The Army Corps of Engineers has adopted interim regional supplements to the 1987 Manual in Alaska (adopted in early 2006) and the Arid West (adopted December 2006) and has drafted a Great Plains supplement. In Alaska and the Arid West, the Corps is now using the regional supplement instead of the 1987 Manual, although there are mechanisms to revert back to the 1987 Manual during an appeal. The Great Plains regional supplement has not yet been implemented.

The use of the Regional Supplements will be re-evaluated after a one-year period

Mr. Chinn,
Please give us a link to these supplementals if available.

You can find the 87 Manual regional supplements at:

http://www.usace.army.mil/cw/cecwo/reg/reg_supp.htm

Dave

A minor correction to the original post, which indicated that the supplements had replaced the 87 manual. This is not correct. As stated in the response to the peer-review of the Arid Regions Supplement,

"The Regional Supplement is designed to be used with the 1987 Manual and should not be used as a stand-alone document for identifying wetlands."

The Supplements clearly indicate what portions of the 87 manual are replaced by guidance in the supplement and also which specific regions within the area covered by the supplement would be applicable.

Rich Reaves said:

"...The Regional Supplement is designed to be used with the 1987 Manual and should not be used as a stand-alone document for identifying wetlands..."

Dear Rich,

The 1987 Manual and Regional Supplements do not distinguish between jurisdictional and non-jurisdictional wetlands, and should not be used as stand-alone documents for delineating wetland boundaries.

Relevant court decisions, the Joint Memorandum, the interim guidance on Rapanos, and eventually the substantive guidance (which has not yet been issued), should all be carefully considered along with the 1987 Manual and Regional Supplements, to identify wetlands.

Try this on, the manual and the regional supplements are used to identify wetlands. That is all wetlands. It is then the Corps' responsibility to determine if the wetland is under 404 jurisdiction. It is definitely not the role of a wetland technician to determine jurisdiction.

Gary, are you serious? You don't comment on whether or not wetlands are regulated in Michigan? Michigan is the one state where it is fairly straight forward, where there is a useable definition of regulated (unless that has changed in the last three years). The Corps and the state have the final say, but a wetland delineator in Michigan should be commenting on whether or not a wetland is regulated and by whom.

Gary said:

“It is then the Corps' responsibility to determine if the wetland is under 404 jurisdiction. It is definitely not the role of a wetland technician to determine jurisdiction.”

Dear Gary,

As you know, under the Corps/EPA interim guidance document on the Rapanos Decision that was issued on 7-5-06, the Corps has a moratorium on official, approved, jurisdictional determinations in Section 404 waters, pending issuance of its substantive guidance. As a result, many land owners are experiencing difficulty in obtaining jurisdictional determinations and verification of wetlands delineations from the Corps.

Why should anyone expect the Corps to perform a jurisdictional determination when it has a moratorium on this procedure?

Some Corps districts are offering unofficial, preliminary jurisdictional determinations and other unofficial methods and procedures to process permit applications for applicants who are willing to concede that their Section 404 property is not affected by the Rapanos decision.

Not surprisingly, land owners often inquire about the Rapanos decision and other legal matters. If a wetlands technician is not qualified to render an opinion on Rapanos and other relevant court decisions, then they should so advise potential clients before engaging their services.

Most wetland technicians that I have worked with in the past defer to the Corps on jurisdictional boundaries. While this approach may have its merits, it is of little use to land owners who are impacted by the Corps moratorium and various legal disputes regarding Section 404 jurisdiction.

A qualified wetlands technician should be able to interpret and apply applicable case law, statutes, and regulations, and make a reasonable determination of Clean Water Act jurisdiciton. Often, this is the most feasible approach for dealing with jurisdictional issues.

This message has been edited. Last edited by: Johnny Stevens,

I think Gary's point is being lost in relation to the previous posts.

The supplements/manual are intended to identify wetlands that MAY be subject to Section 404 CWA. One is to distinguish and/or identify what IS a wetland vs. what ISN'T a wetland. The text of these documents instruct the reader that a determination on whether the wetland is subject to regulation under Section 404 CWA is to be made independently from the Manual. I don't think Gary's post was intended or implied that a wetland technician couldn't make recommendations on jurisdiction.

PS. I think one forgets that (I think it's the same one) Gary is an instructor for a nationally recognized and highly acclaimed wetland training firm. I'd imagine Gary knows a thing or two about Corps jurisdiction and wetland delineation and how it was intended to be applied, etc.

Dave said:

"...Gary is an instructor for a nationally recognized and highly acclaimed wetland training firm. I'd imagine Gary knows a thing or two about Corps jurisdiction and wetland delineation and how it was intended to be applied, etc..."

Dear Dave,

Thank you for the information about Gary, and your clarifying comments regarding the 87 Manual and its regional supplements. I have the following questions regarding jurisdictional determinations and wetland delineations:

1. Should wetlands be delineated before or after conducting a jurisdictional determination?

2. Should non-jurisdictional wetlands be shown on wetland delineation drawings that are submitted to the Corps for verification?

Hopefully, Gary or another qualified expert will answer and explain.

Thanks

Johnny Stevens

Johnny,
The delineator must do some amount of delineation to determine the extent of the wetlands in order to establish whether or not the wetland is jurisdictional.
Secondly, it seems prudent to include the non-jurisdictional wetlands labeled as such on any plans sent to the Corps. That way there is no question as to whether the delineator missed them, or intentionally concealed their presence. If a confirmation letter is sought, it seems to me that you would want the Corps to sign off on a document saying which wetlands are not jurisdictional instead of a document that might imply that the wetlands were missed.

quote:

Dear Gary,

As you know, under the Corps/EPA interim guidance document on the Rapanos Decision that was issued on 7-5-06, the Corps has a moratorium on official, approved, jurisdictional determinations in Section 404 waters, pending issuance of its substantive guidance. As a result, many land owners are experiencing difficulty in obtaining jurisdictional determinations and verification of wetlands delineations from the Corps.

Why should anyone expect the Corps to perform a jurisdictional determination when it has a moratorium on this procedure?

Some Corps districts are offering unofficial, preliminary jurisdictional determinations and other unofficial methods and procedures to process permit applications for applicants who are willing to concede that their Section 404 property is not affected by the Rapanos decision.

Long time lurker, first time poster. I have been very confused by the discussions on the board regarding the moratorium on official, approved jurisdictional determinations. The Philadelphia District has been conducting official jurisdictional determinations since the beginning of the year. I have spoken with several of the Corps biologists regarding their new approach since the Rapanos. They have expressed a ‘business as usual’ attitude. I am in the process of reviewing 2 jursidictional determination letters for an appeal process. The jursidictinal determination letters were completed after a site visit on April 3, 2007. It is considered an ‘Approved JD’.

Can someone please explain the discrepancy to me? Are other states also conducting JDs with a ‘business as usual’ status?

Joseph Corona asked:

"...I have been very confused by the discussions on the board regarding the moratorium on official, approved jurisdictional determinations. The Philadelphia District has been conducting official jurisdictional determinations since the beginning of the year.... Can someone please explain the discrepancy to me?..."

Dear Mr. Corona,

The Corps continues to issue approved jurisdictional determinations in Section 10 waters (traditional navigable waters and their adjacent wetlands). Below is a link to the Corps/EPA Interim Guidance of 7-5-06, regarding the moratorium on jurisdictional determinations in Section 404 waters.

If the Philadelphia District is issuing approved jurisdictional determinations in Section 404 waters, then please forward a copy of the Interim Guidance to the regulatory branch of the Philadelphia District and ask them to explain the discrepancy, and let us know what they say.

http://www.craig-environmental-law.com/forms/ArmyCorpsReactiontoRapanos.pdf

quote:

Originally posted by Rich Reaves:
A minor correction to the original post, which indicated that the supplements had replaced the 87 manual. This is not correct. As stated in the response to the peer-review of the Arid Regions Supplement,

"The Regional Supplement is designed to be used with the 1987 Manual and should not be used as a stand-alone document for identifying wetlands."

The Supplements clearly indicate what portions of the 87 manual are replaced by guidance in the supplement and also which specific regions within the area covered by the supplement would be applicable.


Rich Reaves

In this Special Public Notice, http://www.usace.army.mil/cw/cecwo/reg/news/SPN-2006-445.pdf, the Alaska Corps District instructs the user to use the Interim manual and revert to the 87 Manual at the user's discretion (i.e., if the 87 manual provides a more favorable determination than the Interim).

In this peer review summary document for the arid west interim manual, http://www.usace.army.mil/cw/cecwo/reg/aridwest_peer_rev.pdf, it states, "...although the Supplement clearly states the Supplement supersedes the 1987 Manual where differences occur,...". But, the Arid West is not as far along as the Alaska District and have not put out a Special Public Notice yet, but I would predict that that would be forthcoming.

Here are my ramblings...

First, on the issue of jurisdictional vs. non-jurisdictional wetlands, I am assuming that most people are referring to isolated, intrastate wetlands that are only jurisidictional if they satisfy the commerce clause nexus. The ACOE staffer (as the designee of the District Engineer) makes the call on this, not the landowner, not the consultant, no matter how qualified. I think that was Gary's position (correct me if I am wrong.)

Second, as for what sequence, delineate the suspected wetlands before or after determining jurisdiction is not really relevant in my opinion. The ACOE staff makes both calls. Personally, I delineate any suspected wetlands and when the ACOE staffer comes out, he/she can make the call on jurisidiction concurrently.

Finally, this thread is getting off-topic. If you want to bring up SWANCC and Rapanos issues, start a new thread. This thread should be limited to discussions of the Interim manual.

Richard

I thought this notice might be of interest to everyone. This notice is specific for the use of the Arid West Manual in the Los Angeles Corps District.

http://www.spl.usace.army.mil/regulatory/Arid%20WestPN%20Final.pdf

Dave

Richard Chinn said:

“...Finally, this thread is getting off-topic. If you want to bring up SWANCC and Rapanos issues, start a new thread. This thread should be limited to discussions of the Interim manual...”


Dear Richard,

I reviewed the interim regional supplement to the 87 Manual for the Arid West. This supplement contains detailed technical guidance for evaluating wetlands under dry conditions, and presents an overall delineation methodology that is complex.

It has many “cautions,” “user notes” and other qualifiers for technical parameters and methodology. Some conclusions drawn from this supplement could be easily challenged because this document argues against itself by offering opinions both for and against its technical criteria. It relies heavily on subjective interpretation.

On the surface, this interim supplement appears to be difficult to use. It is more complicated than the 87 Manual and any delineation based on this approach could be more time consuming and expensive to perform.

This is why the Corps of Engineers routinely performs a jurisdictional determination first, before proceeding with the process of delineation. Likewise, a land owner should insist on a jurisdictional determination first, before incurring the cost of a delineation that is based on the interim regional supplement to the 87 Manual for the Arid West.

The interim supplement devotes most of its attention to methods of delineating wetlands and streams that may only be wet once every 100 years or so. Our courts have ruled that isolated wetlands, ephemeral and intermittent streams, are not subject to federal CWA jurisdiction, yet this manual is devoted to delineating such "waters."

The interim supplement for the Arid West tends to expand CWA jurisdiction far beyond navigable waters and deep into dry deserts, hills, and mountain ranges. This supplement runs counter to current jurisprudence and may be challenged in the courts.

In 1989 the Corps issued a new delineation manual which also expanded jurisdiction. The 89 Manual was withdrawn after much opposition and the Corps re-instated the 87 Manual which we still use today.

Most of the Arid West may not be subject to CWA jurisdiction and this could limit the utilization of the interim regional supplement.

Once there was hope that the substantive guidance on the Rapanos decision would help us resolve this jurisdiction problem, but this has not yet happened. The Arid West may have to wait a little longer.

This message has been edited. Last edited by: Johnny Stevens,