Vol 13, Number 40
Sometime between July 17 and July 22, 2013 the US Army Corps of Engineers published the 2013 National Wetland Plant List (NWPL) update. If you did not hear about this you are not alone. For the record the 2013 list was not published in the Federal Register. The previous list was published in the Federal Register for the 2012 NWPL. I only found 2013 list by pursing the NWPL website and saw a new link for the 2013 list.
This is a significant change especially in light of this “fact sheet” dated July 22, 2013. The last statement is significant.
“Implementation: The Federal agencies will use the 2013 NWPL on all new Jurisdictional Determinations after September 1, 2013. Any delineations underway using the current list will be accepted, please just reference which list was used in your documentation.”
So what has changed?
In short these are the numbers. The new list contains 7937 plant species, which is a reduction of 263 from the 2012 list. The majority of deletions were the removal of some upland species, taxonomic splits, merged species, and three errors. There were 12 requests for re-evaluation of indicator statuses and in seven of those species, the indicator status changed. All of these modifications accounted for 327 indicator status changes.
Now this may not sound like a big deal however the use of the list is a concern. The implementation statement above could be construed as a “rule.” I assume it is as your delineation will not be accepted if you do not use the new list.
Webster defines a rule as:
- a prescribed guide for conduct or action
- the laws or regulations prescribed by the founder of a religious order for observance by its members
- an accepted procedure, custom, or habit
- a usually written order or direction made by a court regulating court practice or the action of parties
- a legal precept or doctrine
- a regulation or bylaw governing procedure or controlling conduct
So can we assume if we are directed to use the new list that would constitute a rule? The veiled threat that the Corps will not review your delineation seems to constitute a reprimand if you do not follow the rule.
According to the “A Guide to the Rulemaking Process”, prepared by the Office of the Federal Register in 2011, a rule is:
“The proposed rule, or Notice of Proposed Rule Making (PRM), is the official document that announces and explains the agency’s plan to address a problem or accomplish a goal. All proposed rules must be published in the Federal Register to notify the public and to give them an opportunity to submit comments. The proposed rule and the public comments received on it form the basis of the final rule.”
Following the announcement that a new rule is proposed the public is the afforded the opportunity to comment on the rule. This can vary from 30-60 days.
The 2012 list went through the entire rulemaking process. The public comments were published and the draft list was finalized and published in the Federal Register as a final rule on May 9, 2012 (Federal Register / Vol. 77, No. 90).
The 2012 Federal Register notice does address the issue of updates to the 2012 list.
“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, reevaluations 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.”
At issue is the “using the same protocols…” and “Coordination will occur between …the pubic…”
What was put forth in July was a mandate not coordination. Who is the National Technical Committee for Wetland Vegetation and why do they get independent control over this list? I do not believe the intent of the 2012 publication was to give the Corps perpetual and unilateral control over what is and what is not a wetland plant species without any public involvement.
Perhaps you are wondering why I am getting so mad about this list. The issue is that vegetation identification is the most difficult of wetland assessment skills to master. The annual need to keep changing the names and indicators of the plants without any public input adds to the confusion of wetland plant identification. This translates into bad delineations. Virtually none of the commercially published and university published field guides contain the same names of many of the species listed in the 2013 list. Want proof? Look up poison ivy.
For your convenience we have posted all of the Wetland Plant Lists for each Regional Supplement on our Facebook Page. If you would like to download any of these just “like us”, fill out the form and download away. These documents are stored on the Swamp School servers so government shutdown or not you can always get them. Plus, they are FREE! Well they are not really free. You paid for them with your tax dollars, but I am not going to charge you for them. 😉