[Federal Register Volume 67, Number 222 (Monday, November 18, 2002)]
[Proposed Rules]
[Pages 69480-69491]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-29071]
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Proposed Rules
Federal Register
________________________________________________________________________
This section of the FEDERAL REGISTER contains notices to the public of
the proposed issuance of rules and regulations. The purpose of these
notices is to give interested persons an opportunity to participate in
the rule making prior to the adoption of the final rules.
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Federal Register / Vol. 67, No. 222 / Monday, November 18, 2002 /
Proposed Rules
[[Page 69480]]
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: Proposed rule; opportunity for public comment.
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SUMMARY: This proposed rule would revise the Department of Energy's
(DOE's) 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. In addition, the proposed revisions would make the rule easier
to use by reordering sections, clarifying requirements, and eliminating
provisions that are no longer necessary. The proposed revisions would
streamline existing procedures and add no new or additional
requirements. This proposed revision also would provide a conforming
change to 10 CFR part 1021 to allow for issuance of a floodplain
statement of findings in a final environmental impact statement (EIS)
or separately.
DATES: Interested persons should submit comments by January 14, 2003.
ADDRESSES: You should address written comments on the proposed
revisions to Carolyn Osborne, U.S. Department of Energy, Office of NEPA
Policy and Compliance, 1000 Independence Avenue SW., Washington, DC
20585-0119. You also may e-mail written comments to:
[email protected] or submit them by facsimile to (202) 586-
7031.
FOR FURTHER INFORMATION CONTACT: For information regarding DOE's
regulations for compliance with floodplain and wetland environmental
review requirements or these proposed revisions, contact Carolyn
Osborne at the above address. Telephone (202) 586-4600 or leave a
message at (800) 472-2756.
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
A. Executive Orders 11988 and 11990
B. 10 CFR Part 1022
II. Purpose of the Revisions to 10 CFR Parts 1021 and 1022
III. Description of Proposed Revisions to the Existing Rules
A. Proposed Changes to 10 CFR Part 1021
B. Proposed Changes to 10 CFR 1022 Subpart A--General
C. Proposed Changes to 10 CFR 1022 Subpart B--Procedures for
Floodplain and Wetland Reviews
IV. Procedural Review Requirements
A. Review Under Executive Order 12866
B. Review Under Executive Order 12988
C. Review Under Executive Order 13132
D. Review Under Executive Order 13175
E. Reviews Under the Regulatory Flexibility Act
F. Review Under the Paperwork Reduction Act
G. Review Under the National Environmental Policy Act
H. Review Under the Unfunded Mandates Reform Act
I. Review Under Executive Order 13211
J. Review Under the Treasury and General Government
Appropriations Act
V. Public Comment Procedures
I. Background
We published our regulations entitled ``Compliance with Floodplain/
Wetlands Environmental Review Requirements'' (10 CFR Part 1022) on
March 7, 1979 (44 FR 12596) to implement the requirements of Executive
Order 11988, ``Floodplain Management'' (42 FR 2951, May 24, 1977), and
Executive Order 11990, ``Protection of Wetlands'' (42 FR 26961, May 24,
1977).
A. Executive Orders 11988 and 11990
Executive Orders 11988 and 11990 direct Federal agencies to
consider and protect the beneficial values of floodplains and wetlands,
and Executive Order 11988 also requires Federal agencies to consider,
and implement protection from, the risk of loss from floods. The
Executive Orders direct that Federal agencies evaluate the potential
impacts of, and look for alternatives to, actions proposed in a
floodplain or wetland. The Executive Orders also direct that agencies
locate any new development outside floodplains and any new construction
outside wetlands whenever there is a practicable alternative for doing
so. When the action must proceed in a floodplain or wetland, the
responsible agency is to implement steps to mitigate any potential
harm. The assessment process under the Executive Orders is to include
an opportunity for public review, and the Executive Orders are to be
implemented through existing procedures, including those used to comply
with NEPA, to the extent possible. The Executive Orders contain other
informational requirements, including that Federal agencies notify the
White House Office of Management and Budget (OMB) when new budget
requests involve actions proposed to be in a floodplain or wetland and
that Federal agencies provide certain information during transfers of
property to non-Federal parties.
While this basic framework is the same in both Executive Orders,
they differ in three important ways. First, Executive Order 11988
requires an assessment for any action proposed in a floodplain, whereas
Executive Order 11990 only requires an assessment for new construction
in a wetland. Second, Executive Order 11988 directs that if an agency
finds that there is no practicable alternative to undertaking the
action in a floodplain, then the agency will circulate a brief notice
explaining the basis for its finding. Executive Order 11990 contains no
similar provision for actions in wetlands. Finally, Executive Order
11988 requires the use of certain building standards and related
measures for development in a floodplain. There is nothing comparable
in Executive
[[Page 69481]]
Order 11990 related to construction in a wetland.
B. 10 CFR Part 1022
Central to our implementation of Executive Orders 11988 and 11990
are the floodplain and wetland assessment processes contained in
subpart B of 10 CFR part 1022. The assessments ensure that we fulfill
the substantive provisions of the Executive Orders to examine
alternatives to undertaking actions in a floodplain or wetland,
potential impacts on the beneficial values of floodplains and wetlands,
and possible mitigation measures. As required by the Executive Orders,
we look for practicable alternatives to locating a proposed action in a
floodplain or wetland and only conduct a floodplain or wetland
assessment when no alternative location is practicable. Our processes
also ensure that we fulfill the procedural provisions of the Executive
Orders to allow early public review of our proposals for certain
activities in a floodplain or wetland, provide notice of a finding that
there are no practicable alternatives to undertaking an action in a
floodplain, and make use of existing processes, including those used to
implement NEPA.
Our floodplain and wetland assessment process has five steps.
First, we determine early in the planning process for all proposals if
a floodplain or wetland assessment is required, based on the location
of the proposed action and the applicability provisions in our
regulation, which are taken from the Executive Orders. As noted above,
Executive Order 11988 requires an assessment for a broader set of
actions proposed in a floodplain than Executive Order 11990 requires
for actions proposed in a wetland. Our requirements in part 1022
reflect this difference. When an action is proposed in a wetland that
is located in a floodplain, we apply the more encompassing requirements
for an action proposed in a floodplain.
Second, if a floodplain or wetland assessment is required, we
provide public notice and allow at least 15 days for public review of
our proposal. If we are preparing an EIS for the proposal, then we may
incorporate this announcement into the EIS notice of intent required
under applicable NEPA regulations. Otherwise, we announce the
opportunity for early public review through a public notice that
describes the proposed action and its location and is published in the
Federal Register as soon as practicable after we determine that an
assessment is required. The public review process itself is integrated
with the NEPA process to the extent possible or else conducted
separately.
Third, we prepare the floodplain or wetland assessment. If we are
also preparing an EIS or environmental assessment (EA), then we usually
incorporate the floodplain or wetland assessment into the NEPA
documentation. Otherwise, we separately document the floodplain or
wetland assessment. In either case, we describe the proposed action and
include a map showing the location of the proposed action with respect
to the floodplain or wetland. We discuss the positive and negative,
direct and indirect, and long- and short-term effects of the proposed
action on the floodplain or wetland. For actions proposed in a
floodplain, the assessment evaluates effects of the proposed action on
lives and property and evaluates natural and beneficial floodplain
values. For actions proposed in a wetland, the assessment evaluates
effects on the survival, quality, and natural and beneficial values of
the wetland. The floodplain or wetland assessment also considers
alternatives that may avoid adverse effects and incompatible
development in floodplains or wetlands and addresses mitigation
measures.
Fourth, we determine whether there are any practicable alternatives
to locating the proposed action in a floodplain or wetland. If we find
that there are not, then before taking action in a floodplain we
publish a brief statement of findings describing the proposed action,
explaining why the action is proposed in a floodplain, listing
alternatives considered, stating whether the action conforms to state
or local floodplain protection standards, and describing steps to be
taken to minimize potential harm to or within the floodplain. The
statement of findings may be incorporated into the finding of no
significant impact (FONSI) or final EIS, as appropriate, or issued
separately. Where no EA or EIS is required, we publish the statement of
findings in the Federal Register and distribute copies to appropriate
government agencies and to those who commented during the public review
of our proposal. We endeavor to allow at least 15 days of public review
of the statement of findings before implementing a proposed action in a
floodplain. There is no similar format or procedure for findings
regarding whether there are any practicable alternatives to locating a
proposed action in a wetland.
Fifth, we follow up decisions to locate actions in a floodplain or
wetland through methods appropriate for the circumstances of each
action.
The current rule contains one exemption from the requirement to
prepare a floodplain or wetland assessment, which is for routine
maintenance of existing facilities and structures on DOE property
within a floodplain or wetland. By routine maintenance, we mean those
activities needed as a normal part of operations to maintain and
preserve facilities and structures in a condition suitable for
continued use for their designated purpose. Routine maintenance does
not include upgrades, improvements, or replacements that significantly
extend the originally intended useful life of a facility or structure
or that change its purpose. Where unusual circumstances indicate the
possibility of adverse impacts on a floodplain or wetland, though, we
will consider the need for a floodplain or wetland assessment even for
routine maintenance activities.
Other requirements in 10 CFR part 1022 that implement aspects of
Executive Orders 11988 and 11990 address building standards, providing
floodplain and wetland information to external parties, property
management, and budget requests. Although these requirements are
designed to promote awareness of the values of floodplains and wetlands
and the risks of flood loss, they are not part of the floodplain and
wetland assessment process.
II. Purpose of the Revisions to 10 CFR Parts 1021 and 1022
The Secretary of Energy has approved issuance and publication of
this notice of proposed rulemaking.
We propose to revise 10 CFR part 1022 to add flexibility to our
implementation of the Executive Orders, remove unnecessary procedural
burdens, and make the rule easier to use by reordering sections,
clarifying requirements, and eliminating provisions that are no longer
needed. These changes stem from our experience implementing the
existing requirements over the past 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 propose to revise
10 CFR part 1021 to allow floodplain statements of findings to be
issued in a final EIS or separately.
The major revisions we propose would: (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
[[Page 69482]]
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 proposed revisions would 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 proposed revisions would streamline existing procedures
and add no new requirements.
Rather than require publication in the Federal Register of every
public notice announcing a proposed action in a floodplain or wetland
or describing the findings of our floodplain assessment, we propose to
allow case-by-case decisions on how to issue notices to best meet local
needs (in proposed sections 1022.12 and 1022.14). We would continue to
integrate our floodplain and wetland notices with other public notices
related to the proposed action, such as a notice of intent to prepare
an EIS on the proposal. We also would continue to distribute notices
directly to interested parties, such as government and non-government
agencies, as appropriate. We would, however, only require publication
of a notice and a floodplain statement of findings in the Federal
Register if our proposal may result in effects of national concern on a
floodplain or wetland. A hypothetical example of an action that could
have effects of national concern because of its national prominence and
ecological function and the potential environmental effects of such a
proposal would be a proposal for a project in the Everglades.
As noted above, part 1022 currently does not ordinarily require a
floodplain or wetland assessment for routine maintenance of existing
facilities and structures on DOE property in a floodplain or wetland.
We propose to exempt four additional classes of floodplain and wetland
actions from subpart B, Procedures for Floodplain and Wetland Reviews.
At proposed section 1022.5(d)(2), we would add exemptions for three
similar classes of activities (site characterization, environmental
monitoring, and environmental research activities) on DOE or non-DOE
property in a floodplain or wetland, unless the activities would
involve building a structure; involve draining, dredging, channelizing,
filling, diking, impounding, or related activities; or result in long-
term change to the ecosystem. At proposed section 1022.5(d)(3), we
would add an exemption for minor modification 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 would involve building a structure or draining, dredging,
channelizing, filling, diking, impounding, or related activities. Our
experience with these classes of actions is that they are of short
duration with very small intrusion in a floodplain or wetland and have
very small or no adverse impact on a floodplain or wetland.
Additionally, these classes of actions typically lead to improved
environmental protection or public and worker safety. For each of these
exemptions, if unusual circumstances arise, we would consider the need
for a floodplain or wetland assessment in order to consider any unusual
circumstances associated with a particular proposal that indicate the
possibility of adverse impact on a floodplain or wetland (proposed
section 1022.5(e)).
We propose to clarify our provision for immediate action in the
event of an emergency (proposed section 1022.16(a)). The existing rule
allows minimum time periods prior to implementation of a proposal to be
waived in response to emergency circumstances. We propose that action
may be taken during an emergency without complying with provisions of
these regulations. We also propose, however, that after taking action,
we would assess the environmental impacts of our emergency actions and
consider potential mitigation in conjunction with our NEPA regulations
for emergency actions (10 CFR 1021.343(a)) or our CERCLA procedures.
The existing rule establishes a 15-day waiting period between
issuance of the notice of proposed floodplain action and issuance of
the floodplain statement of findings, and another 15-day waiting period
after issuance of the floodplain statement of findings before
implementing the proposed floodplain action. For a proposed wetland
action, the existing rule requires a 15-day waiting period after
issuance of the notice of proposed action before implementing the
action. In the event of statutory deadlines or overriding
considerations of program or project expense or effectiveness, the
existing rule provides for waiving any of the waiting periods except
the 15-day period between issuing a notice of proposed floodplain
action and the floodplain statement of findings. We propose to add a
provision allowing the waiver of all minimum waiting periods under the
same exigent circumstances (i.e., in the event of statutory deadlines
or overriding considerations of program or project expense or
effectiveness) (proposed section 1022.16(b)). This change would allow
us additional flexibility when a floodplain assessment is not being
prepared as part of a NEPA or CERCLA review. The waiver of a waiting
period under this rule would not affect timing requirements of our NEPA
regulations or of CERCLA procedures.
We propose to expand the existing list of sources that may be used
in determining the location of floodplains and wetlands (proposed
sections 1022.11(b) and (c)). For floodplain determinations we have
relied upon Flood Insurance Rate Maps, Flood Hazard Boundary Maps, and
information from the relevant land administering agency or from
agencies with floodplain determination expertise. We propose to also
use information in safety basis documents as defined at 10 CFR part 830
and in DOE environmental documents, e.g., NEPA and CERCLA documents.
For wetland determinations, we have relied upon the U.S. Fish and
Wildlife Service National Wetlands Inventory, other government-
sponsored wetland or land-use inventories, U.S. Department of
Agriculture Natural Resources Conservation Service Local Identification
Maps, and U.S. Geological Survey Topographic Maps. We propose to also
use the U.S. Army Corps of Engineers ``Wetlands Delineation Manual''
(Wetlands Research Program Technical Report Y-87-1, January 1987) or
successor document and DOE environmental documents, e.g., NEPA and
CERCLA documents. These changes would allow us to take advantage of
information sources that were not available when this regulation was
first promulgated and to use better the considerable research and
documentation completed for safety, planning, and other purposes at DOE
sites. When there are differences among these information sources, we
will use the most authoritative information available relative to site
conditions.
We propose adding provisions acknowledging that floodplain and
wetland assessments for actions proposed to be taken under CERCLA would
be coordinated with the CERCLA
[[Page 69483]]
environmental review process, not the NEPA process (proposed sections
1022.2(b), 1022.11(a), and 1022.13(c)). As we first promulgated our 10
CFR Part 1022 requirements approximately two years before CERCLA became
law, this change would update the rule to be consistent with our
current policy and practice regarding environmental reviews under
CERCLA.
To make the rule simpler and easier to use, we propose to reorder
sections, add clarifications, delete text, and make numerous stylistic
changes. These proposed changes would not alter applicable
requirements. The existing rule has two subparts, A and B. We propose
reordering sections in Subpart B to only address provisions associated
with floodplain and wetland assessment processes. All other
requirements currently in Subpart B would be moved to a proposed new
subpart (Subpart C, Other Requirements).
We propose to clarify how this regulation applies differently to
actions proposed in a floodplain, and actions proposed in a wetland but
not in a floodplain, consistent with provisions in Executive Orders
11988 and 11990 and our existing regulation. We would not change any
requirements in this regard; rather we propose to revise definitions of
floodplain, floodplain action, and wetland action (proposed section
1022.4) to better describe our intent and the way we implement this
regulation. These changes, and related changes to maintain consistency
throughout the regulation, clarify that we treat a proposal that would
be located in both a wetland and a floodplain as we would any other
action proposed to be located in a floodplain.
We propose to delete text that is repeated between sections in the
existing rule, and in one case, we would delete an entire section
(existing section 1022.21) that specifies we will periodically review
these regulations and make revisions. Existing section 1022.21 is not
required for us to propose additional changes to this rule at a future
date, and therefore, we propose deleting it as unnecessary. We also
propose to delete language that was needed to transition the rule into
effect but that is no longer needed (proposed section 1022.5).
The details of these and other proposed changes are described below
in section III, Description of Proposed Revisions to the Existing Rule.
Because we often reference our existing rule to describe our proposed
changes, you may want to refer to it. Our existing 10 CFR Part 1022
regulations are available on the Internet at http://tis.eh.doe.gov/nepa/tools/tools.htm under the heading ``NEPA Regulations'' or you may
request a copy from Carolyn Osborne at either of the telephone numbers
listed above under FOR FURTHER INFORMATION CONTACT.
III. Description of Proposed Revisions to the Existing Rules
A. Proposed Changes to 10 CFR Part 1021
We propose to revise section 1021.313 to make it consistent with
our proposed new section 1022.14(c), as described above in section II,
Purpose of the Revisions to 10 CFR Parts 1021 and 1022, and below.
Currently, section 1021.313(c) requires a DOE final EIS to include any
floodplain statement of findings required by Part 1022. This
requirement is overly prescriptive and is inconsistent with the
flexibility afforded under existing section 1022.15 and proposed
section 1022.14(c) to include a floodplain statement of findings in a
final EIS or to issue the statement of findings separately. Under our
proposal, section 1021.313(c) would track the language at the new
section 1022.14(c).
B. Proposed changes to 10 CFR 1022 Subpart A--General
Section 1022.1 Background
To provide guidance on implementing Executive Order 11988,
Floodplain Management, we propose adding a reference to the Federal
Interagency Floodplain Management Taskforce document, ``A Unified
National Program for Floodplain Management'' (FEMA 248, June 1994). We
also propose adding words from Executive Orders 11988 and 11990
emphasizing two purposes of the regulation: That Federal agencies are
to avoid development in a floodplain or new construction in a wetland
wherever there is a practicable alternative and to ensure the
evaluation of potential impacts associated with proposed new
construction in wetlands. These changes would add no new requirements.
Section 1022.2 Purpose and Scope
As described above in section II, we propose identifying the CERCLA
review process as an alternative mechanism for implementing the
regulation. Sections 1022.11(a) and 1022.13(c) (detailed below) would
be revised to reflect this additional flexibility.
Section 1022.3 Policy
To better group floodplain and wetland policy statements, we
propose reordering paragraphs within this section. We also propose
updating the reference to construction requirements in proposed
paragraph (a)(4) from ``regulations promulgated by the Federal
Insurance Administration pursuant to the National Flood Insurance Act
of 1968, as amended, 42 U.S.C. 4001 et seq.'' to ``the Federal
Emergency Management Agency's (FEMA) National Flood Insurance Program
building standards.'' Also, we propose moving a requirement concerning
transactions to a new section 1022.21(b) in a new Subpart C, Other
Requirements, discussed below, so that proposed paragraph (a)(6) would
only state policy: ``Inform parties during transactions guaranteed,
approved, regulated, or insured by DOE of the hazards associated with
locating facilities and structures in a floodplain.''
Section 1022.4 Definitions
We propose to change our definition of ``action'' to clarify that
it includes any activity necessary to carry out DOE's responsibilities
for the tasks listed in Executive Orders 11988 and 11990, rather than
that it includes any activity ``including, but not limited to,'' those
tasks listed in the Executive Orders. This proposed language more
closely parallels the Executive Orders.
We propose deleting the definition of ``base flood'' and
incorporating it into the definition of ``base floodplain.''
We propose to revise the definitions of ``environmental
assessment,'' ``environmental impact statement,'' and ``finding of no
significant impact'' to reference the Council on Environmental
Quality's (CEQ's) and DOE's NEPA regulations at 40 CFR parts 1500-1508
and 10 CFR part 1021, respectively. Our NEPA regulations were not in
place when 10 CFR part 1022 was promulgated.
We propose to simplify the definition of ``floodplain'' by creating
separate definitions for ``base floodplain'' and ``critical action
floodplain.'' We also propose to define the critical action floodplain
as, at a minimum, the 500-year floodplain. While for most proposed
actions, we prepare a floodplain assessment if the action would be
located in the 100-year floodplain, for a proposed critical action
(i.e., an action for which even a slight chance of flooding poses an
unacceptable risk) we prepare a floodplain assessment if it would be
located in the critical action floodplain. We normally define the
critical action floodplain in terms of the estimated 500-year flood for
an area. We would add the option to define the critical action
floodplain in terms of a less frequent (and therefore more severe)
flood when another requirement applicable to the proposal requires
consideration of the less frequent flood event. For example, if the
hazard
[[Page 69484]]
assessment for a proposal considers the consequences of a less frequent
flood (e.g., the 10,000-year flood), then we would use that less
frequent flood to define the critical action floodplain for the
proposal.
We propose to clarify the definition of ``floodplain action'' by
adding ``including any DOE action in a wetland that is also within the
floodplain.''
We propose to add a definition for ``floodplain and wetland
values'' to describe the range of issues to be addressed in a
floodplain or wetland assessment under the existing section
1022.12(a)(2) and proposed section 1022.13(a)(2). We adapted the
proposed definition from that used by FEMA (44 CFR 9.4) and terms used
in Executive Orders 11988 and 11990.
We propose to delete the definition of ``floodproofing,'' because
the term is not used in the rule.
We propose simplifying our definition of ``new construction'' by
deleting the reference to October 1, 1977, as the starting point for
applicability of the definition. That clause appropriately exempted
certain actions underway before Executive Order 11990 became effective,
but it is no longer necessary.
We propose to change the name and definition of ``public notice.''
We would call the notice a ``notice of proposed floodplain action'' or
a ``notice of proposed wetland action'' to better reflect its purpose
to announce that a proposed action would be in a floodplain or wetland,
respectively, the location of the floodplain or wetland, and the
opportunity for public review. We also propose to delete any
requirements on how to issue the notice from the definition and instead
to include such requirements in proposed section 1022.12, Notice of
proposed action.
We propose to change the name ``statement of findings'' to
``floodplain statement of findings'' and to delete any requirements
from the definition and instead to include such requirements in
proposed section 1022.14, Findings.
We propose changing our definition of ``wetland'' to make it
consistent with the Clean Water Act implementing regulations of both
the U.S. Army Corps of Engineers (33 CFR 328.3(b)) and the U.S.
Environmental Protection Agency (40 CFR 230.41(a)(1)), as the
definition in the existing rule was taken from Executive Order 11990.
This proposed revision would involve deleting the examples of ``similar
areas such as sloughs, potholes, wet meadows, river outflow, mudflats
and natural ponds.'' An important note about the proposed definition is
that it is more broadly defined than the wetlands over which the U.S.
Army Corps of Engineers has regulatory jurisdiction (33 CFR 328.3(a)
and 328.4). The broader definition we use for this rule is consistent
with Executive Order 11990 in order to ensure that we apply appropriate
protections to valuable wetlands that might not qualify as wetlands
subject to the Corps' jurisdiction (e.g., some wet meadows, forested
wetlands, playas, Carolina bays).
We propose to modify the definition of ``wetland action'' to
specify that it applies to any DOE action ``related to new
construction'' that takes place in a wetland not located in a
floodplain. This change would make the definition consistent with
Executive Order 11990, which requires a wetland assessment only for
activities related to new construction in a wetland.
Section 1022.5 Applicability
We propose deleting a significant portion of text from the existing
section 1022.5 because it is outdated or redundant of other sections of
the rule. The result would be a more concise section, reduced from
eight to four paragraphs, which is easier to read. We propose deleting
text from existing paragraphs (b) and (c) that exempts actions that
were underway when the rule was issued. Any such actions have since
been completed, and the text is no longer necessary. We would delete
text from existing paragraphs (d), (e), and (f) that repeats parts of
the definition of ``action'' (proposed section 1022.4); this results in
deletion of the entirety of paragraph (f). We would also delete
existing paragraph (h) since it is repetitive of the definition of
floodplain action (proposed section 1022.4).
We propose relocating requirements regarding license, easement,
lease, transfer, or disposal of property to non-Federal public or
private parties from existing section 1022.5(d) to proposed section
1022.21(a), Property management, in a new Subpart C, Other
Requirements. From existing section 1022.5(e), we propose moving the
requirements for applicants for assistance into proposed section
1022.23, Applicant responsibilities (proposed redesignation from
existing section 1022.13), described below.
We propose adding four exemptions from the requirements for
preparing a floodplain or wetland assessment to paragraph (d). These
proposed exemptions are described above in section II, Purpose of the
Revisions to 10 CFR parts 1021 and 1022.
Section 1022.6 Public Inquiries
We propose moving this section from Subpart B (where it had been
designated section 1022.20) to Subpart A because it is more
appropriately a part of general statements related to this rule. We
also propose updating the contact to which inquiries may be directed
from the Assistant Secretary for Environment to the Office of NEPA
Policy and Compliance.
C. Proposed Changes to 10 CFR 1022 Subpart B--Procedures for Floodplain
and Wetland Reviews
We propose reordering the sections in this subpart to better
reflect the sequence of events in our process for preparing a
floodplain or wetland assessment and to relocate to subparts A and C
those requirements not directly related to the preparation of a
floodplain or wetland assessment. The particular changes are described
below for each section in proposed subpart B.
Section 1022.11 Floodplain or Wetland Determination
We propose to change section 1022.11(a) by adding a reference to
environmental review requirements under the CERCLA process to conform
to the proposed change in section 1022.2(b), discussed above in section
II, Purpose of the Revisions to 10 CFR parts 1021 and 1022.
As also discussed above in section II, we propose to expand the
list of information sources that may be used to determine if a proposed
action would be located in a floodplain or wetland (proposed sections
1022.11(b) and (c)). We also propose to update references to two
information sources. FEMA, rather than the Federal Insurance
Administration of the Department of Housing and Urban Development,
would be cited because FEMA currently maintains primary responsibility
for interagency planning to address Federal floodplain management
requirements (proposed section 1022.11(b)). We also propose to change
the existing reference to the Soil Conservation Service to the Natural
Resources Conservation Service to reflect the agency's current name
(proposed sections 1022.11(b) and (c)).
We propose to add a new section (proposed 1022.11(d)) that would
specify whether a floodplain or wetland assessment is required based on
the location of the proposed action. This paragraph would clarify
existing requirements by associating the determination made pursuant to
sections 1022.11(b) and (c) with the definitions of critical action,
floodplain action, and wetland action.
[[Page 69485]]
Section 1022.12 Notice of Proposed Action (Proposed Redesignation From
Section 1022.14 Public Review)
We propose to change, in proposed section 1022.12 and throughout
the rule, all references to ``public notice'' to ``notice of proposed
floodplain action'' or ``notice of proposed wetland action'' to better
reflect the purpose of the notice.
We propose to change existing sections 1022.14(b) and (c) by
deleting the requirement that DOE always publish a notice in the
Federal Register for floodplain or wetland actions for which no EIS is
required. This proposal is explained above in section II, Purpose of
the Revisions to 10 CFR parts 1021 and 1022. We also propose to move
the requirement regarding timing for issuance of a notice of proposed
action from existing section 1022.14(b) to proposed section 1022.15,
Timing. This would consolidate requirements related to timing of steps
in the floodplain and wetland assessment processes, as discussed below.
Section 1022.13 Floodplain or Wetland Assessment (Proposed
Redesignation From Existing Section 1022.12)
We propose emphasizing in proposed paragraph (a)(2) that the
assessment shall incorporate floodplain and wetland values that are
appropriate to the location under evaluation. This would underscore the
need to focus only on those values most appropriate to local conditions
and also to clarify that when evaluating a proposal for an action
within a wetland located in a floodplain, we consider both floodplain
and wetland values, as appropriate. This proposed revision would
reference a new definition of floodplain and wetland values (described
above for proposed section 1022.4) that lists several topics that might
be included in the assessment. Although these changes do not add any
new requirement, they do add further guidance about how the assessment
should be performed.
We propose adding to proposed paragraph (c) that when an EA or EIS
is not being prepared for the proposed floodplain or wetland action,
the assessment ``shall be prepared separately or incorporated when
appropriate into another environmental review process (e.g., CERCLA).''
This revision highlights our flexibility to incorporate compliance with
these regulations within processes other than NEPA, as appropriate and
as discussed in other sections above.
Section 1022.14 Findings (Proposed Redesignation From Section 1022.15
Notification of Decision)
We propose a new section (1022.14(c)) to describe how to issue a
statement of findings for floodplain actions for which no EA or EIS is
being prepared. For these floodplain actions, we would distribute
copies of the floodplain statement of findings to government agencies
and to others who submitted comments on the proposed action. We propose
to publish the floodplain statement of findings in the Federal Register
only when the proposed floodplain action may result in effects of
national concern to a floodplain or wetland or both. The proposed
change would parallel the process described in the CEQ regulations on
Public Involvement (40 CFR 1506.6(b)(2)) and is reflected in the
proposed changes to section 1022.4. We also propose that when a
floodplain statement of findings is published in the Federal Register
the statement does not need to contain a map (as otherwise required)
but that the statement should indicate where a location map is
available. A wetland finding may be prepared and distributed at DOE's
discretion.
We also propose a new section (1022.14(d)) regarding the
distribution of floodplain statements of findings to state governments.
We propose to update the existing reference to Office of Management and
Budget Circular A-95 (from the existing section 1022.15) and refer
instead to Executive Order 12372, Intergovernmental Review of Federal
Programs, and DOE's implementing regulations at 10 CFR part 1005,
Intergovernmental Review of Department of Energy Programs. Executive
Order 12372 directs Federal agencies to rely on state and local
processes for state and local government coordination and for review of
proposed Federal financial assistance and direct Federal development.
Section 1022.15 Timing (Proposed Redesignation From Section 1022.18
Timing of Floodplain/Wetlands Actions)
We propose to relocate the requirements regarding timing in
sections 1022.14(c) and 1022.18 of the existing rule to proposed
section 1022.15. This would consolidate references to the time periods
for DOE to consider public comments after issuing a notice of proposed
floodplain action or a notice of proposed wetland action or a
floodplain statement of findings.
Section 1022.16 Variances
We propose to add a section providing a variance for emergency
actions (proposed section 1022.16(a)) that would, as described above in
section II, Purpose of the Revisions to 10 CFR Parts 1021 and 1022,
reflect provisions in our NEPA procedures (10 CFR 1021.343(a)). We also
propose to incorporate into this section as paragraph (b) the existing
variance (1022.18(c) in the existing rule) that allows abbreviated
schedules in some circumstances and to broaden the applicability of
this variance as described above in section II, Purpose of the
Revisions to 10 CFR Parts 1021 and 1022. We also propose to add a
section 1022.16(c) requiring consultation with the Office of NEPA
Policy and Compliance whenever this section is being implemented.
Subpart C--Other Requirements
We propose adding a new subpart to consolidate requirements that
are not general policy (subpart A) nor a part of the floodplain and
wetland assessment processes (subpart B).
Section 1022.21 Property Management
We propose a new section that would consolidate existing
requirements from sections 1022.5(d) and 1022.3(b)(8) of the existing
rule. These sections address property in a floodplain or wetland that
is proposed for license, easement, lease, transfer, or disposal to non-
Federal public or private parties and any transaction that DOE
guarantees, approves, regulates, or insures that is related to an area
located in a floodplain. There are no substantive changes in this new
consolidated section.
Section 1022.22 Requests for Authorizations or Appropriations (Proposed
Redesignation From Section 1022.16)
We propose to move this section into Subpart C, Other Requirements,
for the reasons stated above.
Section 1022.23 Applicant Responsibilities (Proposed Redesignated From
Section 1022.13)
We propose revising this section to allow flexibility in what
information we request of 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. The section currently states that DOE may
require the applicant to prepare a report that satisfies the floodplain
or
[[Page 69486]]
wetland assessment provisions of this regulation. We propose revising
this section to state that we may require applicants to provide
information necessary for DOE to comply with the requirements of this
regulation. This change emphasizes that we will ask for that
information necessary and appropriate for us to comply with the
requirements of this regulation relative to each particular
application.
Section 1022.24 Interagency Cooperation (Proposed Redesignation From
Section 1022.19 Selection of a Lead Agency and Consultation Among
Participating Agencies)
No substantive changes to this section are proposed.
IV. Procedural Review Requirements
A. Review Under Executive Order 12866
Today's proposed regulatory action has been determined not to be a
``significant regulatory action'' under Executive Order 12866,
``Regulatory Planning and Review'' (58 FR 51735, October 4, 1993), as
amended by Executive Order 13258 (67 FR 9385, February 26, 2002).
Accordingly, today's proposed regulatory action would not be subject to
review under that Executive Order 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 Executive Order 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 Executive Order 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. The
Assistant Secretary for Environment, Safety and Health has completed
the required review and determined that, to the extent permitted by
law, the proposed rule meets the relevant standards of Executive Order
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
Executive Order 13132 (64 FR 43255, August 10, 1999). Accordingly, no
``federalism summary impact statement'' was prepared or subjected to
review under the Executive Order by the Director of the Office of
Management and Budget.
D. Review Under Executive Order 13175
Under Executive Order 13175 (65 FR 67249, November 6, 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's Assistant Secretary for Environment, Safety and
Health has determined that the proposed rule would not have such
effects and concluded that Executive Order 13175 does not apply to this
proposed rule.
E. Reviews Under the Regulatory Flexibility Act
The proposed revisions to the existing regulations have been
reviewed under the Regulatory Flexibility Act of 1980 (5 U.S.C. 601 et
seq.). 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 proposed revisions to 10 CFR Parts 1021 and 1022 would amend
DOE policies and streamline existing procedures for environmental
review of actions proposed in a floodplain or wetland under two
Executive Orders. The proposed actions would neither increase the
incidence of floodplain and wetland assessments nor increase burdens
associated with carrying out such an assessment. Therefore, DOE
certifies that this proposed rule will not have a significant economic
impact on a substantial number of small entities, and therefore, no
regulatory flexibility analysis has been prepared.
F. Review Under the Paperwork Reduction Act
No additional information or recordkeeping requirements are imposed
by this proposed rulemaking. The proposed changes would actually reduce
paperwork requirements by eliminating a requirement that public notices
always be published in the Federal Register and by adding to the number
of exemptions from requirements for preparing a floodplain or wetland
assessment. Accordingly, no clearance by the Office of Management and
Budget is 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 proposed 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 proposed 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 Executive Orders. 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 EA 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 states, 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
[[Page 69487]]
has determined that the proposed 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
Executive Order 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 proposed rule is not a significant energy
action, as that term is defined in the Executive Order. 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. The proposed rule has no impact on the
autonomy or integrity of the family as an institution. Accordingly,
DOE's Assistant Secretary for Environment, Safety and Health has
concluded that it is not necessary to prepare a Family Policymaking
Assessment.
V. Public Comment Procedures
You should submit comments by January 17, 2003, but we will
consider comments received after that date to the extent practicable.
We continue to experience occasional mail delays due to extra
processing required for the delivery of mail to Federal agencies, and
we will take this into consideration. However, you are encouraged to
submit comments electronically or via a service offering a guaranteed
delivery date. Comments should be submitted to the street address, e-
mail address, or fax number indicated in the ADDRESSES section of this
notice. Written comments should be identified on the documents
themselves and on the outside of the envelope, on the fax cover page,
or in the e-mail message with the designation ``Compliance with
Floodplain and Wetland Environmental Review Requirements.'' We are not
scheduling any public meetings on the proposed revisions, but we will
arrange a public meeting if the public expresses sufficient interest.
Comments will not be accepted on provisions of 10 CFR part 1021 that
are not subject to change by this revision.
All comments received will be available for public inspection as
part of the administrative record on file for this rulemaking in the
DOE Freedom of Information Office Reading Room, Room 1E-190, Forrestal
Building, 1000 Independence Avenue, SW., Washington, DC 20585, (202)
586-3142, between 9 a.m. and 4 p.m., Monday through Friday, except
Federal holidays.
If you submit information that you believe to be exempt by law from
public disclosure, you should submit one complete copy, as well as two
copies from which the information claimed to be exempt by law from
public disclosure has been deleted. The Department is responsible for
the final determination with regard to disclosure or non-disclosure of
the information and for treating it accordingly under the Freedom of
Information Act section on ``Handling Information of a Private
Business, Foreign Government, or an International Organization'' (10
CFR 1004.11).
List of Subjects in 10 CFR Part 1022
Flood plains, Wetlands.
Issued in Washington, DC, on November 12, 2002.
Beverly A. Cook,
Assistant Secretary, Environment, Safety and Health.
For the reasons set forth in the preamble, parts 1021 and 1022 of
chapter III of title 10, Code of Federal Regulations are proposed to be
amended as follows:
PART 1021--NATIONAL ENVIRONMENTAL POLICY ACT IMPLEMENTING
PROCEDURES
1. The authority citation for part 1021 continues to read as
follows:
Authority: 42 U.S.C. 7254; 42 U.S.C. 4321 et seq.
Sec. 1021.313 [Amended]
2. In Sec. 1021.313, paragraph (c), the last sentence is amended
as follows:
a. Remove the word ``shall'' and insert in its place the word
``may''.
b. Remove the period and add the words '', or may be issued
separately.'' at the end of the sentence.
PART 1022--COMPLIANCE WITH FLOODPLAIN/WETLANDS ENVIRONMENTAL REVIEW
REQUIREMENTS
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.
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: E.O. 11988, 42 FR 26951, 3 CFR, 1977 Comp., p. 117;
E.O. 11990, 42 FR 26961, 3 CFR, 1977 Comp., p. 121.
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
[[Page 69488]]
(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 environmental impact statement (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.
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 means a document prepared in
accordance with the requirements of section 102(2)(C) of NEPA and its
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.
Finding of no significant impact means a document prepared in
accordance with the requirements of 40 CFR 1508.13 and 10 CFR 1021.322
that briefly presents the reasons why an action will not have a
significant effect on the human environment and for which an EIS
therefore will not be prepared.
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
including, at a minimum, that area inundated by a 1.0 percent or
greater chance flood in any given year.
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 section
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, water resource values (e.g., natural moderation of floods,
water quality maintenance, groundwater recharge), living resource
values (e.g., conservation and long-term productivity of existing flora
and fauna, species and habitat diversity and stability), cultural
resource values (e.g., open space, natural beauty, scientific study,
outdoor education, archeological and historic sites, recreation), and
cultivated resource values (e.g., agriculture, aquaculture, forestry).
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 section 1022.14(b) and (c) 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.
[[Page 69489]]
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 section 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;
(2) Site characterization, environmental monitoring, or
environmental research activities 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 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 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, 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:
(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, Natural Resources Conservation Service) or from other
government agencies with floodplain-determination expertise (e.g., U.S.
Army Corps of Engineers);
(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 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,
[[Page 69490]]
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 incorporated 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 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, 47 FR 30959), DOE 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. DOE shall reevaluate the practicability of alternatives to the
proposed floodplain action and the mitigating measures, taking into
account all substantive comments received, after the close of the
public comment period and before issuing a floodplain statement of
findings. 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
[[Page 69491]]
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 White House 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 of the requirements of this part 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. 02-29071 Filed 11-15-02; 8:45 am]
BILLING CODE 6450-01-P