[Code of Federal Regulations]
[Title 40, Volume 1]
[Revised as of July 1, 2007]
From the U.S. Government Printing Office via GPO Access
[CITE: 40CFR6.1007]
[Page 134-138]
TITLE 40--PROTECTION OF ENVIRONMENT
CHAPTER I--ENVIRONMENTAL PROTECTION AGENCY
PART 6_PROCEDURES FOR IMPLEMENTING THE REQUIREMENTS OF THE COUNCIL ON
ENVIRONMENTAL QUALITY ON THE NATIONAL ENVIRONMENTAL POLICY ACT--
Subpart J_Assessing the Environmental Effects Abroad of EPA Actions
Sec. 6.1007 Implementation.
(a) Oversight. OER is responsible for overseeing the implementation
of these procedures and shall consult with OIA wherever appropriate. OIA
shall be utilized for making formal contacts with the Department of
State. OER shall assist the responsible officials in carrying out their
responsibilities under these procedures.
(b) Information exchange. OER with the aid of OIA, shall assist the
Department of State and the Council on Environmental Quality in
developing the informational exchange on environmental review activities
with foreign nations.
(c) Unidentified activities. The responsible official shall consult
with OER
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and OIA to establish the type of environmental review or document
appropriate for any new EPA activities or requirements imposed upon EPA
by statute, international agreement or other agreements.
Appendix A to Part 6--Statement of Procedures on Floodplain Management
and Wetlands Protection
Contents:
Sec. ion 1 General
Sec. ion 2 Purpose
Sec. ion 3 Policy
Sec. ion 4 Definitions
Sec. ion 5 Applicability
Sec. ion 6 Requirements
Sec. ion 7 Implementation
Sec. ion 1 General
a. Executive Order 11988 entitled ``Floodplain Management'' dated
May 24, 1977, requires Federal agencies to evaluate the potential
effects of actions it may take in a floodplain to avoid adversely
impacting floodplains wherever possible, to ensure that its planning
programs and budget requests reflect consideration of flood hazards and
floodplain management, including the restoration and preservation of
such land areas as natural undeveloped floodplains, and to prescribe
procedures to implement the policies and procedures of this Executive
Order. Guidance for implementation of the Executive Order has been
provided by the U.S. Water Resources Council in its Floodplain
Management Guidelines dated February 10, 1978 (see 40 FR 6030).
b. Executive Order 11990 entitled ``Protection of Wetlands'', dated
May 24, 1977, requires Federal agencies to take action to avoid
adversely impacting wetlands wherever possible, to minimize wetlands
destruction and to preserve the values of wetlands, and to prescribe
procedures to implement the policies and procedures of this Executive
Order.
c. It is the intent of these Executive Orders that, wherever
possible, Federal agencies implement the floodplains/wetlands
requirements through existing procedures, such as those internal
procedures established to implement the National Environmental Policy
Act (NEPA) and OMB A-95 review procedures. In those instances where the
environmental impacts of a proposed action are not significant enough to
require an environmental impact statement (EIS) pursuant to section
102(2)(C) of NEPA, or where programs are not subject to the requirements
of NEPA, alternative but equivalent floodplain/wetlands evaluation and
notice procedures must be established.
Sec. ion 2 Purpose
a. The purpose of this Statement of Procedures is to set forth
Agency policy and guidance for carrying out the provisions of Executive
Orders 11988 and 11990.
b. EPA program offices shall amend existing regulations and
procedures to incorporate the policies and procedures set forth in this
Statement of Procedures.
c. To the extent possible, EPA shall accommodate the requirements of
Executive Orders 11988 and 11990 through the Agency NEPA procedures
contained in 40 CFR part 6.
Sec. ion 3 Policy
a. The Agency shall avoid wherever possible the long and short term
impacts associated with the destruction of wetlands and the occupancy
and modification of floodplains and wetlands, and avoid direct and
indirect support of floodplain and wetlands development wherever there
is a practicable alternative.
b. The Agency shall incorporate floodplain management goals and
wetlands protection considerations into its planning, regulatory, and
decisionmaking processes. It shall also promote the preservation and
restoration of floodplains so that their natural and beneficial values
can be realized. To the extent possible EPA shall:
(1) Reduce the hazard and risk of flood loss and wherever it is
possible to avoid direct or indirect adverse impact on floodplains;
(2) Where there is no practical alternative to locating in a
floodplain, minimize the impact of floods on human safety, health, and
welfare, as well as the natural environment;
(3) Restore and preserve natural and beneficial values served by
floodplains;
(4) Require the construction of EPA structures and facilities to be
in accordance with the standards and criteria, of the regulations
promulgated pursuant to the National Flood Insurance Program;
(5) Identify floodplains which require restoration and preservation
and recommend management programs necessary to protect these floodplains
and to include such considerations as part of on-going planning
programs; and
(6) Provide the public with early and continuing information
concerning floodplain management and with opportunities for
participating in decision making including the (evaluation of) tradeoffs
among competing alternatives.
c. The Agency shall incorporate wetlands protection considerations
into its planning, regulatory, and decisionmaking processes. It shall
minimize the destruction, loss, or degradation of wetlands and preserve
and enhance the natural and beneficial values of wetlands. Agency
activities shall continue to
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be carried out consistent with the Administrator's Decision Statement
No. 4 dated February 21, 1973 entitled ``EPA Policy to Protect the
Nation's Wetlands.''
Sec. ion 4 Definitions
a. Base Flood means that flood which has a one percent chance of
occurrence in any given year (also known as a 100-year flood). This term
is used in the National Flood Insurance Program (NFIP) to indicate the
minimum level of flooding to be used by a community in its floodplain
management regulations.
b. Base Floodplain means the land area covered by a 100-year flood
(one percent chance floodplain). Also see definition of floodplain.
c. Flood or Flooding means a general and temporary condition of
partial or complete inundation of normally dry land areas from the
overflow of inland and/or tidal waters, and/or the unusual and rapid
accumulation or runoff of surface waters from any source, or flooding
from any other source.
d. Floodplain means the lowland and relatively flat areas adjoining
inland and coastal waters and other floodprone areas such as offshore
islands, including at a minimum, that area subject to a one percent or
greater chance of flooding in any given year. The base floodplain shall
be used to designate the 100-year floodplain (one percent chance
floodplain). The critical action floodplain is defined as the 500-year
floodplain (0.2 percent chance floodplain).
e. Floodproofing means modification of individual structures and
facilities, their sites, and their contents to protect against
structural failure, to keep water out or to reduce effects of water
entry.
f. Minimize means to reduce to the smallest possible amount or
degree.
g. Practicable means capable of being done within existing
constraints. The test of what is practicable depends upon the situation
and includes consideration of the pertinent factors such as environment,
community welfare, cost, or technology.
h. Preserve means to prevent modification to the natural floodplain
environment or to maintain it as closely as possible to its natural
state.
i. Restore means to re-establish a setting or environment in which
the natural functions of the floodplain can again operate.
j. Wetlands means those areas that are inundated by surface or
ground water with a frequency sufficient to support and under normal
circumstances does or would support a prevalence of vegetative or
aquatic life that requires saturated or seasonally saturated soil
conditions for growth and reproduction. Wetlands generally include
swamps, marshes, bogs, and similar areas such as sloughs, potholes, wet
meadows, river overflows, mud flats, and natural ponds.
Sec. ion 5 Applicability
a. The Executive Orders apply to activities of Federal agencies
pertaining to (1) acquiring, managing, and disposing of Federal lands
and facilities, (2) providing Federally undertaken, financed, or
assisted construction and improvements, and (3) conducting Federal
activities and programs affecting land use, including but not limited to
water and related land resources planning, regulating, and licensing
activities.
b. These procedures shall apply to EPA's programs as follows: (1)
All Agency actions involving construction of facilities or management of
lands or property. This will require amendment of the EPA Facilities
Management Manual (October 1973 and revisions thereafter).
(2) All Agency actions where the NEPA process applies. This would
include the programs under sections 306/402 of the Clean Water Act
pertaining to new source permitting and section 201 of the Clean Water
Act pertaining to wastewater treatment construction grants.
(3) All agency actions where there is sufficient independent
statutory authority to carry out the floodplain/wetlands procedures.
(4) In program areas where there is no EIS requirement nor clear
statutory authority for EPA to require procedural implementation, EPA
shall continue to provide leadership and offer guidance so that the
value of floodplain management and wetlands protection can be understood
and carried out to the maximum extent practicable in these programs.
c. These procedures shall not apply to any permitting or source
review programs of EPA once such authority has been transferred or
delegated to a State. However, EPA shall, to the extent possible,
require States to provide equivalent effort to assure support for the
objectives of these procedures as part of the State assumption process.
Sec. ion 6 Requirements
a. Floodplain/Wetlands review of proposed Agency actions.
(1) Floodplain/Wetlands Determination-- Before undertaking an Agency
action, each program office must determine whether or not the action
will be located in or affect a floodplain or wetlands. The Agency shall
utilize maps prepared by the Federal Insurance Administration of the
Federal Emergency Management Agency (Flood Insurance Rate Maps or Flood
Hazard Boundary Maps), Fish and Wildlife Service (National Wetlands
Inventory Maps), and other appropriate agencies to determine whether a
proposed action is located in or will likely affect a floodplain or
wetlands. If there is no floodplain/wetlands impact identified, the
action may proceed without further consideration of the remaining
procedures set forth below.
[[Page 137]]
(2) Early Public Notice--When it is apparent that a proposed or
potential agency action is likely to impact a floodplain or wetlands,
the public should be informed through appropriate public notice
procedures.
(3) Floodplain/Wetlands Assessment--If the Agency determines a
proposed action is located in or affects a floodplain or wetlands, a
floodplain/wetlands assessment shall be undertaken. For those actions
where an environmental assessment (EA) or environmental impact statement
(EIS) is prepared pursuant to 40 CFR part 6, the floodplain/wetlands
assessment shall be prepared concurrently with these analyses and shall
be included in the EA or EIS. In all other cases, a floodplain/wetlands
assessment shall be prepared. Assessments shall consist of a description
of the proposed action, a discussion of its effect on the floodplain/
wetlands, and shall also describe the alternatives considered.
(4) Public Review of Assessments--For proposed actions impacting
floodplain/wetlands where an EA or EIS is prepared, the opportunity for
public review will be provided through the EIS provisions contained in
40 CFR parts 6, 25, or 35, where appropriate. In other cases, an
equivalent public notice of the floodplain/wetlands assessment shall be
made consistent with the public involvement requirements of the
applicable program.
(5) Minimize, Restore or Preserve--If there is no practicable
alternative to locating in or affecting the floodplain or wetlands, the
Agency shall act to minimize potential harm to the floodplain or
wetlands. The Agency shall also act to restore and preserve the natural
and beneficial values of floodplains and wetlands as part of the
analysis of all alternatives under consideration.
(6) Agency Decision--After consideration of alternative actions, as
they have been modified in the preceding analysis, the Agency shall
select the desired alternative. For all Agency actions proposed to be in
or affecting a floodplain/wetlands, the Agency shall provide further
public notice announcing this decision. This decision shall be
accompanied by a Statement of Findings, not to exceed three pages. This
Statement shall include: (i) The reasons why the proposed action must be
located in or affect the floodplain or wetlands; (ii) a description of
significant facts considered in making the decision to locate in or
affect the floodplain or wetlands including alternative sites and
actions; (iii) a statement indicating whether the proposed action
conforms to applicable State or local floodplain protection standards;
(iv) a description of the steps taken to design or modify the proposed
action to minimize potential harm to or within the floodplain or
wetlands; and (v) a statement indicating how the proposed action affects
the natural or beneficial values of the floodplain or wetlands. If the
provisions of 40 CFR part 6 apply, the Statement of Findings may be
incorporated in the final EIS or in the environmental assessment. In
other cases, notice should be placed in the Federal Register or other
local medium and copies sent to Federal, State, and local agencies and
other entities which submitted comments or are otherwise concerned with
the floodplain/wetlands assessment. For floodplain actions subject to
Office of Management and Budget (OMB) Circular A-95, the Agency shall
send the Statement of Findings to State and areawide A-95 clearinghouse
in the geographic area affected. At least 15 working days shall be
allowed for public and interagency review of the Statement of Findings.
(7) Authorizations/Appropriations--Any requests for new
authorizations or appropriations transmitted to OMB shall include, a
floodplain/wetlands assessment and, for floodplain impacting actions, a
Statement of Findings, if a proposed action will be located in a
floodplain or wetlands.
b. Lead agency concept. To the maximum extent possible, the Agency
shall relay on the lead agency concept to carry out the provisions set
forth in section 6.a of this appendix. Therefore, when EPA and another
Federal agency have related actions, EPA shall work with the other
agency to identify which agency shall take the lead in satisfying these
procedural requirements and thereby avoid duplication of efforts.
c. Additional floodplain management provisions relating to Federal
property and facilities.
(1) Construction Activities--EPA controlled structures and
facilities must be constructed in accordance with existing criteria and
standards set forth under the NFIP and must include mitigation of
adverse impacts wherever feasible. Deviation from these requirements may
occur only to the extent NFIP standards are demonstrated as
inappropriate for a given structure or facility.
(2) Flood Protection Measures--If newly constructed structures or
facilities are to be located in a floodplain, accepted floodproofing and
other flood protection measures shall be undertaken. To achieve flood
protection, EPA shall, wherever practicable, elevate structures above
the base flood level rather than filling land.
(3) Restoration and Preservation--As part of any EPA plan or action,
the potential for restoring and preserving floodplains and wetlands so
that their natural and beneficial values can be realized must be
considered and incorporated into the plan or action wherever feasible.
(4) Property Used by Public--If property used by the public has
suffered damage or is located in an identified flood hazard area, EPA
shall provide on structures, and other places where appropriate,
conspicuous indicators of past and probable flood height to enhance
public knowledge of flood hazards.
[[Page 138]]
(5) Transfer of EPA Property--When property in flood plains is
proposed for lease, easement, right-of-way, or disposal to non-Federal
public or private parties, EPA shall reference in the conveyance those
uses that are restricted under Federal, State and local floodplain
regulations and attach other restrictions to uses of the property as may
be deemed appropriate. Notwithstanding, EPA shall consider withholding
such properties from conveyance.
Sec. ion 7 Implementation
a. Pursuant to section 2, the EPA program offices shall amend
existing regulations, procedures, and guidance, as appropriate, to
incorporate the policies and procedures set forth in this Statement of
Procedures. Such amendments shall be made within six months of the date
of these Procedures.
b. The Office of External Affairs (OEA) is responsible for the
oversight of the implementation of this Statement of Procedures and
shall be given advanced opportunity to review amendments to regulations,
procedures, and guidance. OEA shall coordinate efforts with the program
offices to develop necessary manuals and more specialized supplementary
guidance to carry out this Statement of Procedures.
[44 FR 64177, Nov. 6, 1976, as amended at 50 FR 26323, June 25, 1985]
