9
Regulation of Wetlands: Administrative Issues

INTRODUCTION

The scientific study of wetlands rarely requires that the boundaries of wetlands be specifically defined. In contrast, both the regulators of wetlands and the regulated community must be able to establish, by application of scientific principles, the limits of individual wetlands that are subject to legal requirements administered through a regulatory system. In this sense, science, law, and policy. are all relevant to the delineation of wetlands.

The complexity of the regulatory system produces administrative problems that can affect the scientific validity and consistency of wetland delineations, regardless of the underlying scientific basis for regulation. There are many agencies and private parties involved in wetland delineations and there is no system of uniform training or standard of knowledge and experience for delineators. This chapter considers these problems and their possible solutions.

CONSISTENCY AND RELIABILITY OF WETLAND DELINEATIONS

The wetland delineation system should produce consistent, reliable results. If two qualified delineators apply the same standards, their delineations at a given site should be essentially the same. In other words, a landowner should be able to rely on the legal sufficiency of a wetland delineation, regardless of the agency that conducts or reviews it. If the delineation system yields highly variable or arbitrary results, there will follow a lack of confidence and respect among the



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Wetlands: Characteristics and Boundaries 9 Regulation of Wetlands: Administrative Issues INTRODUCTION The scientific study of wetlands rarely requires that the boundaries of wetlands be specifically defined. In contrast, both the regulators of wetlands and the regulated community must be able to establish, by application of scientific principles, the limits of individual wetlands that are subject to legal requirements administered through a regulatory system. In this sense, science, law, and policy. are all relevant to the delineation of wetlands. The complexity of the regulatory system produces administrative problems that can affect the scientific validity and consistency of wetland delineations, regardless of the underlying scientific basis for regulation. There are many agencies and private parties involved in wetland delineations and there is no system of uniform training or standard of knowledge and experience for delineators. This chapter considers these problems and their possible solutions. CONSISTENCY AND RELIABILITY OF WETLAND DELINEATIONS The wetland delineation system should produce consistent, reliable results. If two qualified delineators apply the same standards, their delineations at a given site should be essentially the same. In other words, a landowner should be able to rely on the legal sufficiency of a wetland delineation, regardless of the agency that conducts or reviews it. If the delineation system yields highly variable or arbitrary results, there will follow a lack of confidence and respect among the

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Wetlands: Characteristics and Boundaries regulated public. This is important because wetland delineations determine what private conduct is lawful; individuals can be fined or even imprisoned for filling a wetland (33 U.S.C. § 1319). Citizens lose faith in a legal system that is administered inconsistently even as it imposes penalties for noncompliance. Consistency of wetland delineation is a widespread concern. Inconsistent delineation can arise from one or more of the following: confusion over delineation standards; inadequate training of delineators; improper application of delineation standards; use of excessive discretion in applying delineation standards; variations among wetland types or wetland disturbances; and regional differences, including different approaches to delineation by different offices of a given agency or different levels of government. Variability in delineation practices can result from inadequate training of delineators, misapplication of the delineation standards, or biased delineations by parties who desire a particular result. Regional bias can arise from regional variation in amount of wetland and in development pressures. There also are some problems among the field offices of various federal agencies over delineations performed by agencies other than their own. These systemic issues impede development of scientifically valid, consistently applied delineation standards. Multiple Agencies The involvement of so many federal agencies reduces the overall consistency of wetland delineations. Furthermore, the agencies that conduct wetland delineations allow significant regional or local autonomy (Chapter 7). The January 1994 Memorandum of Agreement (MOA) between the U.S. Army Corps of Engineers (USACE), Environmental Protection Agency (EPA), and Natural Resources Conservation Service (NRCS) for wetland delineations on agricultural lands is, however, intended to reduce the differences among agencies. The MOA guarantees the regulated party that delineation by one agency will be used by all three. In general, farm owners can rely on NRCS delineations for all federal regulatory purposes. Although the MOA could reduce interagency differences administratively by establishing clearer lines of authority for agricultural lands, it will not improve the technical consistency of wetland delineations unless the delineations of NRCS achieve the same outcome as would delineations by EPA or USACE. It will be difficult for the public to accept that a particular set of landscape features is a legal wetland if delineated by USACE on nonfarm property, but not so if delineated by NRCS on a farm. Joint training will improve consistency among the agencies. The agencies have different regulatory functions, however, which may result in differing attitudes toward protection of wetlands. As long as the agencies operate with different legal mandates, there can be inconsistency in wetland delineations across agency lines. Consolidation of all wetlands regulatory functions into a single

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Wetlands: Characteristics and Boundaries federal agency, although difficult, would improve the consistency of wetland delineations. If several agencies must share wetland delineation responsibilities, then a common set of definitions and a common delineation manual should be used. Standards for Expertise, Training, and Certification The expertise necessary for delineation of wetlands should be clarified by the federal agencies that establish delineation protocols. Wetland delineators are expected to have some scientific background, but the type of training is not specified. This may contribute to the confusion of landowners, who can be unsure of the extent to which delineation is a technical or specialized task. Wetland delineation requires scientific education at the college level, combined with specialized training in delineation methods and practices. Some knowledge of or familiarity with several scientific fields is needed for wetland delineation. Delineators should have some knowledge of plant taxonomy, botany, soil science, surface water hydrology, general ecology, wetland (or aquatic) ecology, sampling methodology, and plant morphology. Knowledge of ground water hydrology, geology, plant physiology, and perhaps other disciplines is also desirable. In addition, a wetland delineator must be familiar with regulatory requirements. There is, however, no established minimum of education or set course of training that will qualify a wetland delineator. Training programs, both private and government-sponsored, do not produce uniform results. USACE has established a demonstration program for certification of wetland delineators (WDCP) (57 Fed. Reg. 62,312; 1992). The program operated between March 1993 and March 1994 in the states of Washington, Maryland, and Florida, but its full implementation had not occurred as of December 1994. WDCP involves a written test and a field practicum. A passing score for the written test in the demonstration program was 80%. Approximately 800 applicants took the written exam during the demonstration program, but fewer than 300 passed. Approximately 250 persons took the field practicum; more than 90% passed. USACE awarded provisional certification to those who passed both parts of the test. When USACE finalizes the program, provisionally certified delineators will be eligible for final certification. Provisionally certified delineators are considered by USACE to have adequate knowledge and ability to perform wetland delineations. USACE expects that fully certified delineators will be able to train others in wetland delineation, and that proof of training with a certified delineator will be a prerequisite for delineators to become certified. Thus, WDCP anticipates that most of the training will be done by the private sector but that testing and certification will be done by USACE or in accordance with tests and standards set by USACE. Other certification programs are offered by the private sector or by universi-

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Wetlands: Characteristics and Boundaries ties. The Society of Wetland Scientists (SWS) is a nonprofit scientific and educational organization that encourages the adoption of professional standards in all activities related to wetland science. SWS has developed a certification program designed to evaluate the education and experience of professional wetland scientists. The program is established to guide individuals, government agencies, the legal system, and the public in defining minimum standards of education and experience for professionals in the field of wetland science and to create and maintain public confidence in the advice and opinions of professionals by establishing a peer evaluation system involving education, experience, and ethical standards. Applicants for SWS certification must have bachelors' degrees or the equivalent, with a specified range of science training. Certifications are awarded by the SWS Wetland Professional Certification Review Panel, composed of SWS members and appointed by the SWS Executive Board (SWS Bulletin, 1992). Certification constitutes recognition by SWS that, to the best of its knowledge, an applicant meets the minimum standards of education and experience adopted by the SWS, but it does not certify an individual's ability to perform delineations. As shown by the USACE and SWS programs, certification of delineators raises several issues. For example, there are questions of national versus regional certification, and of familiarity with a delineation manual versus knowledge of basic scientific disciplines that underlie delineation. These choices and others involve a balance of time, expense, and possibly quality of delineation. Certification of delineators will benefit the public as well as government agencies. The potential applicant, if informed, could contract with appropriately certified personnel, thereby obtaining some assurance that a delineation will be reliable. If a certification system is established, USACE might accept delineations from certified consultants only, after sufficient time passes to enable qualified consultants to become certified. On the other hand, a mandatory certification Program involves expense. Because delineation requires a substantial degree of expertise, the regulatory agencies must disseminate information about wetlands and their regulatory programs. Information such as wetland maps and sources of assistance should be made widely available. If the public is informed, compliance with the law will improve through cooperation with regulators and through physical protection of wetlands from inadvertent destruction. Public education can highlight the need for expertise in wetlands delineation. Verification of Delineations Wetland delineations vary in the degree to which they are subject to quality assurance and quality control. As a general matter, quality assurance is left to the discretion of regional or local agency offices. Federal agencies are now attempt-

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Wetlands: Characteristics and Boundaries ing to minimize interagency differences in wetland delineation, but they have not yet identified specific programs that assure quality. Neither USACE nor EPA has a formal quality assurance process for wetland delineations. Supervisors regularly review wetland delineations, however, and EPA also uses interagency training and substantive guidance to improve the quality of wetland delineations. The USACE certification program, USACE regulatory guidance letters, and interagency memoranda of agreement concerning wetland delineations are also examples of attempts to ensure and standardize quality. Most delineations for Clean Water Act Section 404 permit applications are done by private consultants. They are reviewed by USACE or EPA only if necessary for a Section 404 permit. Because review is not always necessary, and because a private delineation will not necessarily lead to a permit request, an inaccurate delineation is not always discovered, and, if it is not discovered, it cannot be corrected. In contrast, NRCS employees conduct all wetland delineations for the swampbuster program of the 1985 Food Security Act (FSA). Consequently, errors will affect directly the potential uses of agricultural lands. While there are limited ways the public can be protected for errors of delineation by private delineators, quality assurance of delineations within an agency such as NRCS is extremely important to maintain a fair regulatory system. Standards of quality assurance for NRCS appear in its regulations and the third edition (1994) of the National Food Security Act Manual (NFSAM). These standards establish principles for quality control and prevention of fraud, waste, and abuse. The NRCS National Technical Center has quality assurance teams with nationwide responsibility for quality assurance, including training, technical assistance, and consistency. Each state must have a quality control program that is consistent with national guidance. The January 1994 MOA also includes standards for interagency review of NRCS delineations. It requires interagency concurrence and training on methods (protocols) for office-based wetland delineations by use of aerial photographs and maps (Chapter 8), and it puts a high emphasis on consistency of wetland delineations across agency lines. EPA has an oversight role involving periodic review of determinations, and an appeal to agency headquarters is allowed when the agencies disagree. These provisions of the MOA have been incorporated into NFSAM. In addition, NRCS is leading interagency teams in field tests of regionalized hydric soil indicators (SCS, 1994). Although interagency coordination is important, the agencies should not ignore internal quality assurance. Publication of substantive standards for wetland delineations is not the same as a system for quality assurance, which involves the enforcement of substantive standards. Also, a quality assurance system cannot compensate for unqualified delineators. Properly implemented, a quality assurance system enables an agency to minimize and quantify errors. Such a system could also foster public confidence.

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Wetlands: Characteristics and Boundaries Uniformity and the Exercise of Professional Judgment Predictable, uniform delineations are most easily achieved through strict standards. Strict delineation standards, however, allow minimal use of professional judgment, and this could be detrimental to the validity of delineation in complex or marginal cases. In addition, national delineation standards must be adaptable to regional differences in wetlands (Chapter 7). Some exercise of professional judgment is necessary in delineation of wetlands, but it must have limits. The standards for wetland delineation cannot be so subjective that government or private delineators have broad latitude in drawing jurisdictional lines. Field testing and field verification of delineations should be used in establishing the balance between uniformity of standards and professional judgment. The agencies involved in delineation should maintain interagency and interdistrict communications on the use of professional judgment, and the results of field tests should be shared widely among the agencies. Establishment of regional indicators for wetland delineation also will reduce the necessity for broad exercise of professional judgment. Interaction between agency personnel and outside professionals could be encouraged by the development of regional advisory committees, participation of federal personnel in private and professional associations, and similar mechanisms. Although wetland delineations are formally documented, they are not maintained in an accessible data base. This represents a great loss of potentially useful information. A usable record of wetland delineations would have many benefits: It would enable the government to ascertain the wetland acreage in the regulatory programs (such as acres permitted, not permitted, farmed); it would promote comparison among wetland delineations based on particular features (such as soils and vegetation); it would facilitate research on wetland delineations; it would provide access to records of prior delineations on specific parcels; and it could generate an overview for the entire federal regulatory program. Such a record also would be a means for determining whether professional judgment is being exercised arbitrarily in wetland delineation. A useful record of wetland delineations should be maintained in digital form and should be accessible electronically. Resource Regulation and Private Rights The government should be able to tell property owners, on relatively short notice, whether they risk breaking the law by conducting certain activities on private property. Fairness requires that if the law prohibits falling of wetlands, a landowner should be able to ascertain the wetland's location. This principle underlies the wetland delineation system's philosophy that federal delineations or federal reviews of private. delineations should be done essentially at the time requested by the property owner. Field conditions, however, do not always allow

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Wetlands: Characteristics and Boundaries accurate delineations to be conducted in all seasons. Seasonal variations, such as snow cover, or interannual variations, such as drought or unusual rainfall, can prevent reliable delineation or review of delineation. In general, wetland delineation should not be done when a short delay could greatly improve its validity. The need for accuracy must be weighed against the need for responsiveness to the landowner in administration of wetland delineations. A variety of approaches could reconcile a property owner's need for timely delineation with the concern for the accuracy of delineation. Records of seasonal changes could be used by delineators. For example, difficulties caused by some types of seasonal change can be overcome by use of seasonally insensitive indicators or by regional knowledge of the nature of seasonal variations. This is part of the appropriate exercise of professional judgment with regard to field conditions. In other cases, seasonal difficulties might be insurmountable, and some delay should be allowed and expected: The applicant could be required to show evidence of the condition of the parcel during a more favorable season. Many government regulatory programs other than those involving wetlands require physical inspections that take time. Where wetland delineation cannot be undertaken on request, however, the factors that cause the delay must be explained and must be related to technical concerns for validity of delineation. Use of Flow Diagrams and Charts Decision trees and flow charts provide a method for structuring wetland delineations. With these tools, a delineator can minimize the collection and evaluation of redundant information. A decision tree is a diagram that portrays a sequence of alternative decisions as well as the probabilities associated with decision choices. A flow diagram provides a simple portrayal of the sequences involved in an analysis, but without attributing probabilities to particular steps. The federal delineation manuals use flow diagrams as aids to delineation. These diagrams are graphic portrayals of the steps required, under each manual, to delineate a wetland. Such graphic alternatives to the text descriptions of delineation can be very helpful to the delineator. Use of some of the most sophisticated flow charts could show, among other things, the probabilities of reaching particular conclusions. Given the degree to which wetland delineation involves the exercise of professional judgment, it would be useful to ascertain in probabilistic terms the likelihood of various kinds of outcomes for specific regions. This information could help to guide field delineation. For example, where particular decisions carry a substantial risk of error, the delineation manual could establish specific guidelines, such as a requirement for analysis by a technician with particular training.

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Wetlands: Characteristics and Boundaries CONCLUSIONS A system of wetland delineation must be administered consistently. Wetland delineation standards must be understood by properly trained delineators, and delineations performed by different persons should have similar results on the same piece of ground. Public confidence in wetland delineations can be enhanced by a system that includes appropriate training and certification of delineators and dissemination of general information to the public about the nature of wetlands and the need for protection of this resource. RECOMMENDATIONS All federal agencies involved in wetland delineations should participate in jointly managed delineation training and should be part of a continuing-education program. All federal agencies should use a single delineation manual that provides clear technical guidance and includes all rules and guidance. Training for federal and private delineators must be rigorous. Agencies and professional associations should consider ways of disqualifying the results from unqualified wetland delineators. The USACE program for certification of wetland delineators should continue, and should be available to federal and nonfederal personnel. Lists of certified delineators should be made available to the public. Rigorous programs for quality control and quality assurance should be used by all agencies that conduct wetland delineations. Records of wetland delineations should be maintained in a usable, accessible format that will enable the agencies to develop and release annually an inventory of wetlands subject to regulatory programs and to facilitate research and data analysis. Central repositories should be developed for scientific substantiation of all indicators, including reference wetland sites. Wetlands delineation should be postponed when a short delay might improve the accuracy of the delineation. Consolidation of all wetland regulatory functions into a single federal agency would improve the consistency of wetland delineations but should not be implemented without appropriate oversight and quality assurance.