How has the industry changed its pricing to reflect the new regional supplements? I am about to bid my first project under these new regulations and am having a hard time deciding how to adjust.
Thanks.

I have an upcoming project myself and it looks like the new supplement will probably add several hours to both the field work and the office end of the process.

Mdillon said:

“...How has the industry changed its pricing to reflect the new regional supplements?...”

It is my understanding that the regulated public may request that the Corps utilize only the 87 Manual in lieu of the new Interim Regional Supplements and the Corps will consider such requests on a case-by-case basis. I recommend that you try this first before asking a customer to pay extra for an Interim Regional Supplement delineation.

The new Regional Supplements are both interim and preliminary, and have not yet been promulgated in accordance with the rule-making process of the Administrative Procedures Act (as required for enactment of all federal regulations) and do not impose any binding legal requirements on either the Corps or the regulated public. This is an important point because there have been reports of field tests which indicate that the Regional Supplements tend to expand the area delineated as wetlands. It is doubtful that most well-informed land owners would be willing to pay extra for a Regional Supplement delineation that captures more of their property than the 1987 Manual.

The 1987 Manual offers the most substantive legal approach for a formal wetlands delineation because it has been tested in numerous court cases and has strong legal precedent, while the new Supplements have not yet been litigated.

Do you have any references for these field tests?

I have been doing delineations for over 13 years and have found the new midwest supplement easier to work with than the 87 manual. It is more cookbook and staight forward. We spent some time getting the new form/information into our database and time training staff on new indicators. Once everyone is up to speed, I see no significant additional time spent on delineations.

the Regional Supplements are
guidance, not regulations. The Corps has put out guidance on the 1987 Manual
before, like the 1991 and 1992 guidance, with no APA review. Guidance
documents do not rise to the level of the rule-making process triggering the
APA. No litigation necessary, unless we are trying to economically stimulate the law business

Michael Whited said:

“...Guidance documents do not rise to the level of the rule-making process triggering the APA...”

Dear Mr. Whited,
It is refreshing to encounter a relatively new member of this forum who seems to understand the difference between guidance documents and regulations. Many wetlands practitioners are well versed in the Corps’ guidance documents such as the Regional Supplements and the Rapanos Guidance, but they sometimes forget that guidance documents are merely suggestions, opinions, and recommendations.

Guidance documents are not “regulations” and do not impose binding legal requirements on the agencies and regulated public. Compliance with a guidance document is voluntary and non-compliance is not necessarily a violation of the law.

The failure to understand the legal differences between regulations and guidance documents may result in an inflated delineation or cause entanglement in the permit process when a permit is not required. Since the SWANCC decision in 2001 the Corps has issued more guidance documents and fewer regulations, and as a result overall compliance has become more voluntary and less mandatory.

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Dillon

After delineating a couple of projects with the new Atlantic/Gulf Coastal Supplement there really is not that much increase in time to delineate a plot, and once you get familiar with the new form it should go just as quick as using the 87 form.

As to the increase in wetland acreage question, if you were doing in right under the 87 manual then there shouldn't be an increase when using the supplement.

While I would prefer to use the old data sheets, here is the option offered by the USACE-Wilmington District (which does increase the final cost to the client).

"... anyone performing a wetland delineation during this interim period using the Supplement who believes it has resulted in a significantly different boundary line than the 1987 Manual may also complete the delineation using the 1987 Manual and submit both delineations. Enough points to adequately describe the representative plant communities, soils, and hydrology of the site(s) and to clearly document the difference in boundaries between the two methods must be included. Data recorded on both the existing 1992 data forms and the new Supplement data forms, maps indicating the location of the field site and data collection points (upland and wetland), and a completed field evaluation questionnaire for each delineation must be submitted as part of the jurisdictional determination request to the appropriate Corps District Office. The District will make the final determination based on analysis of all the submitted information. This information will also be used in evaluation and potential modification of the Supplement."

Full Public Notice

So how can it NOT increase cost in this district. And how has the client benefited from any of this?!?

Tommy,
While I agree there is little time difference in completing either data sheet set, the new data sheets open up a whole new realm of subjectivity in my mind (which may lead to increased wetland acreage due to jurisdictional calls).

Chip,
If the new supplemental is only interim, can’t you simply submit the old forms? I believe my district requests both forms to compare, but that is voluntary. They admitted that you could chose which ever method gives you the best line and use that during the interim.

According to the Corps’ Wilmington District, an official “Jurisdictional Determination” requires the following submittals:

“…Data recorded on both the existing 1992 data forms and the new Supplement data forms, maps indicating the location of the field site and data collection points (upland and wetland), and a completed field evaluation questionnaire for each delineation must be submitted as part of the jurisdictional determination request to the appropriate Corps District Office…”

Back in the old days, the Jurisdictional Determination was the first step of the Corps’ permitting process and was conducted before and separately from the wetlands delineation. Under this old policy, delineation was not mandatory when the waters in question were not jurisdictional, or were avoided.

Under the new policy above, wetlands must be delineated using both the 87 Manual and the Regional Supplement, and these delineations must be submitted to the Corps as part of the “jurisdictional determination request.” The JD should be performed before the delineation because it is entirely possible and pragmatic to avoid impacting jurisdictional wetlands without first delineating their exact boundary and then having it verified by the Corps.

Also, the Corps has not issued its new Jurisdictional Determination forms and Instructional Guidebook for the recently updated and revised Rapanos Guidance that was issued on Dec. 2, 2008. Setting aside the issue of delineation methdology (87 Manual or Regional Supplement), the Corps should clarify which guidance documents and forms should be used when performing a Jurisdictional Determination, and when a Jurisdictional Determination is not required.

To the best of my knowledge and information, there is no legal requirement to notify or obtain a letter from the Corps in cases where impacts to jurisdictional waters are avoided.

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