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
Proposed revisions to CFR Parts 320 and 325 and addition of Part 333
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.
(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) calendar 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.
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 Harbors 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, 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 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.
Extracted from Federal Register dated March 14, 1995