[Federal Register Volume 81, Number 74 (Monday, April 18, 2016)]
[Notices]
[Pages 22580-22583]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-08917]


=======================================================================
-----------------------------------------------------------------------

DEPARTMENT OF DEFENSE

Department of the Army, Corps of Engineers


National Wetland Plant List

AGENCY: Army Corps of Engineers, DoD.

ACTION: Final notice.

-----------------------------------------------------------------------

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 2016 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 May 1, 2016 and will be used in any wetland 
delineation performed after this date. Delineations received prior to 
this date may still use the 2014 NWPL, or you may choose to use the 
2016 list. Always reference the list used on any wetland delineation/
determination forms.

DATES: The 2016 NWPL will become effective on May 1, 2016.

ADDRESSES: U.S. Army Corps of Engineers, Attn: CECW-CO-R, 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 [email protected].

SUPPLEMENTARY INFORMATION:

Background

    The NWPL has undergone several revisions since its inception in 
1988. The Corps led interagency efforts to update the list in 2012, 
2013, and 2014. The 2012 list contained 7,828 species,

[[Page 22581]]

the 2013 update contained 7,937 species, and the 2014 update contained 
8,061 species. Additions, or deletions, to these lists represent new 
records, range extensions, nomenclatural and taxonomic changes, and 
newly proposed species. The latest review process began in 2015 and 
included the review by Regional Panels (RPs), the National Panel (NP), 
and the public, whom provided input on changes to the wetland indicator 
status of 1,689 species. Four groups of species were examined during 
this update. The first group consisted of rating changes for 25 species 
(including six new additions) that the public requested on the NWPL Web 
site (November 10, 2014 to January 31, 2015) and during the Federal 
Register Comment Period (September 14, 2015 to November 13, 2015). The 
second group consisted of 166 species with highly variable ratings 
spanning more than three ratings categories nationally (e.g., rated 
FACW in the Arid West and UPL in the Caribbean). The third group 
consisted of five nationally problematic species. Initially, the public 
requested a rating change for these five species in one region. 
However, their ratings were re-examined in all regions where they 
occur, based on a NP request (a total of 21 ratings). Seven species 
occurred in more than one of these three groups. The fourth group 
consisted of input received on the wetland ratings of 1,500 species 
that occur in the South Pacific Islands (SPI) subregion. In group one, 
based on public requests for rating changes, 88% of the wetland ratings 
for 25 species were changed on the 2016 NWPL. In group two, species 
with highly variable ratings, the ratings of all of the species were 
changed to some degree. In group three, the nationally problematic 
species, 76% of the 21 ratings were changed for five species. In group 
four, the SPI species, 12.6% of the ratings were changed.
    The NWPL was first published by the FWS in 1988 and first updated 
in 2012 to include 7,828 species. The 2014 update contained 8,061 
species (Lichvar et al. 2014). Four were rated UPL in all regions where 
they occur, so there were a total of 8,057 species that occur in 
wetlands. This update contains 8,092 species, a net change of 35 more 
species (39 species added in the SPI, six new species in the 
Continental U.S. (CONUS), and removal of ten UPL species). These 8,092 
species have 27,984 unique ratings since each can occur in more than 
one of the ten regions. The 2016 list includes changes in plant 
indicator status (OBL, FACW, FAC, FACU and UPL designations) from the 
2014 list for 186 species found in the CONUS. Since these 186 species 
can occur in multiple Corps delineation regions, each having a unique 
rating, there were a total of 306 rating changes. The indicator status 
(rating) represents the likelihood that a particular plant occurs in a 
wetland or upland. The specific breakout of the 306 rating changes was: 
49 percent (150 ratings) were assigned wetter indicator ratings and 51 
percent (156 ratings) species were assigned drier indicator ratings. 
Ratings for 41 species were wetter in one region and drier in another 
region and ratings of three species did not change. In the SPI, there 
were 189 ratings changes, for a grand total of 495 rating changes in 
the entire list. A summary of rating changes by region and the response 
to the technical comments is available at: http://wetland_plants.usace.army.mil/. Policy-level and review process 
comments are summarized below.

Discussion of Public Comments

1. Overview

    In response to the September 14, 2015, Federal Register notice, a 
total of 18 comments were received and reviewed on 50 species from 
eight Corps wetland delineation regions and one subregion. One 
additional comment was submitted by mistake. The Corps received seven 
written comments in response to the September 14, 2015, Federal 
Register 80 CFR number 177. One agency responded that they had no 
comments on the proposed ratings and appreciated the opportunity to 
review the draft NWPL. Three raised technical issues and three 
commented only on species, offering no objections or comments on the 
update, and a total of 36 species were commented on in these six 
letters. Comments on 14 species from 11 individuals were electronically 
submitted on the NWPL Web site. The final 2016 NWPL was compiled based 
on the RP and NP reviews and consideration of the 18 comments received.
General Comments
    Most comments pertained to the rating of specific species in 
several regions, some supported ratings changes and some did not. The 
rationale for all ratings changes is provided in the response to 
technical comments document. One commenter was concerned with the 
inclusion of invasive/non-native species on the NWPL and how ratings 
are assigned to these species. Nativity to a particular region of the 
country is irrelevant for the purpose of assigning wetland indicator 
ratings. Instead, wetland ratings are based on how often a plant 
species is found to occur in wetlands vs. uplands (Lichvar et al. 2012, 
Lichvar and Minkin 2008). For both native and non-native species, 
wetland indicator ratings are assigned based on the NWPL Review 
Standard. The Review Standard involves a review of literature 
citations, herbaria records, and field observations. RPs and NP assign 
final ratings based on this evidence and professional experience.
    Another commenter expressed concerns that the process for 
requesting changes to ratings is a burden on the public with regard to 
time or cost. The time and cost of requesting a rating change is 
minimal and reasonable; an individual or group simply needs to explain 
the rationale behind their proposed rating change in order to begin an 
open dialog on the current wetland rating. The change requests are 
processed by the RPs and NP, through which the NWPL Review Standard is 
applied to the species in question.
    One commenter requested the inclusion of non-governmental, private-
sector and academic experts on the NWPL panels, stating that 
government-only membership prevents the public from benefiting from 
expertise of botanists and other experts who are not federal employees. 
We do not feel that private sector or academic representatives should 
serve on the interagency regional or national panels as voting members. 
We encourage outside entities to provide input into the ratings process 
by providing scientific information, field data, literature reviews, 
and the like during the Federal Register notice process and by 
providing comments on the NWPL Web site. The information obtained can 
be useful to provide ``expertise, knowledge, and clarity'' to the NWPL 
process in this manner and helps inform final NWPL ratings.
    A final concern was the lack of habitat descriptions from the 
literature for many NWPL species. One commenter suggested removing from 
the NWPL all species that lack literature. Another criticized the lack 
of literature from a particular Corps region. The Corps has developed a 
future plan for collecting habitat citations for all the species that 
lack them. Ratings of these species will be re-examined in light of any 
new data according to this timeline: Habitat citations for species that 
occur in the largest number of U.S. counties will be compiled in 2016, 
for review during the 2017 NWPL update. Supporting literature for 
species that occur in fewer counties will be compiled in 2018, for the 
2019 NWPL update. Consistent with the current and past updates to the

[[Page 22582]]

NWPL, we will post the following information to the NWPL Web site: The 
species' current regional rating, RP rating, NP rating, a summary of 
the types of data (e.g., literature and herbaria records) used to 
assign ratings, and the recently acquired literature.
    Supporting documentation will be obtained from trustworthy sources, 
and the use of state, regional, and national floras or peer-reviewed 
journal articles is preferred. Online references and herbarium records 
will expedite data gathering provided the source is reliable. The 
number of citations/records considered adequate will vary with each 
species' range. Species with broad ranges that occur in several Corps 
regions will require more documentation than a species that is endemic 
to one or two counties. Likewise, few regionally specific references 
are available for species whose range recently expanded into a new 
Corps region. For instance, habitat references for species with recent 
range expansions into the South Pacific Islands, and the Caribbean may 
be difficult to obtain. Under these circumstances, citations from 
adjacent states or regions will be considered. During updates these 
citations from adjacent regions may be used to help guide decisions in 
regions that lack habitat citations due to recent range expansions. We 
believe that a minimum of ten citations or herbarium records for each 
species that currently lacks references is adequate for most species. 
Fewer records for rare or endemic species may be acceptable. The Corps 
welcomes public participation in this ongoing effort to improve wetland 
indicator ratings. Recent habitat citations for wetland plant species 
that lack literature may be contributed via email 
([email protected]).
    The Corps believes we have adequately reviewed the comments and 
allowed for public and agency input for the proposal. More extensive 
response to comments can be viewed at http://wetland_plants.usace.army.mil/. Future updates to the NWPL will occur 
biennially according to the following procedures. A change in indicator 
status may be requested at any time at http://wetland_plants.usace.army.mil/ by clicking on the ``Submit a NWPL 
Change Request'' link and submitting the appropriate data. Data 
includes ecological data, literature reviews, frequency and abundance 
data, testing descriptions, and geographic data for the taxon in 
wetlands and uplands in the Corps wetland region or subregion for which 
the change is proposed. The regions and subregions are based on Land 
Resource Regions (LRRs) and Major Land Resource Areas (MLRAs) (http://soils.usda.gov/survey/geography/mlra/) and are shown for each wetland 
supplement region on the NWPL Web site. If the commenter feels that a 
wetland supplement region needs a subregion that has not yet been 
developed, the commenter should identify the MLRAs involved and provide 
a list of species from within that region that need their own wetland 
ratings. In addition to these public requests, biennial updates will 
also include changes in nomenclature and taxonomy, range extensions, 
and newly proposed species. Proposed rating changes will be compiled in 
January of odd years (i.e., 2017, 2019) and sent to the RPs for input 
in February. The NP will assign wetland ratings to non-consensus 
species and will review all regional lists in April. The proposed 
changes will be compiled over the summer and published in the Federal 
Register for public comment in September. In October, public comments 
will be summarized and the National Panel will review and respond to 
comments. The final changes will be published in the Federal Register 
in December of odd years.
    The Corps, in cooperation with the USEPA, USFWS and NRCS, is 
publishing final wetland indicator statuses for the 2016 NWPL. The 
final NWPL is available at http://wetland_plants.usace.army.mil/ and 
state, regional, and national lists can be downloaded from this site. 
This completes the review of the NWPL. All comments received have been 
evaluated and final indicator statuses have been set.

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

    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 is 
maintained by the Corps of Engineers (OMB approval number 0710-0003, 
which expires on August 31, 2015 (extension request currently in 
review). This update will not have an effect on the paperwork burden 
because a wetland delineation is not required for a complete 
application for most permit types. The delineation of special aquatic 
sites for a complete preconstruction notification only applies to 
nationwide permits (NWP) and any additional hours will be included in 
the burden estimate for the 2017 NWP rulemaking.
    The action will not substantially change paperwork burdens on the 
regulated public because the use of 2016 NWPL will merely be 
substituted for the 2014 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.

Executive Orders 12866 and 13563

    Under Executive Order 12866 (58 FR 51735, October 4, 1993) and 
13563 (76 FR 3821), we must determine whether the regulatory action is 
``significant'' and therefore subject to review by OMB and the 
requirements of the Executive Orders. The Executive Orders define 
``significant regulatory action'' as one that is likely to result in a 
rule that may:
    (1) Have an annual effect on the economy of $100 million or more or 
adversely affect in a material way the economy, a sector of the 
economy, productivity, competition, jobs, the environment, public 
health or safety, or State, local, or tribal governments or 
communities;
    (2) Create a serious inconsistency or otherwise interfere with an 
action taken or planned by another agency;
    (3) Materially alter the budgetary impact of entitlements, grants, 
user fees, or loan programs or the rights and obligations of recipients 
thereof; or
    (4) Raise novel legal or policy issues arising out of legal 
mandates, the President's priorities, or the principles set forth in 
the Executive Order.
    Pursuant to the terms of Executive Orders 12866 and 13563, we 
determined that this action is not a ``significant regulatory action'' 
and therefore, it is not subject to review under requirements of the 
Executive Orders.

Executive Order 13132

    Executive Order 13132, entitled ``Federalism'' (64 FR 43255, August 
10, 1999), requires the Corps to develop an

[[Page 22583]]

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 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 issuance and 
modification of NWPs 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 since it 
does not change the Corps' current wetland delineation/identification 
procedures, or the circumstances under which a wetland delineation is 
required to make a decision on a Department of the Army permit 
application. The NWPL is only used to determine if a site has wetland 
plant community and is not the sole factor for determining whether a 
site is a wetland under the Clean Water Act. To be considered a wetland 
under the Clean Water Act, the site must also have wetland hydrology 
and hydric soils.

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 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 NWPL issued today 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. The use of the NWPL is consistent with 
current agency practice, does not impose new substantive requirements 
and therefore 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. 
Therefore, the NWPL issued today is not subject to the requirements of 
Sections 202 and 205 of the UMRA. For the same reasons, we have 
determined that the NWPL update contains no regulatory requirements 
that might significantly or uniquely affect small governments. 
Therefore, the issuance of the NWPL is not subject to the requirements 
of Section 203 of UMRA.

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.

Authority

    We utilize the NWPL in conducting 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: April 5, 2016.
Edward E. Belk, Jr., P.E.,
Chief, Operations and Regulatory Division, Directorate of Civil Works.
[FR Doc. 2016-08917 Filed 4-15-16; 8:45 am]
 BILLING CODE 3720-58-P