[Federal Register: August 27, 2003 (Volume 68, Number 166)]
[Rules and Regulations]
[Page 51429-51436]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr27au03-1]
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[[Page 51429]]
DEPARTMENT OF ENERGY
10 CFR Parts 1021 and 1022
RIN 1901-AA94
Compliance With Floodplain and Wetland Environmental Review
Requirements
AGENCY: Department of Energy.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: The Department of Energy (DOE) is revising its floodplain and
wetland environmental review requirements to add flexibility and remove
unnecessary procedural burdens by simplifying DOE public notification
procedures for proposed floodplain and wetland actions, exempting
additional actions from the floodplain and wetland assessment
provisions of these regulations, providing for immediate action in an
emergency, expanding the existing list of sources that may be used in
determining the location of floodplains and wetlands, and allowing
floodplain and wetland assessments for actions proposed to be taken
under the Comprehensive Environmental Response, Compensation, and
Liability Act (CERCLA) to be coordinated with the CERCLA environmental
review process rather than the National Environmental Policy Act (NEPA)
process. DOE also is making a conforming change to its NEPA
implementing regulations to allow for issuance of a floodplain
statement of findings in a final environmental impact statement (EIS)
or separately.
EFFECTIVE DATE: These rule changes will become effective September 26,
2003.
FOR FURTHER INFORMATION CONTACT: For information regarding DOE's
regulations for compliance with floodplain and wetland environmental
review requirements or this rulemaking, or for copies of the final
rule, contact Carolyn M. Osborne, U.S. Department of Energy, Office of
NEPA Policy and Compliance, 1000 Independence Avenue, SW., Washington,
DC 20585-0119. Telephone (202) 586-4600 or leave a message at (800)
472-2756; facsimile to (202) 586-7031; e-mail to
carolyn.osborne@eh.doe.gov. The final rule also will be available after
the effective date specified above on the DOE NEPA Web at http://tis.eh.doe.gov/nepa
.
For information on DOE's NEPA process, contact Carol M. Borgstrom,
Director, Office of NEPA Policy and Compliance, at the above address
and telephone numbers.
SUPPLEMENTARY INFORMATION:
I. Background
We published on November 18, 2002 (67 FR 69480), proposed revisions
to our regulations entitled ``Compliance with Floodplain/Wetlands
Environmental Review Requirements'' (10 CFR Part 1022), which were
promulgated originally on March 7, 1979 (44 FR 12596), to implement the
requirements of Executive Order (E.O.) 11988, ``Floodplain Management''
(42 FR 2951; May 24, 1977), and E.O. 11990, ``Protection of Wetlands''
(42 FR 26961; May 24, 1977). We also published in our November 18,
2002, Federal Register notice a proposed conforming change to our
``National Environmental Policy Act Implementing Procedures'' (10 CFR
1021.313).
Publication of the Notice of Proposed Rulemaking began a 60-day
public comment period, ending January 17, 2003. Comments were received
from three sources: A State, a county, and a member of the public.
Copies of these comments are available for public inspection at the DOE
Freedom of Information Office Reading Room, Room 1E-190, Forrestal
Building, 1000 Independence Avenue, SW., Washington, DC 20585-0101,
(202) 586-3142, between 9 a.m. and 4 p.m., Monday through Friday,
except Federal holidays.
This document adopts the revisions proposed on November 18, 2002,
with certain changes discussed below, and codifies them at 10 CFR parts
1021 and 1022. In accordance with 40 CFR 1507.3, the Council on
Environmental Quality (CEQ) reviewed this notice of final rulemaking
and concluded that the proposed amendment to the DOE regulations
implementing NEPA is in conformance with NEPA and the CEQ regulations.
The Secretary of Energy has approved this notice of final rulemaking
for publication.
II. Statement of Purpose
We are revising 10 CFR part 1022 based on our experience
implementing the existing requirements for over 20 years. We expect
these changes to improve our ability to meet our goals for floodplain
and wetland protection in a timely and cost-effective manner. We are
revising 10 CFR 1021.313 to conform with 10 CFR 1022.14(c) by allowing
floodplain statements of findings to be issued in a final EIS or
separately.
The major revisions we are implementing will: (1) Simplify our
public notification procedures for proposed floodplain and wetland
actions by emphasizing local publication as opposed to publication in
the Federal Register, (2) exempt additional actions from the floodplain
and wetland assessment provisions of these regulations, (3) provide for
immediate action in an emergency with documentation to follow, (4)
expand the existing list of credible sources that may be used in
determining the location of floodplains and wetlands, and (5) allow
floodplain and wetland assessments for actions proposed to be taken
under CERCLA to be coordinated with the CERCLA environmental review
process rather than the NEPA process. The revisions also will make the
rule easier to use by reordering sections to parallel the assessment
process, clarifying requirements (such as the differences between
floodplain and wetland actions and their respective assessment
requirements), and simplifying the rule by deleting provisions that are
no longer applicable. The revisions streamline existing procedures and
add no new requirements.
III. Comments Received and DOE's Responses
We have considered and evaluated the comments received during the
public comment period. A number of revisions suggested in these
comments have been incorporated into the final rule. The following
discussion describes the comments received, provides our response to
the comments, and describes any resulting changes to the rule. We also
have made editorial and stylistic revisions for clarity and
consistency.
[[Page 51430]]
A. General Comments
In addition to a comment supporting our intent to simplify and
restructure the rule, we received one comment objecting to our
streamlining effort on the ground that it would make it easier to
sabotage environmental protection before the public could know about
potential impacts. This comment is speculative. It does not provide any
example to show a potentially adverse effect from any of the proposed
amendments to the regulations in 10 CFR parts 1021 and 1022. We believe
the revised rule will improve our ability to meet our goals for
floodplain and wetland protection. We will be able to focus our
resources, and those of the public, on the types of proposed actions
that our experience demonstrates are most likely to benefit from an
examination of alternatives and mitigating measures and increase the
efficiency of our environmental reviews (thereby, for example, allowing
earlier identification of mitigation actions).
We received a comment pointing to DOE's obligation to comply with
the Coastal Zone Management Act, NEPA, and applicable state laws and
regulations. We recognize our legal responsibilities and note that it
is the intent of the E.O.'s upon which this regulation is based, and
the regulation itself, that implementation be coordinated, and when
appropriate, integrated with procedures for implementing other
requirements, such as those of NEPA. (See Sec. Sec. 1022.1(b) and
1022.2(b).) We also note that this rulemaking is not a proposal to
conduct any activity that would affect any coastal resource. We will
comply with 10 CFR part 1022 and all other applicable requirements if
we propose any such activity in the future.
B. Comments on Definitions (Sec. 1022.4)
Two comments requested clarification of ``effects of national
concern'' as used in determining whether we are required to publish in
the Federal Register a notice of proposed action (Sec. 1022.12(b)) or
a floodplain statement of findings (Sec. 1022.14(e)). In response, we
have added a definition to state that effects of national concern are
those effects that because of the high quality or function of the
affected resource or because of the wide geographic range of effects
could create concern beyond the locale or region of the proposed
action. The lack of potential effects of national concern does not
excuse us from our public notification and participation
responsibilities (Sec. Sec. 1022.3(e), 1022.12, and 1022.14).
C. Comments on Exemptions (Sec. 1022.5)
One comment recommended that we define terms associated with the
exemptions described in Sec. 1022.5(d) to ``ensure that the activities
contemplated by the proposed rule changes will have only minimal and
temporary adverse impacts on the aquatic environment.'' We do not
believe it is practical or useful to attempt to define all the
activities that might fall within the rule's three exemptions. We have,
however, added examples for each exemption.
The rule now states that routine maintenance activities (Sec.
1022.5(d)(1)) are those, such as reroofing, plumbing repair, and door
and window replacement, needed to maintain and preserve existing
facilities and structures for their designated purpose. We believe that
the restrictive conditions stated in Sec. 1022.5(d)(2) and Sec.
1022.5(d)(3) help describe the types of activities that could be
exempted, but also have added examples in both sections. For site
characterization, environmental monitoring, or environmental research
activities (Sec. 1022.5(d)(2)), the rule now includes the examples of
sampling and surveying water and air quality, flora and fauna
abundance, and soil properties. For minor modification of an existing
facility or structure to improve safety or environmental conditions
(Sec. 1022.5(d)(3)), the rule now includes the examples of upgrading
lighting, heating, ventilation, and air conditioning systems;
installing or improving alarm and surveillance systems; and adding
environmental monitoring or control systems.
D. Comments on Public Notification and Information Dissemination
(Sec. Sec. 1022.12 and 1022.14)
We received one comment asking that, when providing public
notification, consideration be given to the interest of state
government, in addition to local interest, in a proposed action. This
has been our practice and is our intent. For clarification, in this
final rule, we have added the parenthetical phrase ``(e.g., FEMA
[Federal Emergency Management Agency, Department of Homeland Security]
regional offices, host and affected states, and tribal and local
governments)'' after ``government agencies'' in Sec. Sec. 1022.12(b)
and 1022.14(d). Distribution to these parties, and to others as
appropriate for a specific proposed action, facilitates public
participation.
One comment questioned whether language in Sec. 1022.14(f) would
limit distribution of floodplain statements of findings to only those
state agencies identified in a particular list of state contacts
maintained by the Office of Management and Budget. To clarify our
intent to continue to distribute statements of findings to parties
interested in or potentially affected by a proposed action, in Sec.
1022.14(f) of the final rule, we have added the word ``also.'' The rule
now states that for actions subject to E.O. 12372, ``Intergovernmental
Review of Federal Programs,'' DOE ``also'' shall send the floodplain
statement of findings to the state in accordance with 10 CFR part 1005
(DOE's regulations for implementing the E.O.).
With regard to a comment that DOE must establish contacts and
maintain current information on them, DOE Order 451.1B, ``National
Environmental Policy Act Compliance Program,'' requires each DOE
Program and Field Office with NEPA responsibilities to have a Public
Participation Plan. With regard specifically to state contacts, we
established ongoing relationships with State Clearinghouses in 1990
through contact with the Governors, and we update our State
Clearinghouse contacts in the ``Directory of Potential Stakeholders for
Department of Energy Action under the National Environmental Policy
Act,'' which is distributed broadly within the Department and made
available on the DOE NEPA Web site (http://tis.eh.doe.gov/nepa/guidance.html
, under ``Public Participation'').
One comment opposed our change to allow discretion in whether to
include a floodplain statement of findings within a final EIS. We agree
with the commenter that information relevant to potential floodplain
and wetland impacts is integral to the evaluation of a proposed action
and alternatives within an EIS. A final EIS would consider those
impacts and mitigations. For example, both the final EIS and the
floodplain assessment would evaluate mitigation measures to minimize
harm to or within the floodplain. Nonetheless, a floodplain statement
of findings may be issued separately as there may be times when it is
not appropriate to incorporate the statement within the final EIS
(e.g., when steps to be taken to minimize harm are not determined until
after the final EIS is issued, or a phased decision involving
sequential records of decision is being made and the findings would not
be relevant to the initial record of decision). Moreover, E.O. 11988,
upon which the floodplain management portions of this regulation are
based, does not specify when in the NEPA process the statement of
findings
[[Page 51431]]
should be published, and E.O. 11990, which addresses wetlands
protection, does not require a statement of findings. The E.O.'s allow
Federal agencies substantial latitude in implementing the requirements
as deemed most appropriate for individual agencies.
E. Comments on Variances (Sec. 1022.16)
One comment sought clarification of the conditions under which we
could waive time limits between various steps in the floodplain or
wetland environmental review process and requested a definition of
emergency actions and emergency situations. The rule allows us to alter
the floodplain or wetland assessment process in response to emergencies
and in some non-emergency situations.
Section 1022.16(a) allows us to take immediate action in the event
of an emergency, forgoing the assessment process required by this rule
until after the emergency has been addressed. We will continue to
determine what constitutes an emergency (an emergency action or
emergency situation) on a case-by-case basis, as is consistent with the
manner in which an emergency has been declared in the past in regard to
compliance with these and other requirements (e.g., NEPA). We have
declared only three emergency exceptions to our NEPA procedures in the
past 25 years.
Section 1022.16(b) allows shortening the review process in non-
emergency situations in response to ``statutory deadlines or overriding
considerations of program or project expense or effectiveness.'' This
section does not allow any exception from completing a required
floodplain or wetland assessment nor from following any other provision
of this rule or any other applicable requirement before taking action.
This provision has been in place since we first promulgated our
floodplain and wetland environmental review requirements in 1979, and
in practice, we have not experienced difficulty in its implementation.
The comment also asked who determines whether a variance is to be
granted. The cognizant DOE official responsible for NEPA or CERCLA
implementation, as applicable, normally would consult with the Office
of NEPA Policy and Compliance pursuant to Sec. 1022.16(c) before
determining whether to grant a variance.
F. Other Revisions
Notable among the editorial and stylistic revisions we made are
changes to the definitions of ``floodplain and wetland values'' and
``critical action floodplain'' in Sec. 1022.4. We reorganized the
examples of floodplain and wetland values to improve readability.
We have added to the definition of critical action floodplain a
clarification that was included in the preamble to this proposed rule
in November 2002. This clarification regards when we will consider a
flood with an expected frequency of less than once in a 500-year
period, and thus a larger floodplain, in evaluating potential impacts
associated with a critical action (i.e., any DOE action for which even
a slight chance of flooding would be too great). In this final rule,
and as proposed, we define a critical action floodplain as ``at a
minimum, the 500-year floodplain, that is, a floodplain with a 0.2
percent chance of flooding in any given year.'' To this, we have added
the clarification that when another requirement applicable to the
proposed action requires evaluation of a less frequent flood (i.e., a
more severe flood that would inundate a larger floodplain), then we may
use the less frequent flood to determine the floodplain for purposes of
this rule. For example, where the safety basis documentation under 10
CFR part 830 for a proposed action requires consideration of a 100,000-
year flood, then the 100,000-year floodplain could be the critical
action floodplain for the proposed action for purposes of this rule.
IV. Procedural Review Requirements
A. Review Under Executive Order 12866
This rule has been determined not to be a ``significant regulatory
action'' under E.O. 12866, ``Regulatory Planning and Review'' (58 FR
51735; October 4, 1993), as amended by E.O. 13258 (67 FR 9385; February
28, 2002). Accordingly, today's final regulatory action was not subject
to review under that E.O. by the Office of Information and Regulatory
Affairs of the Office of Management and Budget.
B. Review Under Executive Order 12988
With respect to the review of existing regulations and the
promulgation of new regulations, section 3(a) of E.O. 12988, ``Civil
Justice Reform'' (61 FR 4779; February 7, 1996) imposes on Federal
agencies the general duty to adhere to the following requirements:
Eliminate drafting errors and needless ambiguity, write regulations to
minimize litigation, provide a clear legal standard for affected
conduct rather than a general standard, and promote simplification and
burden reduction. Section 3(b) requires Federal agencies to make every
reasonable effort to ensure that a regulation, among other things:
Clearly specifies the preemptive effect, if any, adequately defines key
terms, and addresses other important issues affecting the clarity and
general draftsmanship under guidelines issued by the Attorney General.
Section 3(c) of E.O. 12988 requires Executive agencies to review
regulations in light of applicable standards in section 3(a) and
section 3(b) to determine whether they are met or it is unreasonable to
meet one or more of them. DOE has completed the required review and
determined that, to the extent permitted by law, the final rule meets
the relevant standards of E.O. 12988.
C. Review Under Executive Order 13132
Today's regulatory action has been determined not to be a ``policy
that has federalism implications,'' that is, it does not have
substantial direct effects on the states, on the relationship between
the national government and the states, nor on the distribution of
power and responsibility among the various levels of government under
E.O. 13132, ``Federalism'' (64 FR 43255; August 10, 1999). Accordingly,
no ``federalism summary impact statement'' was prepared or subjected to
review under the E.O. by the Director of the Office of Management and
Budget.
D. Review Under Executive Order 13175
Under E.O. 13175 (65 FR 67249; November 9, 2000) on ``Consultation
and Coordination with Indian Tribal Governments,'' DOE may not issue a
discretionary rule that has ``tribal implications'' and imposes
substantial direct compliance costs on Indian tribal governments. DOE
has determined that this rule would not have such effects and concluded
that E.O. 13175 does not apply to this rule.
E. Review Under the Regulatory Flexibility Act
The revisions to the existing regulations have been reviewed under
the Regulatory Flexibility Act of 1980 (5 U.S.C.601 et seq.) and
related provisions of E.O. 13272, ``Proper Consideration of Small
Entities in Agency Rulemaking'' (67 FR 53461; August 16, 2002) and
DOE's procedures and policies (68 FR 7990; February 19, 2003). The Act
requires preparation of an initial regulatory flexibility analysis for
any regulation that is likely to have a significant economic impact on
a substantial number of small entities. Today's revisions to 10 CFR
parts 1021 and 1022 amend DOE policies and streamline existing
procedures for environmental review of actions proposed in a floodplain
or wetland under two E.O.s. The actions would
[[Page 51432]]
neither increase the incidence of floodplain and wetland assessments
nor increase burdens associated with carrying out such an assessment.
Therefore, DOE certifies that this rule will not have a significant
economic impact on a substantial number of small entities, and
therefore, no regulatory flexibility analysis has been prepared. We
received no comments on our decision not to prepare a regulatory
flexibility analysis.
F. Review Under the Paperwork Reduction Act
No additional information or recordkeeping requirements are imposed
by this rulemaking. The changes would actually reduce paperwork
requirements by eliminating a requirement that public notices always be
published in the Federal Register and by increasing the number of
exemptions from requirements for preparing a floodplain or wetland
assessment. Accordingly, no clearance by the Office of Management and
Budget was required under the Paperwork Reduction Act (44 U.S.C. 3501
et seq.).
G. Review Under the National Environmental Policy Act
DOE has concluded that promulgation of these revisions to existing
regulations falls into a class of actions that would not individually
or cumulatively have a significant impact on the human environment, as
determined by DOE's regulations implementing the National Environmental
Policy Act of 1969 (42 U.S.C. 4321 et seq.). Specifically, the
revisions to 10 CFR parts 1021 and 1022 would amend DOE's policies to
streamline and simplify existing procedures for environmental review of
actions proposed in a floodplain or wetland under two E.O.s. The
proposed regulations are covered under the categorical exclusion in
paragraph A6, ``Rulemakings, Procedural'' (rulemakings that are
strictly procedural) to Appendix A to subpart D, 10 CFR part 1021.
Accordingly, neither an environmental assessment nor an EIS is
required.
H. Review Under the Unfunded Mandates Reform Act
Title II of the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-
4) requires each Federal agency to prepare a written assessment of the
effects of any Federal mandate in a proposed or final agency regulation
that may result in the expenditure by state, tribal, or local
governments, on the aggregate, or by the private sector, of $100
million in any one year. The Act also requires a Federal agency to
develop an effective process to permit timely input by elected
officials of state, tribal, or local governments on a proposed
``significant intergovernmental mandate,'' and requires an agency plan
for giving notice and opportunity to provide timely input to
potentially affected small governments before establishing any
requirements that might significantly or uniquely affect small
governments. DOE has determined that the revisions to 10 CFR parts 1021
and 1022 published today do not contain any Federal mandates affecting
small governments, so these requirements do not apply.
I. Review Under Executive Order 13211
E.O. 13211, ``Actions Concerning Regulations That Significantly
Affect Energy Supply, Distribution, or Use'' (66 FR 28355; May 22,
2001) requires Federal agencies to prepare and submit to the Office of
Information and Regulatory Affairs in the Office of Management and
Budget a Statement of Energy Effects for any significant energy action.
Today's rule is not a significant energy action, as that term is
defined in the E.O. Accordingly, DOE has not prepared a Statement of
Energy Effects.
J. Review Under the Treasury and General Government Appropriations Act
Section 654 of the Treasury and General Government Appropriations
Act of 1999 (Pub. L. 105-277) requires Federal agencies to issue a
``Family Policymaking Assessment'' for any proposed rule that may
affect family well-being. This rule has no impact on the autonomy or
integrity of the family as an institution. Accordingly, DOE has
concluded that it is not necessary to prepare a Family Policymaking
Assessment.
K. Review Under the Treasury and General Government Appropriations Act,
2001
The Treasury and General Government Appropriations Act, 2001 (44
U.S.C. 3516, note) provides for agencies to review most dissemination
of information to the public under guidelines established by each
agency pursuant to general guidelines issued by the Office of
Management and Budget. The Office ofManagement and Budget guidelines
were published at 67 FR 8452 (February 22, 2002), and DOE's guidelines
were published at 67 FR 62446 (October 7, 2002). DOE has reviewed
today's notice under the Office of Management and Budget and DOE
guidelines, and has concluded that it is consistent with applicable
policies in those guidelines.
L. Congressional Notification
As required by 5 U.S.C. 801, DOE will submit to Congress a report
regarding the issuance of today's final rule prior to the effective
date set forth at the outset of this notice. The report will state that
is has been determined that the rule is not a ``major rule'' as defined
by 5 U.S.C. 801(2).
List of Subjects in 10 CFR Parts 1021 and 1022
Floodplains, Wetlands.
Issued in Washington, DC, August 19, 2003.
Beverly A. Cook,
Assistant Secretary, Environment, Safety and Health.
0
For the reasons set forth in the preamble, parts 1021 and 1022 of
chapter III of title 10, Code of Federal Regulations, are amended as
follows:
PART 1021--NATIONAL ENVIRONMENTAL POLICY ACT IMPLEMENTING
PROCEDURES
0
1. The authority citation for part 1021 is revised to read as follows:
Authority: 42 U.S.C. 7101 et seq.; 42 U.S.C. 4321 et seq.; 50
U.S.C. 2401 et seq.
Sec. 1021.313 [Amended]
0
2. In Sec. 1021.313, paragraph (c), the last sentence is amended as
follows:
0
a. Remove the word ``shall'' and add in its place the word ``may''.
0
b. Remove the phrase ``Floodplain/Wetlands'' and add in its place
``Floodplain and Wetland''.
0
c. Remove the period and add the words ``, or a Statement of Findings
may be issued separately.'' at the end of the sentence.
PART 1022--COMPLIANCE WITH FLOODPLAIN/WETLANDS ENVIRONMENTAL REVIEW
REQUIREMENTS
0
3. Part 1022 is revised to read as follows:
PART 1022--COMPLIANCE WITH FLOODPLAIN AND WETLAND ENVIRONMENTAL
REVIEW REQUIREMENTS
Subpart A--General
Sec.
1022.1 Background.
1022.2 Purpose and scope.
1022.3 Policy.
1022.4 Definitions.
1022.5 Applicability.
1022.6 Public inquiries.
[[Page 51433]]
Subpart B--Procedures for Floodplain and Wetland Reviews
1022.11 Floodplain or wetland determination.
1022.12 Notice of proposed action.
1022.13 Floodplain or wetland assessment.
1022.14 Findings.
1022.15 Timing.
1022.16 Variances.
1022.17 Follow-up.
Subpart C--Other Requirements
1022.21 Property management.
1022.22 Requests for authorizations or appropriations.
1022.23 Applicant responsibilities.
1022.24 Interagency cooperation.
Authority: 42 U.S.C. 7101 et seq.; 50 U.S.C. 2401 et seq.; E.O.
11988, 42 FR 26951, 3 CFR, 1977 Comp., p. 117; E.O. 11990, 42 FR
26961, 3 CFR, 1977 Comp., p. 121; E.O. 12372, 47 FR 30959, 3 CFR,
1982 Comp., p. 197.
Subpart A--General
Sec. 1022.1 Background.
(a) Executive Order (E.O.) 11988--Floodplain Management (May 24,
1977) directs each Federal agency to issue or amend existing
regulations and procedures to ensure that the potential effects of any
action it may take in a floodplain are evaluated and that its planning
programs and budget requests reflect consideration of flood hazards and
floodplain management. Guidance for implementation of the E.O. is
provided in the floodplain management guidelines of the U.S. Water
Resources Council (40 FR 6030; February 10, 1978) and in ``A Unified
National Program for Floodplain Management'' prepared by the Federal
Interagency Floodplain Management Taskforce (Federal Emergency
Management Agency, FEMA 248, June 1994). E.O. 11990--Protection of
Wetlands (May 24, 1977) directs all Federal agencies to issue or amend
existing procedures to ensure consideration of wetlands protection in
decisionmaking and to ensure the evaluation of the potential impacts of
any new construction proposed in a wetland.
(b) It is the intent of the E.O.s that Federal agencies implement
both the floodplain and the wetland provisions through existing
procedures such as those established to implement the National
Environmental Policy Act (NEPA) of 1969 (42 U.S.C. 4321 et seq.). In
those instances where the impacts of the proposed action are not
significant enough to require the preparation of an EIS under section
102(2)(C) of NEPA, alternative floodplain or wetland evaluation
procedures are to be established. As stated in the E.O.s, Federal
agencies are to avoid direct or indirect support of development in a
floodplain or new construction in a wetland wherever there is a
practicable alternative.
Sec. 1022.2 Purpose and scope.
(a) This part establishes policy and procedures for discharging the
Department of Energy's (DOE's) responsibilities under E.O. 11988 and
E.O. 11990, including:
(1) DOE policy regarding the consideration of floodplain and
wetland factors in DOE planning and decisionmaking; and
(2) DOE procedures for identifying proposed actions located in a
floodplain or wetland, providing opportunity for early public review of
such proposed actions, preparing floodplain or wetland assessments, and
issuing statements of findings for actions in a floodplain.
(b) To the extent possible, DOE shall accommodate the requirements
of E.O. 11988 and E.O. 11990 through applicable DOE NEPA procedures or,
when appropriate, the environmental review process under the
Comprehensive Environmental Response, Compensation, and Liability Act
(CERCLA) (42 U.S.C. 9601 et seq.).
Sec. 1022.3 Policy.
DOE shall exercise leadership and take action to:
(a) Incorporate floodplain management goals and wetland protection
considerations into its planning, regulatory, and decisionmaking
processes, and shall to the extent practicable:
(1) Reduce the risk of flood loss;
(2) Minimize the impact of floods on human safety, health, and
welfare;
(3) Restore and preserve natural and beneficial values served by
floodplains;
(4) Require the construction of DOE structures and facilities to
be, at a minimum, in accordance with FEMA National Flood Insurance
Program building standards;
(5) Promote public awareness of flood hazards by providing
conspicuous delineations of past and probable flood heights on DOE
property that has suffered flood damage or is in an identified
floodplain and that is used by the general public;
(6) Inform parties during transactions guaranteed, approved,
regulated, or insured by DOE of the hazards associated with locating
facilities and structures in a floodplain;
(7) Minimize the destruction, loss, or degradation of wetlands; and
(8) Preserve and enhance the natural and beneficial values of
wetlands.
(b) Undertake a careful evaluation of the potential effects of any
proposed floodplain or wetland action.
(c) Avoid to the extent possible the long- and short-term adverse
impacts associated with the destruction of wetlands and the occupancy
and modification of floodplains and wetlands, and avoid direct and
indirect support of development in a floodplain or new construction in
a wetland wherever there is a practicable alternative.
(d) Identify, evaluate, and as appropriate, implement alternative
actions that may avoid or mitigate adverse floodplain or wetland
impacts.
(e) Provide opportunity for early public review of any plans or
proposals for floodplain or wetland actions.
Sec. 1022.4 Definitions.
The following definitions apply to this part:
Action means any DOE activity necessary to carry out its
responsibilities for:
(1) Acquiring, managing, and disposing of Federal lands and
facilities;
(2) Providing DOE-undertaken, -financed, or -assisted construction
and improvements; and
(3) Conducting activities and programs affecting land use,
including but not limited to water- and related land-resources
planning, regulating, and licensing activities.
Base floodplain means the 100-year floodplain, that is, a
floodplain with a 1.0 percent chance of flooding in any given year.
Critical action means any DOE action for which even a slight chance
of flooding would be too great. Such actions may include, but are not
limited to, the storage of highly volatile, toxic, or water reactive
materials.
Critical action floodplain means, at a minimum, the 500-year
floodplain, that is, a floodplain with a 0.2 percent chance of flooding
in any given year. When another requirement directing evaluation of a
less frequent flood event also is applicable to the proposed action, a
flood less frequent than the 500-year flood may be appropriate for
determining the floodplain for purposes of this part.
Effects of national concern means those effects that because of the
high quality or function of the affected resource or because of the
wide geographic range of effects could create concern beyond the locale
or region of the proposed action.
Environmental assessment (EA) means a document prepared in
accordance with the requirements of 40 CFR 1501.4(b), 40 CFR 1508.9, 10
CFR 1021.320, and 10 CFR 1021.321.
Environmental impact statement (EIS) means a document prepared in
accordance with the requirements of section 102(2)(C) of NEPA and its
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implementing regulations at 40 CFR Parts 1500-1508 and 10 CFR Part
1021.
Facility means any human-made or -placed item other than a
structure.
FEMA means the Federal Emergency Management Agency, Department of
Homeland Security.
Finding of no significant impact means a document prepared in
accordance with the requirements of 40 CFR 1508.13 and 10 CFR 1021.322.
Flood or flooding means a temporary condition of partial or
complete inundation of normally dry land areas from the overflow of
inland or tidal waters, or the unusual and rapid accumulation or runoff
of surface waters from any source.
Floodplain means the lowlands adjoining inland and coastal waters
and relatively flat areas and floodprone areas of offshore islands.
Floodplain action means any DOE action that takes place in a
floodplain, including any DOE action in a wetland that is also within
the floodplain, subject to the exclusions specified at Sec. 1022.5(c)
and (d) of this part.
Floodplain and wetland values means the qualities of or functions
served by floodplains and wetlands that can include, but are not
limited to, living values (e.g., conservation of existing flora and
fauna including their long-term productivity, preservation of diversity
and stability of species and habitats), cultural resource values (e.g.,
archeological and historic sites), cultivated resource values (e.g.,
agriculture, aquaculture, forestry), aesthetic values (e.g., natural
beauty), and other values related to uses in the public interest (e.g.,
open space, scientific study, outdoor education, recreation).
Floodplain or wetland assessment means an evaluation consisting of
a description of a proposed action, a discussion of its potential
effects on the floodplain or wetland, and consideration of
alternatives.
Floodplain statement of findings means a brief document issued
pursuant to Sec. 1022.14 of this part that describes the results of a
floodplain assessment.
High-hazard areas means those portions of riverine and coastal
floodplains nearest the source of flooding that are frequently flooded
and where the likelihood of flood losses and adverse impacts on the
natural and beneficial values served by floodplains is greatest.
Minimize means to reduce to the smallest degree practicable.
New construction, for the purpose of compliance with E.O. 11990 and
this part, means the building of any structures or facilities,
draining, dredging, channelizing, filling, diking, impounding, and
related activities.
Notice of proposed floodplain action and notice of proposed wetland
action mean a brief notice that describes a proposed floodplain or
wetland action, respectively, and its location and that affords the
opportunity for public review.
Practicable means capable of being accomplished within existing
constraints, depending on the situation and including consideration of
many factors, such as the existing environment, cost, technology, and
implementation time.
Preserve means to prevent modification to the natural floodplain or
wetland environment or to maintain it as closely as possible to its
natural state.
Restore means to reestablish a setting or environment in which the
natural functions of the floodplain or wetland can again operate.
Structure means a walled or roofed building, including mobile homes
and gas or liquid storage tanks.
Wetland means an area that is inundated or saturated by surface or
groundwater at a frequency and duration sufficient to support, and that
under normal circumstances does support, a prevalence of vegetation
typically adapted for life in saturated soil conditions, including
swamps, marshes, bogs, and similar areas.
Wetland action means any DOE action related to new construction
that takes place in a wetland not located in a floodplain, subject to
the exclusions specified at Sec. 1022.5(c) and (d) of this part.
Sec. 1022.5 Applicability.
(a) This part applies to all organizational units of DOE, including
the National Nuclear Security Administration, except that it shall not
apply to the Federal Energy Regulatory Commission.
(b) This part applies to all proposed floodplain or wetland
actions, including those sponsored jointly with other agencies.
(c) This part does not apply to the issuance by DOE of permits,
licenses, or allocations to private parties for activities involving a
wetland that are located on non-Federal property.
(d) Subject to paragraph (e) of this section, subpart B of this
part does not apply to:
(1) Routine maintenance of existing facilities and structures on
DOE property in a floodplain or wetland. Maintenance is routine when it
is needed to maintain and preserve the facility or structure for its
designated purpose (e.g., activities such as reroofing, plumbing
repair, door and window replacement);
(2) Site characterization, environmental monitoring, or
environmental research activities (e.g., sampling and surveying water
and air quality, flora and fauna abundance, and soil properties) in a
floodplain or wetland, unless these activities would involve building
any structure; involve draining, dredging, channelizing, filling,
diking, impounding, or related activities; or result in long-term
change to the ecosystem; and
(3) Minor modification (e.g., upgrading lighting, heating,
ventilation, and air conditioning systems; installing or improving
alarm and surveillance systems; and adding environmental monitoring or
control systems) of an existing facility or structure in a floodplain
or wetland to improve safety or environmental conditions unless the
modification would result in a significant change in the expected
useful life of the facility or structure, or involve building any
structure or involve draining, dredging, channelizing, filling, diking,
impounding, or related activities.
(e) Although the actions listed in paragraphs (d)(1), (d)(2), and
(d)(3) of this section normally have very small or no adverse impact on
a floodplain or wetland, where unusual circumstances indicate the
possibility of adverse impact on a floodplain or wetland, DOE shall
determine the need for a floodplain or wetland assessment.
Sec. 1022.6 Public inquiries.
Inquiries regarding DOE's floodplain and wetland environmental
review requirements may be directed to the Office of NEPA Policy and
Compliance, U.S. Department of Energy, 1000 Independence Avenue, SW.,
Washington, DC 20585-0119, 202-586-4600, or a message may be left at 1-
800-472-2756, toll free.
Subpart B--Procedures for Floodplain and Wetland Reviews
Sec. 1022.11 Floodplain or wetland determination.
(a) Concurrent with its review of a proposed action to determine
appropriate NEPA or CERCLA process requirements, DOE shall determine
the applicability of the floodplain management and wetland protection
requirements of this part.
(b) DOE shall determine whether a proposed action would be located
within a base or critical action floodplain consistent with the most
authoritative information available relative to site conditions from
the following sources, as appropriate:
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(1) Flood Insurance Rate Maps or Flood Hazard Boundary Maps
prepared by FEMA;
(2) Information from a land-administering agency (e.g., Bureau of
Land Management) or from other government agencies with floodplain-
determination expertise (e.g., U.S. Army Corps of Engineers, Natural
Resources Conservation Service);
(3) Information contained in safety basis documents as defined at
10 CFR part 830; and
(4) DOE environmental documents, e.g., NEPA and CERCLA documents.
(c) DOE shall determine whether a proposed action would be located
within a wetland consistent with the most authoritative information
available relative to site conditions from the following sources, as
appropriate:
(1) U.S. Army Corps of Engineers ``Wetlands Delineation Manual,''
Wetlands Research Program Technical Report Y-87-1, January 1987, or
successor document;
(2) U.S. Fish and Wildlife Service National Wetlands Inventory or
other government-sponsored wetland or land-use inventories;
(3) U.S. Department of Agriculture Natural Resources Conservation
Service Local Identification Maps;
(4) U.S. Geological Survey Topographic Maps; and
(5) DOE environmental documents, e.g., NEPA and CERCLA documents.
(d) Pursuant to Sec. 1022.5 of this part and paragraphs (b) and
(c) of this section, DOE shall prepare:
(1) A floodplain assessment for any proposed floodplain action in
the base floodplain or for any proposed floodplain action that is a
critical action located in the critical action floodplain; or
(2) A wetland assessment for any proposed wetland action.
Sec. 1022.12 Notice of proposed action.
(a) For a proposed floodplain or wetland action for which an EIS is
required, DOE shall use applicable NEPA procedures to provide the
opportunity for early public review of the proposed action. A notice of
intent to prepare the EIS may be used to satisfy the requirement for
DOE to publish a notice of proposed floodplain or wetland action.
(b) For a proposed floodplain or wetland action for which no EIS is
required, DOE shall take appropriate steps to send a notice of proposed
floodplain or wetland action to appropriate government agencies (e.g.,
FEMA regional offices, host and affected States, and tribal and local
governments) and to persons or groups known to be interested in or
potentially affected by the proposed floodplain or wetland action. DOE
also shall distribute the notice in the area where the proposed action
is to be located (e.g., by publication in local newspapers, through
public service announcements, by posting on- and off-site). In
addition, for a proposed floodplain or wetland action that may result
in effects of national concern to the floodplain or wetland or both,
DOE shall publish the notice in the Federal Register.
Sec. 1022.13 Floodplain or wetland assessment.
(a) A floodplain or wetland assessment shall contain the following
information:
(1) Project Description. This section shall describe the proposed
action and shall include a map showing its location with respect to the
floodplain and/or wetland. For actions located in a floodplain, the
nature and extent of the flood hazard shall be described, including the
nature and extent of hazards associated with any high-hazard areas.
(2) Floodplain or Wetland Impacts. This section shall discuss the
positive and negative, direct and indirect, and long- and short-term
effects of the proposed action on the floodplain and/or wetland. This
section shall include impacts on the natural and beneficial floodplain
and wetland values (Sec. 1022.4) appropriate to the location under
evaluation. In addition, the effects of a proposed floodplain action on
lives and property shall be evaluated. For an action proposed in a
wetland, the effects on the survival, quality, and function of the
wetland shall be evaluated.
(3) Alternatives. DOE shall consider alternatives to the proposed
action that avoid adverse impacts and incompatible development in the
floodplain and/or wetland, including alternate sites, alternate
actions, and no action. DOE shall evaluate measures that mitigate the
adverse effects of actions in a floodplain and/or wetland including,
but not limited to, minimum grading requirements, runoff controls,
design and construction constraints, and protection of ecologically-
sensitive areas.
(b) For proposed floodplain or wetland actions for which an EA or
EIS is required, DOE shall prepare the floodplain or wetland assessment
concurrent with and included in the appropriate NEPA document.
(c) For floodplain or wetland actions for which neither an EA nor
an EIS is prepared, DOE shall prepare the floodplain or wetland
assessment separately or incorporate it when appropriate into another
environmental review process (e.g., CERCLA).
Sec. 1022.14 Findings.
(a) If DOE finds that no practicable alternative to locating or
conducting the action in the floodplain or wetland is available, then
before taking action DOE shall design or modify its action in order to
minimize potential harm to or within the floodplain or wetland,
consistent with the policies set forth in E.O. 11988 and E.O. 11990.
(b) For actions that will be located in a floodplain, DOE shall
issue a floodplain statement of findings, normally not to exceed three
pages, that contains:
(1) A brief description of the proposed action, including a
location map;
(2) An explanation indicating why the action is proposed to be
located in the floodplain;
(3) A list of alternatives considered;
(4) A statement indicating whether the action conforms to
applicable floodplain protection standards; and
(5) A brief description of steps to be taken to minimize potential
harm to or within the floodplain.
(c) For floodplain actions that require preparation of an EA or
EIS, DOE may incorporate the floodplain statement of findings into the
finding of no significant impact or final EIS, as appropriate, or issue
such statement separately.
(d) DOE shall send copies of the floodplain statement of findings
to appropriate government agencies (e.g., FEMA regional offices, host
and affected states, and tribal and local governments) and to others
who submitted comments on the proposed floodplain action.
(e) For proposed floodplain actions that may result in effects of
national concern, DOE shall publish the floodplain statement of
findings in the Federal Register, describing the location of the action
and stating where a map is available.
(f) For floodplain actions subject to E.O. 12372--Intergovernmental
Review of Federal Programs (July 14, 1982), DOE also shall send the
floodplain statement of findings to the State in accordance with 10 CFR
part 1005--Intergovernmental Review of Department of Energy Programs
and Activities.
Sec. 1022.15 Timing.
(a) For a proposed floodplain action, DOE shall allow 15 days for
public comment following issuance of a notice of proposed floodplain
action. After the close of the public comment period and
[[Page 51436]]
before issuing a floodplain statement of findings, DOE shall reevaluate
the practicability of alternatives to the proposed floodplain action
and the mitigating measures, taking into account all substantive
comments received. After issuing a floodplain statement of findings,
DOE shall endeavor to allow at least 15 days of public review before
implementing a proposed floodplain action. If a Federal Register notice
is required, the 15-day period begins on the date of publication in the
Federal Register.
(b) For a proposed wetland action, DOE shall allow 15 days for
public comment following issuance of a notice of proposed wetland
action. After the close of the public comment period, DOE shall
reevaluate the practicability of alternatives to the proposed wetland
action and the mitigating measures, taking into account all substantive
comments received, before implementing a proposed wetland action. If a
Federal Register notice is required, the 15-day period begins on the
date of publication in the Federal Register.
Sec. 1022.16 Variances.
(a) Emergency actions. DOE may take actions without observing all
provisions of this part in emergency situations that demand immediate
action. To the extent practicable prior to taking an emergency action
(or as soon as possible after taking such an action) DOE shall document
the emergency actions in accordance with NEPA procedures at 10 CFR
1021.343(a) or CERCLA procedures in order to identify any adverse
impacts from the actions taken and any further necessary mitigation.
(b) Timing. If statutory deadlines or overriding considerations of
program or project expense or effectiveness exist, DOE may waive the
minimum time periods in Sec. 1022.15 of this subpart.
(c) Consultation. To the extent practicable prior to taking an
action pursuant to paragraphs (a) or (b) of this section (or as soon as
possible after taking such an action) the cognizant DOE program or
project manager shall consult with the Office of NEPA Policy and
Compliance.
Sec. 1022.17 Follow-up.
For those DOE actions taken in a floodplain or wetland, DOE shall
verify that the implementation of the selected alternative,
particularly with regard to any adopted mitigation measures, is
proceeding as described in the floodplain or wetland assessment and the
floodplain statement of findings.
Subpart C--Other Requirements
Sec. 1022.21 Property management.
(a) If property in a floodplain or wetland is proposed for license,
easement, lease, transfer, or disposal to non-Federal public or private
parties, DOE shall:
(1) Identify those uses that are restricted under applicable
floodplain or wetland regulations and attach other appropriate
restrictions to the uses of the property; or
(2) Withhold the property from conveyance.
(b) Before completing any transaction that DOE guarantees,
approves, regulates, or insures that is related to an area located in a
floodplain, DOE shall inform any private party participating in the
transaction of the hazards associated with locating facilities or
structures in the floodplain.
Sec. 1022.22 Requests for authorizations or appropriations.
It is DOE policy to indicate in any requests for new authorizations
or appropriations transmitted to the Office of Management and Budget,
if a proposed action is located in a floodplain or wetland and whether
the proposed action is in accord with the requirements of E.O. 11988
and E.O. 11990 and this part.
Sec. 1022.23 Applicant responsibilities.
DOE may require applicants for any use of real property (e.g.,
license, easement, lease, transfer, or disposal), permits,
certificates, loans, grants, contract awards, allocations, or other
forms of assistance or other entitlement related to activities in a
floodplain or wetland to provide information necessary for DOE to
comply with this part.
Sec. 1022.24 Interagency cooperation.
If DOE and one or more agencies are directly involved in a proposed
floodplain or wetland action, in accordance with DOE's NEPA or CERCLA
procedures, DOE shall consult with such other agencies to determine if
a floodplain or wetland assessment is required by subpart B of this
part, identify the appropriate lead or joint agency responsibilities,
identify the applicable regulations, and establish procedures for
interagency coordination during the environmental review process.
[FR Doc. 03-21775 Filed 8-26-03; 8:45 am]
BILLING CODE 6450-01-P