Detailed Information on the
Corps of Engineers: Regulatory Program Assessment

Increase Corps involvement in watershed planning. Prepare a plan by fall 2006 with quantitative targets for watershed planning. Once approved, proceed to implement the plan.

Develop and install an electronic permit application web site for all Corps Individual Permit actions to improve permit application process. Enable public to input information and attach files to national website with automatic delivery of information to correct District. Enable applicant to track status of permit on line.

Work to achieve the performance standards that program managers have developed. E.g. complete compliance inspections on 20% of all permits issued the previous year. Resolve 30% of unresolved non-compliance cases annually.

Increase program flexibility where appropriate. Address unresolved wetland quality issues for permits and mitigation.

Measure: No net loss of Aquatic Resources. The measure compares the acres of aquatic resources lost to the acres restored, replaced or otherwise mitigated

Explanation:Measure evaluates efficiency of the program to protect aquatic resources (AR). The measure evaluates the acres of AR lost through permitted and non-permitted activities (enforcement actions) and compares these to the acres of AR mitigated. This long-term goal will be measured through the output from annual performance measures 6 through 11.

Measure: Avoidance/ minimazation of Aquatic resources

Explanation:Measure evaluates the acres of aquatic resources avoided and minimized through the permit process. This long-term goal will be measured through the output from annual performance measures 7 and 8.

Measure: Permits issued within Regulatory timeframes

Explanation:This long-term goal addresses the efficiency of the program in issuing Department of the Army permits for authorized work in waters of the United States. This long-term goal will be measured through annual performance measures 4 and 5.

Measure: Percentage of Individual permits issued in 120 days or less of applicant's filing (excluding those with Endangered Species Act consultations lasting greater than 60 days).

Explanation:The measure is designed to measure the efficiency of the processing program for Individual permits and to insure permits are processed in a timely manner. For FY 03 and earlier, the performance measure included those permits with ESA consultations.

Measure: Percentage of General Permits issued in less than 60 days.

Explanation:The measure is designed to measure the efficiency of the processing program for all permits and to insure permits are processed in a timely manner.

Measure: The Corps shall reach resolution on XX% of all enforcement actions (i.e., unauthorized activities) that are unresolved at the end of the previous fiscal year and have been received during the current fiscal year. Resolution for this measure shall include removal of the fill material, processing of an after-the-fact permit, requirement for compensatory mitigation, referral to EPA, or resolution by the requirement for monetary compensation as a punitive measure. Percentage for the unauthorized activities resolved will be determined by funds received for that fiscal year.

Explanation:This measure is designed to insure the Corps resolves enforcement actions on unauthorized activities. These resolutions will be documented in the database in insure the no net loss of AR is measured for these unauthorized activities.

Measure: Individual Permit Compliance. The Corps shall complete compliance inspections of XX% of all individual permits issued and constructed within the preceding fiscal year. The percentage for compliance inspection is based on funds received for that fiscal year.

Explanation:Measure designed to confirm acres of impacts and acres of avoidance/minimization to aquatic rersources from Individual Permits

Measure: General Permit Compliance. The Corps shall complete compliance inspections of XX% of all General Permits (GPs and NWPs) with reporting requirements issued and constructed within the preceding fiscal year. The percentage for inspection is based on the funding received each fiscal year.

Explanation:Measure designed to confirm acres of impacts and acres of avoidance/minimization to aquatic rersources from General Permits

Measure: Mitigation. The Corps shall complete field compliance inspections of XX% of active mitigation sites each fiscal year. Active mitigation sites are those sites authorized through the permit process and are being monitored as part of the permit process but have not met final approval under the permit special conditions (success criteria). The measure does not include mitigation banks and in lieu fee programs. Percentage of inspections is dependent on the funds received for the fiscal year.

Explanation:Measure designed to insure field verification of active mitigation sites that are required as part of Corps permits. Since all Corps mitigation sites have monitoring periods of at least 5 years, this measure would insure all sites are inspected.

Measure: The Corps shall complete compliance inspections/audits on XX% of active mitigation banks and in lieu fee programs each fiscal year. Percentage of inspection in dependent on the funds received for that fiscal year.

Explanation:Measure designed to check status of mitigation banks and in-lieu fee programs annually.

Measure: Resolution of Non-compliance with permit conditions. The Corps will reach resolution on non-compliance with permit conditions and/or mitigation requirements on XX% of activities that are unresolved at the end of the previous fiscal year and have been determined to be non-compliant with permit conditions during the current fiscal year. Resolution for this measure shall include removal of the fill material, processing of an After-the-Fact permit, requirement for compensatory mitigation, referral to EPA, or resolution by the requirement for monetary compensation as a punitive measure. Percentage of resolution is dependent on the funds received for that fiscal year.

Explanation:Measure designed to address the compliance issue with those actions evaluated under performance measures 7-10.

Measure: No net loss of aquatic resources. The measure compares the acres of aquatic resources lost to the acres restored, replaced or otherwise mitigated.

Explanation:

Measure: Percentage of active mitigation sites for which field inspections have been completed each fiscal year. This measure ensures developer has complied with the terms of his permit.

Explanation:

Measure: Percentage of Individual permits issued in 120 days or less of applicant's filing (excluding those with Endangered Species Act consultations lasting greater than 60 days). The program seeks to achieve its goals efficiently, at minimum feasible cost in terms of dollars, time and uncertainty.

Explanation:

Is the program purpose clear?

Explanation: The purpose of the program is to protect, maintain and restore the nation's aquatic resources in a way that enhances and balances environmental and economic development values and objectives. The program does this by means of regulations and related measures. The Corps is responsible for regulating the discharge of dredged or fill material into waters of the United States and to do so in a way that serves the public interest. The regulatory program has taken this broad overarching goal or purpose and developed three long-term supporting goals based on it. The three goals are: 1. No net loss of aquatic resources; 2. Avoidance and minimization of damage to aquatic resources where that is possbile; and 3. Permits issued promptly and expediously within specified timeframes. In order to determine if these goals are being met through the daily administration of the program, the Corps developed 8 annual performance measures designed to link budget levels with performance and also provide data on the three long-term goals.

Evidence: The Clean Water Act (CWA) statute (33 USC 1344) defines the purpose of the program as follows: " To restore and maintain the chemical, physical, and biological integrity of the Nation's waters." The CWA regulations (33 CFR Part 320.1a) provide additional information on the "public interest review" which is designed to balance both the protection and utilization of important natural and other resources, including aquatic resources.

Does the program address a specific and existing problem, interest, or need?

Explanation: Congress specifically recognized the need to limit the discharge of dredged or fill material into the nation's waters. The program is designed to balance the protection and restoration of aquatic resources with the need to encourage (or avoid discouraging) productive economic activity. The Corps' permit program provides an avenue through which investment projects in the private sector and in the public sector affecting wetlands can be evaluated in a comprehensive manner and implemented while simultaneously protecting the Nation's waters.

Evidence: The Corps' Regulatory Program (specifically Section 404 of the CWA) is designed to balance the protection of aquatic resources with proposed development providing fair, flexible, and balanced permit decisions. It thereby makes it possible to resolve in a productive way issues that might otherwise be controversial and contentious. The program processed more than 81,000 permits in FY02 impacting approximately 26,000 acres and required more than 58,000 acres of wetlands as mitigation (including creation, restoration, enhancement, and preservation). As a point of comparison, 58,000 acres is equal in size to slightly over 90 square miles. That's 1.3 times the size of the District of Columbia.

Is the program designed so that it is not redundant or duplicative of any Federal, state, local or private effort?

Explanation: Three statutes form the basis for the Regulatory Program: the Clean Water Act, the Rivers and Harbors Act, and the Marine Protection, Resources, and Sanctuaries Act. Regulations promulgated based on the Acts provide authority to the Corps over activities and discharges into waters of the United States. Section 404 of the CWA also assigns responsibility for a portion of the program to EPA or the states. The federal and state agencies coordinate these roles to avoid duplication. The Corps program is complementary to the CWA Section 401 program within most states which allows the states to certify that proposed discharges meet water quality standards. The Corps is also the only agency to regulate the placement of structures in navigable waters to protect interstate commerce.

Evidence: Corps regulations (33 CFR Part 320.1a(5)) have been written to avoid duplication. Regulations discuss associated laws and the Corps responsibilities within these laws and the general procedures to follow with the other agencies (33 CFR Part 320.3 and Part 320.4).

Is the program design free of major flaws that would limit the program's effectiveness or efficiency?

Explanation: The program was originally designed in the mid-1970s and has undergone measurable evolution in the last 30 years. Program experience and court rulings have redefined the program over time to address concerns and any major flaws. External challenges remain and the program continues to evolve. See the evidence column to the right for specific examples. While many environmentalists perceive the program as permitting too many projects, some landowners, farmers and small businesspeople believe the Corps has been overly aggressive in protecting wetlands of low value. The agency is attempting to strike a reasonable balance among contending views on this issue. Some program critics say the program slows and discourages economic growth and development.

Evidence: An example of a potentially major flaw that was corrected was the revisions to the Nationwide Permit Program (33 CFR Part 330). Initially, the Nationwide Permits were designed to expedite processing of smaller projects. As the effects of proposed projects were evaluated, the Corps began to reduce the acreage limits of these Nationwide Permits to insure environmental impacts were reduced while maintaining the expedited permit processing. Changes to the program instituted in 2003 in response to the SWANCC ruling of 2001 are examples of current challenges that will more exactly define program jurisdiction.

Is the program effectively targeted, so program resources reach intended beneficiaries and/or otherwise address the program's purpose directly?

Explanation: Program resources are directed to the Project Managers in the field and their supervisors who make day-to-day permit decisions. Remaining resources (10-15% of the total, depending on the budget year) provide assistance to the Project Managers such as improved automation, technical research on wetlands and waters related topics, and technical assistance on direct permits issues.

Evidence: The Corps budget in FY 2002 was $138 M; 85% of this amount was directed to support manpower needs of the District offices.

Does the program have a limited number of specific long-term performance measures that focus on outcomes and meaningfully reflect the purpose of the program?

Explanation: As stated above in answer to question 1.1 and also in the Civil Works Strategic Plan, the program's goal is to administer the Regulatory Program in a manner that a) protects, maintains and enhances the aquatic environment (programmatic no net loss of wetlands) and b) do this in a way that enhances and balances environmental and economic development values and objectives. The program has taken this this broad overarching goal and developed three long-term support goals. These goals are: 1. No net loss of aquatic resources; 2. Avoidance and minimization of damage to aquatic resources; and 3. Permits issued promptly and expediously within specified Regulatory timeframes.

Evidence: YES

Does the program have ambitious targets and timeframes for its long-term measures?

Explanation: The program continues to make progress towards its stated goals; namely increased permit processing efficiencies, avoidance and minimization of impacts, and the no net loss of aquatic resources. While program efficiencies are more interactive, the no net loss goal is ambitious and includes increasing permit compliance, addressing future issues associated with wetland mitigation and watershed planning in the next 5-7 years.

Evidence: There are three major initiatives working to assist the program with meeting its goal of no net loss of aquatic resources. The first is to increase permit compliance. The second initiative to improve mitigation involves the National Wetlands Mitigation Action Plan which addresses the goal of no net loss and the need to improve wetland mitigation. This interagency initiative is specifically designed to improve the success of compensatory mitigation. The third initiative, conducting permitting on a watershed basis is also an interagency effort that involves states and local communities. This effort will expedite permit decision-making through regional planning and improve mitigation success.

Does the program have a limited number of specific annual performance measures that demonstrate progress toward achieving the program's long-term measures?

Explanation: Annual performance measures include percent of Individual Permits issued in under 120 days, the percent of all permits issued in under 60 days, and six new goals dealing with enforcement and compliance. These annual performance measures were developed to insure the long-term goals will be met.

Evidence: In FY02, the Corps processed 61% of the Individual permits in under 120 days and 87% of all permits in under 60 days. The six new performance measures will be phased in starting in FY 2004. Baseline data on existing levels will be collected in FY04 in preparation for their introduction in 2005.

Does the program have baselines and ambitious targets and timeframes for its annual measures?

Explanation: The goals of these performance measures dictate permit processing times (program efficiencies) and compliance measures with enforcement to address the no net loss goal. Baseline data for permit processing has been collected for the last 10+ years but the compliance data has been dependent on annual budget restrictions and is not consistent.

Evidence: Permitting statistics illustrate a rise in permit processing times over the last 10 years. By maintaining the existing high standards, Districts are forced to evaluate new ways to conduct permitting more efficiently. Mitigation and enforcement data exist but are not complete. Standards were set based on the need to bring these measures in line with the strategic goal of no net loss. The Corps and EPA are working on the Mitigation Action Plan (MAP) that has several tracking and reporting actions that are scheduled to be completed by the end of FY 2005.

Do all partners (including grantees, sub-grantees, contractors, cost-sharing partners, etc.) commit to and work toward the annual and/or long-term goals of the program?

Explanation: EPA, USFWS, NRCS, and other federal agencies maintain the "No net loss" as a goal. These and other federal agencies are joint signatories on the MAP which has an overall goal to improve compensatory mitigation, an important component of the "no net loss' goal.

Evidence: The Regulatory program has many governmental partners and a myriad of stakeholders. The divergent views of our partners and stakeholders result in each group supporting most of the long-term goals and at least one or more of the annual goals.

Are independent and quality evaluations of sufficient scope and quality conducted on a regular basis or as needed to support program improvements and evaluate effectiveness and relevance to the problem, interest, or need?

Explanation: Different portions of the program have been the subject of various independent inspections. This is in addition to the normal inspections conducted every other year of each District. Also, the Corps is conducting peer reviews of many Districts to increase consistency across the country.

Evidence: The Corps IG comprehensive report (FY 2002), the GAO audit on in-lieu fee program (FY 2001), and the NRC study on mitigation (FY 1999-2000) are examples of high-quality studies. Additional work needs to be done to ensure quality output is in fact being produced.

Are Budget requests explicitly tied to accomplishment of the annual and long-term performance goals, and are the resource needs presented in a complete and transparent manner in the program's budget?

Explanation: Past budget submittals have concentrated on permit efficiencies and have not included the new annual performance measures. The proposed annual performance measures directly link budget requests to the accomplishment of the measures and long-term performance goals. The FY 2005 budget submittal includes these measures.

Evidence: Because the program can document the number of permit actions and number of mitigation sites using current information, the Corps can document the man-hours and overall budget requirements to meet these new performance measures. The data collected will provide information on the attainment of the long-term program goals.

Has the program taken meaningful steps to correct its strategic planning deficiencies?

Explanation: The program has developed revised and completely new performance standards that directly relate to the effectiveness of resource protection.

Evidence: The largest strategic deficiency was the lack of compliance effort for permits and mitigation to ensure that the goal of overall no net loss was being meet. This can be illustrated by the NAS report on Compensatory Mitigation (NRC, 2000) Four of the new performance standards address this issue.

Are all regulations issued by the program/agency necessary to meet the stated goals of the program, and do all regulations clearly indicate how the rules contribute to achievement of the goals?

Explanation:  

Evidence:  

Does the agency regularly collect timely and credible performance information, including information from key program partners, and use it to manage the program and improve performance?

Explanation: The Regulatory program collects permit processing data quarterly. Adjustments are made annually to the program.

Evidence: Every District must provide data on processing statistics to Headquarters every quarter. This data includes numbers and times for permit processing, enforcement data, and basic mitigation data. Summary data for the ten years is available for review. Future improvements to the system include a new database/permit tracking system that will allow efficient collection of data at the national level. As part of this system, the Corps intends to provide more data to the public on permit processing including on-line information regarding active permits.

Are Federal managers and program partners (grantees, subgrantees, contractors, cost-sharing partners, etc.) held accountable for cost, schedule and performance results?

Explanation: The Branch Chiefs are responsible for the permit processing within each District. In addition, the District Engineer is also responsible for these permit processing timeframes. Program partners are not responsible for cost and performance results. Applicants are indirectly responsible for timing issues

Evidence: Permit processing times are part of every Branch Chief, Section Chief, and the majority of Project Managers' annual TAPES (civilian annual evaluation program for the ARMY) performance plans.

Are all funds (Federal and partners') obligated in a timely manner and spent for the intended purpose?

Explanation: Funds are obligated in each Branch in a timely manner that is monitored annually. Districts are expected to obligate 98% of their funds by the end of the FY. There are internal annual audits to determine if the funds are being obligated and spent in the correct manner.

Evidence: In FY 02, the program obligated approximately 96% of the funds allocated. Results of the internal audits have not uncovered any significant problems. A revised workload evaluation program is being developed in FY 2004 to be used in FY 2005.

Does the program have procedures (e.g., competitive sourcing/cost comparisons, IT improvements, approporaite incentives) to measure and achieve efficiencies and cost effectiveness in program execution?

Explanation: Branch Chiefs are encouraged to develop program efficiencies within each District and pass these efficiencies to the other Districts. These efficiencies are measured through improved permit processing times for permits of like complexity. Improvements are also measured in terms of reduced cost and improved access to the public (electronic Public Notices are an example). IT improvements also include upgrades to the network and faster communication with field offices.

Evidence: Program efficiencies are easily measured in terms of increased number of permits processed and decreased processing times. These efficiencies would be measured at the District and Division level. General Permits significantly reduce processing times (nationwide average is less than 31 days). A concrete example of an IT upgrade is the development of the ORM (OMBIL Regulatory Module) permit tracking system to be installed in the Districts beginning in October 2003. ORM will be a dramatic improvement in permit tracking increasing efficiencies in the Districts, allowing HQ to analyze national data on a daily basis, and providing opportunities for applicants to submit and track applications on-line. Public access to general permit data on line will be available with installation of ORM.

Does the program collaborate and coordinate effectively with related programs?

Explanation: One of the strengths of the Corps regulatory program is its collaboration with various federal, state, and local agencies. Through the Public Interest Review, the Corps solicits comments from the various stakeholder agencies. In most cases, extensive dialogue occurs between the agencies and the applicant to address the concerns of the agencies.

Evidence: Collaboration and cooperation can be easily documented for the Section 401 CWA program with the states and EPA, with the US Fish and Wildlife Service on Section 7 of the Endangered Species Act and the Fish and Wildlife Coordination Act, and the State Historic Preservation Offices through Section 106 of the Historic properties Act through documents such as memorandum of Agreement and other joint guidance.

Does the program use strong financial management practices?

Explanation: The program is managed through the normal CEFMS program (Corps of Engineers Financial Management System), which enables tracking of obligations and expenditures in real time. Regulatory funds are under scrutiny through use of three work codes. Management of the program is under strong management control.

Evidence: Data is available for the five year documenting the use of funds at the District and Division level. In FY 02, the program obligated approximately 96% of the funds allocated.

Has the program taken meaningful steps to address its management deficiencies?

Explanation: This program is constantly changing and evolving to reflect changes in law and science. Deficiencies are identified and addressed at the District, Division, and Nationwide levels. Meaningful steps that have been taken this Fiscal year include the Wetlands Regulatory Guidance Letter on Mitigation, the National Wetlands Mitigation Action Plan, and the initiative to address problems with the Wetland Delineation manual.

Evidence: Recent and ongoing modifications to program design include a greater emphasis on watersheds, improving public access to information, improved use of geospatial data, and implementation of the National Wetlands Mitigation Action Plan. The Wetland Delineation manual is also being updated to include the latest science and account for regional conditions such as Alaska.

Did the program seek and take into account the views of all affected parties (e.g., consumers; large and small businesses; State, local and tribal governments; beneficiaries; and the general public) when developing significant regulations?

Explanation: The Corps Regulatory program makes it a policy to gain public opinion on all new regulations, guidance, and policy issues. These opinions are incorporated into the proposed regulations, guidance, or policy papers.

Evidence: The Advanced Notice of proposed Rulemaking (ANPRM) is one example of the program seeking public comment. The Corps and EPA received more than 133,000 comments on the advanced notice. These comments are being incorporated into the proposed rule. Another example would be the National Wetlands Mitigation Action Plan and the incorporation of a stakeholder forum in the revisions to existing guidance.

Did the program prepare adequate regulatory impact analyses if required by Executive Order 12866, regulatory flexibility analyses if required by the Regulatory Flexibility Act and SBREFA, and cost-benefit analyses if required under the Unfunded Mandates Reform Act; and did those analyses comply with OMB guidelines?

Explanation:  

Evidence:  

Does the program systematically review its current regulations to ensure consistency among all regulations in accomplishing program goals?

Explanation: The program conducts reviews of the regulations at regular intervals. Nationwide and General Permits are systematically reviewed, published for public comment, and renewed every five years. The Corps publishes changes to the existing regulations on a regular basis to account for program changes and the results of legal challenges.

Evidence: As an example, nationwide permits, accounting for approximately 70% of all Corps authorizations, are reviewed and reissued, with intense public involvement, every five years. The changes to the program after the Supreme Court Decision on the SWANCC case are part of the Advanced Notice of Proposed Rulemaking.

Are the regulations designed to achieve program goals, to the extent practicable, by maximizing the net benefits of its regulatory activity?

Explanation: The program includes options to conduct full reviews of large projects while processing the majority of smaller projects through the nationwide permit program. The Nationwide Permit Program (designed to streamline the majority of the permits for activities in waters of the United States) is reviewed, published for public comment, and issued with revisions every five years.

Evidence: Most (85%) of permits issued are General and Nationwide permits. This maximizes the benefits of the program to protect aquatic resources by expediting permits for those activities that have less than minimal impacts, both individually and cumulatively. In addition, the changes to the Nationwide Permit program over the last 10 years have increased the environmental protection standard while maintaining the streamlined processing.

Has the program demonstrated adequate progress in achieving its long-term outcome performance goals?

Explanation: Resources are being protected at least practicable cost to the regulated public.

Evidence: Program deals with a large number of permits annually, affecting a geographical area the size of the Districtb of Columbia..

Does the program (including program partners) achieve its annual performance goals?

Explanation: The annual goal for Individual permits is not being met completely.

Evidence: The program was targeted to issue 70 percent of a key subgroup of individual permits in 120 days. It achieved 61% in 2001, 60% in 2002 and 56% in 2003,

Does the program demonstrate improved efficiencies or cost effectiveness in achieving program performance goals each year?

Explanation: The program has increased efficiency through the last several years based on increased use of Nationwide and General Permits. There is also the increased use of e-govt initiatives (including electronic Public Notices and on-line permit applications) as well as refinement of nationwide permit program.

Evidence: Cost efficiencies that can be measured easily include the use of electronic Public Notices instead of bulk mailings. This effort saves the taxpayers the cost of reproduction (each Public Notice generally includes 3-7 pages of text and at least 3 pages of maps and diagrams) as well as the postal charges. These costs are eliminated with the electronic format.

Does the performance of this program compare favorably to other programs, including government, private, etc., that have similar purpose and goals?

Explanation: Comparisons with other federal and state partners can be accomplished by interviews with applicants. Most, if not all, have favorable comments on the regulatory program.

Evidence: The Corps maintains records of the responses received on the questionnaires send out with each completed Individual Permit issued. The average score for the program was 3.3 out of 4 with more than 80% providing favorable comments.

Do independent and quality evaluations of this program indicate that the program is effective and achieving results?

Explanation: Yes, independent reviews have been positive and have yielded good recommendations for improving the program and its efficiency. Questions remain on quality. Program is working to address these.

Evidence: The Corps IG comprehensive report (FY 2002), the GAO audit on in-lieu fee program (FY 2001), and the NRC study on mitigation (FY 1999-2000).

Were programmatic goals (and benefits) achieved at the least incremental societal cost and did the program maximize net benefits?

Explanation: Yes. The program balances protection of aquatic resources with needed development. The Nationwide Permit Program provides expedited permit processing of the majority of the proposed actions; in order to qualify, these actions must have minimal impacts both individually and cumulatively.

Evidence: Continued revisions to the Nationwide permit program have reduced impacts while at the same time streamlining the permit process.