Wetland Delineator Certification Program

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