wetlands

Wetland Policy Timeline

Regulation

Regulations relevant to wetlands

1872 General Land Office commissioner concludes that the Swamp Lands Acts have been a failure at developing and draining the nation's waste lands.
1885 Bureau of Biological Survey created.
1954 Agricultural Conservation Program Service of the USDA issues first regulations that force staff to consider the effects of drainage projects on wildlife, a provision most regarded as discretionary.
10/15/1966 Establishment of the National Wildlife Refuge System under the control of the US Fish and Wildlife Service.
7/13/1967 MOU between the Department of Interior and the Secretary of the Army clarifying that COE will abide by its obligations to consult with FWS under the Fish and Wildlife Coordination Act.
1968 COE promulgates Public Interest Review rules based on its 1967 MOU with Interior, allowing it to reject RHA permit applications based on environmental impacts, expanding review past traditional navigation issues.
3/5/1970 Nixon's EO 11514 establishes the CEQ and directs federal agencies to be answerable to their environmental regulations. [EO 11514]
4/30/1970 First CEQ Interim Guidelines published, establishing requirements for EISs. [1970 CEQ EIS Interim Guidelines]
1970 Nixon's EO 11574 forces the COE to regulate discharge into navigable waters under the RHA.
6/11/1971 Corps issues regulation conforming to CEQ guidelines. This marks the first use of the concept of mitigation in Corps regulations. [1971 Corps EIS Reg]
8/1/1973 Final CEQ EIS Guidelines Issued. [1973 CEQ EIS Guidelines]
1974 USFWS orders the Office of Biological Services to conduct a National Wetlands Inventory
4/3/1974 COE releases its Section 404 permit regulations, excluding wetlands from its jurisdiction.
5/6/1975 Corps proposes regulations in response to the Callaway decision that offer a choice between four Options concerning the extent of CWA jurisdiction over wetlands. Option A is the most extensive, largely seen as an attempt to inflame the development and agricultural community into political opposition to the broadening of CWA 404 wetland protections. In the same FR notice, EPA publishes the first proposed non-mandatory 404(b)(1) Guidelines. [1975 Corps-EPA Draft Rules]
7/25/1975 Corps issues final regulation in response to the Callaway decision. [Corps Callaway Regs]
9/5/1975 USEPA promulgates FWPCA Section 404(b)(1) guidelines, heavily stressing avoidance and not mentioning restoration or mitigation, based in the assumption that a permit will not be given unless there are no less environmentally damaging, practical alternatives possible. These regulations are advisory, not mandatory. [1975 EPA 404 Rules]
4/15/1976 Deltona Corporation's permit to fill Marco Island wetlands is denied by the COE, the first major CWA permit denial.
7/19/1977 COE revises its definition of wetlands after notice and comment on the 1975 proposals, adopting the soils/hydrology/vegetation definition that brings them into line with the 1975 EPA 404(b)(1) Guidelines. [Corps 1977 Final Rule]
1977 Corps inaugurates its General Permit system, which initially allows the unmitigated filling of wetlands up to 10 acres with no Corps review under the CWA.
1977 President Carter issues Executive Order 11990, directing all federal agencies to "avoid to the extent possible the long and short term adverse impacts associated with the destruction or modification of wetlands."
1978 USDA eliminates drainage cost-sharing and limits drainage technical advice, in compliance with EO 11990.
6/9/1978 CEQ (based on its NEPA authority and EO 11991) publishes expansive NEPA regulations and defines "Mitigation" in a way binding on all federal agencies. Mitigation includes Avoidance, Minimization, Rectification, Reduction, and Compensation. [1978 CEQ Proposed Mitigation Rules]
11/29/1978 Final CEQ NEPA regulations published, defining mitigation. [1978 CEQ Final Mitigation Rules]
1979 Attorney General Civiletti determines that EPA, rather than COE, has final authority on determining the extent of jurisdiction of the CWA. However, an EPA and COE MOA establishes that the COE will make most actual jurisdictional determinations for the CWA.
9/18/1979 EPA publishes 404(b)(1) Guidelines as an NPRM to update the 1975 Interim Guidelines and make them mandatory. The 240.10 section is nearly twice as long, and there are helpful flowcharts that graphically depict a clear sequence in which avoidance comes before minimization. [1979 Proposed 404b1 Guidelines]
4/23/1980 Geographic Jurisdiction MOA between COE and EPA establishes method of delineating and defining wetlands.
9/9/1980 FWS publishes proposed mitigation policy. [FWS 1980 Proposed Mitigation Policy]
12/24/1980 EPA Section 404(b)(1) guidelines are revised and issued as mandatory elements of 404 permit review. They bring EPA into compliance with the CEQ NEPA regulations, define an alternatives analysis, and discuss avoidance, minimization and compensation. Subpart G, on testing procedures, is not revised based on the 1979 NRPM, but revisions are put out as an NPRM and have never been finalized. [Original 1980 404b1 Guidelines] [1980 Subpart G NPRM].
1/23/1981 FWS publishes final mitigation policy. It establishes a sequential approach to the CEQ mitigation elements, defines mitigation banking, and structures habitat conservation around a 3-part categorization scheme. [FWS 1981 Final Mitigation Policy]
2/17/1981 President Reagan signs EO 12291, mandating Regulatory Impact Analysis by the OMB to determine whether agency regulations will negatively impact current or future economic well-being. It also requires each agency to public biannual regulatory agendas in the FR.
10/30/1981 First published biannual EPA Regulatory Agenda reveals no proposed changes to 404 program. [EPA Reg Agenda Fall 1981]
1982 USDA SCS issues a formal policy of compliance with EO 11990.
4/12/1982 EPA Regulatory Agenda includes plan to issue a rule which updates the 1975 Interim Final Guidelines "in light of new research and management information", proposing to "provide a format for the testing procedure, which will be clearer for both applicants and permitting officials and reduce unnecessary testing requirements." The entry refers to the 1980 issuance of the entire 404(b)(1) Guidelines as an "NPRM," although they were issued as final rule. The Agency appears to be using the fact that the Subpart G testing procedures were never finalized to reopen the entire Guidelines for redrafting. [1982 Reg Agenda Spring 1982]
5/7/1982 The Reagan Administration's Task Force on Regulatory Relief directs the Corps to simplify 404 permitting, reducing delay and eliminating multilevel review.
7/22/1982 In response to the May request, Corps issues permit regulations allowing the Corps' public interest review to supersede a permit decision made on the basis of the 1980 404(b)(1) Guidelines alone. That is, if application of the Guidelines precluded issuance of the permit, the Corps could override the Guidelines with a positive showing in the public interest review. [Corps Interim Final Permit Regulations July 1982]. These regulations also combine the RHA and 404 permit review processes.
July 1982 MOA between Corps, FWS, EPA and NMFS allows faster 404 permitting by reducing the ease of the 404(q) elevation process, and reducing mitigation requirements.
8/23/1982 EPA issues an ANPRM revising the 404(b)(1) guidelines following the recommendations of the Task Force on Regulatory Relief. The Agency appears to be using the fact that the Subpart G testing procedures were never finalized to reopen the entire Guidelines for redrafting. [1982 Guidelines ANPRM]
10/28/1982 The EPA's Regulatory Agenda contains only the TFRR-based ANPRM issued on 8/23/1982. [EPA Reg Agenda Fall 1982]
1983 FWS Interim Guidance on Mitigation Banking
1983 EPA revises guidance for wetland identification, and prepares a draft manual for delineation.
3/9/1983 EPA administrator Anne Gorsuch Burford (cited by the House for contempt of Congress in 1982) resigns, to be replaced by the return of EPA's first Administrator, William Ruckleshaus, on 5/18/83. This is widely seen as the end of the open attack by the Reagan Administration on the architecture of environmental protection. [Burford Resignation]
4/25/1983 The EPA's Regulatory Agenda contains only the TFRR-based ANPRM issued on 8/23/1982. [EPA Reg Agenda Spring 1983]
5/12/1983 In final response to the 5/7/82 report of the Presidential Task Force on Regulatory Relief, Corps issues proposed permit regulations that lack any reference whatsoever to EPA or the 404(b)(1) Guidelines. [Corps Proposed RegRelief Permit Rules 1983]
10/17/1983 EPA Regulatory Agenda still contains only the rulemaking based on the 8/23/82 ANPRM. [EPA Reg Agenda Fall 1983]
3/29/1984 Corps issues proposed regulation containing the elements required by the Marsh settlement. [Corps 1984 Proposed Revision of 1982 Rule]
4/19/1984 EPA Regulatory Agenda still contains only the rulemaking based on the 8/23/82 ANPRM. [EPA Reg Agenda Spring 1984]
8/27/1984 The EPA NPRM proposing to revise the Guidelines (8/23/1982) is formally withdrawn; Fall Regulatory Agenda says "waiting for Army Corps reasons for revising Guidelines."
10/5/1984 COE promulgates issues final regulations in response to the Marsh settlement, retreating from its aggressive posture of 1983 and conceding the primacy of the EPA 404 permit conditions. The main change from the proposed regulations in March is that permits issued under the 1982 interim final regulations are grandfathered. [Corps 1984 Revision of 1982 Rule]
10/22/1984 EPA's Regulatory Agenda notes only the withdrawal of the 1982 Guidelines ANPRM [EPA Reg Agenda Fall 1984]
1985 Corps guidance (RGL 85-8) establishes that the Corps will fully consider FWS mitigation recommendations, and defines the five elements of mitigation. These are not presented as occurring in a sequence, and the Corps is free to "require less or different mitigation."
8/27/1986 Corps RGL 86-9 clarifies that they do not assert jurisdiction over non-wetland areas that might eventually revert to wetlands as natural processes operate. The "under normal circumstances" clause in the wetlands definition is restricted to address acute human disturbances meant to avoid jurisdiction. Agricultural conversion in the course of normal business practice does not count. [RGL 86-9]
11/13/1986 Corps issues comprehensive final rule consolidating the changes of six rulemakings from 1982 to 1986. These regulations clarify that 404 permits must be denied if the permittee declines to provide compensatory mitigation that is required to protect the public interest. [1986 Corps Permit Regs]
1987 Release of the USDA rule defining wetlands for purposes of administering the 1985 FSA. The rule heavily emphasizes the presence of hydric soils.
1/19/1989 MOA between COE and EPA establishes that the COE will use the 1989 Manual to define the geographic extent of WOTUS, and clarifies the (f) exemptions.
1/19/1989 Enforcement MOA
January 1989 Release of EPA's Wetlands Action Plan, in response to the NWPF recommendations.
4/21/1989 The Kelly Memo acceding to the Plantation Landing decision and reaffirms that although COE PMs will continue to perform delineations, that the EPA is the lead agency and its regulations on 404 are binding. [this is on the AMP website]
5/9/1989 Lance Wood sends the Kelly Memo to everyone else, essentially publisicing new Corps policy [this is in Peggy Strand's book]
2/1990 MOA
7/25/1990 Domestic Policy Council's Wetland Policy Task Force announces 6 public meetings on wetland policy and the meaning of "no net loss" in the FR. [DPC WPTF Public Meeting Announcement 1990]
1991 EPA requires all states to develop classifications and water quality standards for wetlands. This is driven by Section 402 considerations (need designated uses for waters), but also clearly feeds into the "categorization" drive at the time, as much of this material is found in the categorization files kept by Tom Kelsch.
2/28/1991 Results of 6 public meetings held by the Domestic Policy Council's Task Force on Wetlands published in Federal Register [DPC WPTF Public Meeting Summary 1991]
7/10/1991 USEPA Region V adopts guidance for generic mitigation banking, rigorously sequenced so the banking can only occur after other alternatives have been shown to be an unacceptable. Judgments on whether project can go to banks appear to be highly arbitrary, and ratios vary between 1:1 and 5:1. Currency is defined as "acreage of wetlands by type of wetland"
11/22/1991 New NWPs approved, including NWP 26, which allows the unmitigated filling of up to 10 acres of nontidal wetlands. The sequencing appropriate for nationwide Permit 26 is more lenient than the standards agreed to in the 1990 MOA.
11/3/1992 EPA Regulatory Agenda includes following rules in the proposal stage that would:

  • Amend 404(c) procedures to "reflect our experiences to date".
  • Refine definition of "waters of the United States" using four examples.
  • Exempt certain human-created wetlands from regulation
  • Make state assumption of the 404 program less burdensome (credited to DPC).
  • Implement a three-part wetland categorization scheme and restrict the application of sequencing to the highest category (credited to the DPC).
  • Exempt Alaska from sequencing (credited to DPC).
  • Modify 404(b)(1) guidelines to state that permits will be considered approved unless applicant is otherwise notified within 6 months of application (credited to DPC).

Rules in the final stage would:

  • Treat Indian tribes as states for purposes of assumption.
  • Adopt the 1991 Quayle Wetlands Manual in making jurisdictional determinations.

[EPA Reg Agenda Fall 1992]

1/19/1993 EPA issues a letter determining that the 1987 Manual should be the standard for defining jurisdictional wetlands.[1993 MOA addendum]
1993 COE and EPA amend their regulations so that wetlands exempted as "prior converted wetlands" by the FSA will not be considered wetlands under the CWA. This is to finally align and separate the wetland regulations of the CWA and FSA.
8/23/1993 COE issues RGL 93-2, emphasizing flexibility in sequencing for smaller impacts, a crucial development for wetland banking.
9/30/1993 Clinton signs EO 12866, an anti-regulatory measure that allows the review of all policies by the economic standards of the OMB and promotes the use of market mechanisms to solve regulatory problems.
10/13/1993 USFWS prepares draft guidance on mitigation banking to expand on their 1983 guidance and tide them over until the release of the 1995 interagency banking guidance. It is never released.
1993 COE RGL 93-02 describes interim guidance on banking.
1993 COE and EPA issue a Joint Memorandum (Interim Guidance) on mitigation banking.
1/3/1994 MOA between COE, EPA and NRCS affirming that NRCS is responsible for making all wetland delineations on agricultural lands, and establishing consistent delineation standards.. Clarifies the jurisdictions of the CWA vs. the FSA, giving the SCS the ability to represent the "final government position" on ALL delineations on agricultural land, whether for FSA or CWA purposes.
3/17/1994 Chicago Interagency Coordination Agreement on wetland mitigation banking is signed
3/5/1995 Interagency guidance on banking and in-lieu fees jointly developed by the COE, EPA, NRCS, FWS, and NOAA. Supplants the 1993 guidance.
3/14/1995 Corps publishes RGLs 91-1 through 94-2 in Federal Register, including RGL 93-2 (interim guidance on mitigation banking). [Corps RGLs published en masse]
7/27/1995 NWP issued for Single-Family Housing impacts.
12/13/1996 Reorganization of NWPs: threshold for NWP 26 lowered to 3 acres of nontidal wetland, and announced intent to replace NWP 26 in two years. COE holds that requiring mitigation may be appropriate for some NWPs. This was the first NWP reissuance not to be done as a rulemaking, and not published in the CFR. Since the effective date is 2/11/1997, and the 1991 NWPs expire on 1/21/1997, there was a period of 21 days during which no new permits could issue. [1996 NWPs]
7/1/1998 Corps publishes initial proposal to replace NWP 26 with 6 new NWPs. [1998 July NWPs]
10/14/1998 Corps publishes supplement to July 1998 NWP reorganization, proposing to limit some NWPs in 100-year floodplains, impaired waters, and certain designated critical resource waters. Withdraws proposed NWP for master planned developments. Extends expiry of NWP 26 to 9/15/1999. [1998 Oct NWP notice]
7/21/1999 Draft Revision of NWPs published, revised based on comments from 10/14/98 NWP proposals [1999 July NWPs]
8/23/1999 The EPA revises and clarifies TMDL Load Allocations, opening the real possibility of a trading market in TMDL pollutant concentrations. (But see Benn, 1999)
9/3/1999 Corps extends comment period for NWP revisions of 7/21/1999. Expiry of NWP 26 extended to 1/5/2000. [1999 Sept NWP Notice]
12/15/1999 Corps extends expiry of NWP 26 to 4/14/2000. [1999 Dec NWP Notice]
3/9/2000 Revision and final publication of NWPs. Comments from July 1999 draft NWP are published and comment period is extended to June 2000. Expiry of NWP extended to 6/5/2000. Impacts up to 0.5 acres to nontidal wetlands are now allowed under various other NWPs. COE announces its preference that mitigation for NWPs come from consolidated mitigation approaches, but does not indicate a preference between ILF and WMB. [2000 NWPs]
November 2000 Interagency ILF guidance promulgated by the COE, EPA, FWS and NOAA, reiterating the COE's preference for sequencing, and formalizing the performance standards to which ILF systems must be held. If off-site mitigation must occur, the preference is for WMB over ILF, if the bank has in-kind non-preservation credits.
1/19/2001 EPA guidance on interpreting SWANCC. President Clinton's last day in office.
8/9/2001 Corps proposes reissuance all NWPs. [2001 NWPs]
10/31/2001 Release of the "Halloween RGL" (RGL 01-1), taking a COE-unilateral approach to relaxing the requirements that mitigation be on-site and in-kind. Essentially a reaction to the NRC 2001 report, it provoked outrage from the FWS and EPA.
1/15/2002 Reissuance of NWPs, allowing the filling or dredging of intermittent or dry streams past the 0.5 acre limit. [2002 NWPs]
12/24/2002 Release of "Christmas RGL" by the Corps, a more multilateral reaction to the NRC 2001 report, whereby the FWS and EPA were consulted on ways to make mitigation policies more responsive to watershed needs. It achieved the same effect as the "Halloween RGL": the relaxation of the "on-site, in-kind" requirement, and was therefore advantageous for the prospects of wetland banking.