The Regulatory Debate Over Wetland Limits
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 Wetlands Definition/Delineation Controversy
Federal wetland regulation began as permitting of dredge and fill disposal within "navigable waters" of the United States by the Army Corps of Engineers (Corps) under the 1972 CWA Section 404. In 1975, supported by federal court decisions expanding the definition of waters of the United States to include wetlands, the Corps issued revised regulations for the 404 program that clearly encompassed wetland protection. While wetlands are not directly included anywhere in Section 404 itself, even to the pre sent, the Corps regulations established under Section 404 have been upheld by the U.S. Supreme Court, and other subsequent federal regulations and actions have firmly ensconced wetland protection within the national policy framework.

However, given the ever-controversial nature of wetland regulation as a form of land use restriction, the federal regulatory effort required a clear, legally defensible wetland definition. Unfortunately, wetlands are difficult to reduce to a single definition, largely because their essential elements are so diverse and variable in character. Wetlands inhabit a transitional zone between terrestrial and aquatic habitats, and are influenced to varying degrees by both. They differ widely in character around the country because of regional and local differences in climate, soils, topography, landscape position, hydrology, water chemistry, vegetation, and other factors. Depth and duration of inundation, a key defining force, can differ greatly between wetland types and can vary from year to year within a single wetland type. Wetlands definition by vegetation is difficult, as some wetland species can live in either wetlands or uplands, while others are adapted to only a wet environment. Because wetland habitats are so diverse as to form a continuum connecting terrestrial to aquatic ecotypes, and because they can vary so significantly within a given type, no universally recognized wetland definition exists.

Nevertheless, in 1977, the Corps issued regulations for implementation of Section 404 of that year's expanded CWA Amendments. The regulations included a wetland definition (which stands essentially unchanged to the present), modified from the original 1975 version. Over time, as the 1977 regulations were implemented, the need for a clear method of determining wetland limits on-site, or the extent of federal wetland jurisdiction, became evident. During the 1980s, different governmental agencies and even different branches of the same agency issued their own field guidelines for wetland delineation. In 1987, the Corps released its Manual for Delineation of Wetlands (1987 Manual http://www.saj.usace.army.mil/permit/documents/87manual.pdf). Application of the Manual varied among the regional Corps offices. The focus of the wetland regulatory debate thus became the guidelines used for field delineation of wetland boundaries.

In 1989, the Interagency Wetlands Delineation Manual ("1989 interagency manual") was jointly released by the EPA, U.S. Fish and Wildlife Service, U.S. Army, and the U.S. Department of Agriculture to address the problem of inconsistency in wetland delineation among these four agencies. Although the 1989 interagency manual was supported by the scientific community, the development and agricultural communities criticized the manual, claiming that the agencies had expanded regulatory jurisdiction without allowing public participation in the decision making process.

The Bush Administration attempted to move the debate with a 1991 manual ("1991 proposed revisions") that was immediately challenged by the scientific community for it's delineation method, which lacked a technical basis. The regulated community criticized the manual for making the permit process more complex than it had been under the 1989 manual. By 1992, EPA had received more than 80,000 comments on the 1991 proposed revisions. President Bush then signed the Energy and Water Development Appropriations Act of 1992, which included a provision prohibiting the Corps from expending funds for the performance of wetland delineation using the 1989 interagency manual. In response, the Corps returned to the 1987 manual as the standard for wetland delineation. The 1987 manual has since become the most commonly used guide to delineation.

During this time, Congress requested a National Academy of Sciences (NAS) study of wetlands delineation. The National Academy of Science study ("WETLANDS: Characteristics and Boundaries"), published in August 1995, concluded that a new federal delineation manual should be issued, and that it should modify the 1987 manual by broadening the determination of wetland limits based on both current scientific understanding and almost ten years of regulatory practice. Current delineation methodology does not encompass all areas that the NAS would define as wetlands (NAS 1995). The NAS report provides a definition for "wetlands" as well as criteria for identification and indicators of wetland conditions.

Sources: OTA 1993; OEP 1992; Want 1993; NAS 1995

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