[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: 40CFR6.302]
[Page 108-110]
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 C_Coordination With Other Environmental Review and Consultation
Requirements
Sec. 6.302 Wetlands, floodplains, important farmlands, coastal zones,
wild and scenic rivers, fish and wildlife, and endangered species.
The following procedures shall apply to EPA administrative actions
in programs to which the pertinent statute or executive order applies.
(a) Wetlands protection. Executive Order 11990, Protection of
Wetlands, requires Federal agencies conducting certain activities to
avoid, to the extent possible, the adverse impacts associated with the
destruction or loss of wetlands and to avoid support of new construction
in wetlands if a practicable alternative exists. EPA's Statement of
Procedures on Floodplain Management and Wetlands Protection (dated
January 5, 1979, incorporated as appendix A hereto) requires EPA
programs to determine if proposed actions will be in or will affect
wetlands. If so, the responsible official shall prepare a floodplains/
wetlands assessment, which will be part of the environmental assessment
or environmental impact statement. The responsible official shall either
avoid adverse impacts or minimize them if no practicable alternative to
the action exists.
(b) Floodplain management. Executive Order 11988, Floodplain
Management, requires Federal agencies to evaluate the potential effects
of actions they may take in a floodplain to avoid, to the extent
possible, adverse effects associated with direct and indirect
development of a floodplain. EPA's Statement of Procedures on Floodplain
Management and Wetlands Protection (dated January 5, 1979, incorporated
as appendix A hereto), requires EPA programs to determine whether an
action will be located in or will affect a floodplain. If so, the
responsible official shall prepare a floodplain/wetlands assessment. The
assessment will become part of the environmental assessment or
environmental impact statement. The responsible official shall either
avoid adverse impacts or minimize them if no practicable alternative
exists.
(c) Important farmlands. It is EPA's policy as stated in the EPA
Policy To Protect Environmentally Significant Agricultural Lands, dated
September 8, 1978, to consider the protection of the Nation's
significant/important agricultural lands from irreversible conversion to
uses which result in its loss as an environmental or essential food
production resource. In addition the Farmland Protection Policy Act,
(FPPA) 7 U.S.C. 4201 et seq., requires Federal agencies to use criteria
developed by the Soil Conservation Service, U.S. Department of
Agriculture, to:
(1) Identify and take into account the adverse effects of their
programs on the preservation of farmlands from conversion to other uses;
(2) Consider alternative actions, as appropriate, that could lessen
such adverse impacts; and
(3) Assure that their programs, to the extent possible, are
compatible with State and local government and private programs and
policies to protect farmlands. If an EPA action may adversely impact
farmlands which are classified prime, unique or of State and local
importance as defined in the Act, the responsible official shall in all
cases apply the evaluative criteria promulgated by the U.S. Department
of
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Agriculture at 7 CFR part 658. If categories of important farmlands,
which include those defined in both the FPPA and the EPA policy, are
identified in the project study area, both direct and indirect effects
of the undertaking on the remaining farms and farm support services
within the project area and immediate environs shall be evaluated.
Adverse effects shall be avoided or mitigated to the extent possible.
(d) Coastal zone management. The Coastal Zone Management Act, 16
U.S.C. 1451 et seq., requires that all Federal activities in coastal
areas be consistent with approved State Coastal Zone Management
Programs, to the maximum extent possible. If an EPA action may affect a
coastal zone area, the responsible official shall assess the impact of
the action on the coastal zone. If the action significantly affects the
coastal zone area and the State has an approved coastal zone management
program, a consistency determination shall be sought in accordance with
procedures promulgated by the Office of Coastal Zone Management in 15
CFR part 930.
(e) Wild and scenic rivers. (1) The Wild and Scenic Rivers Act, 16
U.S.C. 1274 et seq., establishes requirements applicable to water
resource projects affecting wild, scenic or recreational rivers within
the National Wild and Scenic Rivers system as well as rivers designated
on the National Rivers Inventory to be studied for inclusion in the
national system. Under the Act, a Federal agency may not assist, through
grant, loan, license or otherwise, the construction of a water resources
project that would have a direct and adverse effect on the values for
which a river in the National System or study river on the National
Rivers Inventory was established, as determined by the Sec. etary of the
Interior for rivers under the jurisdiction of the Department of the
Interior and by the Sec. etary of Agriculture for rivers under the
jurisdiction of the Department of Agriculture. Nothing contained in the
foregoing sentence, however, shall:
(i) Preclude licensing of, or assistance to, developments below or
above a wild, scenic or recreational river area or on any stream
tributary thereto which will not invade the area or unreasonably
diminish the scenic, recreational, and fish and wildlife values present
in the area on October 2, 1968; or
(ii) Preclude licensing of, or assistance to, developments below or
above a study river or any stream tributary thereto which will not
invade the area or diminish the scenic, recreational and fish and
wildlife values present in the area on October 2, 1968.
(2) The responsible official shall:
(i) Determine whether there are any wild, scenic or study rivers on
the National Rivers Inventory or in the planning area, and
(ii) Not recommend authorization of any water resources project that
would have a direct and adverse effect on the values for which such
river was established, as determined by the administering Sec. etary in
request of appropriations to begin construction of any such project,
whether heretofore or hereafter authorized, without advising the
administering Sec. etary, in writing of this intention at least sixty
days in advance, and without specifically reporting to the Congress in
writing at the time the recommendation or request is made in what
respect construction of such project would be in conflict with the
purposes of the Wild and Scenic Rivers Act and would affect the
component and the values to be protected by the Responsible Official
under the Act.
(3) Applicable consultation requirements are found in section 7 of
the Act. The Department of Agriculture has promulgated implementing
procedures, under section 7 at 36 CFR part 297, which apply to water
resource projects located within, above, below or outside a wild and
scenic river or study river under the Department's jurisdiction.
(f) Barrier islands. The Coastal Barrier Resources Act, 16 U.S.C.
3501 et seq., generally prohibits new Federal expenditures or financial
assistance for any purpose within the Coastal Barrier Resources System
on or after October 18, 1982. Specified exceptions to this prohibition
are allowed only after consultation with the Sec. etary of the Interior.
The responsible official shall ensure that consultation is carried out
[[Page 110]]
with the Sec. etary of the Interior before making available new
expenditures or financial assistance for activities within areas covered
by the Coastal Barriers Resources Act in accord with the U.S. Fish and
Wildlife Service published guidelines defining new expenditures and
financial assistance, and describing procedures for consultation at 48
FR 45664 (October 6, 1983).
(g) Fish and wildlife protection. The Fish and Wildlife Coordination
Act, 16 U.S.C. 661 et seq., requires Federal agencies involved in
actions that will result in the control or structural modification of
any natural stream or body of water for any purpose, to take action to
protect the fish and wildlife resources which may be affected by the
action. The responsible official shall consult with the Fish and
Wildlife Service and the appropriate State agency to ascertain the means
and measures necessary to mitigate, prevent and compensate for project-
related losses of wildlife resources and to enhance the resources.
Reports and recommendations of wildlife agencies should be incorporated
into the environmental assessment or environmental impact statement.
Consultation procedures are detailed in 16 U.S.C. 662.
(h) Endangered species protection. Under the Endangered Species Act,
16 U.S.C. 1531 et seq., Federal agencies are prohibited from
jeopardizing threatened or endangered species or adversely modifying
habitats essential to their survival. The responsible official shall
identify all designated endangered or threatened species or their
habitat that may be affected by an EPA action. If listed species or
their habitat may be affected, formal consultation must be undertaken
with the Fish and Wildlife Service or the National Marine Fisheries
Service, as appropriate. If the consultation reveals that the EPA
activity may jeopardize a listed species or habitat, mitigation measures
should be considered. Applicable consultation procedures are found in 50
CFR part 402.
[44 FR 64177, Nov. 6, 1979, as amended at 50 FR 26316, June 25, 1985]
