1. The 1992 Energy and Water Development Appropriations Act (Act) contains the following provisions:
a. None of the funds of the Act shall be used to identify or delineate any land as a "water of the United States" under the Federal Manual for Identifying and Delineating Jurisdictional Wetlands that was adopted in January 1989 (1989 Manual) or any subsequent manual not adopted in accordance with the requirements for notice and public comment of the rule-making process of the Administrative Procedure Act.
b. In addition, regarding Corps of Engineers ongoing enforcement actions and permit applications involving lands which the Corps or the Environmental Protection Agency (EPA) has delineated as "waters of the United States" under the 1989 Manual, and which have not yet been completed on the date of enactment of the Act (i.e., August 17, 1991), the landowner or permit applicant shall have the option to elect a new delineation under the Corps 1987 Wetlands Delineation Manual (1987 Manual) (Technical Report Y-87-1, Waterways Experiment Station (WES), January 1987) or completion of the permit process or enforcement action based on the 1989 Manual delineation, unless the Corps of Engineers determines, after investigation and consultation with other appropriate parties, including the landowner or permit applicant, that the delineation would be substantially the same under either the 1987 or the 1989 Manual.
c. None of the funds in the Act shall be used to finalize or implement the proposed regulations to amend the fee structure for the Corps of Engineers regulatory program which were published in Federal Register, Vol. 55, No. 197, Thursday, October 11, 1991.
The provisions of the Act make it necessary for the Corps to change some regulatory procedures, as described below. This guidance has been reviewed and approved by the Office of the Assistant Secretary of the Army for Civil Works.
2. After August 17, 1991, initial delineations will be made using the Corps 1987 Manual. WES will provide field offices copies of the 1987 Manual. Supplementary guidance will be provided by CECW-OR under separate cover.
3. The following general guidance will apply:
a. For the purposes of this guidance, ongoing permit applications are defined as: formal individual permit applications (ENG FORM 4345), letters requesting verification of authorization under regional or nationwide permits, or predischarge notices as required by nationwide permits, received before August 17, 1991, where no permit has been issued, verified or denied, and existing jurisdictional delineations where no permit has been requested. Individual permit decisions are considered final when the District Engineer signs the decision document. The 20 day predischarge notification clock (nationwide permit 26) will be stopped and the information considered incomplete until the options are explained and the general permitted responds, at which time the clock restarts.
b. Only applications involving section 404, where the jurisdictional delineation (Corps or EPA) involved wetlands identified as waters of the United States using the 1989 Manual are subject to the options provided by the Act.
4. Landowners/applicants involved in ongoing applications, as defined in 3. a. & b., will be notified of their options, as follows:
a. The district may investigate and determine, for some or all of the district's area, on a generic or case-by-case basis, whether delineations using the 1989 Manual are substantially the same or substantially different than would have been made using the 1987 Manual. In every case the Corps must notify the landowner/applicant by letter of the Corps initial determination and provide the landowner/applicant an opportunity for consultation (not to exceed 30 days), before proceeding with the final determination in accordance with paragraph b. or c. below. In the interest of timeliness, districts are encouraged to use generic initial determinations and form letters requesting the landowner's/applicant's consultation.
b. Where, after considering all applicable information (including any obtained during consultation with the landowner/applicant and other appropriate parties), the Corps determines that a delineation using the 1989 Manual is substantially the same as would have been made using the 1987 Manual, each landowner/applicant will be notified by letter of the Corps' determination. The Corps letter will inform the landowner/applicant that the delineation will be considered binding and the evaluation of any formal application will proceed based on this delineation.
c. Where the Corps determines that delineations using the 1989 Manual are substantially different than would have been made using the 1987 Manual, each landowner/applicant will be notified by letter of the Corps determination. The letter will provide the landowner/applicant the following options: (1) proceeding with the ongoing application using the delineation made under the 1989 Manual; or (2), electing to have the area redelineated using the 1987 Manual. The Corps letter will also include an indication of the approximate time required by the district to complete a redelineation of the area using the 1987 Manual and a statement that the landowner/applicant must reply in writing concerning their choice of the above options. Evaluation, including a redelineation if necessary, of any application will proceed upon receipt of the landowner's/applicant's letter.
5. Where an ongoing permit application, involving wetlands delineations made using the 1989 Manual, does not fit the circumstances described above, districts will compare the old (1989 Manual) delineation with the provisions of the 1987 Manual to determine if there would be a substantial change in the area delineated. If there would be a substantial change, the landowner/applicant will be provided the opportunity to have a new delineation made using the 1987 Manual.
6. The final decision concerning whether a substantial difference exists between delineations based on the use of the 1989 and the 1987 Manuals rests solely with the Corps. The Corps may consult with other experts in delineating wetlands, such as the Waterways Experiment Station, EPA, the Fish and Wildlife Services or the Soil Conservation Service, in reaching a decision Landowners/applicants and other appropriate parties may provide the Corps documentation for use in tile decision making process, but in all cases the Corps district decision will be final.
7. The Office of Counsel (CECC-K) is providing through Counsel channels guidance concerning the steps to be taken for ongoing enforcement actions that fall within the provision of the Act. A copy of that guidance is enclosed for reference and use.
8. The Army will take no further action, at this time, on its proposal to amend regulatory fees, as published in the Federal Register, Vol. 55, No. 197, Thursday, October 11,1990. No decision has been made concerning future actions to change the fee structure.
FOR THE DIRECTOR OF CIVIL WORKS
SIGNED
JOHN P. ELMORE Chief
Operations, Construction and Readiness Division
Directorate of Civil Works