GAO Report Documents Inconsistencies in Wetlands Regulation - 3/8/2004 - Home Exterior Environment Landscaping

GAO Report Documents Inconsistencies in How Corps Districts Make Decisions on Wetlands Regulation

The report, “Waters and Wetlands: Corps of Engineers Needs to Evaluate Its District Office Practices in Determining Jurisdiction” (GAO-04-297), documented sufficient differences in how the 16 surveyed Corp districts apply the law that the Corps has acknowledged that a more comprehensive survey of those practices is needed.

“For example,” the report said, “one district generally regulated 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.”

In January of 2003, the Corps and the EPA solicited public comments on whether there was a need to revise regulations defining which waters should be subject to federal jurisdiction. After generating a significant number of comments, including several from the development industry, the agencies announced in December that they would not proceed with a rulemaking. This sparked sharp criticism from NAHB that they had “shirked their responsibilities on wetlands regulations for too long.”

Before 2001, waters or wetlands were usually considered jurisdictional if they were used as habitat by migrating birds. But that rule was struck down by the Supreme Court in the case of Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers. This has forced the Corps to grapple with such less-defined questions in asserting jurisdiction as what "adjacency" means, how far up a "tributary" it can go, and when it can assert jurisdiction over common, roadside "ditches."

“We have known for years that different Corps districts take divergent approaches in making jurisdictional decisions that are of vital importance to home builders, developers and property owners, and the GAO report accurately documents these inconsistencies and the failures of both agencies to provide written guidance to interested parties,” NAHB said in a statement issued on March 4.

“The writing is on the wall,” the statement said. “The EPA and the Corps can no longer hide behind inconsistent verbal guidance and allow the present unpredictable regulatory system to continue. They need to act quickly to provide accurate and fair guidance on how Corps field staff should decide what falls under their jurisdiction and what does not, just as they should have done years ago.”

NAHB has been noting for years that important jurisdictional decisions have varied among Corps districts and even among field staff within the same district. Inconsistency and unpredictability in how much of a site falls under federal regulation can have a significant impact on important business decisions of builders and developers.

The GAO report found that only three of the GAO districts made documentation of their practices available to the public and that the remaining districts generally relied on oral communication to convey those practices to interested parties.