Is the Great Plains Regional Supplement approved yet? How about the Midwest? I'm not seeing any approvals on their websites yet, but I keep hearing through the grapevine that Great Plains has been approved.
Thanks,

Dear Shae,

I attended an environmental conference recently where a consulting firm gave a presentation on a reseach project which compared delineations based on the 87 Manual and the new regional supplement.

A large tract of land was delineated using the 87 manual, and then a delineation was performed on the same land using the new regional supplement. The regional supplement yeilded three times more acreage of wetlands than the 87 Manual.

One observer noted that if a regional supplement expands jurisdiction, then it must go through the rule making process in accordance with the Administrative Procedures Act. It was further noted that the regional supplements have not been subjected to this rule making process.

If the regional supplements expand jurisdiction, but have not been through the rule making process, then the new supplements may not be approved for official use anytime soon, because such approval could trigger litigation.

Instead, the regional supplements could be used as an unoffical "guidance" similar to the Rapanos Guidance documents.

You are a very wise man, Mr. Johnny Stevens.

Not sure what you mean by “approved”, but my understanding of the timeline from a recent Corps staff presentation is as follows:

Great Plains Regional Supplement: one year interim use period to start spring 2008, followed by period of review and public comments, final supplement issued 2009

Midwest Regional Supplement: one year interim use period to start autumn 2008, followed by period of review and public comments, final supplement issued 2009

Regarding the pending regional supplements to the 87 Manual, Ben Hodapp said:

“…Not sure what you mean by “approved”…”

Dear Ben,

Currently the 1987 Wetlands Delineation Manual is the official procedure for delineating and marking the boundary of Section 404 Clean Water Act jurisdiction. The 87 Manual has been used for enforcement and litigation and it has been upheld by the courts.

Years ago, the Corps attempted to introduce a new delineation manual without going through the rule making process (89 Manual). Subsequently, the Corps was forced by litigation and political pressure to rescind the 89 Manual and return to the 87 Manual.

The new regional supplements have not been through the rule-making process and this is why the supplements may be used only as a guidance document and not as an official regulatory procedure.

Likewise, the Corps’ new Jurisdictional Determination Manual that was issued with the Rapanos Guidance documents has not been through the rule-making process and is not an official legal procedure at this time.

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

Well, it's about time we had a topic to stir up a little controversy! For the next two minutes I will become a wetlands expert with yet another opinion on the subject. The concept that a wetland delineation manual must be reviewed under the Administrative Procedures Act is a bunch of bolony, that's right bolony!

The wetland delineation manual is a technical manual. The various agencies of the government develop technical manuals all the time, but they do not have to be reviewed by congress. Congress got involved with this issue in response to the infamous 1989 manual. Before that nobody outside of the agency field staff was interested. Let's look at some history! The Corps (Waterways Experiment Station)first published the wetland delineation manual as a technical document in January 1984. They re-published it again in January 1985, 1986 and 1987 with minor semantic changes each year. This manual was distributed to the Corps districts for their optional use. Some used it and some dit not. It was only in 1987 that the Corps HQ wanted the districts to begin using the Corps wetland delineation manual. There was no gongressional review or approval. The EPA did not like the Corps manual so they published their own manual as a draft in 1987. The early editions of the corps manual had certain allowances that would allow the reviewer to conclude that an area was not a wetland (upland), sometimes prematurely!!!!!!! An example of this was the Fac-Neutral test for vegetation. The EPA manual wanted to correct this weakness and that effort generated a document that would allow a reviewer to conclude an area was a wetland, sometimes prematurely!!!!!!!!! An example of this problem was the "problem vegetation" section. Neither manual was reviewed or approved by congress. The two agencies agreed to work toward a joint manual that both agencies would accept. Together with NRCS and the U.S. Fish and Wildlife Service they came up the 1989 Joint Federal Manual, which all agencies were supposed to use.

I will say that there were 3 major problems with the 1989 manual. (1) It inherited too much of the EPA manual with respect to problem vegetation. (2)There was too much misunderstanding with the hydric soil information pulled from NRCS databases. And (3) everybody and every agency at every level of government began to use this new manual, often with erroneous conclusions because too many people were poorly trained, if at all, and everybody imposed their personal bias when they made their conclusions. The result was a mapping nightmare!!

In 1991 Congress stepped in and simply required the Corps to use its 1987 version of the manual by adding a condition in a funding bill. Congress, in its infinite wisdom, thought that the 1989 wetland manual was changing the wetland definition. None of the manuals attempted to change the definition. They brought in the National Academy of Sciences to generate report. I think their report can be summarized as concluding that the Corps' wetland delineation manual had some good points, had some weak points, and needed some refinement. And we waited a long time for that report.

Long before this confusion with the 1989 manual, Corps staffers recognized that the manual needed to better respond to certain issues on a regional basis. Further, the manual needed to make a better distinction between indicators and criteria.

It is the Corps HQ that needs to decide whether the regional supplements can be used by the Corps. Whether the regional supplements increase or decrease mapped wetland acreage is not the important issue. The important issue is that the regional manuals address certain vegetation and soil criteria that cannot be adequately addressed from a national perspective.

Some people might be aware the EPA and NRCS have been developing and revising hydric soil indicators for several years now. The Department of Interior has been revising the Wetland Plant List on an almost continual basis for several years and neither one of these technical documents has been approved by Congress.

In the end, we too often forget that any manual can give any reviewer any answer they want, if they improperly apply personal bias to their observations and do not apply a genuine effort to reach a sound technical decision.

As a culture, our "pro environmental agendas" and our "pro construction agendas" too often confuse and distort our regulatory decisions. It frightens me to think that we would want to turn to politicians for environmental decisions.

Now that should stimulate some interesting responses.

Mr. Edward Bonnor said:

"...Whether the regional supplements increase or decrease mapped wetland acreage is not the important issue. The important issue is that the regional manuals address certain vegetation and soil criteria that cannot be adequately addressed from a national perspective..."

Dear Mr. Bonner,

Thank you for an insightful history of the Corps wetlands delineation manuals. I remember the 89 Manual but never knew the background which you provided.

From a national perspective, the issue of acreage is more important than the vegetation or soil criteria. This is because the acreage issue invokes the U.S. Constitution, whereas soil and vegetation are merely technical criteria for delineating wetlands.

When federal law (wetland delineation manual) is used to regulate land use, then regulated acreage is the issue that causes litigation, and litigation has become the legal process that formulates wetlands law.

This is why it would be far better if the new regional supplements go through the rule-making process before becoming offical law. We should be able to create new law through a fair, reasonable, and established public participation process, instead of the courts.

The regional supplements may be useful as guidance documents, like the Rapanos guidance.
Technical data for soils and vegetation should be periodically updated, and this could easily be handled as a guidance document.

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

Mr. Stevens,
You state that the wetland manual is used to regulate land use. I will leave the term land use for another day and another discussion. Bureaucrats inside the DC beltway will never admit that the Corps' Section 404 program has evolved into a federal land use program.

The authors of the wetland delineation manual clearly indicated that the manual was not intended or written to make regulatory permit decision. The issue of whether a specific land or water area is a wetland is strictly a technical decision. The next step of whether that resource area is subject to federal regulatory review, and what level of federal protection, is not addressed in the wetland delineation manual. If you require congressional review and approval of the wetland manual, then you must require congressional review of the NWI plant list compiled by the Department of Interior. You must require congressional approval of the Hydric soil classification and identification by NRCS, since a change in either of these technical resources could have significant effects on wetland mapping acreages. For example, if the NWI classification for red maple (Acer rubrum) is changed from FAC to FACU, large acreages of forested wetlands would become forested uplands and this reclassification could be accomplished as a completely separate endeavor by the Department of Interior. And this mapping reversal would not be a consequence of any changes to the national manual or any regional supplements.

The wetland manual is not law. In fact, the Corps' regulations are not law. You state "The regional supplements may be useful as guidance documents, like the Rapanos guidance." When I think of guidance I think of things being made easier or simpler. The Rapanos guidance does not do that. It makes the whole process more complicated and convoluted. Playing congressional word games with the wetland delineation manual will make the program even more confusing. It is time to sit down and re-visit this subject as a congressional discussion of the Clean Water Act. I want to hear from Congress what Congress meant with Section 404 in as few words as possible.

Regarding CWA jurisdiction, Mr. Bonner said:

"...It is time to sit down and re-visit this subject as a congressional discussion of the Clean Water Act. I want to hear from Congress what Congress meant with Section 404 in as few words as possible..."

Recently, a bill was introduced in Congress to fix the Clean Water Act (HR 2421 - Clean Water Restoration Act of 2007). A Congressional hearing was held on this bill and the following are comments from the Pacific Legal Foundation regarding this hearing;

On April 16, 2008, the House Committee on Transportation and Infrastructure held hearings on Congressman Obertsar's controversial and misnamed "Clean Water Restoration Act of 2007." A video of the hearing can be found here. Some of the most interesting testimony came from agency representatives like this statement by J.P Woodley of the Corps:

"We have several serious concerns with H.R. 2421 as drafted. . First, it appears that the consequence of the legislation will be to extend the jurisdiction beyond those waters determined to be not jurisdictional under the SWANCC and Rapanos decisions. This appears to go beyond the original intent of Congress in establishing the jurisdictional reach of the Clean Water Act, which reflected a careful balance between the legitimate and important Federal interest in protecting water quality and the equally important and long-standing interest of States in managing and allocating land and water resources within their boundaries. HR 2421 also goes beyond any interpretations of jurisdiction advanced by the agencies in the 30 years preceding the SWANCC and Rapanos decisions. For example, it is not clear whether the bill would require any link to interstate commerce for a water to be jurisdictional.

A second concern is that the bill could open up a whole new line of litigation regarding the limits of Congress’s legislative power under the constitution, creating additional uncertainty and unpredictability for the environment, the regulated community, and State and Federal agencies. "

Even the Corps refuses to back Oberstar's claims that HR2421 merely "restores" the original intent of Congress in the 1972 Act to regulate ALL waters in the United States and that the agency has applied a consistent jurisdictional standard for more than 30 years.

http://rapanos.typepad.com/my_weblog/

Gentlemen:

Re: Oberstar and the Clean Water Act restoration efforts:

Please. A little help from our friends in Congress is probably the very last thing that the 404 regulatory program needs. Sometimes, there's nothing more difficult than seeing the plain meaning of important texts (be it the Bible, the U.S. Constitution or the Clean Water Act) when we want so desparately for those words to mean something else. What is so hard to understand about the original wording at Section 404 of the Clean Water Act? The Corps seemed to know pretty clearly what those words meant in 1974 when they promulgated their original 404 regulations.

I've said it here before, Congress does not want to break into the domain of federal land-use regulation through the front-door when the back-door has been left unlocked for thirty-five years.

This message has been edited. Last edited by: Matt Reed,

The USACE Galveston District recently put on Public Notice the Great Plains Interim Regional Supplement. See attached hyperlink to their webpage.

http://www.swg.usace.army.mil/reg/notice/Great%20Plains%20PN.pdf