Federal Register / Vol. 56. No. 157 / Wednesday. August 14. 1991 / Proposed Rules 40447 



demonstrated even without strong 

 evidence of the presence of water. 



5. Concern that actual conditions in 

 the field are not accurately reflected by 

 the method by which the growing 

 season is determined in the 1989 

 Manual. 



6. Concern that the 1989 Manual was 

 developed without meaningful public 

 input. 



In addition, we are specifically 

 interested in input regarding the 

 following issues: 



Issue 1: The proposed Manual 

 explicitly requires that for an area to be 

 delineated as a vegetated wetland it 

 must have three components: wedands 

 hydrology, hydric soil, and hydrophytic 

 vegetation. The Manual establishes 

 criteria for each of these three 

 components. It is essential that the 

 revised Manual allow accurate wedands 

 determinations to be made at any time 

 of the year (Le., areas should not be 

 incorrecUy identified as wetlands 

 because the delineation was conducted 

 during a wet time of year, nor should 

 wedands be identified incorrecUy as 

 upland because the delineation was 

 conducted during normally dry times). 

 The revised Manual clearly must 

 provide the necessary flexibility to 

 perform wedands determinations 

 throughout the year regardless of normal 

 variations in conditions such as 

 seasonal wetness. It is also essential 

 that the revisions to the Manual not 

 exclude obvious, long-recognized 

 wedand types that clearly satisfy the 

 regulatory definition. 



We are soliciting comments on the 

 following alternatives to specifying 

 seasonally harder to identify wedands 

 types: 



(1) Stricdy require use of the three 

 criteria, without exceptions, 



(2) Specifically identify wedand types, 

 including identification of useful 

 wedand indicators, and 



(3) Allow agency staif to use best 

 professional judgement supported by 

 doctunented field evidence to determine 

 whether areas that fail to meet all three 

 criteria are wedands. 



Issue 2: The proposed Manual 

 identifies several secondary indicators 

 of wedands hydrology. We are 

 requesting comments on the technical 

 validity and usefulness of these 

 indicators. 



In addition, we request comments on 

 whether or not water stained leaves, 

 tnmks or stems that are grayish or 

 blackish in appearance as a residt of 

 being under water for significant periods 

 should be included as an indicator of 

 hydrology, their reliability as indicators 

 of hydrology during the growing season. 



and whether they should be a primary or 

 secondary indicators. 



Issue 3: The proposed Manual 

 recognizes that there are examples of 

 wedands which meet the regulatory 

 definition, but which sometimes may 

 meet only two of the three wedand 

 criteria. As described in the revised 

 Manual, these wedands include prairie 

 potholes, vernal pools, playa lakes, 

 pocosins, and other special weUands 

 that fail the hydrophytic vegetation 

 criterion. The proposed Manual 

 identifies these wedands as exceptions, 

 but includes them by specific reference 

 as jurisdictional wedands. We are 

 requesting comments on the technical 

 validity of this approach, whether 

 additional wedand types should be 

 included as exceptions (such as Pitch 

 Pine Lowlands in the.Northeast (New 

 Jersey and Long Island), Jack Pine and 

 White Spruce in Evergreen Forested 

 Swamps of the Northern Midwest, 

 Lodgepole Pine Bogs and Muskegs in the 

 Northwest and Alaska Coasts, Sugar 

 Maple and Paper Birch Swamps and 

 Bogs in the upper Midwest, and Longleaf 

 Pine Wet Savannahs of the Southeast) 

 and recommendations for identifying 

 appropriate indicators for each of the 

 wedand types listed as exceptions. 



Issue 4: The 1989 Manual will remain 

 in effect until the revised Manual 

 becomes final. Agency staff who are 

 making wedand delineations before the 

 revised Manual becomes final, will be 

 advised to apply caution in making 

 wedand delineations that could be 

 potentially inconsistent with these 

 proposed revisions. Any landowner 

 whose land has been delineated a 

 wedand after the revised Manual is 

 proposed but before the proposed 

 revised Manual becomes final may 

 request a new delineation following 

 publication of the final revised ManuaL 

 However, final actions, such as permit 

 issuances or completed enforcement 

 actions, already taken on wedands 

 delineated imder the 1989 Manual will 

 not generally be reopened. In addition, a 

 landowner whose property has been 

 identified as a wetland during a 

 seasonal dry period or drought can 

 request a re-evaluation in the field 

 during the wet season of the year. 



In addition, the agencies are soliciting 

 comment on the likelihood of sites being 

 delineated during the dry season as 

 wedand that, if the delineation had 

 occiured during the wet season, would 

 not have met the hydrology criterion. 

 Should requests for re-evaluations be 

 limited to certain cases or should all 

 requests be granted? 



Issue 5: The agencies are particularly 

 interested in soliciting comments on 

 including the Facultative Neutral test as 



part of the hydrophytic vegetation 

 criterion in addition to the proposed 

 prevalence index approach. Under this 

 approach the criterion would be met if 

 after discounting all dominant 

 facultative (FAC) plants, thenumber of 

 dominant obligate wedand (OBL) and 

 facxdtative wedand (FACW) species 

 exceeds the number of dominant 

 facultative upland (FACU) and obligate 

 upland (UPL) species. 



(Note: When a lie occurs or all dominant 

 species are FAC the prevalence index 

 procedure will be used.) 



The agencies are also interested in 

 soliciting comments on variants of the 

 FAC Neutral test including one or more 

 of the following: 



(1) When there are not more than a 

 one species difference between the 

 number of OBL/FACW species and the 

 number of FACU/UPL species (e.g.. 8 vs 

 7 or 4 vs 3), the prevalence index will be 

 used. 



(2) When there are only four or less 

 non-FAC dominant species in all strata, 

 the prevalence index wall be used. 



(3) OBL and UPL species vnll be given 

 twrice die weight as FACU and FACW 

 when calc\dating number of wedand 

 and upland species in the FAC neutral 

 test (e.g., 3 OBL (x2) -f- 2 FACW (xl) = 

 8>6 FACU (xl) -I- UPL (x2) = 6 (FAC 

 still neutral)). 



(4) Change the lower cutoff for 

 including a vegetational type (e.g.. trees 

 or shrubs) as a valid stratum from five 

 percent to two percent for areal cover. 



(5) When more dian 50% of die 

 dominant species are FAC the 

 prevalence index procedure will be 

 used. 



(6) Change the lower cutoff for 

 including additional dominant species 

 beyond the 50% predominance level 

 from twenty percent to ten percent of 

 the strata. 



The FAC neutral test is less 

 burdensome and quicker to perform 

 than the prevalence index because it 

 requires an evaluation of only the 

 dominant species and not all plants. 

 This could result in substantial resource 

 savings and quicker permit reviews. 

 Many believe that die FAC neutral test 

 is reliable in most situations. The 

 agencies are interested in any 

 information about die reliability of the 

 FAC neutral test to demonstrate the 

 presence or absence of hydrophytic 

 vegetation. To the extent commentors 

 believe there are weaknesses to the 

 FAC neutral test do any of the 

 suggested six variants (or variations to 

 them) alone or in combination improve 

 the tests's reliability sufficiendy for use 

 in measuring hydrophytic vegetation? 



