Wetlands:

The Corps of Engineers' Administration of the Section 404 Program

RCED-88-110: Published: Jul 28, 1988. Publicly Released: Sep 15, 1988.

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In response to a congressional request, GAO reviewed the Army Corps of Engineers' administration of section 404 of the Clean Water Act to determine the extent to which the Corps: (1) coordinated with federal resource agencies during the permit process; (2) identified violations of permit conditions; and (3) imposed sanctions against those who failed to obtain required permits or violated permit conditions.

GAO found that: (1) although the section 404 program protected some wetlands, it did not regulate many activities, such as normal farming and wetlands draining, which caused most of the wetlands losses; (2) resource agencies believed that the Corps could protect more wetlands if it delineated wetland boundaries more broadly and gave greater consideration to practicable alternatives to placing dredged and fill materials in wetlands; (3) neither the Corps nor the resource agencies maintained comprehensive information on the program's impact on wetlands; (4) although the Corps considered resource agency recommendations in issuing permits, in many cases its district offices did not require applicants to address recommendations and did not provide feedback to the agencies; (5) resource agencies rarely appealed cases when they disagreed with district offices because they believed that the appeal process was cumbersome and ineffective; (6) neither the Corps nor the Environmental Protection Agency (EPA) had systematic surveillance programs to detect unauthorized activities on wetlands; (7) the districts did not investigate many suspected unauthorized activities for months and did not monitor issued permits for compliance with permit conditions; (8) the Corps rarely pursued civil or criminal remedies against violators and did not often suspend or revoke permits; and (9) EPA rarely used its authority, even though most violations involved failure to obtain permits.

Matter for Congressional Consideration

  1. Status: Closed - Implemented

    Comments: Congress funded a National Academy of Sciences study of wetlands delineation that should once and for all settle the issue of the scope of the Section 404 Program.

    Matter: Congress may wish to establish clearer criteria regarding the: (1) scope of wetlands delineation under the program; (2) extent to which alternatives to filling wetlands must be considered; and (3) extent and circumstances under which cumulative impacts of permit decisions must be considered.

Recommendations for Executive Action

  1. Status: Closed - Implemented

    Comments: The Corps and EPA signed a new Memorandum of Agreement, effective January 19, 1989, to define the proper enforcement roles of each agency.

    Recommendation: In order to strengthen enforcement of the Section 404 Program, the Secretary of the Army should direct the Chief, Corps of Engineers, to develop, with the participation of EPA, a coordinated enforcement program utilizing the combined resources of both agencies and others to deal with violations of Section 404 permit requirements. Such a program should involve routine surveillance, compliance inspections, timely investigation and reporting of unauthorized activities, and appropriate penalties, where authorized.

    Agency Affected: Department of Defense: Department of the Army

  2. Status: Closed - Implemented

    Comments: The appeals process under the program has been revised between the Corps and the other agencies involved in commenting on section 404 permit applications.

    Recommendation: In order to provide for a more effective public interest review in which environmental and developmental concerns receive full consideration, as required by law, the Secretary of the Army should direct the Chief, Corps of Engineers, to develop, with the participation of the resource agencies, a mutually acceptable and simplified process under which district engineer permitting decisions can be appealed.

    Agency Affected: Department of Defense: Department of the Army

  3. Status: Closed - Not Implemented

    Comments: A followup report (GAO/RCED-93-26) has been issued that states that this recommendation is still valid.

    Recommendation: In order to provide for a more effective public interest review in which environmental and development concerns receive full consideration, as required by law, the Secretary of the Army should direct the Chief, Corps of Engineers, to work with the resource agencies to develop a feedback mechanism to provide the resource agencies with documentation that shows how their recommendations were addressed during the application review process and, where applicable, reasons why recommendations were not accepted.

    Agency Affected: Department of Defense: Department of the Army

  4. Status: Closed - Implemented

    Comments: Congress has provided $400,000 to fund a National Academy of Sciences study of wetlands delineation. The study's completion is estimated for late Spring 1995. The issues of practicable alternatives and cumulative impacts are being addressed by the Corps of Engineers and EPA.

    Recommendation: In order to provide Congress and others with information on the effects of the Section 404 Program for restoring and maintaining the integrity of the nation's waters and to provide for more consistent management of the program, the Secretary of the Army should direct the Chief, Corps of Engineers, to work with the resource agencies to develop consistent definitions and procedures for implementing basic program requirements, such as considering practicable alternatives, assessing cumulative impacts, and making wetland delineations.

    Agency Affected: Department of Defense: Department of the Army

  5. Status: Closed - Implemented

    Comments: The Corps of Engineers reconsidered its position and now requires its district offices to compile baseline information on the program's impact.

    Recommendation: In order to provide Congress and others with information on the effects of the Section 404 Program for restoring and maintaining integrity of the nation's waters and to provide for more consistent management of the program, the Secretary of the Army should direct the Chief, Corps of Engineers, to develop a data reporting mechanism that will enable the Corps to provide baseline information on the extent to which the granting of Section 404 permits is protecting or resulting in the filling of wetlands and otherwise restoring and maintaining the integrity of the nation's waters.

    Agency Affected: Department of Defense: Department of the Army

  6. Status: Closed - Implemented

    Comments: The Corps of Engineers has increased its monitoring of enforcement actions from an annual to a quarterly basis. It signed an enforcement Memorandum of Agreement with EPA and developed new enforcement training programs. The Corps also developed performance standards to measure its district offices' performance under the program.

    Recommendation: In order to strengthen enforcement of the Section 404 Program, the Secretary of the Army should direct the Chief, Corps of Engineers, to establish a national oversight program to evaluate Corps district performance in enforcing the Section 404 program.

    Agency Affected: Department of Defense: Department of the Army

 

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