[Federal Register Volume 60, Number 49 (Tuesday, March 14, 1995)]
[Proposed Rules]
[Pages 13654-13662]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-5873]



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DEPARTMENT OF DEFENSE

Department of the Army
Corp of Engineers

33 CFR Parts 320, 325 and 333


Wetland Delineator Certification Program

AGENCY: Army Corps of Engineers, DOD.

ACTION: Proposed rule.

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SUMMARY: The U.S. Army Corps of Engineers (Corps) is establishing a 
program for the training and certification of individuals as wetland 
delineators. The intent of the Wetland Delineator Certification Program 
(WDCP) is: (1) To improve the quality and consistency of wetland 
delineations submitted to the Corps, and (2) to streamline the 
regulatory process by developing procedures for expediting review and 
consideration of delineations submitted by certified delineators. We 
are publishing this proposed rule today to provide the public the 
opportunity to assist us in the development of the WDCP.

DATES: Written comments must be submitted on or before April 13, 1995.

ADDRESSES: Written comments must be submitted to: The Chief of 
Engineers, United States Army Corps of Engineers. ATTN: Ms. Karen 
Kochenbach, CECW-OR, Washington, DC 20314-1000.

FOR FURTHER INFORMATION CONTACT: Ms. Karen Kochenbach or Mr. Sam 
Collinson at the Office of the Chief of Engineers at (202) 272-0199.

SUPPLEMENTARY INFORMATION:

Background

    The Corps regulates activities involving the discharge of dredged 
or fill material into waters of the United States, including wetlands, 
pursuant to Section 404 of the Clean Water Act (CWA). In accordance 
with Section 307(e) of the Water Resources Development Act of 1990 
(WRDA 90), the Corps is establishing the WDCP. Section 307 (e) of WRDA 
90 authorizes the Secretary of the Army to establish a program for the 
training and certification of individuals as wetland delineators. 
Pursuant to this authority, the Corps conducted demonstration projects 
in the Baltimore, Jacksonville, and Seattle districts.
    The Wetland Delineator Certification Program (WDCP) was initially 
announced in the Federal Register on December 30, 1992 (57 FR 62312). 
This notice introduced the WDCP and provided specifics on participation 
in the three demonstration projects. On [[Page 13655]] April 16, 1993, 
we published a second announcement in the Federal Register (58 FR 
19806) concerning the availability of draft training materials 
developed for the WDCP. Corps districts nationwide issued public 
notices concurrently with these notices, and numerous publications 
chose to include brief articles in their professional journals on the 
WDCP.
    The concept of providing expedited acceptance of wetland 
delineations by consultants and contractors similar to the goals of the 
WDCP has previously been informally implemented by a few Corps 
districts on a limited basis. In those cases, the Corps districts 
established informal procedures for expeditious review and acceptance 
of wetland delineations performed by qualified individuals. Like those 
informal approaches, there will be no requirement for wetland 
delineators to be certified under the WDCP in order to submit wetland 
delineations to the Corps; however, the Corps will handle wetland 
delineations performed by wetland delineators it has certified more 
expeditiously. Corps districts will retain discretion regarding the 
acceptance of wetland delineations, including those accomplished by 
certified delineators. The WDCP will affect the Corps', U.S. 
Environmental Protection Agency's (EPA), or U.S. Department of 
Agriculture Natural Resources Conservation Service's (NRCS, formerly 
the Soil Conservation Service (SCS)) authority to determine 
jurisdiction for purposes of Section 404 of the CWA, but is intended to 
provide expedited service to the public, while improving the accuracy 
and consistency of wetland delineations submitted to the Corps by 
consultants and contractors. The development of this program is also a 
component of the Administration's August 24, 1993 Wetlands Plan 
entitled ``Protecting America's Wetlands: A Fair, Flexible, and 
Effective Approach.''

Wetland Delineation Manual

    The four Federal agencies responsible for making wetland 
delineations (i.e., the Corps, EPA, NRCS, and the U.S. Department of 
Interior Fish and Wildlife Service (FWS) currently utilize the 1987 
Corps of Engineers Wetland Delineation Manual (1987 Manual) for 
identifying and delineating wetlands for purposes of Section 404 of the 
CWA. As noted in the Administration's Wetlands Plan, the agencies will 
continue to use the 1987 Manual pending completion of an on-going study 
of the National Academy of Sciences (NAS) Committee on Wetlands 
Characterization. The four Federal agencies noted above will review the 
results of the NAS study, which is scheduled for completion at the end 
of 1994, and determine if modifications to the 1987 Manual are 
necessary. Certification under the WDCP will be based on demonstrated 
abilities for delineating wetlands using the current Federal wetland 
delineation methodology in use at the time of certification.
    Copies of the 1987 Manual are available from the National Technical 
Information Service (NTIS), 5285 Port Royal Road, Attn: Order 
Department, Springfield, Virginia 22171. Document #ADA 176 734, Phone 
#(703) 487-4650. Copies of the supplemental guidance issued by the 
Corps concerning use of the 1987 Manual (i.e., the October 7, 1991, 
Questions and Answers, and the March 6, 1992, Clarification and 
Interpretation memorandum) as well as the Administration's Wetlands 
Plan of August 24, 1993, may be obtained by contacting the Regulatory 
Branch of your local Corps district, the EPA Wetlands Hotline at (800) 
832-7828, or the Regulatory Branch of Corps Headquarters (Office of the 
Chief of Engineers) at (202) 272-0199.

Current Practices/Past Problems

    On the average, the Corps makes a total of 30,000 jurisdictional 
determinations a year, many of which involve wetlands subject to 
regulation under Section 404 of the CWA. Jurisdictional determinations 
are determinations that a wetland and/or waterbody is subject to 
regulatory jurisdiction under Section 404 of the Clean Water Act or 
Sections 9 and 10 of the Rivers and Harbors Act of 1899. While the 
Corps will conduct a wetland delineation if requested to do so, many 
applicants choose to hire the services of a consulting firm to perform 
wetland delineations on their behalf. Because of delineation backlogs 
in many Corps districts, this approach can expedite the wetland 
delineation review process. However, the Corps routinely receives 
inaccurate and inconsistent wetland delineations from applicants and/or 
their representatives which nessitate modification(s) or 
redelineation(s). When this occurs, the Corps must spend a greater 
amount of time in making a determination of wetlands jurisdiction. By 
relying more on private sector delineations the Corps will be able to 
more efficiently utilize its limited staff for permit evaluations and 
compliance.
    Although many districts have internal procedures currently in use 
to determine competent wetland delineators, the Corps has not had one 
uniform process for evaluating the demonstrated competence of wetland 
delineators during its review of wetland delineations. It has been our 
experience that wetland delineators who are properly trained and 
experienced in the current Federal wetland delineation methodology 
perform wetland delineations that are more accurate and consistent. 
Consequently, these delineations require the Corps to spend less time 
reviewing them for accuracy. These time savings are vital because Corps 
districts spend a considerable amount of resources reviewing and 
performing wetland delineations, whether delineations are made on-site 
(based on a site visit) or off-site (based on an office determination 
utilizing exiting available information, such as National Wetlands 
Inventory maps and aerial photography).
    We are aware that application of any wetland delineation 
methodology by persons who lack the requisite scientific and technical 
knowledge, has the potential to result in inaccurate or inconsistent 
wetland delineations. However, we anticipate that wetland delineations 
performed by certified delineators will be of higher quality and 
greater consistency, thereby allowing for an expedited wetland 
delineation review process.
    Other organizations have or will be developing certification 
programs in wetland science (e.g., the Society of Wetland Scientists), 
and several States are also considering implementing certification 
programs related to wetlands. The WDCP is a separate and distinct 
program for wetland delineators who perform and submit wetland 
delineations to the Corps, and has no relationship to, nor reciprocity 
with, other certification programs currently in existence.

Federal Government Certification

    The four Federal agencies primarily involved in wetland 
delineations and Section 404 of the CWA (i.e., Corps, EPA, FWS, and 
NRCS) have participated in interagency wetland delineation training 
since 1989. The Corps manages this training, and experienced 
delineators from the four agencies serve as instructors. The course is 
continuously revised as necessary to ensure that Federal agency 
personnel are presented with the current Federal wetland delineation 
methodologies. Additionally, Corps, EPA, FWS, and NRCS wetland 
delineators receive on-the-job training and gain valuable field 
experience during the daily implementation of their wetland programs. 
The agencies recognize the need to ensure that employees who perform 
and/or verify wetland delineation possess the necessary training 
experience. To facilitate the [[Page 13656]] goal of consistency in the 
identification and delineation of wetlands, the Corps continues to work 
with EPA, NRCS, and FWS to improve its training programs and field 
staff capabilities, as included in the Administration's Wetlands Plan. 
The Corps, based on these proposed regulations, will require completion 
of the interagency wetland delineation training course (i.e., 
Regulatory IV), in addition to two (2) years experience and an internal 
evaluation of knowledge and abilities of its field staff responsible 
for making jurisdictional determinations in wetlands, equivalent to the 
requirements of certified delineators. Consistent with the intent of 
the WDCP, Federal agencies which submit wetland delineations to the 
Corps (e.g., the Federal Highway Administration), may benefit from 
being certified by the Corps through the WDCP.

Demonstration Program

    The purpose of the demonstration program of the WDCP was to 
determine the appropriate level of wetland delineation capabilities 
which should be required of individuals in order to receive expedited 
review and consideration of their wetland delineations by the Corps. In 
addition, the demonstration program was used to test draft written 
tests and field practicums, assess individuals' wetland delineation 
capabilities, and receive feedback on the training package designed for 
use by certified wetland delineators in the training of others in the 
current Federal wetland delineation methodologies. Provisional 
certification was awarded to those WDCP participants successfully 
completing the two-part test, pending the adoption of final regulations 
that will result from the evaluation of comments received on the 
regulation proposed today.
    The WDCP demonstration program involved projects in three Corps 
districts, and began in March, 1993. The WDCP was initially announced 
December 30, 1992 in the Federal Register, in addition to district 
public notices. The projects took place in the States of: Washington, 
Maryland, and Florida, administered by the Seattle, Baltimore, and 
Jacksonville Districts, respectively, although participation was not 
limited to applicants within the districts' boundaries. Applications 
for provisional certification are no longer being accepted; districts 
have completed the testing and evaluation of over 200 WDCP applicants. 
There were no prerequisites nor fees charged for participation in the 
demonstration projects. Because we believe that provisionally certified 
individuals have demonstrated adequate wetland delineation knowledge 
and ability, it is our intention to consider provisionally certified 
individuals as certified wetland delineators under the final WDCP, 
pending adoption of these regulations. The provisional certifications 
will remain valid until a final rule is adopted for the WDCP.

Written Test

    The written tests used by the three demonstration districts were 
developed from the pool of questions used in the Federal interagency 
wetland delineation training (Regulatory IV), and are based on the 
current Federal wetland delineation methodology (i.e., the 1987 
Manual), related technical guidance, and other wetland concepts covered 
in the Regulatory IV training (e.g., soil taxonomy). Each demonstration 
district prepared a written test from the pool of these multiple choice 
questions. Over the years, the Corps has added, deleted, and/or 
modified questions in the pool used in its wetland delineation training 
to remain consistent with the current Federal wetland delineation 
methodology. The passing score for the written exam administered during 
the demonstration projects was 80%. We believe that proper training is 
essential to the competency of wetland delineators, and the Corps tests 
are designed to evaluate such training. We invite comments on this 
testing approach, as well as comments on the tests, from those who have 
participated in the demonstration program. We intend to standardize the 
written tests for administration nationwide in the final WDCP.

Field Practicum

    A field practicum was also administered by the demonstration 
districts to those who successfully completed the written test. Like 
the written test, the field practicum required WDCP applicants to have 
an understanding of the three parameters used in wetlands delineation 
(i.e., hydrophytic vegetation, hydric soils, and wetland hydrology), 
and the procedures utilized to assess these characteristics consistent 
with the 1987 Manual. During the field practicums, participants were 
required to document the presence or absence of field indicators for 
each of the three parameters by using data sheets to record field 
observations, and by providing written explanations supporting their 
conclusions. Eighty percent (80%) was also the passing score for the 
field practicum. We believe that WDCP field practicums must be 
procedurally and fundamentally the same from Corps district to Corps 
district, and will standardize the practicum used during the 
demonstration phase prior to nationwide implementation.
    Administration of the field practicum during the demonstration 
program was influenced to some degree by the weather (e.g., snow in 
Baltimore in March). We welcome comments on the consideration of 
limiting these tests to the time period as determined by appropriate by 
the districts, for example, the local growing season. Comments on the 
field practicum are requested from those individuals who participated 
in the demonstration program, and any recommendations for modifications 
or other procedures that can be consistently administered in all 
districts will be considered.

Results

    Results of the demonstration program are provided in Table 1 below. 
Overall, more than 3,000 WDCP information/application packages were 
mailed to prospective applicants by the three demonstration districts 
in response to public requests. Over 1500 applications were submitted, 
and all were provided the opportunity to take the written exam. Of the 
more than 900 that did so, fewer than 400 WDCP applicants passed the 
written test. All of the individuals who passed the written test took 
the field practicum, and over 85% passed. Currently there are almost 
350 provisionally certified wetland delineators nationwide. Until 
certification is defined through the adoption of final regulations, and 
individuals are certified under the final WDCP, the names of 
provisionally certified individuals will not be released by the Corps.

                             Table 1.--Summary of WDCP Demonstration Program Results                            
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               No. of individuals                    Baltimore     Jacksonville       Seattle         Totals    
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Applied for participation.......................             496             501             642           1,639
Took written test...............................             386             347             174             907
Passed written test.............................       184 (48%)       148 (43%)        61 (35%)       393 (43%)
[[Page 13657]]                                                                                                  
                                                                                                                
Took field practicum............................             184             148              61             393
Passed field practicum..........................       152 (82%)      148 (100%)        49 (80%)       349 (88%)
Provisionally certified.........................             152             148              49       349 (38%)
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Training

    A certificate of training in the current Federal wetland 
delineation methodology, signed by a certified wetland delineator, 
would be a mandatory prerequisite for all WDCP applicants. Prior to the 
adoption of final regulations based on today's proposal, individuals 
may satisfy this future prerequisite by obtaining a certificate 
verifying completion of wetland delineation training in the current 
Federal wetland delineation methodology from an instructor utilizing 
the Corps 1993 WDCP draft training package. The availability of the 
draft training package developed for the WDCP, was announced in the 
Federal Register on April 16, 1993 (58 FR 19806). Copies were 
distributed free of charge by the Corps Wetlands Research and 
Technology Center (WRTC) at the Waterways Experiment Station (WES) in 
Vicksburg, MS. A limited number of copies may still be available by 
calling the WRTC at (601) 634-4217. An evaluation of the draft WDCP 
training package is being conducted by the Corps, and a revised 
training package will be developed for future use.
    A list of potential training sources available to the public 
through private and academic institutions, is available from the 
Regulatory Branch of your local Corps district office or the Office of 
the Chief of Engineers in Washington, D.C. A certificate of completion 
of the WDCP wetland delineation training would be issued by the 
training source and required by the Corps for participation in the 
final WDCP. At this time, training may be provided by individuals who 
have received the training materials, regardless of whether or not they 
are provisionally certified by the Corps. However, after the adoption 
of final regulations for the WDCP, all training intended to meet this 
prerequisite must be provided by a wetland delineator certified under 
the final WDCP. It is the responsibility of the individual seeking 
certification by the Corps under the WDCP to ensure that the training 
meets the training prerequisite (i.e., that the training is provided by 
a certified wetland delineator).
    The Corps will keep certified delineators and trainers abreast of 
modifications and updates to the training materials, and will provide 
lists of training sources offering the WDCP training. After a final 
WDCP is adopted, all districts will maintain lists of both certified 
wetland delineators as well as those who provide the requisite 
training, and will make these lists available to the public, as 
proposed in these regulations.

The Wetland Delineation Certification Program (WDCP)

    The WDCP would require applicants to: (1) satisfy certain 
prerequisites and (2) pass a two-part test.

Prerequisites

    Prerequisites for entrance into the WDCP would consist of: (1) 
Training in the current Federal wetland delineation methodology, and 
(2) two (2) years of professional experience in wetlands delineation. 
We feel training should consist of a combination of classroom and field 
training specifically in the current Federal wetland delineation 
methodology. Training must be conducted by an individual certified by 
the Corp, and should consist of a minimum of 36 hours of instruction, 
consistent with the training required of Corps, EPA, NRCS (formerly the 
SCS), and FWS Federal agency staff who delineate wetlands for purposes 
of Section 404 of the Clean Water Act. Comments are requested on 
alternative training mechanisms which provide greater flexibility to 
potential WDCP applicants. For example, comment is solicited in the use 
of videotape or at-home study for the delivery of the training 
material. One such alternative would allow individuals to study course 
materials at home, and then spend one or two days at a training program 
facility to receive hands-on instruction and to take the course exam. 
This alternative would help to reduce travel expenses, may lower 
tuition costs, and would reduce the time that a trainee would have to 
miss work. The Corps is concerned, however, that non-classroom oriented 
instructional methods may not provide training of a quality equivalent 
to classroom instruction. Comments on the impact of quality resulting 
from the alternative training methods taking into account the 
requirement for hands-on training, course test, and third party exam, 
are specifically sought as a part of this proposal. To satisfy the 
experience requirement, WDCP applicants should have a minimum of 2 
years experience delineating wetlands for Federal, State, tribal or 
local governments, or the private sector. The WDCP applicant would have 
to supply references of employers, including telephone numbers for 
verification purposes, of references who can attest as to the WDCP 
applicant's assertions regarding experience. The Corps reserves the 
right to check a WDCP applicant's documented prerequisites. We welcome 
comments on alternative approaches of satisfying the experience 
requirement, such as documentation that a minimum number of wetland 
delineations were accepted by the Corps prior to certification. 
Acceptance into the WDCP (i.e., meeting all prerequisites) does not 
guarantee certification. Applications for certification must be 
accompanied by documentation (e.g., training certificate) that an 
individual meets all prerequisites. We welcome comments on the proposed 
prerequisites, as well as suggestions for other options.

Tests

    Generally, WDCP applicants would submit a WDCP application form (to 
be developed for the final WDCP) to the appropriate district, where it 
would be considered in accordance with the final regulations. Qualified 
WDCP applicants would be notified of the next available test date. 
Testing will include a standardized written examination for nationwide 
use, which must be passed before applicants proceed to the field 
practicum. Based on the response to the demonstration projects, we are 
proposing to offer the national written test sessions in all Corps 
districts on the same date each month for the first three months of 
nationwide implementation of the WDCP and quarterly thereafter. Field 
practicums will be scheduled based on need (i.e., the number of WDCP 
applicants which have first passed the written test). The field 
practicums may vary slightly between divisions (the proposed geographic 
limits of the validity of certifications made at the district level), 
based on regional differences such as growing season, wetland type, and 
some field [[Page 13658]] indicators, however, the field practicum 
procedure will be identical nationwide. Comments on the appropriate 
procedures and frequency of the field testing, particularly from 
individuals who participated in the demonstration program, would be 
helpful. We are proposing to limit the number of opportunities to 
retake the tests without the benefit of additional training. WDCP 
applicants who fail either the written or the field test are encouraged 
to obtain additional training and/or experience prior to retesting.

Certification

    Upon successful completion of the prerequisites and testing 
requirements, the district would award a certification to the applicant 
by mail. Certified wetland delineators would be required to include a 
signed statement with all wetland delineations submitted to the Corps, 
verifying that the information has been developed in accordance with 
the current Federal wetland delineation methodology, and is subject to 
legal penalties related to false information as provided for in 18 
U.S.C. Section 1001 (18 U.S.C. Section 1001 provides that: Whoever, in 
any manner within the jurisdiction of any department or agency of the 
United States knowingly and willfully falsifies, conceals, or covers up 
by any trick, scheme or device a material fact or makes any false, 
fictitious, or fraudulent statements or representations or makes or 
uses any false writing or document knowing the same to contain any 
false, fictitious, or fraudulent statements or entry, shall be fined 
not more than $10,000 or imprisoned not more than five years, or both.) 
Certified wetland delineators would be contacted by the Corps as to the 
completeness and accuracy of the wetland delineation submitted within 
30 days if submitted in conjunction with a permit application, or 60 
days if not (see 325.2(c)). Expedited review associated with wetland 
delineations submitted by certified wetland delineators does not 
guarantee shorter permit processing times, which will be the subject of 
a future rulemaking action related to the Administration's Plan. The 
issuance of a certification does not create or grant any property 
interest or right for the certified wetland delineator, nor does it 
create any rights for an individual relying upon a wetland delineation 
made by a certified wetland delineator, but is intended to facilitate 
the determination of jurisdiction by the Corps.

Validity of Certifications

    Comments are requested on our intention to consider provisional 
certifications issued by the demonstration districts valid as final 
certifications after the WDCP is implemented nationwide. Comments are 
also requested on the option of considering certifications (provisional 
as well as final) valid in a broader geographic area than the 
administering district's regulatory boundaries. While we are proposing 
that certifications be issued by districts and considered valid within 
the Corps Division in which the district exists, we invite comments on 
other options (e.g., nationwide). In addition, we invite comments on 
the need to further limit the validity of certifications in exceptional 
situations involving unique geographic areas. For example, it may be 
determined appropriate for certifications within Divisions which 
include entities such as Alaska, Hawaii, Puerto Rico, and America 
Samoa, etc., to limit the validity of certification to a smaller 
geographic area. Certifications would remain valid for a period of five 
(5) years; therefore recertification would generally be necessary once 
every 5 years. Certifications would be subject to suspension or 
revocation procedures (see Section 333.7) based on repeated poor 
performance and/or submittal of inaccurate wetland delineations by 
certified wetland delineators.

Costs

    During the early years of the WDCP, costs to the Corps of 
administering the program will likely exceed the savings in reduced 
staffing needs associated with verifying wetland delineations. These 
costs were monitored during the demonstration program to assess the 
effect on budget and manpower allowances. The costs incurred by the 
demonstration districts were, as expected, greater than the costs 
anticipated during nationwide implementation due to the WDCP 
developmental responsibilities required of these districts.
    Although the WDCP require the expenditure of a portion of the 
regulatory budget for several years, we are not proposing to assess a 
fee for certification. WDCP applicants will have incurred some costs 
associated with satisfaction of the training prerequisites of the 
program. In addition, it will be necessary for certified wetland 
delineators to keep certifications current with the most recent Federal 
wetland delineation methodology. Nonetheless, comments are requested on 
the issue of fees associated with the WDCP, such as where fees should 
be charged and why, and what should be the basis for such fees. 
Although we expect Federal costs associated with nationwide 
implementation of the WDCP to be higher initially, we are confident 
that Federal labor costs will be reduced over the life of the program.

Benefits

    The Corps, permit applicants, and the public will benefit from the 
improved quality and consistency of wetland delineations the Corps 
receives from certified wetland delineators. The public will benefit 
from the expedited review and consideration of wetland delineations by 
certified wetland delineators by the Corps. We believe that the program 
will result in better service to the public by both the Corps and 
private sector wetland delineators. It is anticipated that both the 
Corps and the public will have greater certainty in consultants' or 
contractors' wetland delineations as a result of the WDCP. Benefits are 
expected to increase each year.

Proposed Changes

33 CFR 320.3(p)--Related Laws

    We are proposing to add Section 307(e) of the Water Resources 
Development Act of 1990 authorizing the WDCP to the related laws 
section.

33 CFR 325.2(c)--Wetland Delineations Submitted by Certified 
Delineators

    We are proposing procedures, requirements, and timeframes to 
provide for expedited review of wetland delineations submitted by 
certified delineators as required by Section 307(e) of the Water 
Resources Development Act of 1990.

33 CFR 333--Wetland Delineator Certification Program

    We are adding a new part to implement the WDCP. Section 333.1 
Purpose and Section 333.2 General provide a statement of purpose and an 
overview of the WDCP.
    Section 333.3 Definitions provides definitions of common terms used 
in the WDCP. The proposed terms are ``accuracy determination'', 
``wetland delineation'', ``wetland determination'', ``jurisdictional 
determination'', ``certification'', ``certified wetland delineator'', 
``expedited review'', ``suspension'', ``revocation'', ``substantial 
inaccuracies'', and ``history of substantial inaccuracies''. We request 
comments on these terms and the need to define additional terms.
    Section 333.4 Certification Process describes the procedures and 
requirements necessary to be certified under the WDCP. This section 
includes a discussion of the mandatory prerequisites and tests we are 
proposing [[Page 13659]] to require of wetland delineators in order to 
be certified by the Corps.
    Section 333.5 Validity of Certifications provides for the 
geographic limits of where a certification would be considered valid in 
order to receive expedited review by the Corps.
    Section 333.6 Recertification discusses the requirement for an 
individual to keep the certification current in order to receive 
expedited review by the Corps. We believe that certifications should 
not be valid indefinitely and are proposing a five (5) year limit.
    Section 333.7 Suspension or revocation discusses the ability of the 
Corps to suspend or revoke an individual's certification, if 
appropriate, after an opportunity has been provided by the Corps for 
the certified delineator to respond in writing to the District 
Engineer's reasons for suspending or revoking the certification.

Environmental Documentation

    We have made a preliminary determination that this action does not 
constitute a major Federal action significantly affecting the quality 
of the human environment. The WDCP is intended to improve the quality 
and consistency of wetland delineations reviewed by the Corps, and to 
expedite decisions regarding these delineations, but will have no 
effect on the outcome of the jurisdictional determination. Furthermore, 
appropriate environmental documentation is prepared for all permit 
decisions on a case-by-case basis.

Executive Order 12866

    The Department of the Army has made a preliminary determination 
that these regulations do not contain a major proposal requiring the 
preparation of a regulatory analysis under E.O. 12866. The Office of 
Management and Budget has concurred. In addition, there has been, and 
will continue to be, substantial interagency coordination on the WDCP 
to ensure that the interests of other Federal agencies are considered 
in the finalization of regulations for the WDCP.

The Regulatory Flexibility Act

    The Department of the Army, pursuant to Section 605(b) of the 
Regulatory Flexibility Act of 1980, has made a preliminary 
determination that these proposed regulations will not have a 
significant impact on a substantial number of small entities. 
Implementation of the WDCP has the potential to be labor intensive for 
the Corps, as was the case during the demonstration projects. While 
costs to the Corps of administering the program during the early years 
of the WDCP will likely exceed the savings in reduced manpower needs 
associated with verifying wetland jurisdictional determinations, we are 
confident that labor costs will be reduced over the life of the 
program. These costs were monitored during the demonstration program to 
assess the effect on budget and manpower allowances, and costs varies 
among the three participating Districts. Although the WDCP will require 
the expenditure of a portion of the regulatory budget for several 
years, we do not intend to assess a fee for certification. WDCP 
applicants will already have incurred expenses to obtain the necessary 
training as needed to meet the prerequisites of the program. In 
addition, it will be necessary for certified wetland delineators to 
keep certifications current with the most recent Federal wetland 
delineation methodology. We have taken steps, however, to minimize 
labor requirements on Corps districts in the implementation of the 
final WDCP. For example, field practicums will be standardized and 
necessary training provided to the districts, thereby eliminating the 
time-consuming developmental process experienced by the demonstration 
districts. Although we expect costs associated with nationwide 
implementation of the WDCP to be higher initially, we are confident 
that Federal labor costs will be deduced over the life of the program.

Benefits

    The Corps, permit applicants, and the public will benefit from the 
improved quality and consistency of wetland delineations the Corps 
receives from certified wetland delineators. The public will benefit 
from the expedited review and consideration of wetland delineations 
submitted by certified wetland delineators by the Corps. We believe 
that the program will result in better service to the public by both 
the Corps and private sector wetland delineators. It is anticipated 
that both the Corps and the public will have greater certainty in 
consultants' or contractors' wetland delineations as a result of the 
WDCP. Benefits are expected to increase each year.

    Note: (1) The terms ``district engineer'' or ``division 
engineer'' should be considered to be interchangeable until 
decisions are made as to the appropriate level of authority for 
decisions regarding the WDCP, as set forth in the final regulations.

List of Subjects

33 CFR Part 320

    Environmental Protection, Intergovernmental relations, Navigation, 
Water pollution control, Waterways.

33 CFR Part 325

    Administrative practice and procedure, Intergovernmental relations, 
Environmental protection, Navigation, Water pollution control, 
Waterways.

33 CFR Part 333

    Waterways, Training programs, Consultants, Reporting and record 
keeping requirements.

    Dated: March 3, 1995.
John H. Zirschky,
Acting Assistant Secretary of the Army (Civil Works), Department of the 
Army.

    For the reasons set out in the preamble, 33 CFR Parts 320 and 325 
are proposed to be amended, and Part 333 is added to read as follows:

33 CFR CHAPTER I--CORPS OF ENGINEERS, DEPARTMENT OF THE ARMY

PART 320--GENERAL REGULATORY POLICIES

    1. The authority citation for Part 320 continues to read as 
follows:

    Authority: 33 U.S.C. 401 et seq.; 33 U.S.C. 1344; 33 U.S.C. 
1413.

    2. Section 320.3 is amended by adding a new paragraph (p) at the 
end that reads as follows:


Sec. 320.3  Related laws.

* * * * *
    (p) Water Resources Development Act of 1990. Pursuant to Section 
307(e) of the Water Resources Development Act of 1990 (Pub. L. 101-
640), the Secretary of the Army has established a program for the 
training and certification of individuals as wetland delineators for 
purposes of submitting wetland delineations to the Corps. The Wetland 
Delineator Certification Program also includes procedures for 
expediting review and consideration of wetland delineations submitted 
by wetland delineators it has certified.

PART 325--PROCESSING DEPARTMENT OF THE ARMY PERMITS

    3. The authority citation of part 325 continues to read as follows:

    Authority: 33 U.S.C. 401 et seq.; 33 U.S.C. 1344; 33 U.S.C. 
1413.

    4. Paragraph (c) is added to read as follows:


Sec. 325.2  Processing of applications.

* * * * * [[Page 13660]] 
    (c) Wetland delineations submitted by certified wetland 
delineators--(1) General. The Corps intends to give expedited review to 
wetland delineations submitted by certified wetland delineators, as 
part of a request for wetland jurisdictional determinations.
    (2) Contents of wetland delineations. Certified wetland delineators 
will submit wetland delineations to the appropriate Corps regulatory 
office using the following format.
    (i) The wetland delineation submittal will include:
    (A)(i) A copy of the wetland delineator's certification.
    B(i) Drawings, plans and/or surveys, to scale, showing the acreage 
and boundaries of the wetland in the project area, and
    (C) Completed data sheets in support of the documented wetland 
boundary.
    (ii) In addition, submittals by certified wetland delineators will 
include the name, address and telephone number of the person designated 
to receive the results of the Corps' accuracy determination for Corps' 
acceptance of the wetland delineation.
    (3) Corps approval. District Engineers will strive to make a 
determination of completeness and accuracy of wetland delineations 
submitted by certified wetland delineators within thirty (30) calendar 
days of receipt if they are accompanied by a permit application, and 
sixty (60) calender days if they are not.
    (i) The district engineer's determination of completeness and 
accuracy of the wetland delineation submitted by a certified wetland 
delineator will be made in writing and will consist of:
    (A) Request for additional information or corrections needed for 
the Corps to make a determination of the accuracy of the wetland 
delineation.
    (B) Acceptance of the wetland delineation by the Corps as 
submitted, or
    (C) Acceptance with minor modifications identified and made by the 
Corps.
    (ii) The Corps final acceptance of a certified wetland delineator's 
submittal will represent the wetland delineation used in making the 
jurisdictional determination, and will remain valid for a specified 
period of time consistent with corps guidance as provided in the final 
acceptance document. Resubmittal of corrected wetland delineations by 
certified wetland delineators after an earlier submission has been 
determined to have been incomplete or inaccurate will be subject to the 
same time frames as the initial submittal.
* * * * *

PART 333--WETLAND DELINEATOR CERTIFICATION PROGRAM

    5. Part 333 is added to read as follows:

PART 333--WETLAND DELINEATOR CERTIFICATION PROGRAM

333.1. Purpose.
333.2. General.
333.3. Definitions.
333.4. Certification Process.
333.5. Validity of certifications.
333.6. Recertification.
333.7. Suspension or revocation of certifications.
333.8. Maintenance of lists.

    Authority: 33 U.S.C. 1344.


Sec. 333.1  Purpose.

    This section prescribes the policies, procedures, and guidance for 
administration of the Wetland Delineator Certification Program (WDCP). 
The purposes of the WDCP are:
    (a) To improve the quality and consistency of wetland delineations 
submitted to the Corps either alone or in conjunction with a permit 
application seeking to discharge dredge or fill material into waters of 
the United States, and.
    (b) To streamline the regulatory process through the submittal of 
wetland delineations which can be approved by the Corps in an expedited 
manner (see 33 CFR 325.2(c) for a discussion of the expedited review 
and consideration of delineators submitted by certified wetland 
delineators).


Sec. 333.2  General.

    The WDCP is a training and certification program for wetland 
delineators who submit wetland delineations to the Crops. The Corps has 
developed a training package for use by the others (e.g., the private 
sector, the academic community, States) in the current Federal wetland 
identification and delineation methodologies. WDCP applicants receive 
training from sources utilizing certified wetland delineators and the 
current training materials developed and provided to them for that 
purpose by the Corps for the WDCP. In addition, the Corps has developed 
a process to certify that wetland delineators have met certain minimum 
standards (see Sec. 333.4 below). Furthermore, the Corps has 
established a process to expedite decisions on wetland delineators 
submitted by certified delineators (see Sec. 325.2(c)).


Sec. 333.3  Definitions.

    For purposes of this regulation these terms are defined as follows:
    (a) The term accuracy determination refers to the process whereby 
the District Engineer determines that a wetland delineation submitted 
by a certified wetland delineator is consistent with the current 
Federal wetland delineation methodology. Such delineations may include 
some flaws which the Corps determines are minor and that can be easily 
corrected.
    (b) The term wetland delineation means a final Corps of Engineers 
delineation, or verification by the Corps of a delineation submitted by 
an applicant or an applicant's representative, indicating the acreage 
and boundaries of a subject property that is wetland in accordance with 
the current Federal wetland delineation methodology. Additionally, the 
term includes reverification of expired wetland delineations and 
reverification of wetland delineation where new information has become 
available that may effect the final wetland delineation.
    (c) The term wetland determination means a preliminary Corps of 
Engineers determination as to whether or not wetlands exist on a 
subject property.
    (d) The term jurisdictional determination means a final Corps of 
Engineers determination that a wetland and/or waterbody is subject to 
regulatory jurisdiction under Section 404 of the Clean Water Act or a 
final Corps determination that a waterbody is subject to regulatory 
jurisdiction under Sections 9 and 10 of the Rivers and Habors Act of 
1899. Additionally, the term includes reverification of expired 
jurisdictional determinations and reverification of jurisdictional 
determinations where new information has become available that may 
effect the final determination.
    (e) The term certification refers to the Corps' official 
recognition that an individual has successfully demonstrated that he or 
she is capable of performing wetland delineations consistent with the 
current Federal wetland delineation methodology in use at the time of 
certification.
    (f) The term certified wetland delineator means an individual who 
has met all prerequisites and testing requirements of the Corps of 
Engineers wetland delineator certification program. The certified 
wetland delineator is able to submit wetland delineations to the Corps 
and receive expedited review and decisions as to the completeness and 
accuracy of the delineation.
    (g) The term expedited review means that, to the maximum extent 
possible, [[Page 13661]] District Engineers will make all 
determinations as to the completeness and accuracy of wetland 
delineations submitted by certified wetland delineators within thirty 
(30) calendar days of receipt in the case of wetland delineation 
requests not associated with a permit application.
    (h) The term suspension means the temporary removal of a wetland 
delineator's Corps certification, pending a decision by the District 
Engineer on whether a certification should be revoked.
    (i) The term revocation means the removal of a delineator's 
certification with an optional ban on recertification for a prescribed 
revocation period.
    (j) The term substantial inaccuracies means non-minor inaccuracies 
that, in the District Engineer's judgment, have materially affected the 
completeness and accuracy of the delineation and/or have caused 
substantial delays to the District in its review of the delineation. 
Substantial inaccuracies may include, but are not limited to: the 
inaccurate application of one or more of the field indicators for 
vegetation, soils, or hydrology; the failure to follow appropriate 
field sampling protocol or techniques; the submission of inaccurate or 
incomplete data forms; or the reach of erroneous conclusions about the 
presence and/or extent of wetlands at a site.
    (k) The term history of substantial inaccuracies means 2 or more 
substantial inaccuracies in wetland delineations submitted to the Corps 
by the same certified wetland delineator within the same District, or 3 
or more substantial inaccuracies the Corps has documented in different 
Districts, with at least one of these inaccuracies recorded in the 
District contemplating a revocation action.


Sec. 333.4  Certification process.

    (a) Prerequisites: The certification process is designed to 
identify those individuals who possess the requisite knowledge and 
skills necessary to conduct and appropriately document wetland 
delineations consistent with the current Federal wetland delineation 
methodology in use at the time of certification. The certification 
process, which will be administered by Corps district offices, involves 
two steps: meeting all prerequisites, and passing all tests.
    (1) The prerequisites will consist of written documentation 
demonstrating that the WDCP applicant has:
    (i) At least two (2) years experience in delineating wetlands for 
any Federal, State, or local governments, or the private sector, and
    (ii) Completed wetland delineation training as set forth in the 
Corps training materials developed for the WDCP.
    (2) The training package will be made available only to training 
sources for instruction by a WDCP certified wetland delineator.
    (b) Testing: The WDCP involves two (2) types of tests: a national 
written test, and a regional field proacticum. WDCP applicants meeting 
all prerequisites will be scheduled for the written test. A minimum 
score of 80% will be required to successfully complete the written 
test. WDCP applicants will be permitted to retake the written test a 
maximum of three (3) times, or the field practicum a maximum of two (2) 
times, unless the WDCP applicant can provide documentation that the 
required training has been repeated since the last practicum. During 
the practicum, WDCP applicants will be asked to collect data and 
document conclusions. A minimum score of 80% on the field test will be 
required. WDCP applicants who pass both the written test and field 
practicum will receive documentation of certification by the applicable 
Corps district.
    (c) Certification. In order to receive expedited review and 
consideration by the Corps, certified wetland delineators will be 
required to submit a copy of their certification, in addition to other 
required documentation, to the Corps in conjunction with each request 
for a verification of a wetland delineation. Wetland delineations 
conducted in whole or in part by an uncertified individual may receive 
expedited review and consideration if it is reviewed, adopted, and 
signed by a Corps-certified wetland delineator. The certified wetland 
delineator must state that the he or she has personally reviewed and 
concurred with the wetland delineation and has found the documentation 
to be satisfactory. By signature and submittal, certified wetland 
delineators accept responsibility for the completeness and accuracy of 
the wetland delineation, and are subject to the suspension or 
revocation procedures described in Sec. 333.7, and legal penalties 
regarding false information.


Sec. 333.5  Validity of certifications.

    Generally, certifications made pursuant to these regulations will 
be valid within the Corps division boundaries of the certifying 
district. However, due to the unique features of wetland 
characteristics in some districts (e.g., Alaska), Corps divisions may 
confine the validity of certain certifications to a district or set of 
districts. Certifications will remain valid for a period of five (5) 
years, at which time recertification will be necessary.


Sec. 333.6  Recertification.

    (a) Recertification through the WDCP will be required every five 
(5) years, unless otherwise required by the Corps. WDCP applicants for 
recertification may be expected to complete the testing requirements 
(written, field, or both, as determined by the district) which have 
been adopted for the final WDCP. If the Corps adopts use of a new 
wetland delineation methodology, or events beyond the Corps' control 
nullify the original certification of a wetland delineator made by the 
Corps, recertification may be required at a greater frequency.
    (b) Minor changes in the Corps wetland delineation policy and/or 
procedures will typically not require recertification. The Corps will 
notify certified individuals of minor modifications by mail. The extent 
of the modification will dictate the need for recertification (e.g, a 
new wetland delineation manual may require recertification while use of 
a new data form may not). Once notified, certified wetland delineators 
will be expected to incorporate these modifications into all future 
wetland delineations they submit. Failure to do so maybe grounds for 
suspension of an individual's certification.


Sec. 333.7  Suspension or revocation of certifications.

    (a) A District Engineer may suspend or revoke a delineator's 
certification if the District Engineer determines that the wetland 
delineations submitted by the certified wetland delineator exhibit a 
history of substantial inaccuracies. Revocation will result in removal 
of an individual from lists provided to the public, while suspension 
will not. This will ensure that the list of certified wetland 
delineators given to the public does not contain certified wetland 
delineators that repeatedly perform and/or submit inaccurate wetland 
delineations and thus delay, rather than expedite, the Corps acceptance 
of wetland delineations.
    (b) Procedures--(1) Records. Districts will maintain accurate 
records on all substantial inaccuracies identified in wetland 
delineations submitted by certified wetland delineators. Whenever any 
District identifies such an inaccuracy, the District will notify the 
certified wetland delineator and allow the delineator to write a letter 
explaining the inaccuracy. Such letter will be maintained in the 
delineator's file. If the District discovers that a certified wetland 
delineator has [[Page 13662]] submitted 2 or more substantially 
inaccurate delineations to the District, or 1 substantially inaccurate 
delineation to the District and 2 or more delineations to other 
Districts, and the Chief of the Regulatory office believes that these 
inaccuracies warrant revocation, than the Chief of the Regulatory 
office should prepare, with the advice of counsel, a report for the 
District Engineer substantiating these inaccuracies along with a 
recommendation to revoke the delineator's certification.
    (2) Notification. If the District Engineer agrees that revocation 
may be warranted. The District Engineer shall send a letter to the 
delineator explaining:
    (i) That the District Engineer is considering whether to revoke the 
delineator's certification.
    (ii) That the delineator's certification is suspended pending the 
District Engineer's decision.
    (iii) The causes for the potential revocation, including the 
substantial inaccuracies identified, and
    (iv) That the delineator has 30 days from receipt of the District 
Engineer's letter to send a response letter providing mitigating or 
extenuating circumstances, or stating a defense against the causes for 
revocation.
    (3) Delineator response. In the response letter, the delineator 
should include a complete explanation of any mitigating or extenuating 
circumstances demonstrating that revocation is unwarranted. The 
delineator should also provide any defenses to the stated causes for 
revocation, including any assertion that he or she may choose to make 
that no substantial inaccuracies occurred.
    (4) Review and decision. The District Engineer must consider any 
certified wetland delineator response letter submitted. If a letter 
raises any genuine issues of fact, the District Engineer, exercising 
appropriate discretion, may decide to meet with the delineator to 
discuss these issues. After considering all information gathered by the 
District and submitted by the delineator, the District Engineer should 
make the decision, based on a preponderance of the evidence, as to 
whether or not to revoke the delineator's certification.
    (5) Notification of decision to delineator. Absent extenuating 
circumstances, the District Engineer shall decide whether to revoke a 
certification within 30 days of receiving the delineator's response 
letter or any meeting with the delineator, whichever is later. A letter 
stating the District Engineer's decision shall be sent to the 
delineator by certified mail, return receipt requested.
    (6) Notification to other corps districts. If the District 
Engineer's decision is to revoke a certification, the District shall 
notify all other Corps Districts that the delineator is no longer 
certified, and the individual's name will be removed from the list of 
certified wetland delineators given to the public.
    (c) Revocation period. Revocation periods are measured from the 
beginning of the suspension. The District Engineer should assign a 
revocation period commensurate with the seriousness of the causes for 
revocation, but no longer than 2 years. The District Engineer may 
reduce the length of the revocation period after it is assigned, if new 
information or other appropriate reasons develop. Delineators can apply 
for recertification only after the revocation period has ended.
    (d) Scope of revocation. (1) A revocation only applies to the 
certification of the person who signed the delineations identified as 
inaccurate. Thus, a revocation cannot be imputed to other certified 
delineator in the same consulting firm as a decertified delineator.
    (2) The revocation shall apply nationwide.
    (e) Appeal. A revocation may be appealed in writing to the Division 
Engineer setting forth matters in extenuation, mitigation, or 
disagreement with the revocation. After reviewing both the appeal 
letter and the administrative record, the Division Engineer will 
reverse the District Engineer's decision to revoke the delineator's 
certification only if the determination is found to be arbitrary or 
capricious. The Division Engineer must notify both the delineator and 
the District Engineer of the decision. Only after the conclusion of 
this appeal process may a delineator seek redress in Federal court.


Sec. 333.8  Maintenance of lists.

    The Corps will maintain two (2) lists for the WDCP. The first will 
be a list of individuals within a Division who have been certified by 
one of its Districts through the final WDCP. The second will be the 
list of training sources providing the prerequisite training. All 
training intended to meet the mandatory prerequisite will be conducted 
by a certified wetland delineator as an instructor. Both lists will be 
available to the public.

[FR Doc. 95-5873 Filed 3-13-95; 8:45 am]
BILLING CODE 3710-92-M