section 404, which prohibits the discharge of dredged or fill material  into “waters of the United States” without a permit from the Corps. While the SWANCC ruling specifically addressed the use of migratory birds  as a basis for asserting jurisdiction over these waters, it did not address  other bases cited in Corps regulations as examples for asserting  jurisdiction. Because  of this uncertainty, the memorandum instructed the field staff to seek  formal project-specific headquarters approval prior to asserting  jurisdiction over such waters based solely on links to interstate commerce. Corps Districts Generally Use Similar Processes and Data Sources When Making Jurisdictional Determinations

Each of the five Corps districts we visited generally used a similar process  and similar data sources for making jurisdictional determinations. The  districts use a four-step process that consists of (1) receiving a request for a  jurisdictional determination or a permit application; (2) reviewing the  submitted information for completeness; (3) requesting additional data  from the project proponent, as necessary; and (4) analyzing the data to  determine if the waters or wetlands are regulated under the Clean Water  Act. Corps districts also used similar data to make these determinations,  which frequently included topographic, soil, and wetland inventory maps  as well as photographs. Photographs. Other factors that influence whether a site visit is conducted, according to  Corps project managers, include   the proximity of the project site to the Corps’ office and resources  available to travel to the site,   the nature of the topography and the number of waters or wetlands that  appear to be on the project site,   a project manager’s familiarity with the geographic area where the  project is being undertaken,   the potential for public concern over the proposed project,   the size of the waters or wetlands on the project site and their value,  the extent to which the data from all of the different data sources  independently confirm the existence and nature of waters or wetlands  on a project site as well as whether they are connected to “waters of the  United States,” and   the existence of any other federal, state, or local agency that may have  oversight responsibility for waters or wetlands at the project site and  whether officials from those agencies visited the site. Corps Districts Generally Do Not Document Their Rationales for Nonjurisdictional Determinations

Corps records provide limited information on the rationale that the project  managers used when deciding not to assert jurisdiction over certain waters  and wetlands. However, we found that not all project managers are including a detailed  rationale in the project files. The percentage of files that contained no rationale also varied by  district and ranged from a low of 12 percent of the Jacksonville District’s  files (17 of 140) to a high of 49 percent of the Chicago District’s files (74 of  150). § 328.3(a)(3) to Assert Jurisdiction

The Corps is generally not using 33 C.F.R. § 328.3(a)(3) as the sole basis to  assert jurisdiction over isolated, intrastate, nonnavigable waters. However, the data being collected by the Corps and EPA is inadequate to  fully assess the impact of SWANCC on isolated, intrastate, nonnavigable  waters. Because of limited resources, according to a senior  regulatory program manager and EPA officials, neither agency is planning  to conduct a more in-depth analysis of data already collected. These include the  lack of (1) a consistent definition of an isolated wetland; (2) knowledge of  the number and area of isolated wetlands in the United States; (3)  information on the diversity of isolated wetlands relative to each other and  to other ecosystems; (4) knowledge about other federal, state, tribal, and  local programs that may protect isolated wetlands; and (5) information on  how isolated wetlands, wetland complexes, and other at-risk waters  contribute, hydrologically, chemically, and biologically to “waters of the  United States.”
Neither agency believes that it is possible to easily develop and readily  implement a realistic approach that would allow them to fully assess the  impact of the ruling on federal jurisdiction under the Clean Water Act,  given the lack of some data, the vast amount of data that would be needed  to assess the impact of SWANCC, and current resource constraints. This time period was selected because data on the Corps’  nonjurisdictional determinations were not readily available before April  2004. To determine the extent to which the Corps documents its decisions when  it concludes that it does not have jurisdiction over certain waters and  wetlands, we reviewed 770 project files in the five selected districts where  the agency determined, between April and December 2004, that it did not  have jurisdiction over some or all of the waters on those project sites. Further,  the Corps has no guidance on what a rationale should include. To determine the extent to which the Corps is asserting jurisdiction over  isolated, intrastate, nonnavigable waters using its remaining authority in 33  C.F.R. To determine the extent to which the Corps and EPA are collecting data to  assess the impact of Solid Waste Agency of Northern Cook County v. U.S.  Army Corps of Engineers (SWANCC), we interviewed Corps and EPA  officials at their respective headquarters to identify what actions have been  taken or are planned to assess the impact.
Why GAO Did This Study

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.

What GAO Found

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.