United States Office of August 14, 1991
Environmental Protection Wetlands, Oceans,
Agency and Watersheds
&EPA Proposed Revisions
To The
Federal Manual For
Delineating Wetlands
• BACKGROUNDER
• QUESTIONS AND ANSWERS
• SIDE-BY-SIDE COMPARISON
Printed on Recycled Paper
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United States Office of August 14,1991
Environmental Protection Wetlands, Oceans,
Agency and Watersheds
vvEPA Backgrounder On The
Proposed Revised
Federal Manual For
Wetlands Delineation
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UNDERSTANDING THE PROPOSED REVISIONS
TO THE WETLANDS DELINEATION MANUAL:
A BACKGROUNDER
INTRODUCTION - The following discussion of the proposed revisions to the 1989
"Federal Manual for Identifying and Delineating Jurisdictional Wetlands" (1989 Federal
Manual) provides a brief overview of the history and current status of the proposed
revisions. The 1989 Federal Manual describes how to delineate vegetated wetlands for
the purpose of determining areas regulated as "waters of the United States" under
Section 404 of the Clean Water Act as well as for the purpose of implementing
Swampbuster provisions under the Conservation Title of the Food Security Act of 1985,
as amended. Major revisions to the 1989 Federal Manual have been proposed to
address technical concerns identified in implementing the Federal Manual over the past
two years, to reduce misinterpretations and the possibility of erroneous wetland
determinations, and to better explain the 1989 Federal Manual's usage. Public
comments on the proposed revisions will be accepted through October 15, 1991.
WETLANDS - Simpty put,
wetlands are the areas on the
landscape where land and water
meet. In general, they are lands
that are either inundated with
surface water or saturated with
groundwater long enough during
the growing season to make it
necessary for the vegetation to
adapt to growing in saturated
soil conditions. This periodic or
permanent wetness is the
fundamental factor that makes
wetlands different from uplands.
While most people picture
wetlands as marshy areas with
lush aquatic plants, there are
actually many more kinds of
wetlands. In fact, in certain
seasons, many ecologically
important wetlands may be dry
or lack signs of plant life.
The term wetlands
describes a broad spectrum of
plant communities. Wetlands
can range in size from tens of
thousands of acres in extent to
EXAMPLES OF WETLANDS TYPES
BOOS typically have a thick layer of floating root masses or peat on the
surface and are highly acidic. They may have no regular inlet or outlet of
water, thus they are dependent upon precipitation for water. Most
floating bog* are found in the northern United State*. Pocosliw, also a
type of bog, are described below.
BOTTOMLAND HARDWOODS are deciduous forested Wetlands, found
along rivers and streams generally in the broad floodplain of the southeast
and south central United States.
EMERGENT WETLANDS are characterized by free-standing, nonwoody
plants. They can be either freshwater or saltwater. Emergent wetlands
are found throughout the United States particularly in coastal areas,
adjacent to major lakes, and in the West.
FENS have a defined outlet and are supported by mineral rich
groundwater that has seeped to the surface. Like bogs, fens have large
amounts of peat. They are found In the northern United States.
MANGROVE SWAMPS are coastal saltwater shrub or forested wetlands
that may be flooded with water all year around or only during high tide.
Mangroves are found along the coast of the southern United States.
MARSHES are emergent wetlands typically with a regular inlet and outlet
of water. They can be either salt or freshwater, inland or coastal They
are dominated primarily by nonwoody vegetation. Marshes are found
throughout the United States.
SWAMPS are dominated primarily by trees or shrubs and are found
throughout the United States.
PRAIRIE POTHOLES are depresstonal wetlands found in the Upper
Midwest, especially North Dakota, South Dakota, and Minnesota. They
are major waterfowl breeding and migration resting areas.
PLAYA LAKES are periodically flooded Wetland basins thai are common
in parts of the Southwest and Plains States. : :
POOOSINS are broadleafed evergreen shrub.bogs found in the Southeast.
They may not be readily apparent because the thick underlying peaty soils
dry out rapidly after the early part of the growing season.
VERNAL POOLS are naturally occurring depressions! wetlands that are
covered by shallow water for variable periods from winter to spring, but
may be completely dry for most of the summer and fall.
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as small as a table top. They occur pom the cold tundra of the arctic to the lush, humid
tropics near the equator. They may be dark and densely wooded or sunny, open wet
grasslands. Many are associated with rivers, streams, lakes, or the sea, but many others are
found far from any open-water bodies. Some wetlands are uniform stands of one or a few
plant species, while others may contain dozens of important plant species and represent a
mixture of several discrete vegetation communities.
FOUR FEDERAL AGENCIES IDENTIFY AND DELINEATE WETLANDS - There
are four federal agencies that have important responsibilities with regard to identifying
and delineating wetlands in the United States: the Environmental Protection Agency
(EPA); the Army Corps of Engineers (Corps); the Department of Interior's Fish and
Wildlife Service (FWS); and the Department of Agriculture's Soil Conservation Service
(SCS). EPA and the Corps jointly administer the Section 404 program, which regulates
the discharge of dredged or fill material into "waters of the United States," a term
which includes rivers, streams, lakes and most of the Nation's wetlands. Among other
responsibilities, EPA and the Corps are responsible for making jurisdictional
determinations of wetlands regulated under Section 404 of the Clean Water Act -- that
is, identifying wetlands and establishing their boundaries. The Department of
Agriculture is responsible for implementing the "Swampbuster" provisions of the Food
Security Act (also known as the Farm Bill). As one of its program responsibilities, the
SCS identifies wetlands on agricultural land to ensure compliance with Swampbuster.
FWS serves important advisory roles in the Section 404 and Swampbuster programs.
FWS is also responsible for mapping the Nation's wetlands in order to assess the status
and trends of their geographic distribution though the National Wetlands Inventory.
Each of the four agencies has a definition of wetlands for its wetlands programs.
While the methods used for wetlands delineation have varied, the definitions of
wetlands used by EPA and the Corps, which have remained unchanged since 1977, and
are identical and are very similar to those used by FWS and SCS. They all include
three basic elements - hydrology (Is the area saturated or inundated with water during
the growing season?), vegetation (What kinds of plants are present?), and soils (What
kinds of soils are present?).
ONE MANUAL FOR THE FOUR AGENCIES - Before 1989, each of these agencies
had its own procedure for identifying and delineating wetlands. These procedures were
developed separately from the other agencies. In 1987, the Corps published a
technical manual for wetlands delineation, but its use was not required by the Corps
Districts and there were variations in how it was applied in the field. EPA published a
wetlands delineation manual in 1988, but it too was not required for regulatory wetlands
delineations. The Soil Conservation Service developed procedures for identifying and
delineating wetlands for compliance with the Swampbuster provisions of the 1985 Food
Security Act. Finally, while it has no formal method for delineating wetland boundaries,
in 1979 the Fish and Wildlife Service established guidelines for identifying wetlands.
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These different agency manuals resulted in inconsistent determinations of wetland
boundaries. This caused confusion and created the need for a single, unified Federal
method for wetland delineations.
THE 1989 FEDERAL MANUAL - In January 1989, EPA, the Corps, FWS and SCS
agreed to use one approach for delineating areas under the jurisdiction of Section 404
and Swampbuster. The four agencies adopted a single manual, referred to as the
"Federal Manual for Identifying and Delineating Jurisdictional Wetlands" (the 1989
Federal Manual). The 1989 Federal Manual established a national standard for
identifying and delineating
vegetated wetlands. Consistent
with each Agency's regulatory
definition, the 1989 Federal
Manual specified the three
mandatory technical criteria (or
parameters) needed to be met
to determine whether or not an
area was a wetland. These
were: wetland hydrology, hydric
soil characteristics, and
hydrophytic vegetation. The
technical criteria contained in
the 1989 Federal Manual were
designed to conform with the
Federal definitions of wetlands
used by the four agencies. The
Federal Manual also provided
guidance on how to collect and
use fieldjndicators (such as
free water, water-stained
leaves, silt marks, wetland
dependent plant species and
organic soils) to determine
whether or not the technical
criteria were met.
DEMNmONS OFWETLANDS
U.S. EPA and Army Corps of Engineers
"Those areas that tote inundated oaf saturated by surface
or groundwater at a frequency and duration sufficient to
support, and that under normal circumstances do support, a
prevalence of vegetation typically adapted for life in saturated
soil conditions. Wetlands generally include swamps, marshes,
bogs, and similar areas.11
Soil Conservation Service
"Wetlands are defined as areas that have a predominance
of hydric soils and that are inundated or saturated by surface
or ground water at a frequency and duration sufficient to
support, and under normal circumstances do support, a
prevalence of hydrophytic vegetation typkalfy adapted for life
in saturated soil conditions...*
Fish and Wildlife Service
"'Wetlands are lands transitional between terrestrial and
aquatic systems where the water table is usually at of MAr
the surface or the land is covered by shallow water. For
purposes of this classification wetlands must have one or
more of the following three attributes: 1) at least periodically,
the land supports predominantly hydrophytes, 2) the substrate
is predominantly undrained hydric soil, and 3) the substrate is
nonsoU and & saturated with water on covered by shallow
water at some time during the (pawing season of each ye&*
REVISING THE 1989 FEDERAL MANUAL - When the Federal Manual was
adopted, it was anticipated that future revisions might be required. Revisions to the
1989 Federal Manual are based on the experience gained from its use over the past
two years. Recommendations for changes were received from both inside and outside
the agencies. Because of the strong degree of public interest in the Federal Manual,
the four agencies provided the public with several opportunities to submit technical
comments as part of the Federal Manual revision process. Four public meetings were
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held in 1990 (Sacramento,
California; St. Paul, Minnesota;
Baltimore, Maryland; and
Baton Rouge, Louisiana) to
solicit comments from the
public on technical revisions to
the document. In addition,
numerous written comments
were submitted and reviewed
during a public comment
period which was publicized by
a notice in the Federal
Register. The four agencies
also reviewed assessments by
agency field staff using the
1989 Federal Manual.
This process resulted in
the development of a
substantial and useful set of
concerns and recommendations
that was used in developing the
revisions currently being
proposed. The four agencies
met regularly from October
1990 through April 1991 to
develop the proposed revisions
to the 1989 Federal Manual.
Some of the key technical
issues needing re-examination
were: wetland hydrology
criterion, the use of hydric soil
for delineating the wetland
boundary, the assumption that
facultative vegetation could be
used to demonstrate wetland
hydrology, the depth and
duration of saturation, the • -•
definition of the growing
season, and the nature of the determination process which provided opportunities for
misuse. In addition, general misunderstandings of the 1989 Federal Manual were
addressed. Perhaps the issue that engendered the most concern involved the use of
hydric soils for wetland identification and delineation. This led to the misconception
STATISTICS ON SECTION 404 PERMIT ACTIVITIES AND SECTION
404(c) ACTIONS
Penult Actfettie*
The Clean Water Act Section 404 program regulate* the discharge
of dredged or Oil material into water* of the United States, a term which
Include* most of the Nation's wetlands. In general, the Corps receive*
approximately 15,000 individual permit applications annually (thii number
include* both Section 404 and Section 10 application*). Of these 15,000
individual permit applications
approximately 10,000 permit* (67%) aft issued;
approximately 500 permit application* (3%) are denied;
»• approximately 4,500 permit application* (30%) are
withdrawn by the applicant or qualify for a general
permit.
In addition, approximately 75,000 minor activities are authorized
each year through regional and nationwide general permits. General
permit* authorize activities in wetland* and other water* without the need
for individual permit review as long a* these activities cause only minimal
adverse environmental effects. Nationwide permit #26, In particular,
authorizes activities involving discharge* of dredged or fill material into 10
acre* or less of isolated waters or headwaters streams (non-tidal stream*
where the average annual flow is 5 cubic feet per second or lew). For
activities that affect between 1 and 10 acres of *uch Waters, the applicant
is required to notify the Corps of Engineers prior to proceeding with any
discharge.
Permit Review Period
Approximately 92% of all permit evaluations (that is, both
individual and general permits) are completed in less than 60 day* after a
completed permit application has been received by the Corps,.
Individual permit application* that involve complex project* or
sensitive environmental issues usually require more than 60 days to reach
a decision. After a completed Individual permit application has'been
received by the Corps:
over 50% are processed in less than 60 days; ; .
approximately 25% percent are processed In 61 to 120
days:
• approximately 20% require 121 days to a year to process;
and • • •
less than 5% require more than one year to process.
Summary Of EPA Section 404fcj Actions (at of S/M\
Section 404(c) of the Clean Water Act authorizes the
Administrator of EPA to prohibit or restrict discharge* of dredged or fill
material info waters of the United States when such discharges would have
unacceptable adverse effects on municipal water supplies, shellfish bed*
and fishery areas, wildlife or recreational areas. To date, EPA fta*
completed only eleven Section, ffMftft actjons. out of an estimated 150,000
permit applications received since the Section 404(c) regulation* went Into
effect hi tote 1979.
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that the 1989 Federal Manual was based not on three mandatory criteria, but rather
solely on one criterion - the hydric soil criterion. Some individuals believed that any
area mapped as a hydric soil series was a wetland. These misunderstandings needed to
be addressed. From these and other concerns raised, it was clear that a better defined
set of field indicators was needed to prevent incorrect positive identification of the
three technical criteria.
REVISIONS TO THE 1989 FEDERAL MANUAL: INCREASING THE BURDEN
OF PROOF - The goal in revising the 1989 Federal Manual is to improve the 1989
Federal Manual's accuracy for identifying and delineating wetlands. The proposed
revisions also address many of
the issues raised in the public
comments and public meetings.
The changes incorporate
technical knowledge derived
from the use of the 1989
Federal Manual in the past two
years and from improvements
in the state of the science. It
is important to note that these
proposed revisions, as with the
1989 Federal Manual, are
intended to be consistent with
the definition of wetlands used
in implementing the Section
404 program and the
Swampbuster provisions of the
Farm Bill.
The major changes
would increase the burden of
proof required to identify and
delineate a wetland by
clarifying and restricting the
manner in which field
indicators are used to indicate
whether the three criteria
(wetland hydrology, hydrophytic
vegetation and hydric soils) are
met. This approach to wetland
delineation will make it easier
for Federal or State agency
staff to explain to landowners
how wetlands are being
delineated.
EXPLAINING THE THREE CRITERIA FOR
WETLANDS * Under natural, undisturbed conditions,
vegetated wetlands generally possess three characteristics *
• wetland hydrology, hydrophytic vegetation, and hydric
soils. The proposed revised Federal Manual provides Held
indicators to verify the presence of these criteria,
Wetland Hydrology, The driving force creating wetlands is
wetlands hydrology. The presence of water is essentially
what makes a wetland a wetland. Field staff may not be
able to directly observe more than two weeks of
inundation and/or saturation if they are not present during
the right part of the growing season or for a Jong enough
observation period. Unless specifically addressed in the
proposed revised Federal Manual as exceptions or
disturbed areas, area$ without any of the hydrologic
indicators provided in the proposed Federal Manual are
nonwetland areas,
Hydrophytic Vegetation: The term "hydrophytic
vegetation" describes plants that live in "wet" conditions.
However, not all.plants that grow in wetlands grow only in
wetlands. The majority of plant species growing in
wetlands also grow in non-wetlands or in upland areas in
varying degrees. Thus, plants alone cannot be used to
identify and delineate wetlands. The determination of
whether or not the vegetation in an area meets the criteria
is based on estimated frequencies with which the plant
species found in the area occur in wetlands,
Hydric Soil: The National Technical Committee for
Hydric Soils has developed criteria for hydric soils and a
list of the nation's hydric soils. The Federal Manual's
hydric soil criterion is based on the Committee's criteria
for hydric soil Wetlands typically possess hydric soils but
the presence of indicators of hydric soils does not
necessarily mean that the area Is a wetland,.
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The proposed revised Federal Manual is being released along with a Preamble
which further clarifies the major issues on which we are specifically soliciting public
input. However, we wish to emphasize that we are also requesting comments on the
entire proposed revised Federal Manual.
The major revisions do the following:
1) The Three Criteria:
Clarify that, except in limited specified circumstances, demonstration of all
three parameters (wetland hydrology, hydrophytic vegetation and hydric
soils) is required for delineating vegetated wetlands.
2) Limited Specified Exceptions to the Three Criteria:
Clarify that independent indicators of all three parameters are required
UNLESS the area is a disturbed wetland or the area is specifically listed
in the proposed Federal Manual as an exception.
Specifically identify exceptions (i.e, playa lake, prairie pothole, vernal pool,
pocosin, and other special wetlands that fail the hydrophytic vegetation
criterion such as Tamarack Bogs, White Pine Bogs and Hemlock
Swamps). Exceptions are widely recognized valuable wetland types that
may fail to meet one or more of the 3 criteria during all or some part of
the year. Request public comment on the listed exceptions as well as
potential additions to the list, and on recommendations for identifying
appropriate indicators for each wetland type listed as an exception.
3) Wetland Hydrology Criterion:
• Require inundation for 15 or more consecutive days, or saturation to the
surface for 21 or more consecutive days during the growing season.
• Require saturation to the soil surface.
• Narrow the wetland hydrology indicators to exclude Hydric Soils and
Wetland Vegetation as hydrology indicators.
Separate the list of wetland hydrology indicators into primary and
secondary indicators. Primary indicators are more reliable and can be
used alone to meet hydrology criterion. Secondary indicators are weaker
and can only be used with corroborative information.
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Remove water stained leaves, trunks, and stems as wetland hydrology
indicators; public comments are requested in the Preamble regarding their
reliability as indicators of hydrology during the growing season and
whether they should be primary or secondary indicators.
Incorporate localized differences in the growing season; the proposal
solicits comments on the definition of the growing season.
4) Hydric Soils Criterion:
• Specifically state that hydric soils must be field-verified; hydric soils maps
alone are not sufficient evidence of hydric soils.
Clarify that the three wetland criteria are mandatory except in specified
circumstances, and therefore the presence of mapped hydric soils alone
cannot be used to delineate an area as a wetland.
Incorporate localized differences for certain hydric soil phases.
5) Wetland Vegetation Criterion:
Propose the prevalence index approach -- that is, the vegetation is
considered wetlands vegetation and therefore meets this criterion if, under
normal circumstances, a frequency analysis of all species within the plant
community yields a prevalence index value of less than 3.0 (where OBL =
1.0, FACW = 2.0, FAC = 3.0, FACU = 4.0, and UPL = 5.0).
PREAMBLE REQUESTS PUBLIC COMMENTS - In addition, the Preamble requests
comments regarding the following issues. Some of these issues have been discussed in
the preceding section.
Issue 1: Seasonally Harder to Identify Wetland Types
We are requesting public comment on three alternatives to identifying and
delineating seasonally harder to identify wetland types that are NOT
exceptions to the criteria, but may not demonstrate indicators of one or
more of the 3 criteria during certain (e.g., dry) times of the year. The
proposed Federal Manual explicitly requires that for an area to be
delineated as a vegetated wetland it must have three components:
wetlands hydrology, hydric soil, and hydrophytic vegetation. It is essential
that the revised Federal Manual allow accurate wetlands determinations to
be made at any time of the year (i.e., areas should not be incorrectly
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identified as wetlands because the delineation was conducted during a wet
time of year, nor should wetlands be identified incorrectly as upland
because the delineation was conducted during normally dry times). The
revised Federal Manual clearly must provide the necessary flexibility to
perform wetlands determinations throughout the year regardless of normal
variations in conditions such as seasonal wetness. It is also essential that
the revisions to the Federal Manual not exclude obvious, long-recognized
wetland types that clearly satisfy the regulatory definition.
Issue 2: Secondary Indicators of Wetlands Hydrology
The proposed Federal Manual identifies several secondary indicators of
wetlands hydrology. We are requesting comments on the technical validity
and usefulness of these indicators.
• In addition, we request comments on whether or not water stained leaves,
trunks or stems that are grayish or blackish in appearance as a result of
being under water for significant periods should be included as an
indicator of hydrology, their reliability as indicators of hydrology during
the growing season, and whether they should be a primary or secondary
indicators.
Issue 3: Exceptions to Requiring All Three Criteria
• We request public comment on the listed exceptions (i.e, playa lake,
prairie pothole, vernal pool, pocosin, and other special wetlands that fail
the hydrophytic vegetation criterion such as Tamarack Bogs, White Pine
Bogs and Hemlock Swamps) as well as potential additions to the list, and
on recommendations for identifying appropriate indicators for each
wetland type listed as an exception.
Issue 4: Status of Delineations Based on the 1989 Federal Manual
• The 1989 Federal Manual will remain in effect until the revised Federal
Manual becomes final. Agency staff who are making wetland delineations
before the revised Federal Manual becomes final, will be advised to apply
caution in making wetland delineations that could be potentially
inconsistent with these proposed revisions. Any landowner whose land has
been delineated a wetland after the revised Federal Manual is proposed
but before the proposed revised Federal Manual becomes final may
request a new delineation following publication of the final revised
Federal Manual. However, final actions, such as permit issuances or
completed enforcement actions, already taken on wetlands delineated
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under the 1989 manual will not generally be reopened. In addition, a
landowner whose property has been identified as a wetland during a
seasonal dry period or drought can request a re-evaluation in the field
during the wet season of the year.
The agencies are also requesting comment on the likelihood of sites .being
delineated during the dry season as wetland that, if the delineation had
occurred during the wet season, would not have met the hydrology
criterion. Should requests for re-evaluations be limited to certain cases or
should all requests be granted?
Issue 5: Hydrophytic Criterion
• The agencies are particularly interested in soliciting comments on
including the Facultative Neutral test as part of the hydrophytic vegetation
criterion in addition to the proposed prevalence index approach. Under
this proposed approach the criterion would be met if after discounting all
dominant facultative (FAC) plants, the number of dominant obligate
wetland (OBL) and facultative wetland (FACW) species exceeds the
number of dominant facultative upland (FACU) and obligate upland
(UPL) species. (Note: a number of options are presented describing
circumstances under which the prevalence index procedure would be
used.)
The agencies are also interested in soliciting comments on variants of the
Facultative Neutral test.
Issue 6: Use of Hydrologic Records
• We are requesting comments on the data requirements for hydrologic
records (e.g., cutoff for "normal rainfall" years) to document that the
wetland hydrology criterion has been met.
Issue 7: Alternative Approach for Easily Recognized Wetlands
We are requesting comments on alternative approaches that would allow
identification of categories that can be identified and delineated rapidly
and without the need for extensive documentation. We are soliciting
comments on the basic approach taken in the Federal Manual of
delineating every site individually. Is this the best approach?
Issue 8: Defining the Growing Season
• We are soliciting comments on the proposed definition of the growing
season and whether there are other more appropriate alternatives.
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PUBLIC INPUT PLANNED ON THE PROPOSED REVISIONS - There has been
and continues to be significant public interest in the 1989 Federal Manual and potential
revisions. The proposed revised Federal Manual was published on August 14, 1991, in
the Federal Register for public comment. The public is invited to review and provide
technical comments on the proposed revisions. Written comments must be submitted
on or before October 15, 1991.
At the same time the proposed revised Federal Manual will undergo extensive
field testing by the four federal agencies. Also during the public comment period an
independent panel, as well as EPA and the Corps of Engineers, will review and field
test the proposed revised Federal Manual. The field testing and public comments will
provide important input into the final Federal Manual revisions, particularly in those
areas identified above. Of particular importance to us is to maintain and improve the
scientific validity of our delineation methods. Because of the importance of receiving
public comment and field testing the proposed revisions, the revised Federal Manual
will not be implemented until after the public review period and final revisions.
GETTING MORE INFORMATION - EPA has established the Wetlands Protection
Hotline, a toll-free telephone service, (800) 832-7828. This service provides information
and publications on wetland protection efforts involving EPA and other public and
private programs. The hotline operates Monday through Friday, excluding Federal
holidays, from 9:00 a.m. to 5:30 p.m., Eastern Standard Time.
For additional information regarding the Section 404 program, local EPA
Regional Offices and Corps District offices may be of assistance. The Corps District
office and EPA Regional offices can be found in the telephone directory or by calling
the EPA Wetlands Hotline at (800) 832-7828.
For additional information on the Swampbuster program, contact your county
U.S. Department of Agriculture SCS office or call the EPA Wetlands Hotline at
(800) 832-7828 for the number of your State Conservationist.
OBTAINING COPIES OF THE REVISED FEDERAL MANUAL - Copies of the
proposed revised Federal Manual can be obtained from the EPA Wetlands Hotline at
(800) 832-7828. Hotline representatives can also provide referrals for answers to
questions regarding the proposed revised Federal Manual.
FURTHER CLARIFYING THE SECTION 404 PROGRAM - Much of the public is
laboring under the misunderstanding that if an area is identified as a wetland, any
activity that takes place in the wetland is either regulated or prohibited. This is not
true.
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First, not all activities in wetlands require a Section 404 permit. Section 404 only
regulates the discharge of dredged or fill material into waters of the U.S., a term which
includes most of the Nation's wetlands. Not all activities in wetlands involve a
discharge of dredged or fill material, and therefore do not require a Section 404 permit.
There are several development activities that cause wetland conversion or damage, but
do not involve discharge of dredged or fill material. Under certain circumstances, these
may include: lowering of groundwater levels, flooding of wetlands, drainage of wetlands,
and excavation of wetlands where the dredged material is disposed of on an upland site.
Activities which are under the scope of the Section 404 program are not
necessarily prohibited. Most of the activities subject to Section 404 requirements are
either exempt from the program (such as ongoing farming and silviculture activities) or
are authorized by one of the Corps' general permits.
Activities which are subject to Section 404 are authorized either through a
general or individual permit. Activities in wetlands that cause only minimal adverse
environmental effects are authorized under general permits. General permits do not
require case-specific permit review and are designed to expedite permitting process.
Approximately 75.000 activities are authorized through general permits which are issued
on a State, regional and nationwide basis. There are currently 26 nationwide general
permits, and numerous state and regional general permits.
In addition, the Clean Water Act, under Section 404(f), generally exempts
discharges associated with normal fanning, ranching and forestry activities such as
plowing, cultivating, minor drainage, and harvesting for the production of food, fiber
and forest products or upland soil and water conservation practices. This exemption
pertains to normal farming and harvesting activities that are part of an established,
ongoing fanning or forestry operation.
^
OTHER EPA ACTIVITIES - There are, however, a number of issues which have been
raised by the public regarding the Section 404 regulatory program and other Federal
wetlands protection programs that are being responded to by EPA through various
administrative actions. EPA is currently working with the Corps to respond to these
concerns. For additional information, contact J. Glenn Eugster, Wetlands Division,
EPA at (202) 382-5043.
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United States Office of August 14, 1991
Environmental Protection Wetlands, Oceans,
Agency and Watersheds
vxEPA Questions And
Answers On The
Proposed Revised
Federal Manual For
Wetlands Delineation
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PROPOSED REVISED FEDERAL WETLANDS DELINEATION MANUAL
QUESTIONS AND ANSWERS
BACKGROUND
What is the Section 404 program?
The Section 404 permit program regulates the discharge of dredged or fill material into
waters of the United States, a term which includes most of the Nation's wetlands. This
program is jointly implemented by the Environment Protection Agency (EPA) and the
Army Corps of Engineers (Corps), with advice from the Fish and Wildlife Service
(FWS) and the National Marine Fisheries Service (NMFS). The Corps of Engineers
handles the day-to-day administration of the program, including jurisdictional
determinations, evaluating permit applications and deciding whether to issue or deny
the permit, and enforcement. EPA has also several significant statutory responsibilities
in the program including development, with the Corps, of the program's environmental
standards (the Section 404(b)(l) Guidelines); restricting or prohibiting discharges that
have unacceptable adverse effects (Section 404(c)); determining the scope of geographic
jurisdiction; enforcement (EPA and the Corps both have enforcement authority);
approval and oversight of State program assumption; and determining the applicability
of permit exemptions for many agricultural and silvicultural activities under Section
404(f).
Statistics on Section 404 permit reviews and activities
Permit Activities - The Clean Water Act Section 404 program regulates the discharge
of dredged or fill material into waters of the United States. In general, the Corps
receives approximately 15,000 individual permit applications annually (this number
includes both Section 404 and Section 10 applications). Of these 15,000 permit
applications:
- approximately 10,000 permits (67%) are issued;
- approximately 500 permit.applications (3%) are denied;
- approximately 4,500 permit applications (30%) are withdrawn by the applicant
or qualify for a general permit.
In addition, approximately 75,000 minor activities are authorized each year through
regional and nationwide general permits. General permits authorize activities in
wetlands and other waters without the need for an individual permit review as long as
these activities cause only minimal adverse environmental effects. Nationwide permit
#26, in particular, authorizes activities involving discharges of dredged or fill material
into 10 acres or less of isolated waters or headwaters streams (non-tidal streams where
the average annual flow is 5 cubic feet per second or less). For activities that affect
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between 1 and 10 acres of such waters, the applicant is required to notify the Corps of
Engineers prior to proceeding with any discharge. In some States, general permits
authorize activities covered by a State wetlands regulatory program.
Permit Review Period - Approximately 92% of all permit evaluations (that is, both
individual and general permits) are completed in less than 60 days after a completed
permit application has been received by the Corps.
Individual permit applications that involve complex projects or sensitive environmental
issues usually require more than 60 days to reach a decision. After a completed
individual permit application has been received by the Corps:
- over 50% are processed in less than 60 days;
- approximately 25% percent are processed in 61 to 120 days;
- approximately 20% require 121 days to a year to process; and
- less than 5% require more than one year to process. •
In addition, the Administration announced on August 9, 1991, a comprehensive plan for
improving the protection of the Nation's wetlands, including a provision that permits
will be deemed approved within six months unless the deadline is extended for good
cause (see attached Fact Sheet on "Protecting America's Wetlands"). EPA and the
Corps will provide further guidance as we move in this direction.
Statistics on Section 404(q) and Section 404(c) actions
Section 404fc) Actions - Section 404(c) of the Clean Water Act authorizes the
Administrator of EPA to prohibit or restrict discharges of dredged or fill material into
waters of the United States when such discharges would have unacceptable adverse
effects on municipal water supplies, shellfish beds and fishery areas, wildlife or
recreational areas. To date, EPA has completed only eleven Section 404(c) actions, out
of an estimated 150,000 permit applications received since the Section 404(c)
regulations went into effect in late 1979.
Section 404fq^ Actions — Pursuant to Section 404(q), the Corps and EPA have
developed a process through a Memorandum of Agreement (MOA) to resolve any
differences over permit decisions within a clear timeframe to minimize delays in the
permit process. Since 1980 when the Section 404(q) MOA was first agreed to, EPA
has requested Headquarters level review of a permit decision only 28 times out of an
estimated 150,000 permit applications received throughout this period.
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Further clarifying the section 404 program: Are all uses of a wetland either regulated
or prohibited?
Much of the public is laboring under the misunderstanding that if an area is identified
as a wetland, any activity that takes place in the wetland is either regulated or
prohibited. This is not true.
First, not all activities in wetlands require a Section 404 permit. Section 404 only
regulates the discharge of dredged or fill material into waters of the U.S., a term which
includes most of the Nation's wetlands. Not all activities in wetlands involve a
discharge of dredged or fill material, and therefore do not require a Section 404 permit.
There are several development activities that cause wetland conversion or damage, but
do not involve discharge of dredged or fill material. Under certain circumstances, these
may include: lowering of groundwater levels, flooding of wetlands, drainage of wetlands,
and excavation of wetlands where the dredged material is disposed of on an upland site.
Activities which are under the scope of the Section 404 program are not necessarily
prohibited. Most of the activities subject to Section 404 requirements are either exempt
from the program (such as ongoing farming and silviculture activities) or are authorized
by one of the Corps' general permits.
Activities which are subject to Section 404 are authorized either through a general or
individual permit. Activities in wetlands that cause only minimal adverse environmental
effects are authorized under general permits. General permits do not require case-
specific permit review and are designed to expedite permitting process. Approximately
75.000 activities, out of over 85,000 authorized activities every year, are authorized
through general permits which are issued on a State, regional and nationwide basis.
There are currently 26 nationwide general permits, and numerous state and regional
general permits.
In addition, the Clean Water Act, under Section 404(f), generally exempts discharges
associated with normal farming, ranching and forestry activities such as plowing,
cultivating, minor drainage, and harvesting for the production of food, fiber and forest
products or upland soil and water conservation practices. This exemption pertains to
normal farming and harvesting activities that are part of an established, ongoing farming
or forestry operation.
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THE FEDERAL MANUAL
What is the 1989 Federal Manual?
In January 1989, EPA, the Corps, FWS and Department of Agriculture Soil
Conservation Service (SCS) agreed to use one approach for delineating areas under the
jurisdiction of Section 404 and Swampbuster. The four agencies adopted a single
manual, referred to as the Tederal Manual for Identifying and Delineating
Jurisdictional Wetlands" (the 1989 Federal Manual), which established a national
standard for identifying and delineating vegetated wetlands. The purpose of the 1989
Federal Manual is to establish standard Federal technical criteria for identifying and
delineating vegetated wetlands under Section 404 of the Clean Water Act and the
"Swampbuster" provisions of the Food Security Act of 1985, as amended. The 1989
Federal Manual uses three categories of evidence (three parameters) to determine
whether or not the technical criteria are met. These are: wetland hydrology, hydric soil
characteristics, and hydrophytic vegetation.
The 1989 Federal Manual provides guidance on how to collect and use field indicators
(such as free water, silt marks, wetland dependent plant species and organic soils) of
these parameters to accurately identify and delineate wetlands.
Should the Federal Manual be solely relied on to identify and delineate Jurisdictional
wetlands?
No. The Federal Manual provides mandatory technical criteria for the identification
and delineation of wetlands, and will be used to identify wetlands that are potentially
subject to the jurisdiction of Section 404 of the Clean Water Act or the "Swampbuster"
provisions of the Food Security Act of 1985, as amended. However, wetland
Jurisdictional determinations for regulatory purposes are based on other legal and policy
criteria in addition to the Federal Manual's technical criteria (e.g., regulatory guidance
on normal circumstances as it pertains to prior converted croplands). Therefore, the
appropriate agency policy should be consulted in conjunction with the Federal Manual
when identifying and delineating Jurisdictional wetlands.
Why is the 1989 Federal Manual being revised? What was the goal of the Federal
Manual revision process?
The goal of revising the 1989 Federal Manual is to improve the Federal Manual's
ability to property identify wetlands and to minimize the potential for erroneous
wetlands determinations. When the 1989 Federal Manual was adopted, it was
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anticipated by EPA, the Corps, FWS and SCS that some additional guidance or
clarification may be needed. After about a year of implementation of the Federal
Manual, the four agencies agreed that specific technical changes would be appropriate
to make the Federal Manual more effective and understandable.
The proposed revisions tighten the evidence requirements for the three parameters -
hydrology, hydric soils, and hydrophytic vegetation - in the definition of wetlands. This
approach to wetland delineation will make it easier for Federal or State agency staff to
explain to landowners how wetlands are being delineated. The proposed revisions are
intended to reduce the potential for erroneous wetland determinations - that is,
identifying an upland as a wetland or conversely, identifying a wetland as upland. The
proposed revisions are intended to be consistent with the definition of wetlands used by
EPA and the Corps in implementing the Section 404 program or by SCS in
implementing the Swampbuster program.
The proposed revisions incorporate technical knowledge derived from its use in the past
two years and from improvements in the state of science. The revisions address many
of the issues raised during the public meetings and public comment period (the summer
of 1990).
What was the revision process of the 1989 Federal Manual? What was the role of the
public in the revision process?
After over a year of implementation of the 1989 Federal Manual, the four agencies
agieed that the Federal Manual needed additional clarification and changes. Because
of the strong public interest in the Federal Manual, the four agencies provided the
public several opportunities to provide technical comments as part of the revision
process. Four public hearings were held in spring and summer 1990 — in Baton Rouge,
LA; Sacramento, CA; St. Paul, MN; and, Baltimore, MD. In addition, written
comments on the 1989 Federal Manual were also accepted subsequent to the meetings.
More than 500 letters were received and reviewed. We believe that this process has
provided substantial and meaningful information. Results of formal field testing
conducted by EPA to evaluate the sampling protocols of the 1989 Federal Manual and
reviews by field staff of the four signatory agencies using the Federal Manual were also
reviewed and considered in developing recommended revisions.
What was the role of the technical committee?
The Federal Interagency Committee for Wetland Delineation is a technical committee
composed of technical staff from the four agencies that developed the 1989 Federal
Manual: Environmental Protection Agency, Corps of Engineers, Soil Conservation
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Service, and Fish and Wildlife Service. The role of the technical committee in the
revision process was to recommend technical revisions to the 1989 Federal Manual
based on field experience and technical comments from the public during the public
meetings and public comment period scheduled in 1990. The technical committee
completed their revisions in the spring of 1991.
Have the four agencies agreed to the proposed revised Federal Manual?
The four agencies, the Environmental Protection Agency, Department of Defense,
Department of Agriculture, and Department of Interior have agreed to the Federal
Register Notice of the proposed revised Federal Manual and agreed that the Federal
Manual is ready for public comment.
To what extent does policy affect the proposed revisions to the Federal Manual?
The purpose of the Federal Manual is to establish standard Federal technical criteria
for identifying and delineating vegetated wetlands. Therefore, the Federal Manual
primarily deals with the technical criteria consistent with the regulatory definitions of
wetlands. However, the Federal Manual is not solely a technical document. There are
policy issues addressed in the proposed revised Federal Manual. A key policy
consideration is, for example, the determination of "normal circumstances" under the
regulatory definition of wetlands. Another is the extent of evidence necessary for each
of the three criteria in order to make a positive wetland determination.
Do the agencies plan to field test the revised Federal Manual before it is finalized and
implemented ?
Yes. The four agencies are planning to fully field test the revised Federal Manual
before finalizing it The intent of the field testing, which we expect to occur while the
Federal Manual is under public review, is to verify its technical validity in delineating
wetlands, assure its ease of implementation and reveal any unanticipated effects. We
are also interested in evaluating the applicability of the Federal Manual to all regions of
the country. The Corps will coordinate field testing among the four agencies at the
field level.
An independent expert panel will also field test the revised Federal Manual. Upon
completion of field testing, the expert panel as well as the regions and district offices of
the four agencies will provide recommendations to the agencies to assist in developing
necessary final revisions to the Federal Manual. We also encourage other interested
parties to conduct field tests of the proposed revised Federal Manual and provide
recommendations during the public comment period.
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PUBLIC INPUT IN THE REVISION PROCESS
Will the public have an opportunity to comment on the proposed revised Federal
Manual?
Yes. The proposed revised Federal Manual was published on August 14, 1991, in the
Federal Register for public comment. The public is invited to review and provide
technical comments on the proposed revisions. Written comments must be submitted
on or before October 15, 1991. Copies of the proposed revised Federal Manual are
also available through the Wetlands Hotline at (800) 832-7828.
The revisions will be implemented only after the public comments have been reviewed
and considered, and a final Federal Manual has been issued. We encourage interested
parties to conduct field tests of the proposed revised Federal Manual and provide
recommendations during the public comment period. In addition, an independent panel
of experts will field test the proposed revised Federal Manual. The expert panel will
provide recommendations to the agencies to assist in developing necessary revisions to
the Federal Manual.
Will there be public hearings held on the proposed revised Federal Manual?
There are no public hearings scheduled. Specific detailed questions about the proposed
revised Federal Manual can be referred to individuals identified in the Preamble of the
Federal Register notice.
Wfll the proposed revised Federal Manual undergo public comment in accordance with
the Administrative Procedure Act (APA)?
The position that this Federal Manual is a technical guidance document which is not
required by law to go through Administrative Procedure Act (A?A) legislative
rulemaking procedures has been upheld in court with respect to the 1989 wetlands
delineation Manual. However, the Federal Manual was published on August 14, 1991,
in the Federal Register, with a 60-day period for public review and comment.
Wfll the Federal Manual be issued as a regulation?
The agencies believe that it would be appropriate and in the public interest to include
parts of the final Federal Manual in the Code of Federal Regulations. When the
agencies determine what portions of the Federal Manual should be issued as a
regulation, 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
regulatory language will be subject to the Administrative Procedure Act nilemaking
process.
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KEY CHANGES TO THE FEDERAL MANUAL
What are the major revisions to the 1989 Federal Manual?
The major revisions and other major issues identified in the Preamble to the Manual
include the following:
1) The Three Criteria:
• Clarify that, except in limited specified circumstances,
demonstration of all three parameters (wetland hydrology,
hydrophytic vegetation and hydric soils) is required for delineating
vegetated wetlands.
2) Limited Specified Exceptions to the Three Criteria:
• Clarify that independent indicators of all three parameters are
required UNLESS the area is a disturbed wetland or the area is
specifically listed in the proposed Federal Manual as an exception.
• Specifically identify exceptions (i.e, playa lake, prairie pothole,
vernal pool, pocosin, and other special wetlands that fail the
hydrophytic vegetation criterion such as Tamarack Bogs, White
Pine Bogs and Hemlock Swamps). Exceptions are widely
recognized valuable wetland types that may fail to meet one or
more of the 3 criteria during all or some part of the year.
• Request public comment on the listed exceptions as well as
potential additions to the list, and on recommendations for
identifying appropriate indicators for each wetland type listed as an
exception.
3) Wetland Hydrology Criterion:
• Require inundation for 15 or more consecutive days, or saturation
to die surface for 21 or more consecutive days during the growing
season.
• Require saturation at the soil surface.
• Narrow the wetland hydrology indicators to exclude Hydric Soils
and Wetland Vegetation as hydrology indicators.
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• Separate the list of wetland hydrology indicators into primary and
secondary indicators. Primary indicators are more reliable and can
be used alone to meet hydrology criterion. Secondary indicators
are weaker and can only be used with corroborative information.
• Remove water stained leaves, trunks, and stems as wetland
hydrology indicators; public comments are requested in the
Preamble regarding their reliability as indicators of hydrology
during the growing season and whether they should be primary or
secondary indicators.
• Incorporate localized differences in the growing season; the
Preamble solicits comments on the definition of the growing season.
• Request public comments on three alternatives to identifying and
delineating seasonally harder to identify wetland types that are
NOT exceptions to the criteria, but may not demonstrate indicators
of one or more of the 3 criteria during certain (e.g., dry) times of
the year.
4) Hydric Soils Criterion:
Specifically state that hydric soils must be field-verified; hydric soils
maps alone are not sufficient evidence of hydric soils.
• Clarify that the three wetland criteria are mandatory except in
specified circumstances, and therefore the presence of mapped
hydric soils alone cannot be used to delineate an area as a wetland.
Incorporate localized differences for certain hydric soil phases.
5) Wetland Vegetation Criterion:
Propose the prevalence index approach - that is, an area meets
this criterion if , under normal circumstances, a frequency analysis
of all species within the community yields a prevalence index value
of less than 3.0 (where OBL = 1.0, FACW = 2.0, FAC = 3.0,
FACU = 4.0, and UPL = 5.0).
• Request public comments on including the Facultative Neutral test
as part of the hydrophytic vegetation criterion in addition to the
proposed prevalence index approach. Under this proposed
approach the criterion would be met if after discounting all
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dominant facultative (FAC) plants, the number of dominant
obligate wetland (OBL) and facultative wetland (FACW) species
exceeds the number of dominant facultative upland (FACU) and
obligate upland (UPL) species. (Note: a number of options are
presented describing circumstances under which the prevalence
index procedure would be used.)
Do the proposed revisions address concerns raised by the public?
The 1990 public comment period and public meetings resulted in a substantial and
useful record of concerns and recommendations that were considered in developing the
proposed revisions to the Federal Manual. The 1990 public record focused the
agencies' review on key issues, including: the wetland hydrology criterion; concern that
wetlands determinations were based on less than all three of the basis parameters
(hydrology, vegetation, and soils), and in some cases on only one parameter; 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; the definition
of the growing season; the assumption that facultative vegetation can indicate wetland
hydrology, which provided opportunities for misuse. The proposed revisions address
these and other concerns raised by the public.
Do the proposed revisions change the definition of wetlands?
No, the proposed revisions do NOT change the regulatory definition of wetlands used
by EPA and the Corps in implementing the Section 404 program or SCS in
implementing the Swampbuster program. They are intended to be consistent with the
regulatory definitions of wetlands in these programs. However, the agencies are
committed to including parts of the final Federal Manual in the Code of Federal
Regulations to clarify the criteria by which the definition of wetlands is interpreted.
Is the proposed revised Federal Manual a three-parameter approach?
Yes. Independent indicators of all three parameters are required unless the area is a
disturbed wetland or an area is a specifically described exception (i.e., playa lake,
prairie pothole, vernal pool, pocosin, or other special wetlands that fail the hydrophytic
vegetation criterion). Exceptions are widely recognized valuable wetland types that may
fail to meet one or more of the three criteria during all or some part of the year.
Disturbed wetland areas include situations where field indicators of one or more of the
three wetland identification criteria are obliterated or not present due to recent change
such as removal of vegetation.
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How is the growing season defined in the proposed revised Federal Manual?
The growing season in the proposed revised Federal Manual is the interval between
three weeks before the average date of the last killing frost in the spring to three weeks
after the average date of the first killing frost in the fall, with exceptions for wetland
areas experiencing freezing temperatures throughout the year (e.g., montane, tundra
and boreal areas) that nevertheless support hydrophytic vegetation. This growing
season for a particular area can be determined by consulting local weather data.
EFFECTS OF THE REVISIONS TO THE FEDERAL MANUAL
Will the revisions make it harder to get a Section 404 permit?
No, the revisions will not affect the Section 404 permit process for those areas
identified as jurisdictional wetlands. When a revised Federal Manual is implemented, it,
like the 1989 Federal Manual, will only identify whether or not an area is a
jurisdictional wetland. It will not change the permit evaluation process.
However, EPA and the Corps continue to respond to concerns raised over the
complexity and time consumed by the permit application process by making other
administrative changes. These include working on joint permitting procedures with
interested states, proposing new nationwide and regional permits for activities in
wetlands that have minimal environmental impacts, developing joint guidance to clarify
existing policies, encouraging coordination between permit applicants and Federal
agencies prior to permit application, and providing more accessible information about
wetlands through the EPA Wetlands Hotline at (800) 832-7828.
In addition, the Administration announced on August 9, 1991, a comprehensive plan for
improving the protection of the nation's wetlands, including measures to improve the
Section 404 regulatory program (see attached Fact Sheet on "Protecting America's
Wetlands"). EPA and the Corps will provide further guidance as we move in this
direction.
What is the effect of the revisions to the scope of jurisdiction?
The extent of potential changes in jurisdiction will be identified during the field testing.
The proposed revisions are intended to reduce the potential for erroneous wetland
determinations - that is identifying an area as a wetland that is not a wetland or
conversely, identifying a wetland as upland.
One of the goals of the proposed revision process is to clarify to the public what areas
are wetlands. Over the past two years much of the controversy over the scope of
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jurisdiction resulted from the widespread misunderstanding that the presence of a
mapped hydric soil alone identified a wetland, without any supporting evidence of
wetland hydrology or hydrophytic vegetation. This is not true. To reinforce this point,
stronger indicators of wetland hydrology are required in the proposed revisions
independent of indicators used to demonstrate the presence of hydric soils or
hydrophytic plant communities.
Proposed revisions have been made to a number of different sections of the Federal
Manual making it difficult to precisely predict the effect of the proposed revisions to
the scope of jurisdiction without field testing by qualified personnel. We expect that
the field testing of the proposed revised Federal Manual that will be conducted during
the public review period will more specifically identify the effects of proposed revisions
and help us to respond to any unanticipated impacts.
Has the proposed revised Federal Manual changed the way wetlands are identified or
delineated in disturbed areas such as cropland?
The revised Federal Manual provides two important clarifications in the procedures for
identifying wetlands in disturbed areas. First, the Federal Manual recognizes that there
are Federal agency policies under the Clean Water Act Section 404 regulatory program
and under the Swampbuster program of the Food Security Act of 1985, as amended,
which should be consulted when interpreting the effect of disturbances such as cropping
on the jurisdictional status of an area (e.g., regulatory guidance on normal
circumstances as it pertains to prior converted croplands). Second, the disturbed areas
section of the Federal Manual states clearly that the mere presence of soils meeting the
hydric soil criterion is not sufficient to determine that wetlands are present. When the
hydrology of an area has been significantly altered, soil characteristics resulting from
wetland hydrology cannot by themselves verify wetland hydrology since they persist after
wetland hydrology has been eliminated.
OTHER ONGOING ADMINISTRATIVE ACTIONS
What coordination occurs among EPA Regional staff, Corps District personnel and
permit applicants to facilitate the Section 404 permit review process?
Permit applicants are encouraged to initiate pre-application meetings with regional staff
from the Corps, EPA and other commenting agencies to discuss concerns that these
agencies might have with a proposed activity and to resolve differences prior to an
application being submitted. In so doing, the actual permit review period may be
significantly reduced. In order to facilitate these discussions, numerous Corps Districts
hold regularly-scheduled (e.g., quarterly, monthly) meetings for applicants and other
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agencies including EPA. This early coordination is especially important for
controversial projects involving significant environmental impacts.
In addition, EPA and Corps staff are encouraged to work together to resolve
differences regarding individual permit applications (e.g., project alternatives, mitigation
requirements, specific permit conditions) early in the review process.
Coordination among agencies on the development of regional and general permits
under the Section 404 regulatory program creates additional opportunities to expedite
the permit process for projects with minor environmental impact. Guidance from EPA
and Corps Headquarters (e.g., Memoranda of Agreement, Corps Regulatory Guidance
Letters) reduces or eliminates confusion and controversy sometimes associated with
implementation of the Section 404 regulatory program that might otherwise lead to
delays during permit review.
Finally, the Administration announced on August 9, 1991, a comprehensive plan for
improving the Section 404 regulatory program, including measures for effective
coordination among the agencies (see attached Fact Sheet on "Protecting America's
Wetlands"). EPA and the Corps will provide further guidance as we move in this
direction.
What administrative steps other than the Federal Manual are EPA and the Corps
taking to respond to concerns being raised about the Section 404 program?
The Administration announced on August 9, 1991, a comprehensive plan for improving
the protection of the nation's wetlands, including measures to improve the Section 404
regulatory program (see attached Fact Sheet on "Protecting America's Wetlands").
EPA and the Corps will provide further guidance as we move in this direction.
In addition, in response to specific regional and State concerns about timeliness and
complexity of the Section 404 regulatory program, EPA and the Corps have employed a
variety of administrative tools to respond to specific concerns without reducing our
ability to protect wetlands.
Joint Policy Guidance - EPA and Corps Headquarters have issued policy guidance (e.g.,
Memoranda of Agreement, Corps Regulatory Guidance Letters) intended to reduce or
eliminate confusion and controversy sometimes associated with implementation of the
Section 404 regulatory program. Such guidance has helped reduce delays during permit
review and clarified which activities or areas are subject to the Section 404 program.
For example, in response to concerns raised regarding activities in areas subject to
agriculture, the Corps issued Regulatory Guidance Letter 90-7 which clarified that prior
converted cropland (estimated up to 60 million acres) are NOT subject to Section 404
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Section 404 jurisdiction. This made the Section 404 program more consistent with the
Swampbuster provisions of the Farm Bill, thereby increasing consistency between
Federal wetlands programs.
General Permits - General permits may be issued on a state, regional or nationwide
basis. The general permits are designed to expedite the permitting process as long as
authorized activities do not result in more than minimal environmental harm. At this
time, there are 26 nationwide permits in effect, and the Corps is currently proposing
additional nationwide permits. In addition, EPA and the Corps have been working with
the States of Maryland, Georgia and Mississippi to develop State and regional program
general permits.
Joint Federal/State Processing - EPA and the Corps have also developed Memoranda
of Agreement with States to set up systems to increase consistency in joint
Federal/State permit processing. For example, EPA Region 9 and Corps South Pacific
Division have developed a Memorandum of Agreement with the California Department
of Transportation to provide clear guidance on mitigation requirements.
Early Coordination - EPA and Corps staff work together to resolve differences
regarding individual permit applications (e.g., project alternatives, mitigation
requirements, specific permit conditions) early in the review process. Permit applicants
are encouraged to initiate pre-application meetings with regional staff from the Corps,
EPA and other commenting agencies to discuss concerns that these agencies might have
with a proposed activity and to resolve differences prior to an application being
submitted. In so doing, the actual permit review period may be significantly reduced.
In order to facilitate these discussions, numerous Corps Districts hold regularly-
scheduled (e.g., quarterly, monthly) meetings for applicants and the other agencies
including EPA.
Fostering Partnerships with State and Local Programs - Over the last two years, EPA
has increased its work with States on wetlands protection through the State Wetlands
Protection Grants Program. Thirty-eight States are receiving EPA funding, eleven of
which are developing State Wetlands Conservation Plans. These plans include
developing comprehensive statewide strategies for strengthening and coordinating the
many programs* that affect wetlands in a State, and can lead to additional administrative
reforms in certain geographic areas, more effective communication between government
agencies and the regulated sector and conflict avoidance between wetlands protection
and development proposals.
Additional States and Indian tribes are using grants to develop classification systems;
inventory wetlands; develop restoration, creation and enhancement programs; assess the
effects of site-specific mitigation requirements and design "wetland banks11 to account for
wetlands losses and gains.
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EPA and the Corps have assisted local governments such as Eugene, OR, Bellevue,
WA, Boulder, CO and Union City, CA in preparing local wetlands management plans
as a portion of the city's general plan. EPA and the Corps also continue to assist in
the preparation of state and local government Advance Identification (ADID) plans and
special wetland area management plans.
Classification - EPA has also been investigating whether classification of wetlands into a
few broad groups based on their functional value and consequently, whether developing
an explicit set of corresponding regulatory responses, is an appropriate approach in the
Section 404 regulatory program. In addition, as part of a comprehensive plan to
improve the Section 404 program, the Administration will establish an interagency
technical committee to define a limited number of wetland categories.
Providing Accurate Information - To increase awareness about the requirements of the
Section 404 program and to provide easy, rapid access to accurate information on the
Section 404 program and other federal wetland protection efforts, EPA has established
a "Wetlands Hotline." This toll free service (800-832-7828) provides information on
wetland protection efforts.
In addition, documents such as a brochure distributed to the farm community on
"Agricultural Activities in Wetlands that are Exempt from the Section 404 Permit
Process of the Clean Water Act," have been prepared to help clarify activities which are
not regulated under Section 404.
For additional information regarding these ongoing administrative actions by EPA,
contact J. Glenn Eugster, Wetlands Division, Washington, D.C., at (202) 382-5043.
OBTAINING COPIES OF THE REVISED FEDERAL MANUAL
Copies of the proposed revised Federal Manual can be obtained from the EPA
Wetlands Hotline at (800) 832-7828. Hotline representatives can also provide referrals
for answers to questions regarding the revised Federal Manual.
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THE WHITE HOUSE
Office of the Press Secratary
For Immediate Release August 9, 1991
FACT SHEET
PROTECTING AMERICA'S WETLANDS
The President announced*today a comprehensive plan for
improving the protection of the nation's wetlands. Wetlands
serve an important role in flood control; they help filter wastes
from water; they provide an important habitat and breeding ground
for fish, birds and animals; and they are an important
recreational resource.
Three quarters of the remaining wetlands are privately
owned, and the pressure to serve other valid human needs often
comes in conflict with conservation. A coordinated wetlands
policy requires balancing all these interests.
The President believes we must look beyond regulation to
encourage wetlands protection. We must enhance public
understanding of the value of wetlands as well as support non-
regulatory programs that encourage private, state and local
actions to conserve wetlands.
The Administration has a three-part plan to slow and
eventually stop the net loss of wetlands, taking a significant
step toward the President's goal of no net loss of wetlands:
1. Strengthen wetlands acquisition programs and other
efforts to protect wetlands;
2. Revise the interagency manual defining wetlands to
ensure that it is workable; and
3. Improve and streamline the current regulatory system.
Wetlands Expansion
Since taking office, the Bush Administration has
proposed:
The purchase of approximately 450,000 acres, at a cost of
over &200 million, of critical wetlands habitat;
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• A 48 percent overall funding increase for wetlands
protection efforts in the FY 1992 budget to $709
million;
• A nearly three-fold increase, from 816 million in r/ 1989 to
$45 million In FY 1992, for wetlands R6D programs;
• The establishment, under the provisions of the 1990 Farm
Bill, of a 600,000 acre wetlands reserve.
To ensure further progress towards the no net loss goal, the
Administration today proposed several new initiatives to enhance
wetlands protection on Federal and private lands. These include:
Bill. The 1990 Farm Bill authorised the purchase
of up to 1 million acres of wetlands. The Admin-
istration will work for this amount in FY 1993 end
future budgets.
Initiating an AdfflinlstratiQn-wldA wetlands
and creation program op Federal lands. Many agencies,
including interior, EPA, Defense, commerce, and Energy,
have the potential to engage in restoration and
creation programs. These activities will be
strengthened and coordinated through a standing
interagency task force that will develop an overall
policy for the moat effective use of new and existing
Federal resources.
Continuing to make watlanda a priority in the
aj-lpcation of Land and Hater Conservation Funds ( LWCF ) «
The Administration will seek to maintain or increase
funding for this program. Moreover, it will target a
portion of State LWCF funds to wetlands.
gontj-ni^jng and expanding the existing satellite
monitoring program to periodically aaottfla national
wetland trends. Satellite imagery provides up-to-date
information on the status and trends of wetlands, and
can help in conducting periodic change analysis of
high-value wetland areas. The Administration is
accelerating and improving our national inventory of
wetlands, with more geographically targeted reporting,
and monitoring of the ecological health of our
wetlands .
Expanding research on wat lands. Several agencies
independently conduct research on wetlands. The
Administration is establishing a process to coordinate,
consolidate and establish priorities for wetlands research.
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• Focuaino public outreach and education program* on
informing the ragu^a^pd community qbout Tedera.1
watlanda raaulatlona.
• Revising the existing Executive Order pn wetlands -fro
emphasize wetlands stewardship on Federal lands and tha
acquisition of valuable wetlanda. Tha Administration
will revise tha Executive Order to include a commitment
to the no net loss goal.
Delineation Manual
On January 10, 1989, the Environmental Protection Agency,
tha Army Corps of Engineers, the Fish and Wildlife Service, and
the Soil Conservation Service issued a joint Federal Manual for
tha Identification and Delineation of Wetlands to address
inconsistencies in practice among the agencies. The Manual
established the technical criteria and procedures used to define
e wetland.
In response to public comments and .field hearings, the
Administration is sending to the Federal Raoiater today a revised
Manual that will incorporate changes to clarify the scope and
application of the Manual. The revised Manual will be issued as
a proposal and as guidance to the agencies; the public will be
invited to comment on the Manual before it is made final.
streamlining Watlandf Regulations and Adding Flexibility
Under section 404 of the Clean Water Act a landowner must
receive a permit from the Corps of Engineers before adding
dredged or fill material to a wetland. Tha Administration will
take the following actions to Improve the workability of the 404
regulatory program.
ft. Streamline the Permitting Process
To streamline the regulatory process, the Administration proposes
a number of reforms to ensure more timely decisions and effective
coordination among agencies. These include requirements to:
• Issue a regulatory guidance letter providing that
meerings and other interactions between the public,
applicant and Federal government will be coordinated
through a single agency, the Army Corps of Engineers.
The Corps would serve as the project manager, and will
be responsible for all consultations with other
agencies on the permit applications and for determining
the final permit condition;
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• Encourage attendance by all interested agencies at the
pre-application meetings with the permittee and early
consultation on the types and location of mitigation
that will be required if wetland leases occur;
• initiate a wetlands,delineation training program for
private consultants and better train agency field staff
on wetlands functions, values and delineation, using
cross-agency training programs to the extent
appropriate)
• Deem permits approved within six months if an agency
does not extend the deadline for good cause as
determined by the Corps of Engineers;
• Require consulting agencies to provide site specific
information when commenting on individual permits;
« Replace consulting agency .appeals of individual permits
with appeals based on resources or issues of national
significance; and
• Expand the use of general permits.
B. Wetlands Categorisation
The Administration will establish an interagency technical
committee to define a limited number of major wetland categories
based on function, value, and the relative scarcity or abundance
of different wetlands. The technical committee will complete its
work within 18 months and will consult with outside experts in
defining the categories.
C. Mitigation Banking
The technical committee will also refine the details of a market-
oriented mitigation banking system based on the categories it
defines. The mitigation banking system will be designed to
provide adequate Incentives for the private restoration or
creation of wetlands that can be used to mitigate the effects of
developed wetlands. The mitigation banking system will:
«•
• Allow permit applicants to satisfy compensatory
mitigation requirements through the use of "mitigation
credits;"
• Presume satisfaction of permit conditions if the
mitigation credits are from the same or from a higher
wetland category; and
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• Replace tha preference for on-site mitigation for all
wetlands except those in the highest wetland category
with a preference for mitigation within States or
within major hydrologioal units which may cross State
lines.
D. Permit Conditions for Wetlands
The Administration proposes to maintain the process known as
sequencing for the high-value wetland category. Permit
applicants involving wetlands in the remaining categories will be
required to offset wetland losses through compensatory
mitigation, states with less than a 1 percent historic rate of
wetlands development will be able to satisfy permit requirements
through minimization. The Administration will also establish
general permits for low-value wetlands.
B. Increasing State Role
To increase the.role of States in the wetlands permitting
process; the Administration will issue guidance to encourage
greater use of Regional and State General Permit Programs.
States which assume delegation of tha 404 program will be given
flexibility, to the extent allowed by current law, to tailor the
wetland categories based on State resources. State programs
would be approved as long as the program achieves on balance the
same environmental benefits as the Federal program.
The Administration also supports legislation to allow
permitting of wetlands near navigable waters by States that
assume responsibility for the permit program.
P. Modifying the Coverage of the Program
The Administration supports legislation to expand the scope of
the 404 program to include other activities which may destroy
wetlands besides the addition of fill material. The
Administration will also take steps to exempt man-made wetlands
which are not used for purposes of mitigation and whose creation
was not subsidized by the Federal government. The Administration
will also clarify that normal farming, ranching and silvicultural
activities generally are exempt from tha 404 program, and that
lands exempted from the Swampbuater program are similarly not
covered.
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United Stales Office of August 14,1991
Environmental Protection Wetlands, Oceans,
Agency and Watersheds
f/EPA Side-By-Side
Comparison Of The
1989 Manual And
Proposed Revised
Manual
Printed on Recycled Paper
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BASING WETLANDS DETERMINATIONS ON 3 PARAMETERS - HYDROLOGY,
VEGETATION, AND SOILS
1989 MANUAL:
Evidence of all 3 parameters are required, BUT could assume hydrology from
vegetation or soils IF area was disturbed.
Could assume vegetation from soils and hydrology.
Could assume soils from certain vegetation.
PROPOSED REVISED MANUAL:
Independent indicators of all 3 parameters are required UNLESS the area is a
disturbed wetland or the area is a specifically described exception (e.g., playa
lake, prairie pothole, vernal pool, pocosin, and other special wetlands that fail
the hydrophytic vegetation criterion). Exceptions are widely recognized valuable
wetland types that may fail to meet one or more of the 3 criteria.
Requests public comment on the listed exceptions as well as potential additions
to the list, and on recommendations for identifying appropriate indicators for
each wetland type listed as an exception.
Requests public comment on three alternatives to identifying and delineating
seasonally harder to identify wetland types that are NOT exceptions to the
criteria, but may not demonstrate indicators of one or more of the 3 criteria
during certain (e.g., dry) times of the year.
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DURATION OF INUNDATION AND/OR SATURATION IN THE WETLAND
HYDROLOGY CRITERION
1989 MANUAL:
Requires inundation or saturation for one week or more during the growing
season.
PROPOSED REVISED MANUAL:
Requires inundation for 15 or more consecutive days, or saturation to the surface
for 21 or more consecutive days during the growing season.
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DEPTH AT WHICH SOIL SATURATION IS REQUIRED IN THE WETLAND
HYDROLOGY CRITERION
1989 MANUAL:
Requires saturation to the surface at some point in time during the growing
season.
Saturation to the surface would normally occur when, for one week or more, the
water table is within:
• 6 inches of the soil surface in somewhat poorly drained mineral soils,
• 12 inches of the soil surface in poorly drained or very poorly drained
mineral soils, or
• 18 inches of the soil surface in poorly drained or very poorly drained
mineral soils with low permeability (less than 6 inches per hour).
The above-listed depths to the water table were intended to correspond to
saturation to the surface caused by capillary action above the water table.
PROPOSED REVISED MANUAL:
Requires inundation and/or saturation at the surface.
1989 Manual depths to water table as indicators of surface saturation are
deleted; replaced by a test for water that can be squeezed or shaken from the
surface soil to ensure that capillary action is saturating the soil at the surface.
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TECHNICAL VALIDITY OF ACCEPTABLE INDICATORS OF WETLAND
HYDROLOGY
1989 MANUAL:
The list of wetland hydrology indicators included both strong and weak
indicators, each of which alone could be used to meet the wetland hydrology
criterion.
Hydric soil characteristics alone also could be used to meet the hydrology
criterion.
PROPOSED REVISED MANUAL:
Eliminates hydric soil characteristics as hydrology indicators.
Separates list of hydrology indicators into primary and secondary indicators.
Primary indicators are more reliable and can be used alone to meet hydrology
criterion.
Secondary indicators are weaker and can only be used with corroborative
information. This corroborative information must be of sufficient quality and
extent that when taken together with secondary indicators clearly supports the
presence of wetland hydrology for the necessary time, duration, and frequency.
Requests public comment on the validity of secondary indicators.
Removes water-stained leaves, trunks, or stems and requests public comment on
including this as indicators of hydrology, their reliability as indicators of hydrology
and whether they should be primary or secondary indicators.
Solicits comments on the data requirements for hydrologic records (e.g., cutoff
for "normal rainfall" years) to document that the wetland hydrology criterion has
been met
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DEFINITION OF GROWING SEASON
1989 MANUAL:
Used growing season zones mapped in broad bands across the country according
to soil temperature regimes.
PROPOSED REVISED MANUAL:
Growing season is based on local weather data, and will be from 3 weeks before
the last killing frost in the Spring to 3 weeks after the first killing frost in the
Fall, except for areas that experience freezing temperatures throughout the year,
where appropriate local growing seasons will be applied. The local weather data
will be available on a local level, e.g. the county level.
Solicits comment on this definition.
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PUBLIC INPUT TO THE REVISION PROCESS
1989 MANUAL:
As an interpretation of the existing regulatory definition of wetlands, the Manual
was not required to go through notice and comment rulemaking. There was no
opportunity for public input on the Manual prior to its issuance or
implementation.
PROPOSED REVISED MANUAL:
The Agencies held 4 public meetings last Summer and accepted written
comments on the 1989 Manual until September 28, 1990. These comments were
considered in developing the proposed revisions.
The Manual will be formally proposed in the Federal Register. 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 wetlands 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 public 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
wfll 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 regulatory language will be subject to the Administrative Procedure Act
rulemaking process.
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HYDROPHYTIC VEGETATION CRITERION
1989 MANUAL:
Requires under normal circumstances: 1) more than 50% of the composition of
the dominant species from all strata are obligate wetland, facultative wetland,
and/or facultative wetland species; OR 2) the prevalence index approach (that is,
under normal circumstances, a frequency analysis of all species within the
community yields a prevalence index value of less than 3.0 (where OBL = 1.0,
FACW = 2.0, FAC = 3.0, FACU = 4.0, and UPL = 5.0).
PROPOSED REVISED MANUAL:
Proposes the prevalence index approach - that is, an area meets this criterion if,
under normal circumstances, a frequency analysis of all species within the
community yields a prevalence index value of less than 3.0 (where OBL = 1.0,
FACW = 2.0, FAC = 3.0, FACU = 4.0, and UPL = 5.0).
Solicits comments on including the Facultative Neutral test as part of the
hydrophytic vegetation criterion in addition to the proposed prevalence index
approach. Under this approach the criterion would be met if after discounting
all dominant facultative (FAC) plants, the number of dominant obligate wetland
(OBL) and facultative wetland (FACW) species exceeds the number of dominant
facultative upland (FACU) and obligate upland (UPL) species. (Note: a number
of options are presented describing circumstances under which the prevalence
index procedure would be used.)
Solicits comments on variants of the FAC neutral test.
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STATUS OF DELINEATIONS BASED ON THE 1989 FEDERAL MANUAL
1989 MANUAL:
Required the use of 1989 Manual for delineation and such delineations were
final.
PROPOSED REVISED MANUAL:
Any landowner whose land has been delineated a wetland after the revised
Manual is proposed but before the proposed revised Manual becomes final may
request a new delineation following publication of the final revised Manual.
However, final actions, such as permit issuances or completed enforcement
actions, already taken on wetlands delineated under the 1989 manual will not
generally be reopened.
A landowner whose property has been identified as a wetland during a seasonal
dry period or drought can request a re-evaluation in the field during the wet
season of the year.
The agencies are soliciting comment on the likelihood of sites being delineated
during the dry season as wetland that, if the delineation had occurred during the
wet season, would not have met the hydrology criterion. Should requests for re-
evaluations be limited to certain cases or should all requests be granted?
8
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DEFINITION OF A DISTURBED WETLAND AREA AND ITS DELINEATION
PROCEDURES
1989 MANUAL:
Disturbed wetland areas include situations where field indicators of one or more
of the three wetland identification criteria are obliterated or not present due to
recent change.
For disturbed areas where vegetation is removed and no other alterations have
been done, the presence of hydric soils and evidence of wetland hydrology will
be used to identify wetlands. If such evidence is found, conditions are assumed
to be sufficient to support hydrophytic vegetation.
PROPOSED REVISED MANUAL:
Disturbed wetland areas are wetlands that met the mandatory criteria prior to
disturbance and have had vegetation, soils, and/or hydrology altered such that the
required evidence of the relevant indicators for the affected criteria has been
removed. If a disturbed area is identified as a wetland, field personnel shall
document the reasons for determining that the site would have been a wetland
but for the disturbance.
For disturbed area where the vegetation is removed and no other alterations
have been done, evidence of the elimination of the hydrophytic vegetation
together with the presence of hydric soils and evidence of wetland hydrology
must be used to identify wetlands.
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ALTERNATIVE APPROACH TO DELINEATION ON A SITE-SPECIFIC BASIS
1989 MANUAL:
Sites are delineated individually.
PROPOSED REVISED MANUAL:
Sites are delineated individually.
Solicits comments on alternative approaches that would allow identification of
categories that can be identified and delineated rapidly and without the need for
extensive documentation.
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