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Highlights

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.

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Recommendations

Recommendations for Executive Action

Agency Affected Recommendation Status
Department of the Army 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.
Closed - Implemented
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.
Department of the Army 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.
Closed - Implemented
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.
Environmental Protection Agency 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.
Closed - Implemented
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.

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