The U.S. Army Corps of Engineers (COE), 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 Resource Conservation Service (NRCS) recently announced on May 9, 2012, the availability of the 2012 National Wetland Plant List (NWPL). The NWPL is aimed to help regulators make more accurate categorizations of wetlands and other Waters of the United States (WOUS) under the Clean Water Act and the Wetland Conservation Provisions of the Food Security Act. The 2012 list, which adds more than 1400 plant species to the 1988 NWPL, will be used in any wetland delineation performed after June 1, 2012, and changes the indicator status of many locally common species – usually to the "wetter" side.

How Does the 2012 NWPL Impact Land Development in Virginia?

The 2012 NWPL will potentially expand the wetland boundaries of many development sites throughout the United States by changing many locally common "upland" plants to "wetland" plants. This is compounded by the relatively recent adoption of the Regional Supplements to the 1987 Wetland Delineation Manual, which made all plants that were rated FAC- (upland plants) become FAC (wetland plants) (see Field Notes Vol. 18 No. 9 and Vol. 17 No.1). The third major change for Virginia is that the Commonwealth will be divided by two separate plant indicator lists (as of June 1, 2012); one for the Eastern Mountains and Piedmont Region and one for the Atlantic and Gulf Coastal Plain Region, where previously it was under one list for Region 1 – Northeast. Under this separation, the 2012 NWPL could create differences in the determination of wetland boundaries among these two regions (the boundary is roughly I-95 in northern Virginia) by categorizing certain plant species as wetland indicators in one region and not the other.

There are over 500 plant species with different ratings between the two regions. More importantly, over 150 of these species could affect wetland determinations differently in each Region – potentially expanding wetland boundaries for many Virginia developments.

The following is a short list of locally common species that have had significant changes to their rating (i.e., they could affect the determination of a wetland boundary and have switched from being upland plants to wetland plants):

These plant changes, coupled with the hydric soil indicator changes in the Regional Supplements (i.e., the use of the NRCS hydric soil indicators) which in some cases make certain soils (especially in floodplains and red parent material soils) wetland soils, when they were previously more indicative of uplands will cause some areas previously determined to be "uplands" to now become "wetlands". We are already seeing an increase in the land area meeting the definition of a wetland, and thus subject to the regulation of § 404 of the Clean Water Act, the Virginia Water Protection Program, and as RPA components under the Chesapeake Bay Preservation Act.

This is clearly a controversial set of policy decisions that are only just beginning to be realized by the regulated public.

If you have questions regarding the 2012 NWPL and how it may affect your next project, please contact Ben Rosner, Mike Rolband or Mark Headly.