional determinations. In May 2004, the Corps conducted a preliminary survey to identify the practices being used by its districts to make jurisdictional determinations. In March and April 2005, the Corps conducted a more comprehensive survey of the districts' practices. This on-line survey, developed using the responses received from preliminary survey, consisted of more than 250 questions.

    Recommendation: In light of the uncertainty of the impact of differences in district offices' interpretation and application of the regulations, the Secretary of the Army in consultation with the Administrator of EPA should survey the district offices to determine how they are interpreting and applying the regulations and whether significant differences exist among the Corps' 38 districts.

    Agency Affected: Department of Defense: Department of the Army

  2. Status: Closed - Implemented

    Comments: The Corps has taken a series of actions to address our recommendation. First, on June 5, 2007, the Corps issued a regulatory guidance letter that describes the processes that districts are to use to make, document, and approve jurisdictional determinations and make that information available to the public. In addition, the Corps developed a guidebook that contains instructions to aid field staff in completing standardized forms documenting their jurisdictional determination decisions. According to Corps staff, this instructional guide will address many of the differences in district office practices identified by GAO and the survey. Finally, on June 26, 2008, the Corps issued a regulatory guidance letter clarifying and providing guidance on when an approved jurisdictional determination is required and the process for coordinating with EPA.

    Recommendation: In light of the uncertainty of the impact of differences in district offices' interpretation and application of the regulations, the Secretary of the Army in consultation with the Administrator of EPA should evaluate whether and how the differences in the interpretation and application of the regulations among the Corps district offices need to be resolved, recognizing that some level of flexibility may be needed because of differing climatic, hydrologic, and other relevant circumstances among the districts.

    Agency Affected: Department of Defense: Department of the Army

  3. Status: Closed - Implemented

    Comments: The Corps' regulatory program has made guidance developed to aid the field offices in determining and documenting the Corps' jurisdiction over "waters of the United States available on its website. This guidance, developed as a consequence of the Supreme Court's SWANCC and Rapanos and Carabell decisions, include the U.S. Army Corps of Engineers Jurisdictional Determination (JD) Form Instructional Guidebook, joint EPA and Corps memoranda clarifying those waters over which the Corps will assert jurisdiction and detailing coordination procedures for jurisdictional decisions forwarded to headquarters for review and approval. In addition, the site provides links to guidance outlining requirements for making, documenting, and approving jurisdictional determinations as well as division and district memos implementing the Rapanos and Carabell decision.

    Recommendation: In light of the uncertainty of the impact of differences in district offices' interpretation and application of the regulations, the Secretary of the Army in consultation with the Administrator of EPA should require districts to prepare and make publicly available documentation specifying the interpretation and application of the regulations they use to determine whether a water or wetland is jurisdictional.

    Agency Affected: Department of Defense: Department of the Army

 

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