40446 . Federal Register / Vol. 56. No. 157 / Wednesday. August 14, 1991 / Proposed Rules 



ENVIRONMENTAL PROTECTION 

 AGENCY 



40 CFR Chapter I 



DEPARTMENT OF DEFENSE 



Corps of Engineers, Department of 

 the Army 



33 CFR Chapter II 



DEPARTMENT OF AGRICULTURE 



Soli Conservation Service 



7 CFR Chapter VI 



DEPARTMENT OF THE INTERIOR 



Fish and Wildlife Service 



50 CFR Chapters I and IV 



IFRL-39e4-4] 



1989 "Federal Manual for Identifying 

 and Delineating Jurisdictional 

 Wetlands"; Proposed Revisions 



AGENCIES: Environmental Protection 

 Agency; Corps of Engineers. Department 

 of the Army, DOD; Soil Conservation 

 Service, Agriculture; and Fish and 

 Wildlife Service, Interior. 



ACTION: Proposed rule and policy 

 statement; request for comments. 



summary: The Environmental Protection 

 Agency [EPA); Army Corps of Engineers 

 (CE); Department of Agriculture Soil 

 Conservation Service (SCS); and 

 Department of Interior Fish and Wildlife 

 Service (FWS) request public conunent 

 on proposed revisions to the "Federal 

 Manual for Identifying and Delineating 

 Jurisdictional Wetlands" (1989 Manual), 

 an interagency document adopted 

 January 10, 1989. The 1989 Manual 

 provides guidance for identifying and 

 delineating wetlands for various 

 purposes, including determining 

 wetlands under the jurisdiction of the 

 Clean Water Act Section 404 regulatory 

 program. 



As a result of experience gained 

 during the two years since the 

 implementation of the 1989 Manual, the 

 following revisions are proposed. The 

 public is invited to review and provide 

 technical conunents on these revisions. 



dates: Written comments must be 

 submitted on or before October 15, 1991. 



ADDRESSES: Conunents should be 

 submitted in writing to: Mr. Gregory 

 Peck. Chief. Wetiands and Aquatic 

 Resources Regulatory Branch, Mail 

 Code (A-104F). U.S. E.P.A., 401 M Sti-eet 

 SW.. Washington, DC 20460. 



FOR FURTHER INFORMATION CONTACT: 



Specific details are available from Mr. 

 Michael Fritz (EPA) at (202) 245-3913; 

 Ms. Karen Kochenbach (CE) at (202) 

 272-0817; Mr. Billy Teels (SCS) at (202) 

 447-5991; or Mr. Tom Muir (FWS) at 

 (703) 358-2201. 

 SUPPLEMENTARY INFORMATION: 



Background 



The regulatory definition of wetiands 

 used by the U.S. Army Corps of 

 Engineers (Corps) (33 CFR 328.3(b)) and 

 EPA (40 CFR 230.3(t)) are the same and 

 have remained unchanged since 1977. 

 The definition utilizes three 

 characteristics of wetiands: Hydrology, 

 vegetation, and soils. Prior to 1989. each 

 agency also had its ovm procedures for 

 identifying and delineating wetlands, 

 which often differed between, as well as 

 within, these agencies. Recognizing the 

 need for a single, consistent approach 

 for weUand determinations and 

 boimdary delineations, the 1989 

 "Federal Manual for Identifying and 

 Delineating Jurisdictional Wetiands" 

 was developed. The Department of 

 Interior Fish and Wildlife Service and 

 the Department of Agriculture Soil 

 Conservation Service also participated 

 in developing the 1989 Manual. 



The agencies reached agreement on 

 techniceil criteria for identifying and 

 delineating wetiands and merged their 

 methods into the 1989 Manual, which 

 was adopted on January 10, 1989, and 

 implemented on March 20, 1989. The 

 1989 Manual describes the technical 

 criteria, field indicators, and other 

 sources of information necessary to 

 make weUand jurisdictional 

 determinations. This established a 

 uniform national procedure for wetiand 

 identification and delineation, and 

 terminated the use of any previous 

 locally implemented approaches by the 

 signatory agencies. 



As with the 1989 Manual, the 

 proposed Manual on which we are 

 soliciting public comment is a technical 

 guidance document and provides 

 internal procedures for agency field staff 

 for identifying and delineating wetiands. 

 Both versions of the document serve to 

 advise the public prospectively of the 

 manner in which agency personnel will 

 apply the definition of wetiands to 

 particular sites on a case-by-case basis. 

 We are today providing an opportunity 

 for public comment on the proposed 

 revision prior to their implementation in 

 order to foster public participation in the 

 Manual revision process. 



Proposed Revisions 



The revision being proposed today 

 will improve the 1989 Manual's accuracy 

 for identifying and delineating wetiands. 



The position that this Manual is a 

 technical guidance document which is 

 not required by law to go through 

 Administrative Procedure Act (APA) 

 legislative rulemaking procedures has 

 been upheld with respect to the 1989 

 wetiands delineation manual in Hobbs 

 V. United States, 32 Env't Rep. Cas. 

 (BNA) 2091 (E.D. Va. 1990). appeal 

 pending. No. 90-1861 (4th Cir.). 

 Nonetheless, the agencies believe that it 

 would be appropriate and in the pubUc 

 interest to include parts of the final 

 manual in the Code of Federal 

 Regulations. When the agencies 

 determine what portions of the manual 

 that may be promulgated as a legislative 

 rule, they will provide notice of specific 

 proposed regulatory language in the 

 Federal Register at least 30 days prior to 

 the end of the public comment period. 

 The proposed revisions address many of 

 the issues raised in the public comments 

 and public meetings and are intended' to 

 minimize the potential for erroneous 

 wetlands determinations. The changes 

 we are developing are not intended to 

 reduce jurisdiction. They are intended to 

 tighten the evidence requirements for 

 the three parameters in the definition of 

 wetlands. In addition we expect that the 

 revised Federal Manual will make it 

 easier for Federal or State agency staff 

 to explain to landowners how wetiands 

 are being delineated and to incorporate 

 technical knowledge derived from its 

 use in the past two years and from 

 improvements in the state of the science. 

 Of paramount importance to us, 

 however, is to maintain and improve the 

 scientific validity of our delineation 

 methods. 



Based on two years of experience in 

 implementing the 1989 Manual and on 

 comments received from the public, we 

 have identified several concerns which 

 the proposed revisions to the 1989 

 Manual address. The revisions that are 

 being proposed are intended to respond 

 to each of these concerns. Comments 

 that focus on these areas of major 

 revision would be most useful to the 

 agencies. 



1. Concern that wetiands 

 determinations were based on less than 

 all three of the basis parameters 

 (hydrology, vegetation, and soils), and in 

 some cases on only one parameter. 



2. Concern with the concept that 7 

 days of wetness is not enough to create 

 wetiands. 



3. Concern that areas are dry at the 

 surface (potentially all year round) are 

 considered wetlands based on the 

 presence of water as deep as 18 inches 

 below the surface. 



4. Concern that under the 1989 Manual 

 wetiands hydrology could be considered 



