Twenty-five years ago today, Pacific Legal Foundation submitted testimony to the House of Representatives on proposed revisions to the Army Corps of Engineers’ notorious “1989 Wetlands Delineation Manual.” At that time, the House Subcommittee on Water Resources was holding hearings on the re-authorization of the Clean Water Act. There was much controversy over how to delineate wetlands (plus ça change . . . ).
The origins of the imbroglio lay in the Corps’ promulgation, in 1987, of a delineation manual to assist local Corps officials and the public in identifying wetlands subject to federal regulatory control. This 1987 Manual established a three-criterion approach for wetland delineation. According to this method, an area must bear appropriate indicators of wetland vegetation, soil, and hydrology, to be considered a wetland. But in 1989, the Corps adopted a new manual, in conjunction with other federal agencies (including the EPA). This 1989 Manual, which was promulgated without public notice or an opportunity for comment, radically lowered the bar for delineating wetlands. Consequently, many areas that would not have been considered wetlands under the 1987 Manual were then added to the Corps’ Clean Water Act jurisdiction as a result of the 1989 Manual’s relaxed standards.
Landowners throughout the country objected, and Congress responded accordingly. In the 1992 and 1993 Energy and Water Development Appropriations Acts, Congress forbid the Corps from using the 1989 Manual. Congress also ordered the agency to use the 1987 Manual until a new revised manual should be published, following due opportunities for notice and comment. PLF’s comments at the time focused on the excesses of the 1989 Manual and the better, more restrained method adopted in a then-proposed 1991 Manual. Unfortunately, the Corps never finalized a revised manual. Instead, the agency has “updated” the 1987 Manual through so-called regional “supplements,” which in fact purport to supersede, rather than supplement, the controlling 1987 Manual. PLF’s ongoing case, Tin Cup LLC v. U.S. Army Corps of Engineers, challenges the Corps’ extra-legal supplementation practice in the context of the agency’s radical expansion of its wetlands jurisdiction to Alaskan permafrost.