PART 1022—COMPLIANCE WITH FLOODPLAIN AND WETLAND ENVIRONMENTAL REVIEW REQUIREMENTS Authority: 42 U.S.C. 7101 et seq.; et seq.; Source: 68 FR 51432, Aug. 27, 2003, unless otherwise noted. Subpart A—General § 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. § 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. § 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. § 1022.4 Definitions. The following definitions apply to this part: Action (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 Critical action Critical action floodplain Effects of national concern Environmental assessment Environmental impact statement Facility FEMA Finding of no significant impact Flood or flooding Floodplain Floodplain action Floodplain and wetland values means e.g., e.g., e.g., e.g., e.g., Floodplain or wetland assessment Floodplain statement of findings High-hazard areas Minimize New construction, Notice of proposed floodplain action and notice of proposed wetland action Practicable Preserve Restore Structure Wetland Wetland action § 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., (2) Site characterization, environmental monitoring, or environmental research activities ( e.g., (3) Minor modification ( e.g., (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. § 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 § 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., e.g., (3) Information contained in safety basis documents as defined at 10 CFR part 830; and (4) DOE environmental documents, e.g., (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., (d) Pursuant to § 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. § 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., e.g., Federal Register. § 1022.13 Floodplain or wetland assessment. (a) A floodplain or wetland assessment shall contain the following information: (1) Project Description. (2) Floodplain or Wetland Impacts. (3) Alternatives. (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., § 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., (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, (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. § 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 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 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 Federal Register. § 1022.16 Variances. (a) Emergency actions. (b) Timing. (c) Consultation. § 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 § 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. § 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. § 1022.23 Applicant responsibilities. DOE may require applicants for any use of real property ( e.g., § 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.