[Federal Register Volume 68, Number 166 (Wednesday, August 27, 2003)]
[Rules and Regulations]
[Pages 51429-51436]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-21775]



 ========================================================================
 Rules and Regulations
                                                 Federal Register
 ________________________________________________________________________
 
 This section of the FEDERAL REGISTER contains regulatory documents 
 having general applicability and legal effect, most of which are keyed 
 to and codified in the Code of Federal Regulations, which is published 
 under 50 titles pursuant to 44 U.S.C. 1510.
 
 The Code of Federal Regulations is sold by the Superintendent of Documents. 
 Prices of new books are listed in the first FEDERAL REGISTER issue of each 
 week.
 
 ========================================================================
 

  Federal Register / Vol. 68, No. 166 / Wednesday, August 27, 2003 / 
Rules and Regulations  

[[Page 51429]]



DEPARTMENT OF ENERGY

10 CFR Parts 1021 and 1022

RIN 1901-AA94


Compliance With Floodplain and Wetland Environmental Review 
Requirements

AGENCY: Department of Energy.

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: The Department of Energy (DOE) is revising its floodplain and 
wetland environmental review requirements to add flexibility and remove 
unnecessary procedural burdens by simplifying DOE public notification 
procedures for proposed floodplain and wetland actions, exempting 
additional actions from the floodplain and wetland assessment 
provisions of these regulations, providing for immediate action in an 
emergency, expanding the existing list of sources that may be used in 
determining the location of floodplains and wetlands, and allowing 
floodplain and wetland assessments for actions proposed to be taken 
under the Comprehensive Environmental Response, Compensation, and 
Liability Act (CERCLA) to be coordinated with the CERCLA environmental 
review process rather than the National Environmental Policy Act (NEPA) 
process. DOE also is making a conforming change to its NEPA 
implementing regulations to allow for issuance of a floodplain 
statement of findings in a final environmental impact statement (EIS) 
or separately.

EFFECTIVE DATE: These rule changes will become effective September 26, 
2003.

FOR FURTHER INFORMATION CONTACT: For information regarding DOE's 
regulations for compliance with floodplain and wetland environmental 
review requirements or this rulemaking, or for copies of the final 
rule, contact Carolyn M. Osborne, U.S. Department of Energy, Office of 
NEPA Policy and Compliance, 1000 Independence Avenue, SW., Washington, 
DC 20585-0119. Telephone (202) 586-4600 or leave a message at (800) 
472-2756; facsimile to (202) 586-7031; e-mail to 
[email protected]. The final rule also will be available after 
the effective date specified above on the DOE NEPA Web at http://tis.eh.doe.gov/nepa.
    For information on DOE's NEPA process, contact Carol M. Borgstrom, 
Director, Office of NEPA Policy and Compliance, at the above address 
and telephone numbers.

SUPPLEMENTARY INFORMATION: 

I. Background

    We published on November 18, 2002 (67 FR 69480), proposed revisions 
to our regulations entitled ``Compliance with Floodplain/Wetlands 
Environmental Review Requirements'' (10 CFR Part 1022), which were 
promulgated originally on March 7, 1979 (44 FR 12596), to implement the 
requirements of Executive Order (E.O.) 11988, ``Floodplain Management'' 
(42 FR 2951; May 24, 1977), and E.O. 11990, ``Protection of Wetlands'' 
(42 FR 26961; May 24, 1977). We also published in our November 18, 
2002, Federal Register notice a proposed conforming change to our 
``National Environmental Policy Act Implementing Procedures'' (10 CFR 
1021.313).
    Publication of the Notice of Proposed Rulemaking began a 60-day 
public comment period, ending January 17, 2003. Comments were received 
from three sources: A State, a county, and a member of the public. 
Copies of these comments are available for public inspection at the DOE 
Freedom of Information Office Reading Room, Room 1E-190, Forrestal 
Building, 1000 Independence Avenue, SW., Washington, DC 20585-0101, 
(202) 586-3142, between 9 a.m. and 4 p.m., Monday through Friday, 
except Federal holidays.
    This document adopts the revisions proposed on November 18, 2002, 
with certain changes discussed below, and codifies them at 10 CFR parts 
1021 and 1022. In accordance with 40 CFR 1507.3, the Council on 
Environmental Quality (CEQ) reviewed this notice of final rulemaking 
and concluded that the proposed amendment to the DOE regulations 
implementing NEPA is in conformance with NEPA and the CEQ regulations. 
The Secretary of Energy has approved this notice of final rulemaking 
for publication.

II. Statement of Purpose

    We are revising 10 CFR part 1022 based on our experience 
implementing the existing requirements for over 20 years. We expect 
these changes to improve our ability to meet our goals for floodplain 
and wetland protection in a timely and cost-effective manner. We are 
revising 10 CFR 1021.313 to conform with 10 CFR 1022.14(c) by allowing 
floodplain statements of findings to be issued in a final EIS or 
separately.
    The major revisions we are implementing will: (1) Simplify our 
public notification procedures for proposed floodplain and wetland 
actions by emphasizing local publication as opposed to publication in 
the Federal Register, (2) exempt additional actions from the floodplain 
and wetland assessment provisions of these regulations, (3) provide for 
immediate action in an emergency with documentation to follow, (4) 
expand the existing list of credible sources that may be used in 
determining the location of floodplains and wetlands, and (5) allow 
floodplain and wetland assessments for actions proposed to be taken 
under CERCLA to be coordinated with the CERCLA environmental review 
process rather than the NEPA process. The revisions also will make the 
rule easier to use by reordering sections to parallel the assessment 
process, clarifying requirements (such as the differences between 
floodplain and wetland actions and their respective assessment 
requirements), and simplifying the rule by deleting provisions that are 
no longer applicable. The revisions streamline existing procedures and 
add no new requirements.

III. Comments Received and DOE's Responses

    We have considered and evaluated the comments received during the 
public comment period. A number of revisions suggested in these 
comments have been incorporated into the final rule. The following 
discussion describes the comments received, provides our response to 
the comments, and describes any resulting changes to the rule. We also 
have made editorial and stylistic revisions for clarity and 
consistency.

[[Page 51430]]

A. General Comments

    In addition to a comment supporting our intent to simplify and 
restructure the rule, we received one comment objecting to our 
streamlining effort on the ground that it would make it easier to 
sabotage environmental protection before the public could know about 
potential impacts. This comment is speculative. It does not provide any 
example to show a potentially adverse effect from any of the proposed 
amendments to the regulations in 10 CFR parts 1021 and 1022. We believe 
the revised rule will improve our ability to meet our goals for 
floodplain and wetland protection. We will be able to focus our 
resources, and those of the public, on the types of proposed actions 
that our experience demonstrates are most likely to benefit from an 
examination of alternatives and mitigating measures and increase the 
efficiency of our environmental reviews (thereby, for example, allowing 
earlier identification of mitigation actions).
    We received a comment pointing to DOE's obligation to comply with 
the Coastal Zone Management Act, NEPA, and applicable state laws and 
regulations. We recognize our legal responsibilities and note that it 
is the intent of the E.O.'s upon which this regulation is based, and 
the regulation itself, that implementation be coordinated, and when 
appropriate, integrated with procedures for implementing other 
requirements, such as those of NEPA. (See Sec. Sec.  1022.1(b) and 
1022.2(b).) We also note that this rulemaking is not a proposal to 
conduct any activity that would affect any coastal resource. We will 
comply with 10 CFR part 1022 and all other applicable requirements if 
we propose any such activity in the future.

B. Comments on Definitions (Sec.  1022.4)

    Two comments requested clarification of ``effects of national 
concern'' as used in determining whether we are required to publish in 
the Federal Register a notice of proposed action (Sec.  1022.12(b)) or 
a floodplain statement of findings (Sec.  1022.14(e)). In response, we 
have added a definition to state that effects of national concern are 
those effects that because of the high quality or function of the 
affected resource or because of the wide geographic range of effects 
could create concern beyond the locale or region of the proposed 
action. The lack of potential effects of national concern does not 
excuse us from our public notification and participation 
responsibilities (Sec. Sec.  1022.3(e), 1022.12, and 1022.14).

C. Comments on Exemptions (Sec.  1022.5)

    One comment recommended that we define terms associated with the 
exemptions described in Sec.  1022.5(d) to ``ensure that the activities 
contemplated by the proposed rule changes will have only minimal and 
temporary adverse impacts on the aquatic environment.'' We do not 
believe it is practical or useful to attempt to define all the 
activities that might fall within the rule's three exemptions. We have, 
however, added examples for each exemption.
    The rule now states that routine maintenance activities (Sec.  
1022.5(d)(1)) are those, such as reroofing, plumbing repair, and door 
and window replacement, needed to maintain and preserve existing 
facilities and structures for their designated purpose. We believe that 
the restrictive conditions stated in Sec.  1022.5(d)(2) and Sec.  
1022.5(d)(3) help describe the types of activities that could be 
exempted, but also have added examples in both sections. For site 
characterization, environmental monitoring, or environmental research 
activities (Sec.  1022.5(d)(2)), the rule now includes the examples of 
sampling and surveying water and air quality, flora and fauna 
abundance, and soil properties. For minor modification of an existing 
facility or structure to improve safety or environmental conditions 
(Sec.  1022.5(d)(3)), the rule now includes the examples of upgrading 
lighting, heating, ventilation, and air conditioning systems; 
installing or improving alarm and surveillance systems; and adding 
environmental monitoring or control systems.

D. Comments on Public Notification and Information Dissemination 
(Sec. Sec.  1022.12 and 1022.14)

    We received one comment asking that, when providing public 
notification, consideration be given to the interest of state 
government, in addition to local interest, in a proposed action. This 
has been our practice and is our intent. For clarification, in this 
final rule, we have added the parenthetical phrase ``(e.g., FEMA 
[Federal Emergency Management Agency, Department of Homeland Security] 
regional offices, host and affected states, and tribal and local 
governments)'' after ``government agencies'' in Sec. Sec.  1022.12(b) 
and 1022.14(d). Distribution to these parties, and to others as 
appropriate for a specific proposed action, facilitates public 
participation.
    One comment questioned whether language in Sec.  1022.14(f) would 
limit distribution of floodplain statements of findings to only those 
state agencies identified in a particular list of state contacts 
maintained by the Office of Management and Budget. To clarify our 
intent to continue to distribute statements of findings to parties 
interested in or potentially affected by a proposed action, in Sec.  
1022.14(f) of the final rule, we have added the word ``also.'' The rule 
now states that for actions subject to E.O. 12372, ``Intergovernmental 
Review of Federal Programs,'' DOE ``also'' shall send the floodplain 
statement of findings to the state in accordance with 10 CFR part 1005 
(DOE's regulations for implementing the E.O.).
    With regard to a comment that DOE must establish contacts and 
maintain current information on them, DOE Order 451.1B, ``National 
Environmental Policy Act Compliance Program,'' requires each DOE 
Program and Field Office with NEPA responsibilities to have a Public 
Participation Plan. With regard specifically to state contacts, we 
established ongoing relationships with State Clearinghouses in 1990 
through contact with the Governors, and we update our State 
Clearinghouse contacts in the ``Directory of Potential Stakeholders for 
Department of Energy Action under the National Environmental Policy 
Act,'' which is distributed broadly within the Department and made 
available on the DOE NEPA Web site (http://tis.eh.doe.gov/nepa/guidance.html, under ``Public Participation'').
    One comment opposed our change to allow discretion in whether to 
include a floodplain statement of findings within a final EIS. We agree 
with the commenter that information relevant to potential floodplain 
and wetland impacts is integral to the evaluation of a proposed action 
and alternatives within an EIS. A final EIS would consider those 
impacts and mitigations. For example, both the final EIS and the 
floodplain assessment would evaluate mitigation measures to minimize 
harm to or within the floodplain. Nonetheless, a floodplain statement 
of findings may be issued separately as there may be times when it is 
not appropriate to incorporate the statement within the final EIS 
(e.g., when steps to be taken to minimize harm are not determined until 
after the final EIS is issued, or a phased decision involving 
sequential records of decision is being made and the findings would not 
be relevant to the initial record of decision). Moreover, E.O. 11988, 
upon which the floodplain management portions of this regulation are 
based, does not specify when in the NEPA process the statement of 
findings

[[Page 51431]]

should be published, and E.O. 11990, which addresses wetlands 
protection, does not require a statement of findings. The E.O.'s allow 
Federal agencies substantial latitude in implementing the requirements 
as deemed most appropriate for individual agencies.

E. Comments on Variances (Sec.  1022.16)

    One comment sought clarification of the conditions under which we 
could waive time limits between various steps in the floodplain or 
wetland environmental review process and requested a definition of 
emergency actions and emergency situations. The rule allows us to alter 
the floodplain or wetland assessment process in response to emergencies 
and in some non-emergency situations.
    Section 1022.16(a) allows us to take immediate action in the event 
of an emergency, forgoing the assessment process required by this rule 
until after the emergency has been addressed. We will continue to 
determine what constitutes an emergency (an emergency action or 
emergency situation) on a case-by-case basis, as is consistent with the 
manner in which an emergency has been declared in the past in regard to 
compliance with these and other requirements (e.g., NEPA). We have 
declared only three emergency exceptions to our NEPA procedures in the 
past 25 years.
    Section 1022.16(b) allows shortening the review process in non-
emergency situations in response to ``statutory deadlines or overriding 
considerations of program or project expense or effectiveness.'' This 
section does not allow any exception from completing a required 
floodplain or wetland assessment nor from following any other provision 
of this rule or any other applicable requirement before taking action. 
This provision has been in place since we first promulgated our 
floodplain and wetland environmental review requirements in 1979, and 
in practice, we have not experienced difficulty in its implementation.
    The comment also asked who determines whether a variance is to be 
granted. The cognizant DOE official responsible for NEPA or CERCLA 
implementation, as applicable, normally would consult with the Office 
of NEPA Policy and Compliance pursuant to Sec.  1022.16(c) before 
determining whether to grant a variance.

F. Other Revisions

    Notable among the editorial and stylistic revisions we made are 
changes to the definitions of ``floodplain and wetland values'' and 
``critical action floodplain'' in Sec. 1022.4. We reorganized the 
examples of floodplain and wetland values to improve readability.
    We have added to the definition of critical action floodplain a 
clarification that was included in the preamble to this proposed rule 
in November 2002. This clarification regards when we will consider a 
flood with an expected frequency of less than once in a 500-year 
period, and thus a larger floodplain, in evaluating potential impacts 
associated with a critical action (i.e., any DOE action for which even 
a slight chance of flooding would be too great). In this final rule, 
and as proposed, we define a critical action floodplain as ``at a 
minimum, the 500-year floodplain, that is, a floodplain with a 0.2 
percent chance of flooding in any given year.'' To this, we have added 
the clarification that when another requirement applicable to the 
proposed action requires evaluation of a less frequent flood (i.e., a 
more severe flood that would inundate a larger floodplain), then we may 
use the less frequent flood to determine the floodplain for purposes of 
this rule. For example, where the safety basis documentation under 10 
CFR part 830 for a proposed action requires consideration of a 100,000-
year flood, then the 100,000-year floodplain could be the critical 
action floodplain for the proposed action for purposes of this rule.

IV. Procedural Review Requirements

A. Review Under Executive Order 12866

    This rule has been determined not to be a ``significant regulatory 
action'' under E.O. 12866, ``Regulatory Planning and Review'' (58 FR 
51735; October 4, 1993), as amended by E.O. 13258 (67 FR 9385; February 
28, 2002). Accordingly, today's final regulatory action was not subject 
to review under that E.O. by the Office of Information and Regulatory 
Affairs of the Office of Management and Budget.

B. Review Under Executive Order 12988

    With respect to the review of existing regulations and the 
promulgation of new regulations, section 3(a) of E.O. 12988, ``Civil 
Justice Reform'' (61 FR 4779; February 7, 1996) imposes on Federal 
agencies the general duty to adhere to the following requirements: 
Eliminate drafting errors and needless ambiguity, write regulations to 
minimize litigation, provide a clear legal standard for affected 
conduct rather than a general standard, and promote simplification and 
burden reduction. Section 3(b) requires Federal agencies to make every 
reasonable effort to ensure that a regulation, among other things: 
Clearly specifies the preemptive effect, if any, adequately defines key 
terms, and addresses other important issues affecting the clarity and 
general draftsmanship under guidelines issued by the Attorney General. 
Section 3(c) of E.O. 12988 requires Executive agencies to review 
regulations in light of applicable standards in section 3(a) and 
section 3(b) to determine whether they are met or it is unreasonable to 
meet one or more of them. DOE has completed the required review and 
determined that, to the extent permitted by law, the final rule meets 
the relevant standards of E.O. 12988.

C. Review Under Executive Order 13132

    Today's regulatory action has been determined not to be a ``policy 
that has federalism implications,'' that is, it does not have 
substantial direct effects on the states, on the relationship between 
the national government and the states, nor on the distribution of 
power and responsibility among the various levels of government under 
E.O. 13132, ``Federalism'' (64 FR 43255; August 10, 1999). Accordingly, 
no ``federalism summary impact statement'' was prepared or subjected to 
review under the E.O. by the Director of the Office of Management and 
Budget.

D. Review Under Executive Order 13175

    Under E.O. 13175 (65 FR 67249; November 9, 2000) on ``Consultation 
and Coordination with Indian Tribal Governments,'' DOE may not issue a 
discretionary rule that has ``tribal implications'' and imposes 
substantial direct compliance costs on Indian tribal governments. DOE 
has determined that this rule would not have such effects and concluded 
that E.O. 13175 does not apply to this rule.

E. Review Under the Regulatory Flexibility Act

    The revisions to the existing regulations have been reviewed under 
the Regulatory Flexibility Act of 1980 (5 U.S.C.601 et seq.) and 
related provisions of E.O. 13272, ``Proper Consideration of Small 
Entities in Agency Rulemaking'' (67 FR 53461; August 16, 2002) and 
DOE's procedures and policies (68 FR 7990; February 19, 2003). The Act 
requires preparation of an initial regulatory flexibility analysis for 
any regulation that is likely to have a significant economic impact on 
a substantial number of small entities. Today's revisions to 10 CFR 
parts 1021 and 1022 amend DOE policies and streamline existing 
procedures for environmental review of actions proposed in a floodplain 
or wetland under two E.O.s. The actions would

[[Page 51432]]

neither increase the incidence of floodplain and wetland assessments 
nor increase burdens associated with carrying out such an assessment. 
Therefore, DOE certifies that this rule will not have a significant 
economic impact on a substantial number of small entities, and 
therefore, no regulatory flexibility analysis has been prepared. We 
received no comments on our decision not to prepare a regulatory 
flexibility analysis.

F. Review Under the Paperwork Reduction Act

    No additional information or recordkeeping requirements are imposed 
by this rulemaking. The changes would actually reduce paperwork 
requirements by eliminating a requirement that public notices always be 
published in the Federal Register and by increasing the number of 
exemptions from requirements for preparing a floodplain or wetland 
assessment. Accordingly, no clearance by the Office of Management and 
Budget was required under the Paperwork Reduction Act (44 U.S.C. 3501 
et seq.).

G. Review Under the National Environmental Policy Act

    DOE has concluded that promulgation of these revisions to existing 
regulations falls into a class of actions that would not individually 
or cumulatively have a significant impact on the human environment, as 
determined by DOE's regulations implementing the National Environmental 
Policy Act of 1969 (42 U.S.C. 4321 et seq.). Specifically, the 
revisions to 10 CFR parts 1021 and 1022 would amend DOE's policies to 
streamline and simplify existing procedures for environmental review of 
actions proposed in a floodplain or wetland under two E.O.s. The 
proposed regulations are covered under the categorical exclusion in 
paragraph A6, ``Rulemakings, Procedural'' (rulemakings that are 
strictly procedural) to Appendix A to subpart D, 10 CFR part 1021. 
Accordingly, neither an environmental assessment nor an EIS is 
required.

H. Review Under the Unfunded Mandates Reform Act

    Title II of the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-
4) requires each Federal agency to prepare a written assessment of the 
effects of any Federal mandate in a proposed or final agency regulation 
that may result in the expenditure by state, tribal, or local 
governments, on the aggregate, or by the private sector, of $100 
million in any one year. The Act also requires a Federal agency to 
develop an effective process to permit timely input by elected 
officials of state, tribal, or local governments on a proposed 
``significant intergovernmental mandate,'' and requires an agency plan 
for giving notice and opportunity to provide timely input to 
potentially affected small governments before establishing any 
requirements that might significantly or uniquely affect small 
governments. DOE has determined that the revisions to 10 CFR parts 1021 
and 1022 published today do not contain any Federal mandates affecting 
small governments, so these requirements do not apply.

I. Review Under Executive Order 13211

    E.O. 13211, ``Actions Concerning Regulations That Significantly 
Affect Energy Supply, Distribution, or Use'' (66 FR 28355; May 22, 
2001) requires Federal agencies to prepare and submit to the Office of 
Information and Regulatory Affairs in the Office of Management and 
Budget a Statement of Energy Effects for any significant energy action. 
Today's rule is not a significant energy action, as that term is 
defined in the E.O. Accordingly, DOE has not prepared a Statement of 
Energy Effects.

J. Review Under the Treasury and General Government Appropriations Act

    Section 654 of the Treasury and General Government Appropriations 
Act of 1999 (Pub. L. 105-277) requires Federal agencies to issue a 
``Family Policymaking Assessment'' for any proposed rule that may 
affect family well-being. This rule has no impact on the autonomy or 
integrity of the family as an institution. Accordingly, DOE has 
concluded that it is not necessary to prepare a Family Policymaking 
Assessment.

K. Review Under the Treasury and General Government Appropriations Act, 
2001

    The Treasury and General Government Appropriations Act, 2001 (44 
U.S.C. 3516, note) provides for agencies to review most dissemination 
of information to the public under guidelines established by each 
agency pursuant to general guidelines issued by the Office of 
Management and Budget. The Office ofManagement and Budget guidelines 
were published at 67 FR 8452 (February 22, 2002), and DOE's guidelines 
were published at 67 FR 62446 (October 7, 2002). DOE has reviewed 
today's notice under the Office of Management and Budget and DOE 
guidelines, and has concluded that it is consistent with applicable 
policies in those guidelines.

L. Congressional Notification

    As required by 5 U.S.C. 801, DOE will submit to Congress a report 
regarding the issuance of today's final rule prior to the effective 
date set forth at the outset of this notice. The report will state that 
is has been determined that the rule is not a ``major rule'' as defined 
by 5 U.S.C. 801(2).

List of Subjects in 10 CFR Parts 1021 and 1022

    Floodplains, Wetlands.

    Issued in Washington, DC, August 19, 2003.
Beverly A. Cook,
Assistant Secretary, Environment, Safety and Health.


0
For the reasons set forth in the preamble, parts 1021 and 1022 of 
chapter III of title 10, Code of Federal Regulations, are amended as 
follows:

PART 1021--NATIONAL ENVIRONMENTAL POLICY ACT IMPLEMENTING 
PROCEDURES

0
1. The authority citation for part 1021 is revised to read as follows:

    Authority: 42 U.S.C. 7101 et seq.; 42 U.S.C. 4321 et seq.; 50 
U.S.C. 2401 et seq.


Sec.  1021.313  [Amended]

0
2. In Sec.  1021.313, paragraph (c), the last sentence is amended as 
follows:
0
a. Remove the word ``shall'' and add in its place the word ``may''.
0
b. Remove the phrase ``Floodplain/Wetlands'' and add in its place 
``Floodplain and Wetland''.
0
c. Remove the period and add the words ``, or a Statement of Findings 
may be issued separately.'' at the end of the sentence.

PART 1022--COMPLIANCE WITH FLOODPLAIN/WETLANDS ENVIRONMENTAL REVIEW 
REQUIREMENTS

0
3. Part 1022 is revised to read as follows:

PART 1022--COMPLIANCE WITH FLOODPLAIN AND WETLAND ENVIRONMENTAL 
REVIEW REQUIREMENTS

Subpart A--General
Sec.
1022.1 Background.
1022.2 Purpose and scope.
1022.3 Policy.
1022.4 Definitions.
1022.5 Applicability.
1022.6 Public inquiries.

[[Page 51433]]

Subpart B--Procedures for Floodplain and Wetland Reviews
1022.11 Floodplain or wetland determination.
1022.12 Notice of proposed action.
1022.13 Floodplain or wetland assessment.
1022.14 Findings.
1022.15 Timing.
1022.16 Variances.
1022.17 Follow-up.
Subpart C--Other Requirements
1022.21 Property management.
1022.22 Requests for authorizations or appropriations.
1022.23 Applicant responsibilities.
1022.24 Interagency cooperation.

    Authority: 42 U.S.C. 7101 et seq.; 50 U.S.C. 2401 et seq.; E.O. 
11988, 42 FR 26951, 3 CFR, 1977 Comp., p. 117; E.O. 11990, 42 FR 
26961, 3 CFR, 1977 Comp., p. 121; E.O. 12372, 47 FR 30959, 3 CFR, 
1982 Comp., p. 197.

Subpart A--General


Sec.  1022.1  Background.

    (a) Executive Order (E.O.) 11988--Floodplain Management (May 24, 
1977) directs each Federal agency to issue or amend existing 
regulations and procedures to ensure that the potential effects of any 
action it may take in a floodplain are evaluated and that its planning 
programs and budget requests reflect consideration of flood hazards and 
floodplain management. Guidance for implementation of the E.O. is 
provided in the floodplain management guidelines of the U.S. Water 
Resources Council (40 FR 6030; February 10, 1978) and in ``A Unified 
National Program for Floodplain Management'' prepared by the Federal 
Interagency Floodplain Management Taskforce (Federal Emergency 
Management Agency, FEMA 248, June 1994). E.O. 11990--Protection of 
Wetlands (May 24, 1977) directs all Federal agencies to issue or amend 
existing procedures to ensure consideration of wetlands protection in 
decisionmaking and to ensure the evaluation of the potential impacts of 
any new construction proposed in a wetland.
    (b) It is the intent of the E.O.s that Federal agencies implement 
both the floodplain and the wetland provisions through existing 
procedures such as those established to implement the National 
Environmental Policy Act (NEPA) of 1969 (42 U.S.C. 4321 et seq.). In 
those instances where the impacts of the proposed action are not 
significant enough to require the preparation of an EIS under section 
102(2)(C) of NEPA, alternative floodplain or wetland evaluation 
procedures are to be established. As stated in the E.O.s, Federal 
agencies are to avoid direct or indirect support of development in a 
floodplain or new construction in a wetland wherever there is a 
practicable alternative.


Sec.  1022.2  Purpose and scope.

    (a) This part establishes policy and procedures for discharging the 
Department of Energy's (DOE's) responsibilities under E.O. 11988 and 
E.O. 11990, including:
    (1) DOE policy regarding the consideration of floodplain and 
wetland factors in DOE planning and decisionmaking; and
    (2) DOE procedures for identifying proposed actions located in a 
floodplain or wetland, providing opportunity for early public review of 
such proposed actions, preparing floodplain or wetland assessments, and 
issuing statements of findings for actions in a floodplain.
    (b) To the extent possible, DOE shall accommodate the requirements 
of E.O. 11988 and E.O. 11990 through applicable DOE NEPA procedures or, 
when appropriate, the environmental review process under the 
Comprehensive Environmental Response, Compensation, and Liability Act 
(CERCLA) (42 U.S.C. 9601 et seq.).


Sec.  1022.3  Policy.

    DOE shall exercise leadership and take action to:
    (a) Incorporate floodplain management goals and wetland protection 
considerations into its planning, regulatory, and decisionmaking 
processes, and shall to the extent practicable:
    (1) Reduce the risk of flood loss;
    (2) Minimize the impact of floods on human safety, health, and 
welfare;
    (3) Restore and preserve natural and beneficial values served by 
floodplains;
    (4) Require the construction of DOE structures and facilities to 
be, at a minimum, in accordance with FEMA National Flood Insurance 
Program building standards;
    (5) Promote public awareness of flood hazards by providing 
conspicuous delineations of past and probable flood heights on DOE 
property that has suffered flood damage or is in an identified 
floodplain and that is used by the general public;
    (6) Inform parties during transactions guaranteed, approved, 
regulated, or insured by DOE of the hazards associated with locating 
facilities and structures in a floodplain;
    (7) Minimize the destruction, loss, or degradation of wetlands; and
    (8) Preserve and enhance the natural and beneficial values of 
wetlands.
    (b) Undertake a careful evaluation of the potential effects of any 
proposed floodplain or wetland action.
    (c) Avoid to the extent possible the long- and short-term adverse 
impacts associated with the destruction of wetlands and the occupancy 
and modification of floodplains and wetlands, and avoid direct and 
indirect support of development in a floodplain or new construction in 
a wetland wherever there is a practicable alternative.
    (d) Identify, evaluate, and as appropriate, implement alternative 
actions that may avoid or mitigate adverse floodplain or wetland 
impacts.
    (e) Provide opportunity for early public review of any plans or 
proposals for floodplain or wetland actions.


Sec.  1022.4  Definitions.

    The following definitions apply to this part:
    Action means any DOE activity necessary to carry out its 
responsibilities for:
    (1) Acquiring, managing, and disposing of Federal lands and 
facilities;
    (2) Providing DOE-undertaken, -financed, or -assisted construction 
and improvements; and
    (3) Conducting activities and programs affecting land use, 
including but not limited to water- and related land-resources 
planning, regulating, and licensing activities.
    Base floodplain means the 100-year floodplain, that is, a 
floodplain with a 1.0 percent chance of flooding in any given year.
    Critical action means any DOE action for which even a slight chance 
of flooding would be too great. Such actions may include, but are not 
limited to, the storage of highly volatile, toxic, or water reactive 
materials.
    Critical action floodplain means, at a minimum, the 500-year 
floodplain, that is, a floodplain with a 0.2 percent chance of flooding 
in any given year. When another requirement directing evaluation of a 
less frequent flood event also is applicable to the proposed action, a 
flood less frequent than the 500-year flood may be appropriate for 
determining the floodplain for purposes of this part.
    Effects of national concern means those effects that because of the 
high quality or function of the affected resource or because of the 
wide geographic range of effects could create concern beyond the locale 
or region of the proposed action.
    Environmental assessment (EA) means a document prepared in 
accordance with the requirements of 40 CFR 1501.4(b), 40 CFR 1508.9, 10 
CFR 1021.320, and 10 CFR 1021.321.
    Environmental impact statement (EIS) means a document prepared in 
accordance with the requirements of section 102(2)(C) of NEPA and its

[[Page 51434]]

implementing regulations at 40 CFR Parts 1500-1508 and 10 CFR Part 
1021.
    Facility means any human-made or -placed item other than a 
structure.
    FEMA means the Federal Emergency Management Agency, Department of 
Homeland Security.
    Finding of no significant impact means a document prepared in 
accordance with the requirements of 40 CFR 1508.13 and 10 CFR 1021.322.
    Flood or flooding means a temporary condition of partial or 
complete inundation of normally dry land areas from the overflow of 
inland or tidal waters, or the unusual and rapid accumulation or runoff 
of surface waters from any source.
    Floodplain means the lowlands adjoining inland and coastal waters 
and relatively flat areas and floodprone areas of offshore islands.
    Floodplain action means any DOE action that takes place in a 
floodplain, including any DOE action in a wetland that is also within 
the floodplain, subject to the exclusions specified at Sec.  1022.5(c) 
and (d) of this part.
    Floodplain and wetland values means the qualities of or functions 
served by floodplains and wetlands that can include, but are not 
limited to, living values (e.g., conservation of existing flora and 
fauna including their long-term productivity, preservation of diversity 
and stability of species and habitats), cultural resource values (e.g., 
archeological and historic sites), cultivated resource values (e.g., 
agriculture, aquaculture, forestry), aesthetic values (e.g., natural 
beauty), and other values related to uses in the public interest (e.g., 
open space, scientific study, outdoor education, recreation).
    Floodplain or wetland assessment means an evaluation consisting of 
a description of a proposed action, a discussion of its potential 
effects on the floodplain or wetland, and consideration of 
alternatives.
    Floodplain statement of findings means a brief document issued 
pursuant to Sec.  1022.14 of this part that describes the results of a 
floodplain assessment.
    High-hazard areas means those portions of riverine and coastal 
floodplains nearest the source of flooding that are frequently flooded 
and where the likelihood of flood losses and adverse impacts on the 
natural and beneficial values served by floodplains is greatest.
    Minimize means to reduce to the smallest degree practicable.
    New construction, for the purpose of compliance with E.O. 11990 and 
this part, means the building of any structures or facilities, 
draining, dredging, channelizing, filling, diking, impounding, and 
related activities.
    Notice of proposed floodplain action and notice of proposed wetland 
action mean a brief notice that describes a proposed floodplain or 
wetland action, respectively, and its location and that affords the 
opportunity for public review.
    Practicable means capable of being accomplished within existing 
constraints, depending on the situation and including consideration of 
many factors, such as the existing environment, cost, technology, and 
implementation time.
    Preserve means to prevent modification to the natural floodplain or 
wetland environment or to maintain it as closely as possible to its 
natural state.
    Restore means to reestablish a setting or environment in which the 
natural functions of the floodplain or wetland can again operate.
    Structure means a walled or roofed building, including mobile homes 
and gas or liquid storage tanks.
    Wetland means an area that is inundated or saturated by surface or 
groundwater at a frequency and duration sufficient to support, and that 
under normal circumstances does support, a prevalence of vegetation 
typically adapted for life in saturated soil conditions, including 
swamps, marshes, bogs, and similar areas.
    Wetland action means any DOE action related to new construction 
that takes place in a wetland not located in a floodplain, subject to 
the exclusions specified at Sec.  1022.5(c) and (d) of this part.


Sec.  1022.5  Applicability.

    (a) This part applies to all organizational units of DOE, including 
the National Nuclear Security Administration, except that it shall not 
apply to the Federal Energy Regulatory Commission.
    (b) This part applies to all proposed floodplain or wetland 
actions, including those sponsored jointly with other agencies.
    (c) This part does not apply to the issuance by DOE of permits, 
licenses, or allocations to private parties for activities involving a 
wetland that are located on non-Federal property.
    (d) Subject to paragraph (e) of this section, subpart B of this 
part does not apply to:
    (1) Routine maintenance of existing facilities and structures on 
DOE property in a floodplain or wetland. Maintenance is routine when it 
is needed to maintain and preserve the facility or structure for its 
designated purpose (e.g., activities such as reroofing, plumbing 
repair, door and window replacement);
    (2) Site characterization, environmental monitoring, or 
environmental research activities (e.g., sampling and surveying water 
and air quality, flora and fauna abundance, and soil properties) in a 
floodplain or wetland, unless these activities would involve building 
any structure; involve draining, dredging, channelizing, filling, 
diking, impounding, or related activities; or result in long-term 
change to the ecosystem; and
    (3) Minor modification (e.g., upgrading lighting, heating, 
ventilation, and air conditioning systems; installing or improving 
alarm and surveillance systems; and adding environmental monitoring or 
control systems) of an existing facility or structure in a floodplain 
or wetland to improve safety or environmental conditions unless the 
modification would result in a significant change in the expected 
useful life of the facility or structure, or involve building any 
structure or involve draining, dredging, channelizing, filling, diking, 
impounding, or related activities.
    (e) Although the actions listed in paragraphs (d)(1), (d)(2), and 
(d)(3) of this section normally have very small or no adverse impact on 
a floodplain or wetland, where unusual circumstances indicate the 
possibility of adverse impact on a floodplain or wetland, DOE shall 
determine the need for a floodplain or wetland assessment.


Sec.  1022.6  Public inquiries.

    Inquiries regarding DOE's floodplain and wetland environmental 
review requirements may be directed to the Office of NEPA Policy and 
Compliance, U.S. Department of Energy, 1000 Independence Avenue, SW., 
Washington, DC 20585-0119, 202-586-4600, or a message may be left at 1-
800-472-2756, toll free.

Subpart B--Procedures for Floodplain and Wetland Reviews


Sec.  1022.11   Floodplain or wetland determination.

    (a) Concurrent with its review of a proposed action to determine 
appropriate NEPA or CERCLA process requirements, DOE shall determine 
the applicability of the floodplain management and wetland protection 
requirements of this part.
    (b) DOE shall determine whether a proposed action would be located 
within a base or critical action floodplain consistent with the most 
authoritative information available relative to site conditions from 
the following sources, as appropriate:

[[Page 51435]]

    (1) Flood Insurance Rate Maps or Flood Hazard Boundary Maps 
prepared by FEMA;
    (2) Information from a land-administering agency (e.g., Bureau of 
Land Management) or from other government agencies with floodplain-
determination expertise (e.g., U.S. Army Corps of Engineers, Natural 
Resources Conservation Service);
    (3) Information contained in safety basis documents as defined at 
10 CFR part 830; and
    (4) DOE environmental documents, e.g., NEPA and CERCLA documents.
    (c) DOE shall determine whether a proposed action would be located 
within a wetland consistent with the most authoritative information 
available relative to site conditions from the following sources, as 
appropriate:
    (1) U.S. Army Corps of Engineers ``Wetlands Delineation Manual,'' 
Wetlands Research Program Technical Report Y-87-1, January 1987, or 
successor document;
    (2) U.S. Fish and Wildlife Service National Wetlands Inventory or 
other government-sponsored wetland or land-use inventories;
    (3) U.S. Department of Agriculture Natural Resources Conservation 
Service Local Identification Maps;
    (4) U.S. Geological Survey Topographic Maps; and
    (5) DOE environmental documents, e.g., NEPA and CERCLA documents.
    (d) Pursuant to Sec.  1022.5 of this part and paragraphs (b) and 
(c) of this section, DOE shall prepare:
    (1) A floodplain assessment for any proposed floodplain action in 
the base floodplain or for any proposed floodplain action that is a 
critical action located in the critical action floodplain; or
    (2) A wetland assessment for any proposed wetland action.


Sec.  1022.12  Notice of proposed action.

    (a) For a proposed floodplain or wetland action for which an EIS is 
required, DOE shall use applicable NEPA procedures to provide the 
opportunity for early public review of the proposed action. A notice of 
intent to prepare the EIS may be used to satisfy the requirement for 
DOE to publish a notice of proposed floodplain or wetland action.
    (b) For a proposed floodplain or wetland action for which no EIS is 
required, DOE shall take appropriate steps to send a notice of proposed 
floodplain or wetland action to appropriate government agencies (e.g., 
FEMA regional offices, host and affected States, and tribal and local 
governments) and to persons or groups known to be interested in or 
potentially affected by the proposed floodplain or wetland action. DOE 
also shall distribute the notice in the area where the proposed action 
is to be located (e.g., by publication in local newspapers, through 
public service announcements, by posting on- and off-site). In 
addition, for a proposed floodplain or wetland action that may result 
in effects of national concern to the floodplain or wetland or both, 
DOE shall publish the notice in the Federal Register.


Sec.  1022.13  Floodplain or wetland assessment.

    (a) A floodplain or wetland assessment shall contain the following 
information:
    (1) Project Description. This section shall describe the proposed 
action and shall include a map showing its location with respect to the 
floodplain and/or wetland. For actions located in a floodplain, the 
nature and extent of the flood hazard shall be described, including the 
nature and extent of hazards associated with any high-hazard areas.
    (2) Floodplain or Wetland Impacts. This section shall discuss the 
positive and negative, direct and indirect, and long- and short-term 
effects of the proposed action on the floodplain and/or wetland. This 
section shall include impacts on the natural and beneficial floodplain 
and wetland values (Sec.  1022.4) appropriate to the location under 
evaluation. In addition, the effects of a proposed floodplain action on 
lives and property shall be evaluated. For an action proposed in a 
wetland, the effects on the survival, quality, and function of the 
wetland shall be evaluated.
    (3) Alternatives. DOE shall consider alternatives to the proposed 
action that avoid adverse impacts and incompatible development in the 
floodplain and/or wetland, including alternate sites, alternate 
actions, and no action. DOE shall evaluate measures that mitigate the 
adverse effects of actions in a floodplain and/or wetland including, 
but not limited to, minimum grading requirements, runoff controls, 
design and construction constraints, and protection of ecologically-
sensitive areas.
    (b) For proposed floodplain or wetland actions for which an EA or 
EIS is required, DOE shall prepare the floodplain or wetland assessment 
concurrent with and included in the appropriate NEPA document.
    (c) For floodplain or wetland actions for which neither an EA nor 
an EIS is prepared, DOE shall prepare the floodplain or wetland 
assessment separately or incorporate it when appropriate into another 
environmental review process (e.g., CERCLA).


Sec.  1022.14  Findings.

    (a) If DOE finds that no practicable alternative to locating or 
conducting the action in the floodplain or wetland is available, then 
before taking action DOE shall design or modify its action in order to 
minimize potential harm to or within the floodplain or wetland, 
consistent with the policies set forth in E.O. 11988 and E.O. 11990.
    (b) For actions that will be located in a floodplain, DOE shall 
issue a floodplain statement of findings, normally not to exceed three 
pages, that contains:
    (1) A brief description of the proposed action, including a 
location map;
    (2) An explanation indicating why the action is proposed to be 
located in the floodplain;
    (3) A list of alternatives considered;
    (4) A statement indicating whether the action conforms to 
applicable floodplain protection standards; and
    (5) A brief description of steps to be taken to minimize potential 
harm to or within the floodplain.
    (c) For floodplain actions that require preparation of an EA or 
EIS, DOE may incorporate the floodplain statement of findings into the 
finding of no significant impact or final EIS, as appropriate, or issue 
such statement separately.
    (d) DOE shall send copies of the floodplain statement of findings 
to appropriate government agencies (e.g., FEMA regional offices, host 
and affected states, and tribal and local governments) and to others 
who submitted comments on the proposed floodplain action.
    (e) For proposed floodplain actions that may result in effects of 
national concern, DOE shall publish the floodplain statement of 
findings in the Federal Register, describing the location of the action 
and stating where a map is available.
    (f) For floodplain actions subject to E.O. 12372--Intergovernmental 
Review of Federal Programs (July 14, 1982), DOE also shall send the 
floodplain statement of findings to the State in accordance with 10 CFR 
part 1005--Intergovernmental Review of Department of Energy Programs 
and Activities.


Sec.  1022.15  Timing.

    (a) For a proposed floodplain action, DOE shall allow 15 days for 
public comment following issuance of a notice of proposed floodplain 
action. After the close of the public comment period and

[[Page 51436]]

before issuing a floodplain statement of findings, DOE shall reevaluate 
the practicability of alternatives to the proposed floodplain action 
and the mitigating measures, taking into account all substantive 
comments received. After issuing a floodplain statement of findings, 
DOE shall endeavor to allow at least 15 days of public review before 
implementing a proposed floodplain action. If a Federal Register notice 
is required, the 15-day period begins on the date of publication in the 
Federal Register.
    (b) For a proposed wetland action, DOE shall allow 15 days for 
public comment following issuance of a notice of proposed wetland 
action. After the close of the public comment period, DOE shall 
reevaluate the practicability of alternatives to the proposed wetland 
action and the mitigating measures, taking into account all substantive 
comments received, before implementing a proposed wetland action. If a 
Federal Register notice is required, the 15-day period begins on the 
date of publication in the Federal Register.


Sec.  1022.16  Variances.

    (a) Emergency actions. DOE may take actions without observing all 
provisions of this part in emergency situations that demand immediate 
action. To the extent practicable prior to taking an emergency action 
(or as soon as possible after taking such an action) DOE shall document 
the emergency actions in accordance with NEPA procedures at 10 CFR 
1021.343(a) or CERCLA procedures in order to identify any adverse 
impacts from the actions taken and any further necessary mitigation.
    (b) Timing. If statutory deadlines or overriding considerations of 
program or project expense or effectiveness exist, DOE may waive the 
minimum time periods in Sec.  1022.15 of this subpart.
    (c) Consultation. To the extent practicable prior to taking an 
action pursuant to paragraphs (a) or (b) of this section (or as soon as 
possible after taking such an action) the cognizant DOE program or 
project manager shall consult with the Office of NEPA Policy and 
Compliance.


Sec.  1022.17  Follow-up.

    For those DOE actions taken in a floodplain or wetland, DOE shall 
verify that the implementation of the selected alternative, 
particularly with regard to any adopted mitigation measures, is 
proceeding as described in the floodplain or wetland assessment and the 
floodplain statement of findings.

Subpart C--Other Requirements


Sec.  1022.21  Property management.

    (a) If property in a floodplain or wetland is proposed for license, 
easement, lease, transfer, or disposal to non-Federal public or private 
parties, DOE shall:
    (1) Identify those uses that are restricted under applicable 
floodplain or wetland regulations and attach other appropriate 
restrictions to the uses of the property; or
    (2) Withhold the property from conveyance.
    (b) Before completing any transaction that DOE guarantees, 
approves, regulates, or insures that is related to an area located in a 
floodplain, DOE shall inform any private party participating in the 
transaction of the hazards associated with locating facilities or 
structures in the floodplain.


Sec.  1022.22  Requests for authorizations or appropriations.

    It is DOE policy to indicate in any requests for new authorizations 
or appropriations transmitted to the Office of Management and Budget, 
if a proposed action is located in a floodplain or wetland and whether 
the proposed action is in accord with the requirements of E.O. 11988 
and E.O. 11990 and this part.


Sec.  1022.23  Applicant responsibilities.

    DOE may require applicants for any use of real property (e.g., 
license, easement, lease, transfer, or disposal), permits, 
certificates, loans, grants, contract awards, allocations, or other 
forms of assistance or other entitlement related to activities in a 
floodplain or wetland to provide information necessary for DOE to 
comply with this part.


Sec.  1022.24  Interagency cooperation.

    If DOE and one or more agencies are directly involved in a proposed 
floodplain or wetland action, in accordance with DOE's NEPA or CERCLA 
procedures, DOE shall consult with such other agencies to determine if 
a floodplain or wetland assessment is required by subpart B of this 
part, identify the appropriate lead or joint agency responsibilities, 
identify the applicable regulations, and establish procedures for 
interagency coordination during the environmental review process.

[FR Doc. 03-21775 Filed 8-26-03; 8:45 am]
BILLING CODE 6450-01-P