An Update on Wetlands Regulation-part I
| Jurisdiction | United States,Federal |
| Citation | Vol. 12 No. 1992 Pg. 2577 |
| Pages | 2577 |
| Publication year | 1992 |
1992, December, Pg. 2577. An Update on Wetlands Regulation-Part I
The debate over the regulation of this nation's wetlands resources has reached a new crescendo at all governmental levels. Confrontations have occurred in the legislative, regulatory and judicial arenas. The purpose of this article is to provide interested parties with background information and an update on developments in this continually evolving area.
This is the first article in a two-part series concerning the numerous proposed revisions to wetlands regulation that have recently occurred and are still occurring. This Part I focuses on the wetlands delineation manual, nationwide permit requirements and recent court decisions. Part II, to be published in the January 1993 issue of The Colorado Lawyer, will address the regulation of water quality in wetlands, including the current state rulemaking proposal which is to be finalized in the near future. Part II also will discuss the status of the regulatory changes to the § 404 permit program as proposed by the EPA and the Corps of Engineers on June 16, 1992. It will conclude with a brief update on legislative initiatives.
Probably no single wetlands issue has received as much publicity over the past year as the August 14, 1991, proposed revisions to the 1989 Federal Manual for Identifying and Delineating Jurisdictional Wetlands.(fn1) Since the early 1980s, the delineation of jurisdictional wetlands has been based on three environmental parameters: vegetation, hydrology and soils. Modifying the thresholds for criteria associated with these parameters alters the geographical area considered jurisdictional wetlands. Although the 1991 revisions proposed numerous changes, the most substantive proposed change was in the hydrology criterion. Field testing of the proposed revisions has demonstrated substantial reductions in the area of wetlands that would be considered jurisdictional wetlands relative to both the 1989 delineation manual, which has fallen into disfavor, and the 1987 delineation manual currently used.
The 1991 revisions would require fifteen consecutive days of inundation or saturation of the surface for twenty-one consecutive days by surface water or groundwater during the growing season for a site to meet the proposed wetlands hydrology criteria. The 1989 manual required inundation or saturation for seven consecutive days within eighteen inches of the surface (depending on soil permeability) during the growing season. On the other hand, the 1987 manual (which will continue to be used for jurisdictional wetlands delineations until the current controversy is resolved) requires inundation or saturation within major portions of the root zone (usually within twelve inches of the surface) during the growing season.
Further, under the 1991 proposal, five consecutive years of aerial photography or three years of groundwater monitoring may be necessary to establish the presence of supportive hydrology. The revisions indicate that the burden of proving a particular site is a wetland lies with the federal government. However, it is unclear whether the federal government would be responsible for the collection of all requisite evidentiary data.
Revision of the 1987 manual means there have been four different wetlands delineation manuals in use by the U.S. Army Corps of Engineers ("Corps") over the last six years, with the likelihood of a fifth manual somewhere in the near future. Legislation has been proposed that would fund and authorize the National Academy of Sciences ("Academy") to (1) conduct a one-year study and evaluation of the scientific basis of the proposed revisions to the 1989 delineation manual as well as other wetlands issues and (2) submit a report to Congress on its findings.(fn2) The combination of a new administration
Nationwide permits are a type of general permit used by the Corps to authorize similar types of activities (such as road crossings, bank stabilization and boat ramps) that will have minimal individual or cumulative effects. On November...
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