[Federal Register Volume 60, Number 49 (Tuesday, March 14, 1995)]
[Proposed Rules]
[Pages 13654-13662]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-5873]
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DEPARTMENT OF DEFENSE
Department of the Army
Corp of Engineers
33 CFR Parts 320, 325 and 333
Wetland Delineator Certification Program
AGENCY: Army Corps of Engineers, DOD.
ACTION: Proposed rule.
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SUMMARY: The U.S. Army Corps of Engineers (Corps) is establishing a
program for the training and certification of individuals as wetland
delineators. The intent of the Wetland Delineator Certification Program
(WDCP) is: (1) To improve the quality and consistency of wetland
delineations submitted to the Corps, and (2) to streamline the
regulatory process by developing procedures for expediting review and
consideration of delineations submitted by certified delineators. We
are publishing this proposed rule today to provide the public the
opportunity to assist us in the development of the WDCP.
DATES: Written comments must be submitted on or before April 13, 1995.
ADDRESSES: Written comments must be submitted to: The Chief of
Engineers, United States Army Corps of Engineers. ATTN: Ms. Karen
Kochenbach, CECW-OR, Washington, DC 20314-1000.
FOR FURTHER INFORMATION CONTACT: Ms. Karen Kochenbach or Mr. Sam
Collinson at the Office of the Chief of Engineers at (202) 272-0199.
SUPPLEMENTARY INFORMATION:
Background
The Corps regulates activities involving the discharge of dredged
or fill material into waters of the United States, including wetlands,
pursuant to Section 404 of the Clean Water Act (CWA). In accordance
with Section 307(e) of the Water Resources Development Act of 1990
(WRDA 90), the Corps is establishing the WDCP. Section 307 (e) of WRDA
90 authorizes the Secretary of the Army to establish a program for the
training and certification of individuals as wetland delineators.
Pursuant to this authority, the Corps conducted demonstration projects
in the Baltimore, Jacksonville, and Seattle districts.
The Wetland Delineator Certification Program (WDCP) was initially
announced in the Federal Register on December 30, 1992 (57 FR 62312).
This notice introduced the WDCP and provided specifics on participation
in the three demonstration projects. On [[Page 13655]] April 16, 1993,
we published a second announcement in the Federal Register (58 FR
19806) concerning the availability of draft training materials
developed for the WDCP. Corps districts nationwide issued public
notices concurrently with these notices, and numerous publications
chose to include brief articles in their professional journals on the
WDCP.
The concept of providing expedited acceptance of wetland
delineations by consultants and contractors similar to the goals of the
WDCP has previously been informally implemented by a few Corps
districts on a limited basis. In those cases, the Corps districts
established informal procedures for expeditious review and acceptance
of wetland delineations performed by qualified individuals. Like those
informal approaches, there will be no requirement for wetland
delineators to be certified under the WDCP in order to submit wetland
delineations to the Corps; however, the Corps will handle wetland
delineations performed by wetland delineators it has certified more
expeditiously. Corps districts will retain discretion regarding the
acceptance of wetland delineations, including those accomplished by
certified delineators. The WDCP will affect the Corps', U.S.
Environmental Protection Agency's (EPA), or U.S. Department of
Agriculture Natural Resources Conservation Service's (NRCS, formerly
the Soil Conservation Service (SCS)) authority to determine
jurisdiction for purposes of Section 404 of the CWA, but is intended to
provide expedited service to the public, while improving the accuracy
and consistency of wetland delineations submitted to the Corps by
consultants and contractors. The development of this program is also a
component of the Administration's August 24, 1993 Wetlands Plan
entitled ``Protecting America's Wetlands: A Fair, Flexible, and
Effective Approach.''
Wetland Delineation Manual
The four Federal agencies responsible for making wetland
delineations (i.e., the Corps, EPA, NRCS, and the U.S. Department of
Interior Fish and Wildlife Service (FWS) currently utilize the 1987
Corps of Engineers Wetland Delineation Manual (1987 Manual) for
identifying and delineating wetlands for purposes of Section 404 of the
CWA. As noted in the Administration's Wetlands Plan, the agencies will
continue to use the 1987 Manual pending completion of an on-going study
of the National Academy of Sciences (NAS) Committee on Wetlands
Characterization. The four Federal agencies noted above will review the
results of the NAS study, which is scheduled for completion at the end
of 1994, and determine if modifications to the 1987 Manual are
necessary. Certification under the WDCP will be based on demonstrated
abilities for delineating wetlands using the current Federal wetland
delineation methodology in use at the time of certification.
Copies of the 1987 Manual are available from the National Technical
Information Service (NTIS), 5285 Port Royal Road, Attn: Order
Department, Springfield, Virginia 22171. Document #ADA 176 734, Phone
#(703) 487-4650. Copies of the supplemental guidance issued by the
Corps concerning use of the 1987 Manual (i.e., the October 7, 1991,
Questions and Answers, and the March 6, 1992, Clarification and
Interpretation memorandum) as well as the Administration's Wetlands
Plan of August 24, 1993, may be obtained by contacting the Regulatory
Branch of your local Corps district, the EPA Wetlands Hotline at (800)
832-7828, or the Regulatory Branch of Corps Headquarters (Office of the
Chief of Engineers) at (202) 272-0199.
Current Practices/Past Problems
On the average, the Corps makes a total of 30,000 jurisdictional
determinations a year, many of which involve wetlands subject to
regulation under Section 404 of the CWA. Jurisdictional determinations
are determinations that a wetland and/or waterbody is subject to
regulatory jurisdiction under Section 404 of the Clean Water Act or
Sections 9 and 10 of the Rivers and Harbors Act of 1899. While the
Corps will conduct a wetland delineation if requested to do so, many
applicants choose to hire the services of a consulting firm to perform
wetland delineations on their behalf. Because of delineation backlogs
in many Corps districts, this approach can expedite the wetland
delineation review process. However, the Corps routinely receives
inaccurate and inconsistent wetland delineations from applicants and/or
their representatives which nessitate modification(s) or
redelineation(s). When this occurs, the Corps must spend a greater
amount of time in making a determination of wetlands jurisdiction. By
relying more on private sector delineations the Corps will be able to
more efficiently utilize its limited staff for permit evaluations and
compliance.
Although many districts have internal procedures currently in use
to determine competent wetland delineators, the Corps has not had one
uniform process for evaluating the demonstrated competence of wetland
delineators during its review of wetland delineations. It has been our
experience that wetland delineators who are properly trained and
experienced in the current Federal wetland delineation methodology
perform wetland delineations that are more accurate and consistent.
Consequently, these delineations require the Corps to spend less time
reviewing them for accuracy. These time savings are vital because Corps
districts spend a considerable amount of resources reviewing and
performing wetland delineations, whether delineations are made on-site
(based on a site visit) or off-site (based on an office determination
utilizing exiting available information, such as National Wetlands
Inventory maps and aerial photography).
We are aware that application of any wetland delineation
methodology by persons who lack the requisite scientific and technical
knowledge, has the potential to result in inaccurate or inconsistent
wetland delineations. However, we anticipate that wetland delineations
performed by certified delineators will be of higher quality and
greater consistency, thereby allowing for an expedited wetland
delineation review process.
Other organizations have or will be developing certification
programs in wetland science (e.g., the Society of Wetland Scientists),
and several States are also considering implementing certification
programs related to wetlands. The WDCP is a separate and distinct
program for wetland delineators who perform and submit wetland
delineations to the Corps, and has no relationship to, nor reciprocity
with, other certification programs currently in existence.
Federal Government Certification
The four Federal agencies primarily involved in wetland
delineations and Section 404 of the CWA (i.e., Corps, EPA, FWS, and
NRCS) have participated in interagency wetland delineation training
since 1989. The Corps manages this training, and experienced
delineators from the four agencies serve as instructors. The course is
continuously revised as necessary to ensure that Federal agency
personnel are presented with the current Federal wetland delineation
methodologies. Additionally, Corps, EPA, FWS, and NRCS wetland
delineators receive on-the-job training and gain valuable field
experience during the daily implementation of their wetland programs.
The agencies recognize the need to ensure that employees who perform
and/or verify wetland delineation possess the necessary training
experience. To facilitate the [[Page 13656]] goal of consistency in the
identification and delineation of wetlands, the Corps continues to work
with EPA, NRCS, and FWS to improve its training programs and field
staff capabilities, as included in the Administration's Wetlands Plan.
The Corps, based on these proposed regulations, will require completion
of the interagency wetland delineation training course (i.e.,
Regulatory IV), in addition to two (2) years experience and an internal
evaluation of knowledge and abilities of its field staff responsible
for making jurisdictional determinations in wetlands, equivalent to the
requirements of certified delineators. Consistent with the intent of
the WDCP, Federal agencies which submit wetland delineations to the
Corps (e.g., the Federal Highway Administration), may benefit from
being certified by the Corps through the WDCP.
Demonstration Program
The purpose of the demonstration program of the WDCP was to
determine the appropriate level of wetland delineation capabilities
which should be required of individuals in order to receive expedited
review and consideration of their wetland delineations by the Corps. In
addition, the demonstration program was used to test draft written
tests and field practicums, assess individuals' wetland delineation
capabilities, and receive feedback on the training package designed for
use by certified wetland delineators in the training of others in the
current Federal wetland delineation methodologies. Provisional
certification was awarded to those WDCP participants successfully
completing the two-part test, pending the adoption of final regulations
that will result from the evaluation of comments received on the
regulation proposed today.
The WDCP demonstration program involved projects in three Corps
districts, and began in March, 1993. The WDCP was initially announced
December 30, 1992 in the Federal Register, in addition to district
public notices. The projects took place in the States of: Washington,
Maryland, and Florida, administered by the Seattle, Baltimore, and
Jacksonville Districts, respectively, although participation was not
limited to applicants within the districts' boundaries. Applications
for provisional certification are no longer being accepted; districts
have completed the testing and evaluation of over 200 WDCP applicants.
There were no prerequisites nor fees charged for participation in the
demonstration projects. Because we believe that provisionally certified
individuals have demonstrated adequate wetland delineation knowledge
and ability, it is our intention to consider provisionally certified
individuals as certified wetland delineators under the final WDCP,
pending adoption of these regulations. The provisional certifications
will remain valid until a final rule is adopted for the WDCP.
Written Test
The written tests used by the three demonstration districts were
developed from the pool of questions used in the Federal interagency
wetland delineation training (Regulatory IV), and are based on the
current Federal wetland delineation methodology (i.e., the 1987
Manual), related technical guidance, and other wetland concepts covered
in the Regulatory IV training (e.g., soil taxonomy). Each demonstration
district prepared a written test from the pool of these multiple choice
questions. Over the years, the Corps has added, deleted, and/or
modified questions in the pool used in its wetland delineation training
to remain consistent with the current Federal wetland delineation
methodology. The passing score for the written exam administered during
the demonstration projects was 80%. We believe that proper training is
essential to the competency of wetland delineators, and the Corps tests
are designed to evaluate such training. We invite comments on this
testing approach, as well as comments on the tests, from those who have
participated in the demonstration program. We intend to standardize the
written tests for administration nationwide in the final WDCP.
Field Practicum
A field practicum was also administered by the demonstration
districts to those who successfully completed the written test. Like
the written test, the field practicum required WDCP applicants to have
an understanding of the three parameters used in wetlands delineation
(i.e., hydrophytic vegetation, hydric soils, and wetland hydrology),
and the procedures utilized to assess these characteristics consistent
with the 1987 Manual. During the field practicums, participants were
required to document the presence or absence of field indicators for
each of the three parameters by using data sheets to record field
observations, and by providing written explanations supporting their
conclusions. Eighty percent (80%) was also the passing score for the
field practicum. We believe that WDCP field practicums must be
procedurally and fundamentally the same from Corps district to Corps
district, and will standardize the practicum used during the
demonstration phase prior to nationwide implementation.
Administration of the field practicum during the demonstration
program was influenced to some degree by the weather (e.g., snow in
Baltimore in March). We welcome comments on the consideration of
limiting these tests to the time period as determined by appropriate by
the districts, for example, the local growing season. Comments on the
field practicum are requested from those individuals who participated
in the demonstration program, and any recommendations for modifications
or other procedures that can be consistently administered in all
districts will be considered.
Results
Results of the demonstration program are provided in Table 1 below.
Overall, more than 3,000 WDCP information/application packages were
mailed to prospective applicants by the three demonstration districts
in response to public requests. Over 1500 applications were submitted,
and all were provided the opportunity to take the written exam. Of the
more than 900 that did so, fewer than 400 WDCP applicants passed the
written test. All of the individuals who passed the written test took
the field practicum, and over 85% passed. Currently there are almost
350 provisionally certified wetland delineators nationwide. Until
certification is defined through the adoption of final regulations, and
individuals are certified under the final WDCP, the names of
provisionally certified individuals will not be released by the Corps.
Table 1.--Summary of WDCP Demonstration Program Results
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No. of individuals Baltimore Jacksonville Seattle Totals
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Applied for participation....................... 496 501 642 1,639
Took written test............................... 386 347 174 907
Passed written test............................. 184 (48%) 148 (43%) 61 (35%) 393 (43%)
[[Page 13657]]
Took field practicum............................ 184 148 61 393
Passed field practicum.......................... 152 (82%) 148 (100%) 49 (80%) 349 (88%)
Provisionally certified......................... 152 148 49 349 (38%)
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Training
A certificate of training in the current Federal wetland
delineation methodology, signed by a certified wetland delineator,
would be a mandatory prerequisite for all WDCP applicants. Prior to the
adoption of final regulations based on today's proposal, individuals
may satisfy this future prerequisite by obtaining a certificate
verifying completion of wetland delineation training in the current
Federal wetland delineation methodology from an instructor utilizing
the Corps 1993 WDCP draft training package. The availability of the
draft training package developed for the WDCP, was announced in the
Federal Register on April 16, 1993 (58 FR 19806). Copies were
distributed free of charge by the Corps Wetlands Research and
Technology Center (WRTC) at the Waterways Experiment Station (WES) in
Vicksburg, MS. A limited number of copies may still be available by
calling the WRTC at (601) 634-4217. An evaluation of the draft WDCP
training package is being conducted by the Corps, and a revised
training package will be developed for future use.
A list of potential training sources available to the public
through private and academic institutions, is available from the
Regulatory Branch of your local Corps district office or the Office of
the Chief of Engineers in Washington, D.C. A certificate of completion
of the WDCP wetland delineation training would be issued by the
training source and required by the Corps for participation in the
final WDCP. At this time, training may be provided by individuals who
have received the training materials, regardless of whether or not they
are provisionally certified by the Corps. However, after the adoption
of final regulations for the WDCP, all training intended to meet this
prerequisite must be provided by a wetland delineator certified under
the final WDCP. It is the responsibility of the individual seeking
certification by the Corps under the WDCP to ensure that the training
meets the training prerequisite (i.e., that the training is provided by
a certified wetland delineator).
The Corps will keep certified delineators and trainers abreast of
modifications and updates to the training materials, and will provide
lists of training sources offering the WDCP training. After a final
WDCP is adopted, all districts will maintain lists of both certified
wetland delineators as well as those who provide the requisite
training, and will make these lists available to the public, as
proposed in these regulations.
The Wetland Delineation Certification Program (WDCP)
The WDCP would require applicants to: (1) satisfy certain
prerequisites and (2) pass a two-part test.
Prerequisites
Prerequisites for entrance into the WDCP would consist of: (1)
Training in the current Federal wetland delineation methodology, and
(2) two (2) years of professional experience in wetlands delineation.
We feel training should consist of a combination of classroom and field
training specifically in the current Federal wetland delineation
methodology. Training must be conducted by an individual certified by
the Corp, and should consist of a minimum of 36 hours of instruction,
consistent with the training required of Corps, EPA, NRCS (formerly the
SCS), and FWS Federal agency staff who delineate wetlands for purposes
of Section 404 of the Clean Water Act. Comments are requested on
alternative training mechanisms which provide greater flexibility to
potential WDCP applicants. For example, comment is solicited in the use
of videotape or at-home study for the delivery of the training
material. One such alternative would allow individuals to study course
materials at home, and then spend one or two days at a training program
facility to receive hands-on instruction and to take the course exam.
This alternative would help to reduce travel expenses, may lower
tuition costs, and would reduce the time that a trainee would have to
miss work. The Corps is concerned, however, that non-classroom oriented
instructional methods may not provide training of a quality equivalent
to classroom instruction. Comments on the impact of quality resulting
from the alternative training methods taking into account the
requirement for hands-on training, course test, and third party exam,
are specifically sought as a part of this proposal. To satisfy the
experience requirement, WDCP applicants should have a minimum of 2
years experience delineating wetlands for Federal, State, tribal or
local governments, or the private sector. The WDCP applicant would have
to supply references of employers, including telephone numbers for
verification purposes, of references who can attest as to the WDCP
applicant's assertions regarding experience. The Corps reserves the
right to check a WDCP applicant's documented prerequisites. We welcome
comments on alternative approaches of satisfying the experience
requirement, such as documentation that a minimum number of wetland
delineations were accepted by the Corps prior to certification.
Acceptance into the WDCP (i.e., meeting all prerequisites) does not
guarantee certification. Applications for certification must be
accompanied by documentation (e.g., training certificate) that an
individual meets all prerequisites. We welcome comments on the proposed
prerequisites, as well as suggestions for other options.
Tests
Generally, WDCP applicants would submit a WDCP application form (to
be developed for the final WDCP) to the appropriate district, where it
would be considered in accordance with the final regulations. Qualified
WDCP applicants would be notified of the next available test date.
Testing will include a standardized written examination for nationwide
use, which must be passed before applicants proceed to the field
practicum. Based on the response to the demonstration projects, we are
proposing to offer the national written test sessions in all Corps
districts on the same date each month for the first three months of
nationwide implementation of the WDCP and quarterly thereafter. Field
practicums will be scheduled based on need (i.e., the number of WDCP
applicants which have first passed the written test). The field
practicums may vary slightly between divisions (the proposed geographic
limits of the validity of certifications made at the district level),
based on regional differences such as growing season, wetland type, and
some field [[Page 13658]] indicators, however, the field practicum
procedure will be identical nationwide. Comments on the appropriate
procedures and frequency of the field testing, particularly from
individuals who participated in the demonstration program, would be
helpful. We are proposing to limit the number of opportunities to
retake the tests without the benefit of additional training. WDCP
applicants who fail either the written or the field test are encouraged
to obtain additional training and/or experience prior to retesting.
Certification
Upon successful completion of the prerequisites and testing
requirements, the district would award a certification to the applicant
by mail. Certified wetland delineators would be required to include a
signed statement with all wetland delineations submitted to the Corps,
verifying that the information has been developed in accordance with
the current Federal wetland delineation methodology, and is subject to
legal penalties related to false information as provided for in 18
U.S.C. Section 1001 (18 U.S.C. Section 1001 provides that: Whoever, in
any manner within the jurisdiction of any department or agency of the
United States knowingly and willfully falsifies, conceals, or covers up
by any trick, scheme or device a material fact or makes any false,
fictitious, or fraudulent statements or representations or makes or
uses any false writing or document knowing the same to contain any
false, fictitious, or fraudulent statements or entry, shall be fined
not more than $10,000 or imprisoned not more than five years, or both.)
Certified wetland delineators would be contacted by the Corps as to the
completeness and accuracy of the wetland delineation submitted within
30 days if submitted in conjunction with a permit application, or 60
days if not (see 325.2(c)). Expedited review associated with wetland
delineations submitted by certified wetland delineators does not
guarantee shorter permit processing times, which will be the subject of
a future rulemaking action related to the Administration's Plan. The
issuance of a certification does not create or grant any property
interest or right for the certified wetland delineator, nor does it
create any rights for an individual relying upon a wetland delineation
made by a certified wetland delineator, but is intended to facilitate
the determination of jurisdiction by the Corps.
Validity of Certifications
Comments are requested on our intention to consider provisional
certifications issued by the demonstration districts valid as final
certifications after the WDCP is implemented nationwide. Comments are
also requested on the option of considering certifications (provisional
as well as final) valid in a broader geographic area than the
administering district's regulatory boundaries. While we are proposing
that certifications be issued by districts and considered valid within
the Corps Division in which the district exists, we invite comments on
other options (e.g., nationwide). In addition, we invite comments on
the need to further limit the validity of certifications in exceptional
situations involving unique geographic areas. For example, it may be
determined appropriate for certifications within Divisions which
include entities such as Alaska, Hawaii, Puerto Rico, and America
Samoa, etc., to limit the validity of certification to a smaller
geographic area. Certifications would remain valid for a period of five
(5) years; therefore recertification would generally be necessary once
every 5 years. Certifications would be subject to suspension or
revocation procedures (see Section 333.7) based on repeated poor
performance and/or submittal of inaccurate wetland delineations by
certified wetland delineators.
Costs
During the early years of the WDCP, costs to the Corps of
administering the program will likely exceed the savings in reduced
staffing needs associated with verifying wetland delineations. These
costs were monitored during the demonstration program to assess the
effect on budget and manpower allowances. The costs incurred by the
demonstration districts were, as expected, greater than the costs
anticipated during nationwide implementation due to the WDCP
developmental responsibilities required of these districts.
Although the WDCP require the expenditure of a portion of the
regulatory budget for several years, we are not proposing to assess a
fee for certification. WDCP applicants will have incurred some costs
associated with satisfaction of the training prerequisites of the
program. In addition, it will be necessary for certified wetland
delineators to keep certifications current with the most recent Federal
wetland delineation methodology. Nonetheless, comments are requested on
the issue of fees associated with the WDCP, such as where fees should
be charged and why, and what should be the basis for such fees.
Although we expect Federal costs associated with nationwide
implementation of the WDCP to be higher initially, we are confident
that Federal labor costs will be reduced over the life of the program.
Benefits
The Corps, permit applicants, and the public will benefit from the
improved quality and consistency of wetland delineations the Corps
receives from certified wetland delineators. The public will benefit
from the expedited review and consideration of wetland delineations by
certified wetland delineators by the Corps. We believe that the program
will result in better service to the public by both the Corps and
private sector wetland delineators. It is anticipated that both the
Corps and the public will have greater certainty in consultants' or
contractors' wetland delineations as a result of the WDCP. Benefits are
expected to increase each year.
Proposed Changes
33 CFR 320.3(p)--Related Laws
We are proposing to add Section 307(e) of the Water Resources
Development Act of 1990 authorizing the WDCP to the related laws
section.
33 CFR 325.2(c)--Wetland Delineations Submitted by Certified
Delineators
We are proposing procedures, requirements, and timeframes to
provide for expedited review of wetland delineations submitted by
certified delineators as required by Section 307(e) of the Water
Resources Development Act of 1990.
33 CFR 333--Wetland Delineator Certification Program
We are adding a new part to implement the WDCP. Section 333.1
Purpose and Section 333.2 General provide a statement of purpose and an
overview of the WDCP.
Section 333.3 Definitions provides definitions of common terms used
in the WDCP. The proposed terms are ``accuracy determination'',
``wetland delineation'', ``wetland determination'', ``jurisdictional
determination'', ``certification'', ``certified wetland delineator'',
``expedited review'', ``suspension'', ``revocation'', ``substantial
inaccuracies'', and ``history of substantial inaccuracies''. We request
comments on these terms and the need to define additional terms.
Section 333.4 Certification Process describes the procedures and
requirements necessary to be certified under the WDCP. This section
includes a discussion of the mandatory prerequisites and tests we are
proposing [[Page 13659]] to require of wetland delineators in order to
be certified by the Corps.
Section 333.5 Validity of Certifications provides for the
geographic limits of where a certification would be considered valid in
order to receive expedited review by the Corps.
Section 333.6 Recertification discusses the requirement for an
individual to keep the certification current in order to receive
expedited review by the Corps. We believe that certifications should
not be valid indefinitely and are proposing a five (5) year limit.
Section 333.7 Suspension or revocation discusses the ability of the
Corps to suspend or revoke an individual's certification, if
appropriate, after an opportunity has been provided by the Corps for
the certified delineator to respond in writing to the District
Engineer's reasons for suspending or revoking the certification.
Environmental Documentation
We have made a preliminary determination that this action does not
constitute a major Federal action significantly affecting the quality
of the human environment. The WDCP is intended to improve the quality
and consistency of wetland delineations reviewed by the Corps, and to
expedite decisions regarding these delineations, but will have no
effect on the outcome of the jurisdictional determination. Furthermore,
appropriate environmental documentation is prepared for all permit
decisions on a case-by-case basis.
Executive Order 12866
The Department of the Army has made a preliminary determination
that these regulations do not contain a major proposal requiring the
preparation of a regulatory analysis under E.O. 12866. The Office of
Management and Budget has concurred. In addition, there has been, and
will continue to be, substantial interagency coordination on the WDCP
to ensure that the interests of other Federal agencies are considered
in the finalization of regulations for the WDCP.
The Regulatory Flexibility Act
The Department of the Army, pursuant to Section 605(b) of the
Regulatory Flexibility Act of 1980, has made a preliminary
determination that these proposed regulations will not have a
significant impact on a substantial number of small entities.
Implementation of the WDCP has the potential to be labor intensive for
the Corps, as was the case during the demonstration projects. While
costs to the Corps of administering the program during the early years
of the WDCP will likely exceed the savings in reduced manpower needs
associated with verifying wetland jurisdictional determinations, we are
confident that labor costs will be reduced over the life of the
program. These costs were monitored during the demonstration program to
assess the effect on budget and manpower allowances, and costs varies
among the three participating Districts. Although the WDCP will require
the expenditure of a portion of the regulatory budget for several
years, we do not intend to assess a fee for certification. WDCP
applicants will already have incurred expenses to obtain the necessary
training as needed to meet the prerequisites of the program. In
addition, it will be necessary for certified wetland delineators to
keep certifications current with the most recent Federal wetland
delineation methodology. We have taken steps, however, to minimize
labor requirements on Corps districts in the implementation of the
final WDCP. For example, field practicums will be standardized and
necessary training provided to the districts, thereby eliminating the
time-consuming developmental process experienced by the demonstration
districts. Although we expect costs associated with nationwide
implementation of the WDCP to be higher initially, we are confident
that Federal labor costs will be deduced over the life of the program.
Benefits
The Corps, permit applicants, and the public will benefit from the
improved quality and consistency of wetland delineations the Corps
receives from certified wetland delineators. The public will benefit
from the expedited review and consideration of wetland delineations
submitted by certified wetland delineators by the Corps. We believe
that the program will result in better service to the public by both
the Corps and private sector wetland delineators. It is anticipated
that both the Corps and the public will have greater certainty in
consultants' or contractors' wetland delineations as a result of the
WDCP. Benefits are expected to increase each year.
Note: (1) The terms ``district engineer'' or ``division
engineer'' should be considered to be interchangeable until
decisions are made as to the appropriate level of authority for
decisions regarding the WDCP, as set forth in the final regulations.
List of Subjects
33 CFR Part 320
Environmental Protection, Intergovernmental relations, Navigation,
Water pollution control, Waterways.
33 CFR Part 325
Administrative practice and procedure, Intergovernmental relations,
Environmental protection, Navigation, Water pollution control,
Waterways.
33 CFR Part 333
Waterways, Training programs, Consultants, Reporting and record
keeping requirements.
Dated: March 3, 1995.
John H. Zirschky,
Acting Assistant Secretary of the Army (Civil Works), Department of the
Army.
For the reasons set out in the preamble, 33 CFR Parts 320 and 325
are proposed to be amended, and Part 333 is added to read as follows:
33 CFR CHAPTER I--CORPS OF ENGINEERS, DEPARTMENT OF THE ARMY
PART 320--GENERAL REGULATORY POLICIES
1. The authority citation for Part 320 continues to read as
follows:
Authority: 33 U.S.C. 401 et seq.; 33 U.S.C. 1344; 33 U.S.C.
1413.
2. Section 320.3 is amended by adding a new paragraph (p) at the
end that reads as follows:
Sec. 320.3 Related laws.
* * * * *
(p) Water Resources Development Act of 1990. Pursuant to Section
307(e) of the Water Resources Development Act of 1990 (Pub. L. 101-
640), the Secretary of the Army has established a program for the
training and certification of individuals as wetland delineators for
purposes of submitting wetland delineations to the Corps. The Wetland
Delineator Certification Program also includes procedures for
expediting review and consideration of wetland delineations submitted
by wetland delineators it has certified.
PART 325--PROCESSING DEPARTMENT OF THE ARMY PERMITS
3. The authority citation of part 325 continues to read as follows:
Authority: 33 U.S.C. 401 et seq.; 33 U.S.C. 1344; 33 U.S.C.
1413.
4. Paragraph (c) is added to read as follows:
Sec. 325.2 Processing of applications.
* * * * * [[Page 13660]]
(c) Wetland delineations submitted by certified wetland
delineators--(1) General. The Corps intends to give expedited review to
wetland delineations submitted by certified wetland delineators, as
part of a request for wetland jurisdictional determinations.
(2) Contents of wetland delineations. Certified wetland delineators
will submit wetland delineations to the appropriate Corps regulatory
office using the following format.
(i) The wetland delineation submittal will include:
(A)(i) A copy of the wetland delineator's certification.
B(i) Drawings, plans and/or surveys, to scale, showing the acreage
and boundaries of the wetland in the project area, and
(C) Completed data sheets in support of the documented wetland
boundary.
(ii) In addition, submittals by certified wetland delineators will
include the name, address and telephone number of the person designated
to receive the results of the Corps' accuracy determination for Corps'
acceptance of the wetland delineation.
(3) Corps approval. District Engineers will strive to make a
determination of completeness and accuracy of wetland delineations
submitted by certified wetland delineators within thirty (30) calendar
days of receipt if they are accompanied by a permit application, and
sixty (60) calender days if they are not.
(i) The district engineer's determination of completeness and
accuracy of the wetland delineation submitted by a certified wetland
delineator will be made in writing and will consist of:
(A) Request for additional information or corrections needed for
the Corps to make a determination of the accuracy of the wetland
delineation.
(B) Acceptance of the wetland delineation by the Corps as
submitted, or
(C) Acceptance with minor modifications identified and made by the
Corps.
(ii) The Corps final acceptance of a certified wetland delineator's
submittal will represent the wetland delineation used in making the
jurisdictional determination, and will remain valid for a specified
period of time consistent with corps guidance as provided in the final
acceptance document. Resubmittal of corrected wetland delineations by
certified wetland delineators after an earlier submission has been
determined to have been incomplete or inaccurate will be subject to the
same time frames as the initial submittal.
* * * * *
PART 333--WETLAND DELINEATOR CERTIFICATION PROGRAM
5. Part 333 is added to read as follows:
PART 333--WETLAND DELINEATOR CERTIFICATION PROGRAM
333.1. Purpose.
333.2. General.
333.3. Definitions.
333.4. Certification Process.
333.5. Validity of certifications.
333.6. Recertification.
333.7. Suspension or revocation of certifications.
333.8. Maintenance of lists.
Authority: 33 U.S.C. 1344.
Sec. 333.1 Purpose.
This section prescribes the policies, procedures, and guidance for
administration of the Wetland Delineator Certification Program (WDCP).
The purposes of the WDCP are:
(a) To improve the quality and consistency of wetland delineations
submitted to the Corps either alone or in conjunction with a permit
application seeking to discharge dredge or fill material into waters of
the United States, and.
(b) To streamline the regulatory process through the submittal of
wetland delineations which can be approved by the Corps in an expedited
manner (see 33 CFR 325.2(c) for a discussion of the expedited review
and consideration of delineators submitted by certified wetland
delineators).
Sec. 333.2 General.
The WDCP is a training and certification program for wetland
delineators who submit wetland delineations to the Crops. The Corps has
developed a training package for use by the others (e.g., the private
sector, the academic community, States) in the current Federal wetland
identification and delineation methodologies. WDCP applicants receive
training from sources utilizing certified wetland delineators and the
current training materials developed and provided to them for that
purpose by the Corps for the WDCP. In addition, the Corps has developed
a process to certify that wetland delineators have met certain minimum
standards (see Sec. 333.4 below). Furthermore, the Corps has
established a process to expedite decisions on wetland delineators
submitted by certified delineators (see Sec. 325.2(c)).
Sec. 333.3 Definitions.
For purposes of this regulation these terms are defined as follows:
(a) The term accuracy determination refers to the process whereby
the District Engineer determines that a wetland delineation submitted
by a certified wetland delineator is consistent with the current
Federal wetland delineation methodology. Such delineations may include
some flaws which the Corps determines are minor and that can be easily
corrected.
(b) The term wetland delineation means a final Corps of Engineers
delineation, or verification by the Corps of a delineation submitted by
an applicant or an applicant's representative, indicating the acreage
and boundaries of a subject property that is wetland in accordance with
the current Federal wetland delineation methodology. Additionally, the
term includes reverification of expired wetland delineations and
reverification of wetland delineation where new information has become
available that may effect the final wetland delineation.
(c) The term wetland determination means a preliminary Corps of
Engineers determination as to whether or not wetlands exist on a
subject property.
(d) The term jurisdictional determination means a final Corps of
Engineers determination that a wetland and/or waterbody is subject to
regulatory jurisdiction under Section 404 of the Clean Water Act or a
final Corps determination that a waterbody is subject to regulatory
jurisdiction under Sections 9 and 10 of the Rivers and Habors Act of
1899. Additionally, the term includes reverification of expired
jurisdictional determinations and reverification of jurisdictional
determinations where new information has become available that may
effect the final determination.
(e) The term certification refers to the Corps' official
recognition that an individual has successfully demonstrated that he or
she is capable of performing wetland delineations consistent with the
current Federal wetland delineation methodology in use at the time of
certification.
(f) The term certified wetland delineator means an individual who
has met all prerequisites and testing requirements of the Corps of
Engineers wetland delineator certification program. The certified
wetland delineator is able to submit wetland delineations to the Corps
and receive expedited review and decisions as to the completeness and
accuracy of the delineation.
(g) The term expedited review means that, to the maximum extent
possible, [[Page 13661]] District Engineers will make all
determinations as to the completeness and accuracy of wetland
delineations submitted by certified wetland delineators within thirty
(30) calendar days of receipt in the case of wetland delineation
requests not associated with a permit application.
(h) The term suspension means the temporary removal of a wetland
delineator's Corps certification, pending a decision by the District
Engineer on whether a certification should be revoked.
(i) The term revocation means the removal of a delineator's
certification with an optional ban on recertification for a prescribed
revocation period.
(j) The term substantial inaccuracies means non-minor inaccuracies
that, in the District Engineer's judgment, have materially affected the
completeness and accuracy of the delineation and/or have caused
substantial delays to the District in its review of the delineation.
Substantial inaccuracies may include, but are not limited to: the
inaccurate application of one or more of the field indicators for
vegetation, soils, or hydrology; the failure to follow appropriate
field sampling protocol or techniques; the submission of inaccurate or
incomplete data forms; or the reach of erroneous conclusions about the
presence and/or extent of wetlands at a site.
(k) The term history of substantial inaccuracies means 2 or more
substantial inaccuracies in wetland delineations submitted to the Corps
by the same certified wetland delineator within the same District, or 3
or more substantial inaccuracies the Corps has documented in different
Districts, with at least one of these inaccuracies recorded in the
District contemplating a revocation action.
Sec. 333.4 Certification process.
(a) Prerequisites: The certification process is designed to
identify those individuals who possess the requisite knowledge and
skills necessary to conduct and appropriately document wetland
delineations consistent with the current Federal wetland delineation
methodology in use at the time of certification. The certification
process, which will be administered by Corps district offices, involves
two steps: meeting all prerequisites, and passing all tests.
(1) The prerequisites will consist of written documentation
demonstrating that the WDCP applicant has:
(i) At least two (2) years experience in delineating wetlands for
any Federal, State, or local governments, or the private sector, and
(ii) Completed wetland delineation training as set forth in the
Corps training materials developed for the WDCP.
(2) The training package will be made available only to training
sources for instruction by a WDCP certified wetland delineator.
(b) Testing: The WDCP involves two (2) types of tests: a national
written test, and a regional field proacticum. WDCP applicants meeting
all prerequisites will be scheduled for the written test. A minimum
score of 80% will be required to successfully complete the written
test. WDCP applicants will be permitted to retake the written test a
maximum of three (3) times, or the field practicum a maximum of two (2)
times, unless the WDCP applicant can provide documentation that the
required training has been repeated since the last practicum. During
the practicum, WDCP applicants will be asked to collect data and
document conclusions. A minimum score of 80% on the field test will be
required. WDCP applicants who pass both the written test and field
practicum will receive documentation of certification by the applicable
Corps district.
(c) Certification. In order to receive expedited review and
consideration by the Corps, certified wetland delineators will be
required to submit a copy of their certification, in addition to other
required documentation, to the Corps in conjunction with each request
for a verification of a wetland delineation. Wetland delineations
conducted in whole or in part by an uncertified individual may receive
expedited review and consideration if it is reviewed, adopted, and
signed by a Corps-certified wetland delineator. The certified wetland
delineator must state that the he or she has personally reviewed and
concurred with the wetland delineation and has found the documentation
to be satisfactory. By signature and submittal, certified wetland
delineators accept responsibility for the completeness and accuracy of
the wetland delineation, and are subject to the suspension or
revocation procedures described in Sec. 333.7, and legal penalties
regarding false information.
Sec. 333.5 Validity of certifications.
Generally, certifications made pursuant to these regulations will
be valid within the Corps division boundaries of the certifying
district. However, due to the unique features of wetland
characteristics in some districts (e.g., Alaska), Corps divisions may
confine the validity of certain certifications to a district or set of
districts. Certifications will remain valid for a period of five (5)
years, at which time recertification will be necessary.
Sec. 333.6 Recertification.
(a) Recertification through the WDCP will be required every five
(5) years, unless otherwise required by the Corps. WDCP applicants for
recertification may be expected to complete the testing requirements
(written, field, or both, as determined by the district) which have
been adopted for the final WDCP. If the Corps adopts use of a new
wetland delineation methodology, or events beyond the Corps' control
nullify the original certification of a wetland delineator made by the
Corps, recertification may be required at a greater frequency.
(b) Minor changes in the Corps wetland delineation policy and/or
procedures will typically not require recertification. The Corps will
notify certified individuals of minor modifications by mail. The extent
of the modification will dictate the need for recertification (e.g, a
new wetland delineation manual may require recertification while use of
a new data form may not). Once notified, certified wetland delineators
will be expected to incorporate these modifications into all future
wetland delineations they submit. Failure to do so maybe grounds for
suspension of an individual's certification.
Sec. 333.7 Suspension or revocation of certifications.
(a) A District Engineer may suspend or revoke a delineator's
certification if the District Engineer determines that the wetland
delineations submitted by the certified wetland delineator exhibit a
history of substantial inaccuracies. Revocation will result in removal
of an individual from lists provided to the public, while suspension
will not. This will ensure that the list of certified wetland
delineators given to the public does not contain certified wetland
delineators that repeatedly perform and/or submit inaccurate wetland
delineations and thus delay, rather than expedite, the Corps acceptance
of wetland delineations.
(b) Procedures--(1) Records. Districts will maintain accurate
records on all substantial inaccuracies identified in wetland
delineations submitted by certified wetland delineators. Whenever any
District identifies such an inaccuracy, the District will notify the
certified wetland delineator and allow the delineator to write a letter
explaining the inaccuracy. Such letter will be maintained in the
delineator's file. If the District discovers that a certified wetland
delineator has [[Page 13662]] submitted 2 or more substantially
inaccurate delineations to the District, or 1 substantially inaccurate
delineation to the District and 2 or more delineations to other
Districts, and the Chief of the Regulatory office believes that these
inaccuracies warrant revocation, than the Chief of the Regulatory
office should prepare, with the advice of counsel, a report for the
District Engineer substantiating these inaccuracies along with a
recommendation to revoke the delineator's certification.
(2) Notification. If the District Engineer agrees that revocation
may be warranted. The District Engineer shall send a letter to the
delineator explaining:
(i) That the District Engineer is considering whether to revoke the
delineator's certification.
(ii) That the delineator's certification is suspended pending the
District Engineer's decision.
(iii) The causes for the potential revocation, including the
substantial inaccuracies identified, and
(iv) That the delineator has 30 days from receipt of the District
Engineer's letter to send a response letter providing mitigating or
extenuating circumstances, or stating a defense against the causes for
revocation.
(3) Delineator response. In the response letter, the delineator
should include a complete explanation of any mitigating or extenuating
circumstances demonstrating that revocation is unwarranted. The
delineator should also provide any defenses to the stated causes for
revocation, including any assertion that he or she may choose to make
that no substantial inaccuracies occurred.
(4) Review and decision. The District Engineer must consider any
certified wetland delineator response letter submitted. If a letter
raises any genuine issues of fact, the District Engineer, exercising
appropriate discretion, may decide to meet with the delineator to
discuss these issues. After considering all information gathered by the
District and submitted by the delineator, the District Engineer should
make the decision, based on a preponderance of the evidence, as to
whether or not to revoke the delineator's certification.
(5) Notification of decision to delineator. Absent extenuating
circumstances, the District Engineer shall decide whether to revoke a
certification within 30 days of receiving the delineator's response
letter or any meeting with the delineator, whichever is later. A letter
stating the District Engineer's decision shall be sent to the
delineator by certified mail, return receipt requested.
(6) Notification to other corps districts. If the District
Engineer's decision is to revoke a certification, the District shall
notify all other Corps Districts that the delineator is no longer
certified, and the individual's name will be removed from the list of
certified wetland delineators given to the public.
(c) Revocation period. Revocation periods are measured from the
beginning of the suspension. The District Engineer should assign a
revocation period commensurate with the seriousness of the causes for
revocation, but no longer than 2 years. The District Engineer may
reduce the length of the revocation period after it is assigned, if new
information or other appropriate reasons develop. Delineators can apply
for recertification only after the revocation period has ended.
(d) Scope of revocation. (1) A revocation only applies to the
certification of the person who signed the delineations identified as
inaccurate. Thus, a revocation cannot be imputed to other certified
delineator in the same consulting firm as a decertified delineator.
(2) The revocation shall apply nationwide.
(e) Appeal. A revocation may be appealed in writing to the Division
Engineer setting forth matters in extenuation, mitigation, or
disagreement with the revocation. After reviewing both the appeal
letter and the administrative record, the Division Engineer will
reverse the District Engineer's decision to revoke the delineator's
certification only if the determination is found to be arbitrary or
capricious. The Division Engineer must notify both the delineator and
the District Engineer of the decision. Only after the conclusion of
this appeal process may a delineator seek redress in Federal court.
Sec. 333.8 Maintenance of lists.
The Corps will maintain two (2) lists for the WDCP. The first will
be a list of individuals within a Division who have been certified by
one of its Districts through the final WDCP. The second will be the
list of training sources providing the prerequisite training. All
training intended to meet the mandatory prerequisite will be conducted
by a certified wetland delineator as an instructor. Both lists will be
available to the public.
[FR Doc. 95-5873 Filed 3-13-95; 8:45 am]
BILLING CODE 3710-92-M
