[Federal Register Volume 77, Number 90 (Wednesday, May 9, 2012)]
[Notices]
[Pages 27210-27214]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-11176]


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DEPARTMENT OF DEFENSE

Department of the Army, Corps of Engineers

[ZRIN 0710-ZA06]


Publication of the Final National Wetland Plant List

AGENCY: U.S. Army Corps of Engineers, Department of Defense.

ACTION: Final Notice.

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SUMMARY: The U.S. Army Corps of Engineers (Corps), as part of an 
interagency effort with the U.S. Environmental Protection Agency (EPA), 
the U.S. Fish and Wildlife Service (FWS) and the U.S. Department of 
Agriculture Natural Resources Conservation Service (NRCS), is 
announcing the availability of the final 2012 National Wetland Plant 
List (NWPL). The NWPL is used to determine whether the hydrophytic 
vegetation parameter is met when conducting wetland determinations 
under the Clean Water Act and the Wetland Conservation Provisions of 
the Food Security Act. Other applications of the list include wetland 
restoration, establishment, and enhancement projects. The list will 
become effective on June 1, 2012 and will be used in any wetland 
delineation performed after this date. Delineations received prior to 
this date may still use the 1988 list, or you may chose to use the 2012 
list. Prior to the effective date, please reference which list was used 
on any wetland delineation/determination forms.

DATES: Effective Date: June 1, 2012.

ADDRESSES: U.S. Army Corps of Engineers, ATTN: CECW-CO-R (Attn: Karen 
Mulligan), 441 G Street NW., Washington, DC 20314-1000.

FOR FURTHER INFORMATION CONTACT: Karen Mulligan, Headquarters, U.S. 
Army Corps of Engineers, Operations and Regulatory Community of 
Practice, Washington, DC 20314-1000, by phone at 202-761-4664 or by 
email at karen.mulligan@usace.army.mil.

SUPPLEMENTARY INFORMATION: The NWPL has undergone significant revisions 
since its inception in 1988. The latest review process began in 2008 
and concluded with twelve rounds of review by regional and national 
panels and external botanical experts voting on the wetland indicator 
statuses and nomenclature changes of over 8,200 plants. Over 130,000 
comments and votes have been received and reviewed, and a final list 
has been compiled.
    In response to the January 6, 2011, Federal Register 76 CFR part 
777, the Corps received 35 written comments (6 percent supported the 
proposal, 11 percent offered no objections or no comments on the 
proposal, 35 percent expressed opposition to the proposal, and 48 
percent raised technical issues). In addition, 16,642 votes on 5,315 
species were made by 377 individuals and were recorded on the NWPL Web 
site. These 377 people also placed 1,159 technical comments on the Web 
site. These represent about 15% of the total comments and votes 
received during the entire review process.
    The wetland plant list used for Clean Water Act purposes was first 
published by the FWS in 1988 and contained 6,728 species. The latest 
list contains 8,200 species, an increase of 1,472 species, or 22 
percent. The majority of the increase in the number of species is a 
result of new taxonomic interpretations. The new list also includes 
changes in plant indicator status (OBL, FACW, FAC, and FACU 
designations) from 1988 for 807 species, or 12 percent of the list (not 
including the new species added to the list). Because of changes in 
geographic boundaries between the former FWS 88 List and the updated 
list, these numbers are reasonable estimates but are not exact. The 
specific break-out of changes were: 35 percent (282 species) were rated 
wetter, 36 percent (290 species) were rated drier and the remaining 30 
percent (235 species) were changes to the former FAC-group. The 
updating procedures designated a more stringent review of the former 
1988 FAC-species. Of these former FAC-species, half were rated FACU and 
the other half was rated as FAC by a panel of 30 external professional 
botanists across all regions. Thus, the overall distribution of changes 
was nearly an equal split between species that received wetter ratings 
and those that received drier ratings.
    The response to the technical comments can be found at: http://wetland_plants.usace.army.mil/. Policy-level comments are summarized 
below.

[[Page 27211]]

    Many of the comments received related to the effects that changing 
plant indicator statuses would have on jurisdictional statuses and 
wetland delineations. Several commenters raised the concern that 
changing all FAC- plants to FAC, coupled with the Wetland Supplemental 
Manual changes, statistically swings the vegetation criterion to a 
wetter regime. The reason for dropping +/- suffixes from the wetland 
ratings for the NWPL relates to the accuracy of the wetland ratings for 
all species. Without real frequency data, it is difficult to adequately 
place species into one of the five wetland indicator status groups with 
any certainty. Adding finer-scale +/- ratings implies there are data to 
support their assignments, which is generally not the case. Therefore, 
to improve the accuracy of the overall list, the National Panel decided 
to drop the +/- suffixes. The indicator statuses of 431 former FAC- 
species nationally were reviewed by external botanists in the third 
round of voting. The new draft ratings for these species are almost 
equally split between the FAC and the FACU categories (Lichvar and 
Gillrich 2011).
    A number of commenters suggested using frequency results from 
wetland delineation forms and/or point intercept data when applying 
plant indicator status(es). As defined by the FWS in the 1988 list, the 
indicator status rating has always been assigned to represent a plant 
species' occurrence in wetlands throughout its range, including all 
occurrences in both uplands and wetlands. Delineation data represent 
only a single landscape position (the wetland boundary), so wetland 
boundary delineation data would not be adequate for assessing a 
species' frequency in wetlands across its range or in all its landscape 
occurrences. Without frequency data for assessing wetland ratings, 
general field observations are not scientifically repeatable nor are 
they the best method for assigning frequency categories. See Lichvar 
and Gillrich (2011) for a discussion of wetland ratings that can occur 
in the absence of properly collected frequency data.
    One commenter stated that redefining the plant indicator statuses 
as proposed is technically indefensible and that the new definitions of 
the categories constitute a double standard. The purpose for redefining 
the plant indicator statuses was twofold. First, the use of the 
probability-of-occurrence categories (e.g. <1%, 1-33%, 34-66%, 67-99% 
and >99%) in wetlands implies that there are data to support the 
ratings, which is generally not true. These categories were based on 
best professional judgment, which, although useful in many 
circumstances, was not appropriate for determining precise percentages. 
Second, the ratings were changed to written definitions so that the 
percentage categories could be reserved specifically for field-based 
statistical studies to challenge a species' rating. The new definitions 
are OBL: Plants that always occur in standing water or in saturated 
soils; FACW: Plants that nearly always occur in areas of prolonged 
flooding or require standing water or saturated soils but may, on rare 
occasions, occur in nonwetlands; FAC: Plants that occur in a variety of 
habitats, including wetland and mesic to xeric nonwetland habitats but 
often occur in standing water or saturated soils; FACU: Plants that 
typically occur in xeric or mesic nonwetland habitats but may 
frequently occur in standing water or saturated soils; UPL: Plants that 
almost never occur in water or saturated soils (Lichvar and Gillrich 
2011). The opportunity to submit the results of a challenge study will 
be offered to all once the list is final. This is discussed further in 
comments below. The new format of written definitions was intended to 
allow the plant indicator statuses to be applied equally and 
consistently in the updating process. The numerical frequency 
categories are now specifically reserved for challenge studies, which 
will be used for select species as the need arises.

Technical Challenges and Process Concerns

    Several commenters expressed concern that the use of an on-line 
voting process to solicit input on indicator status ratings raises 
questions about how votes would be used in the update process, and some 
felt that the process was fatally flawed. ``Voting'' online was the 
most efficient way to obtain technical input from wetland professionals 
about their field observations pertaining to species wetland ratings. 
Online ``voting'' is essentially the same procedure as was used 
previously by the FWS when they held week-long in-person regional panel 
meetings where each agency voted in person. We disagree that the 
process for this effort was fatally flawed. Input received during the 
public comment period was used in several ways. First, if the input 
received matched the draft consensus rating by the regional panels, the 
vote and the commenter's name were recorded and shown on the Web site. 
Second, if the input was different from the draft rating, then those 
species were sent back to the panels for further evaluation. Third, in 
the case of 220 species, the input received during the comment period 
resulted in a revised wetland rating. The ``voting'' process helped 
ensure the process was transparent in that the public was afforded an 
opportunity to provide input into the review process. The voting 
process during the public notice period required that participants 
register prior to voting, by providing a name, email address, and 
institutional affiliation. There were 235 new individuals who made 
4,352 comments in the form of votes online. The registration data 
showed that the largest group of online commenters were environmental 
consultants (107). There were 13 commenters for whom an affiliation 
could not be determined.
    Several commenters suggested that the Corps develop scientifically 
defensible sampling and testing protocols for determining the 
reliability of a species' wetland indicator status. The Corps and the 
National Panel are collaborating with the National Technical Committee 
for Wetland Vegetation (NTCWV) to develop and review reasonable, 
scientifically valid study methods for measuring the frequency of 
occurrences in a wetland for problematic species. Once the final NWPL 
is announced, the peer-reviewed study protocols will be in place and 
available for challenges for any species. This challenge study 
procedure will use field sampling data and statistical methods, and it 
will be limited in geographic scope. This protocol allows for 
challenges that are affordable, yet scientifically sound and peer 
reviewed.
    One commenter requested that the challenge study protocol should be 
subject to full and open evaluation now, not at some future date. 
Furthermore, ``limited but strategic field data'' can produce any 
results that the investigators desire, and, as demonstrated by the lack 
of openness in this notice, will likely not be open to public scrutiny. 
The methodology for the ``challenge study'' is currently being 
developed by the National Panel in collaboration with the other Federal 
agencies and the NTCWV. The NTCWV is working closely with the director 
of the NWPL to design a reasonable, cost-effective, scientifically 
sound method for landscape studies of frequency. The results of this 
effort will be published in a peer-review scientific journal, which 
will allow professional public review of the science. Once testing 
procedures are in place, any problematic species will be evaluated as 
needed using the new challenge study protocols.
    A number of comments were submitted regarding the 1987 Wetland 
Delineation Manual and/or one of the

[[Page 27212]]

regional supplements to the manual and the water table technical 
standard. These comments were outside the scope of this Federal 
Register notice action and are not discussed further here.
    Several people indicated that the Web site was slow and/or 
difficult to use. The Federal Register notice included specific steps 
for accessing the Web site. Slow local Internet access may have 
resulted in difficulties for some individuals. Since this is a 
Department of Defense Web site, security protocol designed to safeguard 
the voting process and prevent fraud may also have created the 
perception of a ``slow'' Web site. The option of providing written 
comments was provided and utilized by many interested parties.
    Another commenter suggested that the NWPL should address native vs. 
non-native species as it relates to indicator status ratings. Such a 
differentiation is unnecessary because the indicator status of a 
species does not change based on whether the plant is native or non-
native.
    One commenter suggested that there should be private-sector wetland 
professionals on the regional or national review panels. This 
individual also suggested applying the challenge protocol to all 
species now. Having private-sector personnel on the regional panels 
would be a legal issue. Under the Federal Advisory Committee Act, 
individuals from the private-sector can be part of Federal committees, 
but only for short durations. Since the update process has taken 
several years and will continue as a ongoing procedure, such an 
involvement would be considered long term. The request to have all 
ratings reviewed and confirmed using field data is not financially or 
logistically possible. As the commenter points out, frequency testing 
is the only real way to generate data that can accurately evaluate the 
frequency of occurrence in wetlands. However, performing such a study 
for each plant on the entire list is not practical. Instead, the 
National Panel will start with those species that people feel are 
problematic and will offer a reasonable study design for executing the 
challenge. The results of these challenge studies will provide insight 
for the entire list.
    Some commenters could not find specific plant species on the NWPL. 
The Species Search function allowed all species on the NWPL to be 
located. Some commenters may have had difficulty because the scientific 
names of many species have changed since 1988. The NWPL uses 
nomenclature (scientific names) according to Kartesz (2009). It is 
estimated that there were 1600 scientific name changes between the 1988 
list and the current NWPL (Lichvar and Kartesz 2009). Also, the 
National Panel removed crop species and obligate epiphytes (defined by 
Lichvar and Fertig 2011) from the NWPL in Round 4 of the update.
    The Corps believes we have adequately reviewed the comments and 
allowed for public and agency input for the proposal. Comments can be 
viewed at http://wetland_plants.usace.army.mil/.
    The updating and maintenance of the NWPL will continue annually. 
Updates will include changes in nomenclature and taxonomy obtained from 
Biota of North America (BONAP), newly proposed species, changes as 
needed based on the results from challenges made to species wetland 
ratings, dataset analyses for regional and national-scale evaluations 
of wetland ratings, re-evaluations of wetland ratings based on GIS and 
floristic provinces analyses, considerations of any new subregions, and 
several continuous quality control steps. These types of updates and 
maintenance steps will follow the same protocols used in the 
development of the 2012 NWPL update. Coordination will occur between 
the national and regional panels, the public and others, and the 
National Technical Committee for Wetland Vegetation as needed.
    The Corps, in cooperation with the USEPA, USFWS and NRCS is 
publishing final indicator statuses for the 2012 NWPL.
    The final NWPL is available at http://wetland_plants.usace.army.mil/ and can be downloaded from this site. This 
completes the review of the NWPL. Final indicator statuses have been 
set and all comments received have been evaluated. The decision 
document for this action is available through Headquarters, U.S. Army 
Corps of Engineers, Operations and Regulatory Community of Practice, 
441 G Street NW., Washington, DC 20314-1000.
    Proposal: Publication of the final 2012 National Wetland Plant 
List.

Administrative Requirements

Plain Language

    In compliance with the principles in the President's Memorandum of 
June 1, 1998, (63 FR 31855) regarding plain language, this preamble is 
written using plain language. The use of ``we'' in this notice refers 
to the Corps. We have also used the active voice, short sentences, and 
common everyday terms except for necessary technical terms.

Paperwork Reduction Act

    The action will not substantially change paperwork burdens on the 
regulated public because the use of 2012 NWPL will merely be 
substituted for the existing 1988 list currently used in the 
application process in jurisdictional determinations. Further, the NWPL 
can be viewed on-line or merged into existing documents (e.g. pick 
lists for delineations/determination forms, and subsequent updates will 
be made electronically.
    An agency may not conduct or sponsor, and a person is not required 
to respond to, a collection of information unless it displays a 
currently valid Office of Management and Budget (OMB) control number. 
For the Corps Regulatory Program under Section 10 of the Rivers and 
Harbors Act of 1899, Section 404 of the Clean Water Act, and Section 
103 of the Marine Protection, Research and Sanctuaries Act of 1972, the 
current OMB approval number for information collection requirements for 
permit applications is maintained by the Corps of Engineers (OMB 
approval number 0710-0003, which expires on August 31, 2012).

Executive Order 12866

    Under Executive Order 12866 (58 FR 51735, October 4, 1993), we 
determined that this is not a ``significant regulatory action'' and 
therefore, it is not subject to review under requirements of the 
Executive Order.

Executive Order 13132

    Executive Order 13132, entitled ``Federalism'' (64 FR 43255, August 
10, 1999), requires the Corps to develop an accountable process to 
ensure ``meaningful and timely input by State and local officials in 
the development of regulatory policies that have federalism 
implications.'' The action does not have federalism implications. We do 
not believe that the action has substantial direct effects on the 
States, on the relationship between the Federal government and the 
States, or on the distribution of power and responsibilities among the 
various levels of government. The action does not impose any additional 
substantive obligations on State or local governments. Therefore, 
Executive Order 13132 does not apply to this action.

Regulatory Flexibility Act, as Amended by the Small Business Regulatory 
Enforcement Fairness Act of 1996, 5 U.S.C. 601 et seq.

    The Regulatory Flexibility Act generally requires an agency to 
prepare a regulatory flexibility analysis of any rule subject to 
notice-and-comment rulemaking requirements under the Administrative 
Procedure Act or any

[[Page 27213]]

other statute unless the agency certifies that the rule will not have a 
significant economic impact on a substantial number of small entities. 
Small entities include small businesses, small organizations, and small 
governmental jurisdictions.
    For purposes of assessing the impacts of the proposed authorization 
on small entities, a small entity is defined as: (1) A small business 
based on Small Business Administration size standards; (2) a small 
governmental jurisdiction that is a government of a city, county, town, 
school district, or special district with a population of less than 
50,000; or (3) a small organization that is any not-for-profit 
enterprise which is independently owned and operated and is not 
dominant in its field.
    After considering the economic impacts of the action on small 
entities, we certify that the updates to the NWPL will not have a 
significant impact on a substantial number of small entities.

Unfunded Mandates Reform Act

    Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public 
Law 104-4, establishes requirements for Federal agencies to assess the 
effects of their regulatory actions on State, local, and tribal 
governments and the private sector. Under Section 202 of the UMRA, the 
agencies generally must prepare a written statement, including a cost-
benefit analysis, for proposed and final rules with ``federal 
mandates'' that may result in expenditures to State, local, and tribal 
governments, in the aggregate, or to the private sector, of $100 
million or more in any one year. Before promulgating a rule for which a 
written statement is needed, Section 205 of the UMRA generally requires 
the agencies to identify and consider a reasonable number of regulatory 
alternatives and adopt the least costly, most cost-effective, or least 
burdensome alternative that achieves the objectives of the rule. The 
provisions of Section 205 do not apply when they are inconsistent with 
applicable law.
    Moreover, Section 205 allows an agency to adopt an alternative 
other than the least costly, most cost-effective, or least burdensome 
alternative if the agency publishes with the final rule an explanation 
of why that alternative was not adopted. Before an agency establishes 
any regulatory requirements that may significantly or uniquely affect 
small governments, including tribal governments, it must have 
developed, under Section 203 of the UMRA, a small government agency 
plan. The plan must provide for notifying potentially affected small 
governments, enabling officials of affected small governments to have 
meaningful and timely input in the development of regulatory proposals 
with significant federal intergovernmental mandates, and informing, 
educating, and advising small governments on compliance with the 
regulatory requirements.
    We have determined that the action does not contain a Federal 
mandate that may result in expenditures of $100 million or more for 
State, local, and Tribal governments, in the aggregate, or the private 
sector in any one year, because the approval of the NWPL is a technical 
list that provides the latest scientifically updated information on 
wetland plant indicator statuses. Therefore, this action is not subject 
to the requirements of Sections 202 and 205 of the UMRA. For the same 
reasons, we have determined that the action contains no regulatory 
requirements that might significantly or uniquely affect small 
governments. Therefore, the action is not subject to the requirements 
of Section 203 of UMRA.

Executive Order 13045

    Executive Order 13045, ``Protection of Children from Environmental 
Health Risks and Safety Risks'' (62 FR 19885, April 23, 1997), applies 
to any rule that: (1) Is determined to be ``economically significant'' 
as defined under Executive Order 12866, and (2) concerns an 
environmental health or safety risk that we have reason to believe may 
have a disproportionate effect on children. If the regulatory action 
meets both criteria, we must evaluate the environmental health or 
safety effects of the proposed rule on children, and explain why the 
regulation is preferable to other potentially effective and reasonably 
feasible alternatives.
    The approval of the NWPL is not subject to this Executive Order 
because it is not economically significant as defined in Executive 
Order 12866. In addition, this action does not concern an environmental 
or safety risk that we have reason to believe may have a 
disproportionate effect on children.

Executive Order 13175

    Executive Order 13175, entitled ``Consultation and Coordination 
with Indian Tribal Governments'' (65 FR 67249, November 6, 2000), 
requires agencies to develop an accountable process to ensure 
``meaningful and timely input by tribal officials in the development of 
regulatory policies that have tribal implications.'' The phrase 
``policies that have tribal implications'' is defined in the Executive 
Order to include regulations that have ``substantial direct effects on 
one or more Indian tribes, on the relationship between the Federal 
government and the Indian tribes, or on the distribution of power and 
responsibilities between the Federal government and Indian tribes.'' 
The action does not have tribal implications. It will not have 
substantial direct effects on tribal governments, on the relationship 
between the Federal government and the Indian tribes, or on the 
distribution of power and responsibilities between the Federal 
government and Indian tribes. Therefore, Executive Order 13175 does not 
apply to this action.

Environmental Documentation

    A decision document has been prepared for this action after all 
comments received were evaluated. The decision document is available 
through Headquarters, U.S. Army Corps of Engineers, Operations and 
Regulatory Community of Practice, 441 G Street NW., Washington, DC 
20314-1000.

Congressional Review Act

    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the 
Small Business Regulatory Enforcement Fairness Act of 1996, generally 
provides that before a rule may take effect, the agency promulgating 
the rule must submit a rule report, which includes a copy of the rule, 
to each House of the Congress and to the Comptroller General of the 
United States. A major rule cannot take effect until 60 days after it 
is published in the Federal Register. The proposed update to the NWPL 
is not a ``major rule'' as defined by 5 U.S.C. 804(2), therefore does 
not apply.

Executive Order 12898

    Executive Order 12898 requires that, to the greatest extent 
practicable and permitted by law, each Federal agency must make 
achieving environmental justice part of its mission. Executive Order 
12898 provides that each federal agency conduct its programs, policies, 
and activities that substantially affect human health or the 
environment in a manner that ensures that such programs, policies, and 
activities do not have the effect of excluding persons (including 
populations) from participation in, denying persons (including 
populations) the benefits of, or subjecting persons (including 
populations) to discrimination under such programs, policies, and 
activities because of their race, color, or national origin.
    Updating the NWPL will not negatively impact human health or the 
environment of any community, and therefore will not cause any 
disproportionately high and adverse human health or environmental 
impacts

[[Page 27214]]

to minority or low-income communities. The purpose of the updates to 
the NWPL are to provide the latest scientific information on the 
indicator statuses of wetland plants.

Executive Order 13211

    The approval of the NWPL is not a ``significant energy action'' as 
defined in Executive Order 13211, ``Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution, or Use'' (66 FR 
28355, May 22, 2001) because it is not likely to have a significant 
adverse effect on the supply, distribution, or use of energy.

Executive Order 13563

    Executive Order 13563 for ``Improving Regulation and Regulatory 
Review'' states, ``[o]ur regulatory system must protect public health, 
welfare, safety, and our environment while promoting economic growth, 
innovation, competitiveness, and job creation.'' and directs federal 
agencies to review existing significant regulations and identify those 
that can be made more effective or less burdensome in achieving 
regulatory objectives. We have determined that the updates to the NWPL 
do not constitute a ``significant regulatory action'' nor is it a 
regulation or rule and therefore, it is not subject to review under 
requirements of the Executive Order.

Authority

    We utilize the NWPL to conduct wetland determinations under the 
authority of Section 404 of the Clean Water Act (33 U.S.C. 1344) and 
Section 10 of the Rivers and Harbors Act of 1899 (33 U.S.C. 401 et 
seq.).

    Dated: May 3, 2012.
Richard C. Lockwood,
Acting Chief, Operations and Regulatory Community of Practice.
[FR Doc. 2012-11176 Filed 5-8-12; 8:45 am]
BILLING CODE 3720-58-P