ACTION: Proposed rule.
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. [Comment - this number no longer works]
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 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.
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.