HHS General Administration Manual Part 30 Environmental Protection

(as of February 25, 2000)

SUBJECT: Natural Asset Review

30-40-00-- Applicability of Consultation Requirements
30-40-05-- Integration with NEPA Review Process
30-40-10-- Coastal Zone Management Act of 1972
30-40-20-- Endangered Species Act of 1973
30-40-30-- Fish and Wildlife Coordination Act
30-40-40-- Floodplain Management
30-40-50-- Marine Protection, Research, and Sanctuaries Act of 1972
30-40-60-- Safe Drinking Water Act (Sole Source Aquifers)
30-40-70-- Wetlands Protection
30-40-80-- Wild and Scenic Rivers Act

30-40-00 -- Applicability of Consultation Requirements

The environmental statutes and Executive Orders described in this chapter require consideration of the effects of a proposed action on specific types of places or species. Generally, they prohibit further action until the Federal agency proposing to take action has consulted with the Federal or State agency responsible for administering the law. The species requiring consideration are listed by the Department of the Interior. The places requiring consideration are:

  1. Coastal Zones (as identified in a State coastal zone management plan);

  2. Habitats of Endangered Species (as identified by the Department of the Interior);

  3. Streams and other bodies of water;

  4. Floodplains (as identified on HUD floodplain maps);

  5. Marine Sanctuaries (as identified by the Secretary of Commerce);

  6. Sole Source Aquifers (as identified by the Environmental Protection Agency);

  7. Wetlands (all); and

  8. Wild and Scenic Rivers (as identified by the Departments of the Interior and Agriculture).

Table 1 indicates whether the administering agency has published regulations implementing the consultation requirement. OPDIVs/STAFFDIVs are responsible for consulting with the appropriate Federal or State agency before taking action in accordance with the procedures in this chapter and in the applicable statute, Executive Order, or implementing regulation.

Natural Asset Statute or Executive Order

Citation

Consultation Procedures

Coastal Zone Management Act of 1972

16 U.S.C. 1451-1464

15 CFR Part 930

Endangered Species Act of 1973

16 U.S.C. 1531-1544

50 CFR Part 402

Fish and Wildlife Coordination Act

16 U.S.C. 661-666c

16 U.S.C. 662

Executive Order 11988, Floodplain Management

42 FR 26951 (1977),
as amended by E.O. 12148;
44 FR 43239 (1979);
16 U.S.C. 4321 note

Floodplain Management
Guidelines, U.S. Water
Resources Council,
43 FR 6030 (1978)

Marine Protection, Research, and Sanctuaries Act of 1972

16 U.S.C. 1431-1445a;
33 U.S.C. 1401-1445

 

Safe Drinking Water Act

42 U.S.C. 300f-300j-26

42 U.S.C. 300h-3;
40 CFR Part 149

Executive Order 11990, Protection Of Wetlands

42 FR 26961 (1977),
as amended by E.O. 12608,
52 FR 34617 (1987);
42 U.S.C. 4321 note

 

Wild and Scenic Rivers Act

16 U.S.C. 1271-1287

36 CFR Part 297

30-40-05 -- Integration with NEPA Review Process

OPDIVs/STAFFDIVs are responsible for reviewing all proposed actions to determine whether they will affect places and species described in this chapter. OPDIVs/ STAFFDIVs are to evaluate the potential effects of a proposed action in accordance with the procedures for National Environmental Policy Act (NEPA) review in chapter 30-50. If an environmental assessment (EA) or environmental impact statement (EIS) is required to be prepared for the proposed action, the documentation required by the applicable statute or Executive Order and the administering agency regulations are to be included in the EA or EIS. In addition, the consultation procedures required by the environmental statute or Executive Order shall be followed.

30-40-10 -- Coastal Zone Management Act of 1972

  1. Purpose. The Coastal Zone Management Act of 1972 (CZMA), 16 U.S.C. '' 1451-1464, declares that it is the national policy "to preserve, protect, develop, and where possible, to restore or enhance, the resources of the Nation's coastal zone..." In furtherance of this policy, the Act provides Federal assistance to States for developing and implementing coastal zone management programs. Section 307(c)(1)(A) of the CZMA (16 U.S.C. ' 1456(c)(1)(A)) provides that "each Federal agency activity within or outside the coastal zone that affects any land or water use or natural resource of the coastal zone shall be carried out in a manner which is consistent to the maximum extent practicable with the enforceable policies of approved State management programs."

    National Oceanic and Atmospheric Administration (NOAA) regulations codified at 15 CFR Part 930, Subpart C--Consistency for Federal Activities, implements Section 307 of the CZMA. These "consistency" regulations are designed to assure that all Federally conducted or supported activities, including development projects, directly affecting the coastal zone are undertaken in a manner consistent to the maximum extent practicable with approved State coastal management programs.

  2. Definitions

    1. Federal activity. The term "Federal activity" means any functions performed by or on behalf of a Federal agency in the exercise of its statutory responsibilities. The term "Federal activity" does not include the issuance of a Federal license or permit to an applicant or person or the granting of Federal assistance to an applicant agency.

    2. Federal development project. The term "Federal development project" means a Federal activity involving the planning, construction, modification, or removal of public works, facilities, or other structures, and the acquisition, utilization, or disposal of land or water resources.

    3. Coastal Zone. The CZMA defines the term "coastal zone" as "the coastal waters (including the lands therein and thereunder) and the adjacent shorelands (including the waters therein and thereunder), strongly influenced by each other and in proximity to the shorelines of the several coastal states, and includes islands, transitional and intertidal areas, salt marshes, wetlands, and beaches." Zone boundaries are described in 16 U.S.C. ' 1453(1). The CZMA excludes from the definition of coastal zone lands the use of which is by law subject solely to the discretion of or which is held in trust by the Federal Government, its officers, or agents (e.g.,, nonterminated California Indian rancherias).

    4. "Consistent to the maximum extent practicable." The term "consistent to the maximum extent practicable" describes the requirement for Federal activities, including development projects, directly affecting the coastal zone of States with approved management programs to be fully consistent with such programs unless compliance is prohibited based upon the requirements of existing law applicable to the Federal agency's operations.

  3. Requirement. An OPDIV/STAFFDIV undertaking any development project in the coastal zone of a State shall ensure that the project is, to the maximum extent practicable, consistent with the enforceable policies of approved State management programs.

    OPDIVs/STAFFDIVs shall determine which of their activities directly affect the coastal zone of States with approved management programs. OPDIVs/STAFFDIVs shall consider all development projects within the coastal zone to be activities directly affecting the coastal zone. All other types of activities within the coastal zone are subject to OPDIV/STAFFDIV review to determine whether they directly affect the coastal zone. Federal activities outside of the coastal zone are subject to OPDIV/STAFFDIV review to determine whether they directly affect the coastal zone.

  4. Integration with NEPA. OPDIVs/STAFFDIVs are to evaluate the potential effects of a proposed action affecting a coastal zone in accordance with the procedures for National Environmental Policy Act (NEPA) review in Chapter 30-50. If an environmental assessment (EA) or environmental impact statement (EIS) is required to be prepared for the proposed action, a consistency determination, described in 30-40-10E, shall be included in the EA or EIS.

  5. Consistency Determination. OPDIVs/STAFFDIVs shall provide State agencies with consistency determinations for all Federal activities directly affecting the coastal zone. OPDIVs/STAFFDIVs are encouraged to consult with State agencies during their efforts to assess whether an action will be consistent to the maximum extent practicable with a State management program.

    A consistency determination should be prepared following development of sufficient information to determine reasonably the consistency of the activity with the State's management program, but before the OPDIV/STAFFDIV reaches a significant point of decision-making in its review process. An OPDIV/STAFFDIV shall provide a consistency determination to the relevant State agency designated under Section 306(d)(6) of the CZMA (16 U.S.C. ' 1455(d)(6)) at the earliest practicable time in the planning or reassessment of the activity, but in no case later than 90 days before final approval of the Federal activity, unless both the OPDIV/STAFFDIV and the State agency agree to a different schedule.

    OPDIVs/STAFFDIVs must ensure that their activities are consistent to the maximum extent practicable with the enforceable, mandatory policies of the management program. However, OPDIVs/STAFFDIVs need only give adequate consideration to management program provisions which are in the nature of recommendations. Finally, OPDIVs/STAFFDIVs do not have to evaluate coastal zone effects for which the management program does not contain mandatory or recommended policies because, in the absence of such provisions, there is no basis for making a consistency determination with respect to such effects.

  6. Negative Determination. If a OPDIV/STAFFDIV asserts that compliance with the management program is prohibited, it must clearly describe to the State agency the statutory provisions, legislative history, or other legal authority which limits the OPDIV's/STAFFDIV's discretion to comply with the provisions of the management program.

    If a OPDIV/STAFFDIV decides that a consistency determination is not required for a Federal activity (1) identified by a State agency on its list or through case-by-case monitoring, (2) which is the same as or similar to activities for which consistency determinations have been prepared in the past, or (3) for which the OPDIV/STAFFDIV undertook a thorough consistency assessment and developed initial findings on the effects of the activity on the coastal zone, the OPDIV/STAFFDIV shall provide the State agency with a notification, at the earliest practicable time in the planning of the activity, briefly setting forth the reasons for its negative determination. A negative determination shall be provided to the State agency at least 90 days before final approval of the activity, unless both the OPDIV/STAFFDIV and the State agency agree to an alternative notification schedule.

  7. Content of a consistency determination. The consistency determination shall include a brief statement indicating whether or not the proposed activity will be undertaken in a manner consistent to the maximum extent practicable with the management program. The statement must be based upon an evaluation of the relevant provisions of the management program. The consistency determination shall also include a detailed description of the activity, its associated facilities, and their coastal zone effects, and comprehensive data and information sufficient to support the consistency statement. The amount of detail in the statement evaluation, activity description, and supporting information shall be commensurate with the expected effects of the activity on the coastal zone.

    If HHS standards are more restrictive than standards or requirements contained in the State's management program, the State should be informed in the consistency determination of the statutory, regulatory, or other basis for the application of the stricter standards.

    If an OPDIV/STAFFDIV asserts that compliance with the management program is prohibited, it must clearly describe to the State agency the statutory provisions, legislative history, or other legal authority which limits the OPDIV's/STAFFDIV's discretion to comply with the provisions of the management program.

  8. State Review Period. A State agency is required to inform the OPDIV/STAFFDIV of its agreement or disagreement with the consistency determination at the earliest practicable time. OPDIVs/STAFFDIVs may presume State agency agreement if the State agency fails to provide a response within 45 days from receipt of the consistency determination. State agency agreements shall not be presumed in cases where the State agency, within the 45 day period, requests an extension of time to review the matter.

    OPDIVs/STAFFDIVs shall approve one request for an extension period of 15 days or less. In considering whether a longer or additional extension period is appropriate, consideration should be given by the OPDIV/STAFFDIV to the magnitude and complexity of the information contained in the consistency determination.

  9. Final Action. An OPDIV/STAFFDIV shall not undertake final action sooner than 90 days from the issuance of the consistency or negative determination to the State agency unless both the OPDIV/STAFFDIV and the State agency agree to an alternative period.

  10. Mediation by Secretary of Commerce. In the event of a serious disagreement between an OPDIV/STAFFDIV and a State agency regarding a determination related to whether a proposed activity directly affects the coastal zone, either party may seek the Secretarial mediation services provided for in Subpart G of 15 CFR Part 930.

  11. Licenses, permits. OPDIVs/STAFFDIVs shall follow the procedures in 15 CFR Part 930 when the action involves an applicant for a Departmental license or permit.

  12. Excluded Actions. The requirements in this section shall not apply to those types of actions which are specifically excluded by the approved CZM plan.

30-40-20 -- Endangered Species Act of 1973

  1. Purpose. The Endangered Species Act of 1973, 16 U.S.C. 1531-1544, directs Federal agencies, in consultation with either the Secretary of the Interior or of Commerce, as appropriate, to carry out conservation programs for endangered or threatened species of fish, wildlife, or plants ("listed species") and habitat of such species that has been designated as critical ("critical habitat"). Such affirmative conservation programs must comply with applicable permit requirements for listed species and should be coordinated with the appropriate Secretary.

    Section 7(a)(2) of the Act (16 U.S.C. 1536(a)(2)) requires every Federal agency, in consultation with the assistance of the appropriate Secretary, to ensure that any action it authorizes, funds, or carries out, is not likely to jeopardize the continued existence of any listed species or result in the destruction or adverse modification of critical habitat. The Act also requires Federal agencies to confer with the Secretary of the Interior or of Commerce on any action that is likely to jeopardize the continued existence of a proposed species or result in the destruction or adverse modification of a proposed critical habitat. The Act prohibits Federal agencies from making any irreversible or irretrievable commitment of resources which has the effect of foreclosing the formulation or implementation of reasonable and prudent alternatives which would avoid jeopardizing the continued existence of listed species or the destruction or adverse modification of critical habitat. Section 9 of the Act prohibits any unauthorized "take" of listed species. The U.S. Fish and Wildlife Service (FWS) and the National Marine Fisheries Service (NMFS) share responsibilities for administering the Act.

  2. Governing Regulations and Organization Responsible for Consultation. Interagency consultation procedures under the Endangered Species Act are codified at 50 CFR Part 402. The Lists of Endangered and Threatened Wildlife and Plants are found in 50 CFR 17.11 and 17.12. The designated critical habitats are found in 50 CFR 17.95 and 17.96 and 50 CFR Part 226. Endangered or threatened species under the jurisdiction of the NMFS are located in 50 CFR 222.23(a) and 227.4. If the subject species is cited in 50 CFR 222.23(a) or 227.4, an OPDIV/STAFFDIV shall contact the NMFS. For all other listed species, an OPDIV/STAFFDIV shall contact the FWS.

  3. Definitions. The regulations governing interagency cooperation and consultation under the ESA in 50 CFR Part 402 define many of the terms and phrases that are used in the regulations and this section.

    1. Biological Assessment. A biological assessment is a document, prepared by or under the direction of a Federal agency, concerning listed and proposed species and designated and proposed critical habitat that may be present in the action area and the evaluation of potential effects of the action on such species and habitat.

    2. Biological Opinion. A biological opinion is the document that states the opinion or the FWS or the NMFS as to whether or not a proposed Federal agency action is likely to jeopardize the continued existence of listed species or result in the destruction or adverse modification of critical habitat. The Service may issue one of two types of opinions:

      1. Jeopardy Biological Opinion. An opinion by the Service that the proposed Federal agency action is likely to jeopardize the continued existence of a listed species or result in the destruction or adverse modification of critical habitat is called a "jeopardy biological opinion"

        .
      2. No Jeopardy Biological Opinion. An opinion by the Service that the proposed Federal agency action is not likely to jeopardize the continued existence of a listed species or result in the destruction or adverse modification of critical habitat is called a "no jeopardy" biological opinion.

    3. Director. The term "Director" refers to, as appropriate, the:

      1. Assistant Administrator for Fisheries for the National Oceanic and Atmospheric Administration or an authorized representative; or

      2. Fish and Wildlife Service Regional Director, or authorized representative, for the region where the action would be carried out.

    4. Listed Species. Listed species means any species of fish, wildlife, or plant which has been determined to be endangered or threatened under Section 4 of the Act. Listed species are found in 50 CFR '' 17.11-17.12.

    5. Service. The term "Service" means the U.S. Fish and Wildlife Service or the National Marine Fisheries Service, as appropriate.

  4. Integration with NEPA. The consultation, conference, and biological assessment procedures required by Section 7 of ESA that are summarized in this section may be consolidated with interagency cooperation procedures required by other statutes, such as the National Environmental Policy Act (NEPA) (Chapter 30-50) or the Fish and Wildlife Coordination Act (FWCA) (Chapter 30-40). Satisfying the requirements of these other statutes, however, does not in itself relieve an OPDIV/STAFFDIV of its obligations to comply with the procedures set forth in 50 CFR Part 402 or the substantive requirements of Section 7 of ESA. Where the consultation or conference has been consolidated with the interagency cooperation procedures required by other statutes such as NEPA or FWCA, the results should be included in the documents required by those statutes.

  5. Integration with NEPA. The consultation, conference, and biological assessment procedures required by Section 7 of ESA that are summarized in this section may be consolidated with interagency cooperation procedures required by other statutes, such as the National Environmental Policy Act (NEPA) (Chapter 30-50) or the Fish and Wildlife Coordination Act (FWCA) (Chapter 30-40). Satisfying the requirements of these other statutes, however, does not in itself relieve an OPDIV/STAFFDIV of its obligations to comply with the procedures set forth in 50 CFR Part 402 or the substantive requirements of Section 7 of ESA. Where the consultation or conference has been consolidated with the interagency cooperation procedures required by other statutes such as NEPA or FWCA, the results should be included in the documents required by those statutes.

    The conclusions reached during a conference and any recommendations will be documented by the Service and provided to the OPDIV/STAFFDIV. The results of the conference shall be included in the HHS organization's appropriate documentation if the proposed action is being reviewed in accordance with NEPA procedures in Chapter 30-50.

  6. Biological Assessment

    1. Purpose. An OPDIV/STAFFDIV shall use the biological assessment in determining whether a conference is required with the Service. If the biological assessment indicates that the action is not likely to jeopardize the continued existence of proposed species or result in the destruction or adverse modification of proposed critical habitat, and the Director concurs, then a conference is not required. The Director may use the results of the biological assessment in (1) determining whether to request the OPDIV/STAFFDIV to initiate a conference, (2) formulating a biological opinion, or (3) formulating a preliminary biological opinion.

    2. Requirement. A biological assessment shall be prepared for all major construction activities. The biological assessment shall be completed before any contract for construction is entered into and before construction is begun.

    3. Request for information. The OPDIV/STAFFDIV shall convey to the Director either (1) a written request for a list of any listed or proposed species or designated or proposed critical habitat that may be present in the action area; or (2) a written notification of the species and critical habitat that are being included in the biological assessment. Within 30 days of receipt of the notification of, or the request for, a species list, the Director shall either concur with or revise the list. If the Director advises that no listed species or critical habitat may be present, a biological assessment and further consultation is not required. If only proposed species or proposed critical habitat may be present in the action area, the OPDIV/STAFFDIV must confer with the Service if required under 50 CFR ' 402.10, but preparation of a biological assessment is not required unless the proposed listing and/or designation becomes final.

    4. Contents. The contents of a biological assessment are at the discretion of the submitter and will depend on the nature of the Federal action. The following may be considered for inclusion:

      1. The results of an on-site inspection of the area affected by the action to determine if listed or proposed species are present or occur seasonally;

      2. The views of recognized experts on the species at issue;

      3. A review of the literature and other information;

      4. An analysis of the effects of the action on the species and habitat, including consideration of cumulative effects, and the results of any related studies;

      5. An analysis of alternate actions considered by the Federal agency for the proposed action.

    5. Submission of Biological Assessment. The OPDIV/STAFFDIV shall submit the completed biological assessment to the Director for review within 180 days after its initiation. The Director will respond in writing within 30 days as to whether or not the Director concurs with the findings of the biological assessment. An OPDIV/STAFFDIV, at its option, may request that formal consultation be initiated concurrently with the submission of the assessment.

  7. Formal Consultation Process for Listed Species and Critical Habitat

    1. Consultation Requirement. An OPDIV/STAFFDIV shall review its actions at the earliest possible time to determine whether any action may affect listed species or critical habitat. If such a determination is made, formal consultation is required, except as noted in this subsection. An OPDIV/STAFFDIV need not initiate formal consultation if, as a result of the preparation of a biological assessment under 50 CFR ' 402.12 or as a result of information consultation with the Service under 50 CFR ' 402.13, the OPDIV/STAFFDIV determines, with the written concurrence of the Director of the Service, that the proposed action is not likely to adversely affect any listed species or critical habitat. Formal consultation shall not be initiated by an OPDIV/STAFFDIV until any required biological assessment has been completed and submitted to the Director in accordance with 50 CFR ' 402.12.

    2. Contents of Request. A written request to initiate formal consultation shall be submitted to the Director of the Service and shall include:

      1. A description of the action to be considered;

      2. A description of the specific area that may be affected by the action;

      3. A description of any listed species or critical habitat that may be affected by the action;

      4. A description of the manner in which the action may affect any listed species or critical habitat and an analysis of any cumulative effects;

      5. Relevant reports, including any environmental impact statement, environmental assessment, or biological assessment prepared; and

      6. Any other relevant available information on the action, the affected listed species, or critical habitat.

      An OPDIV/STAFFDIV that requests formal consultation shall provide the Service with the best scientific and commercial data available or which can be obtained during the consultation for an adequate review of the effects that an action may have upon listed species or critical habitat.

  8. Irreversible or Irretrievable Commitment of Resources. After initiation or reinitiation of consultation required under ESA, an OPDIV/STAFFDIV shall make no irreversible or irretrievable commitment of resources with respect to the proposed action which has the effect of foreclosing the formulation or implementation of any reasonable and prudent alternatives which would avoid violating ESA. This prohibition remains in force during the consultation process and continues until the requirements of Section 7(a)(2) of ESA are satisfied.

    Note: The prohibition in this subsection does not apply to the conference requirement for proposed species or proposed critical habitat under Section 7(a)(4) of the Act.

  9. Duration and Extension of Formal Consultation. Formal consultation concludes within 90 days after its initiation unless extended in accordance with 50 CFR ' 402.14(e). If the Service does not respond within 90 days, the Department may reach its own conclusion with respect to whether the proposed action will jeopardize the continued existence of a species or result in the destruction or adverse modification of a critical habitat.

  10. Issuance of Biological Opinion. The Service will provide a biological opinion to the OPDIV/STAFFDIV at the end of the consultation process as to whether the proposed action, taken together with cumulative effects, would be likely to jeopardize the continued existence of a listed species or result in the destruction or adverse modification of a critical habitat. A "jeopardy" biological opinion by the Service will include reasonable and prudent alternatives, if any, to the proposed agency action that can be taken by the OPDIV/STAFFDIV to avoid violation of ESA. If the Service is unable to develop such alternatives, it will indicate that to the best of its knowledge, there are no reasonable and prudent alternatives. The Service may also formulate discretionary conservation recommendations, if any, which will assist the OPDIV/STAFFDIV in reducing or eliminating the impacts that its proposed action may have on listed species or critical habitat.

    The Service's "no jeopardy" or "jeopardy" biological opinion shall be included in any documentation required under NEPA procedures if the proposed action is being assessed in accordance with NEPA and the procedures in Chapter 30-50.

  11. Termination of Consultation Process. Formal consultation is terminated with the issuance of the biological opinion or if, during any stage of consultation, an OPDIV/STAFFDIV determines, with the concurrence of the Director, that its proposed action is not likely to adversely affect any listed species or critical habitat. If an OPDIV/STAFFDIV determines that its proposed action is not likely to occur, it may terminate the consultation process by written notice to the Service.

  12. Responsibilities After Issuance of Biological Opinion. Following the issuance of a biological opinion, an OPDIV/STAFFDIV shall determine whether and in what manner to proceed with the action in light of its ESA Section 7 obligations and the Service's biological opinion.

    If a jeopardy biological opinion is issued, the OPDIV/STAFFDIV shall notify the Service of its final decision on the action. If the OPDIV/STAFFDIV determines that it cannot comply with the requirements of Section 7(a)(2) of ESA after consultation with the Service, it may apply for an exemption. Procedures for exemption applications by Federal agencies and others are found in 50 CFR Part 451. No action shall occur unless or until the OPDIV/STAFFDIV has received approval of the exemption.

  13. Emergencies. The interagency cooperation regulation in 50 CFR Part 402 provides that where emergency circumstances mandate the need to consult in an expedited manner, consultation may be conducted informally through alternative procedures that the Director determines to be consistent with the requirements of Sections 7(a)-(d) of the Act. This provision applies to situations involving acts of God, disasters, casualties, national defense or security emergencies. An OPDIV/STAFFDIV may request expedited consultation by submitting information on the nature of the emergency action(s), the justification for the expedited consultation, and the impacts to endangered or threatened species and their habitats. Formal consultation is to be initiated as soon as practicable after the emergency is under control.

  14. Exemptions. ESA provides procedures for granting exemptions from the requirements of Section 7(a)(2). Regulations governing the submission of exemption applications are found at 50 CFR Part 451, and regulations governing the exemption process are found at 50 CFR Parts 450, 452, and 453.

  15. Applicant Procedures. ESA and the implementing procedures in 50 CFR Part 402 provide for participation in the conference and consultation processes by any person (as defined in Section 3(13) of the Act) who requires formal approval or authorization from HHS as a prerequisite to conducting the action.

30-40-30   FISH AND WILDLIFE COORDINATION ACT

  1. Purpose. The Fish and Wildlife Coordination Act, 16 U.S.C. '' 661-666c, provides for equal consideration of wildlife with other features of water resource development programs with a view toward conservation of wildlife resources. The Act requires Federal agencies involved in actions that will result in the control or modification of any natural stream or body of water, for any purpose, to take action to protect the fish and wildlife resources which may be affected by the action and to affirmatively provide development and improvement of the wildlife resources in connection with the proposed action.

  2. Responsibilities and Consultation Requirements

    1. An OPDIV/STAFFDIV shall consult, in accordance with 16 U.S.C. ' 662, with the United States Fish and Wildlife Service, Department of the Interior, and with the head of the State agency exercising administration over wildlife resources, before taking or approving an action that would control or modify any natural stream or other body of water for any purpose.

    2. As part of the consultative process, OPDIVs/STAFFDIVs shall submit to the United States Fish and Wildlife Service and the State wildlife agency the appropriate environmental documentation, if needed for the consultation, that describes the possible effects of the proposed action on a natural stream or body of water.

    3. An OPDIV/STAFFDIV shall determine, through the consultative process, the means and measures necessary to conserve wildlife resources by preventing loss of and damage to such resources, as well as providing for the development and improvement of the wildlife resources in connection with the proposed action.

    4. OPDIVs/STAFFDIVs shall give full consideration to the report and recommendations of the U.S. Fish and Wildlife Service and to any report of the State agency on the wildlife aspects of a proposed action. Any plans for the proposed action shall include such justifiable means and measures for wildlife purposes as the OPDIV/STAFFDIV finds should be adopted to obtain maximum overall project benefits. All reports and recommendations of the U.S. Fish and Wildlife Service wildlife agencies shall constitute an integral part of any environmental report prepared pursuant to the action.

    5. Reports and recommendations of the Secretary of Interior or State wildlife agencies shall be incorporated into any environmental documents that may be associated with the proposed action. 16 U.S.C.'662(b).

    6. No further action shall take place pending receipt of a report from the U.S. Fish and Wildlife Service and State wildlife agency.

30-40-40   FLOODPLAIN MANAGEMENT

  1. Purpose. Executive Order 11988, Floodplain Management, 42 FR 26951 (1977), as amended by Executive Order 12148, 44 FR 43239 (1979), 42 U.S.C. '4321 note, directs each Federal agency to avoid the long and short term adverse impacts associated with the occupancy and modification of floodplains, including the direct and indirect support of floodplain development, whenever there is a practicable alternative. Floodplains are those areas identified as such according to a Federal Emergency Management Agency (FEMA) floodplain map. Guidance for implementation of Executive Order 11988 is provided in the U.S. Water Resources Council Floodplain Management Guidelines, 43 FR 6030. See also FEMA's "Further Advice on Executive Order 11988 Floodplain Management" (GPO 1987).

  2. Definitions

    1. Base Flood. "Base Flood" means that flood which has a one percent of greater chance of occurrence in any given year.

    2. Floodplain. "Floodplain" means the lowland and relatively flat areas adjoining inland and coastal waters, including flood-prone areas of offshore islands, including at a minimum, that area subject to a one percent or greater chance of flooding in any given year.

    3. Critical Action. "Critical Action" means any activity for which even a slight chance of flooding is too great, e.g. elderly housing proposals.

  3. Responsibilities. Each OPDIV/STAFFDIV has the responsibility under Executive Order 11988 to take action to reduce the risk of flood loss, to minimize the impact of floods on human safety, health, and welfare, and to restore and preserve the natural and beneficial values served by floodplains in carrying out its responsibilities for:

    1. Acquiring, managing, and disposing of Federal lands and facilities;

    2. Providing Federally undertaken, financed, or assisted construction and improvements; and

    3. Conducting Federal activities and programs affected land use, including but not limited to, water and related land resources planning, regulating, and licensing activities.

      Each OPDIV/STAFFDIV shall evaluate the potential effects of any actions it may take in a floodplain in accordance with the procedures in this section. It must also ensure that its planning programs and budget requests reflect consideration of flood hazards and floodplain management.

  4. Floodplain Determination. Before taking an action, each OPDIV/STAFFDIV shall determine whether the proposed action will occur in a floodplain. OPDIVs/STAFFDIVs shall utilize the Flood Insurance Rate Maps (FIRMs) or the Flood Hazard Boundary Maps (FHBMs) prepared by the Federal Insurance Administration of FEMA to determine if a proposed action is located in a base or critical action floodplain. When a proposed action would be located in an area of predominantly Federal or State land holdings, and FIRM or FHBM maps are not available, OPDIVs/STAFFDIVs shall obtain information from the land administering agency (e.g., Bureau of Land Management or Soil Conservation Service) or from agencies with floodplain analysis expertise.

  5. Integration with NEPA. OPDIVs/STAFFDIVs are to evaluate the potential effects of a proposed action in a floodplain in accordance with the procedures for National Environmental Policy Act (NEPA) review in Chapter 30-50. If an environmental assessment (EA) or environmental impact statement (EIS) is required to be prepared for the proposed action, a floodplain assessment, described in 30-40-40D, shall be included in the EA or EIS.

  6. Floodplain Assessment (Executive Order 11988)

    1. Proposed Action. The floodplain assessment shall describe the nature and purpose of the proposed action and the reasons for locating the action in the floodplain.

    2. Floodplain Map. A map of the affected floodplain indicating the location of the proposed action shall be included in the assessment.

    3. High Hazard Areas. High hazard areas in the floodplain shall be delineated and the nature and extent of the proposed hazard shall be discussed.

    4. Floodplain Effects. The effects of the proposed action on the floodplain shall be discussed in the assessment. The discussion shall include an evaluation of the long-and short-term effects of the proposed action on people, property, natural and beneficial floodplain values, and any other relevant direct or indirect effects.

    5. Alternatives and Mitigation Measures. The floodplain assessment shall discuss alternatives to the proposed action that may avoid adverse effects and incompatible development in the floodplain, including the alternatives of no action or location at an alternate site. The assessment shall also discuss measures that mitigate the adverse effects of the proposed action.

    6. Conformity to Applicable State or Local Standards. The floodplain assessment shall include a statement indicating whether the proposed action conforms to applicable State or local floodplain protection standards.

    7. Flood Insurance Program Standards. An action taken in a floodplain must incorporate design features consistent with the standards in the Flood Insurance Program of the Federal Insurance Administration to minimize substantial harm to the floodplain.

  7. Public Review. Circulation of draft environmental impact statements shall include the public and other interested individuals, including concerned Federal, non-Federal and private organizations. Interested parties shall have a period of 60 days for review and comment on draft environmental impact statements.

  8. Secretarial Approval. No action shall take place without a finding by the HHS Secretary that the only practicable alternative consistent with the law and with the policy set forth in Executive Order 11988 requires siting in a floodplain. The action proposed for Secretarial approval shall be designed to minimize potential harm to or within the floodplain. The Secretary shall approve proposed actions requiring environmental impact statements on projects affecting floodplains.

  9. Notice of Finding

    1. Contents. After Secretarial approval and prior to taking action, an OPDIV/STAFFDIV shall prepare and circulate a notice of finding containing an explanation of why the action is proposed to be located in a floodplain. The notice shall not exceed three pages and shall include a location map. The notice shall include (a) the reasons why the action is proposed to be located in a floodplain; (b) a statement indicating whether the action conforms to applicable State or local floodplain protection standards; and (c) a list of the alternatives considered.

    2. Public Review. For programs subject to Executive Order 12372, the notice of finding shall be sent to the appropriate state and local reviewing agencies the geographic areas affected. A public review period of 30 days after the issuance of notice of finding shall be allotted before any action is taken.

  10. Licenses, permits, loans, or grants. Each OPDIV/STAFFDIV shall take floodplain management into account when formulating or evaluating any water and land use plans and shall require land and water resources use appropriate to the degree of hazard involved. Adequate provision shall be made for the evaluation and consideration of flood hazards in the regulations and operating procedures for the licenses, permits, loan, or grant-in-aid programs that an OPDIV/STAFFDIV administers. OPDIVs/STAFFDIVs shall also encourage and provide appropriate guidance to applicants to evaluate the effects of their proposal in floodplains prior to submitting applications for Federal licenses, permits, loans, or grants.

  11. Authorization or Appropriation Requests. OPDIVs/STAFFDIVs shall indicate in any requests for new authorizations or appropriations whether the proposed action is in accord with Executive Order 11988 if the proposed action will be located in a floodplain.

30-40-50   MARINE PROTECTION, RESEARCH, AND SANCTUARIES ACT OF 1972

  1. Purpose. Title III of the Marine Protection, Research and Sanctuaries Act prohibits Federal Departments from taking actions which will affect a Marine Sanctuary unless the Secretary of Commerce certifies that the activity is consistent with the purposes of the Act. Listings of sanctuaries are designated by the Secretary of Commerce and maps of sanctuaries appear in the Federal Register.

  2. Responsibilities and Consultation Requirements.

    1. If the proposed action will create an environmental effect on a marine sanctuary, OPDIVs/STAFFDIVs shall prepare an appropriate environmental document and forward it to the Secretary of Commerce.

    2. No further action shall take place unless and until the Secretary certifies that the action is consistent with the purposes of the Act.

30-40-60   SAFE DRINKING WATER ACT (SOLE SOURCE AQUIFERS)

  1. Requirement. Section 1424(e) of the Safe Drinking Water Act (42 U.S.C. ' 300h-3(e)), provides for the protection of those aquifers which have been designated by the Administrator of the EPA as the sole or principal source of drinking water for an area. No commitment for Federal financial assistance (through a grant, contract, loan guarantee, or otherwise) may be entered into for any project which the Administrator determines may contaminate such aquifer through a recharge zone so as to create a significant hazard to public health. A commitment for Federal financial assistance may, if authorized under another provision of law, be entered into to plan or design the project to assure that it will not so contaminate the aquifer.

  2. Responsibilities and Consultation Requirements.

    1. OPDIVs/STAFFDIVs shall determine if a proposed action will directly or indirectly affect a sole or principal source aquifer designated by the Administrator of EPA in accordance with Section 1424(e) of the Safe Drinking Water Act (42 U.S.C. ' 300h-3(e)).

    2. If the action will affect a designated aquifer, OPDIVs/STAFFDIVs shall send the appropriate environmental document to the EPA Regional Administrator for a determination as to whether the proposed action may potentially contaminate the aquifer through its recharge zone so as to create a significant hazard to public health.

    3. The action shall not proceed unless and until the Administrator of the Environmental Protection Agency determines that the proposed action will not contaminate the designated aquifer so as to create a significant hazard to public health.

30-40-70   WETLANDS PROTECTION

  1. Purpose. Executive Order 11990, Protection of Wetlands, 42 FR 26961 (1977), as amended by Executive Order 12608, 52 F 34617 (1987), 42 U.S.C. ' 4321 note, directs each Federal agency to minimize the destruction, loss, or degradation of wetlands and to preserve and enhance such wetlands in carrying out their program responsibilities. Consideration must include a variety of factors, such as water supply, erosion and flood prevention, maintenance of natural systems, and potential scientific benefits.

  2. Definitions.

  3. Wetlands. The term "wetlands" means those areas that are inundated or saturated by surface or ground water at a frequency and duration sufficient to support, and that under normal circumstances do support, a prevalence of vegetation or aquatic life that requires saturated or seasonally saturated soil conditions for growth and reproduction. Wetlands generally include swamps, marshes, bogs, and similar areas.

  4. Wetlands Determination. OPDIVs/STAFFDIVs shall utilize information available from the following sources when appropriate to determine the applicability of the wetlands protection requirements of this section:

    1. U.S. Department of Agriculture Soil Conservation Service Local Identification Maps;

    2. U.S. Fish and Wildlife Service National Wetlands Inventory;

    3. U.S. Geological Survey Topographic Maps;

    4. State wetlands inventories; and

    5. Regional or local government-sponsored wetland or land use inventories.

  5. Responsibilities. OPDIVs/STAFFDIVs are to evaluate the potential effects of a proposed action in wetlands in accordance with the procedures for National Environmental Policy Act (NEPA) review in Chapter 30-50. If an environmental assessment (EA) or environmental impact statement (EIS) is required to be prepared for the proposed action, a wetlands assessment, described in 30-40-70E, shall be included in the EA or EIS.

  6. Wetlands Assessment (Executive Order 11990).

    1. Proposed Action. The wetlands assessment shall describe the nature and purpose of the proposed action and the reasons for locating the action in the wetlands.

    2. Wetlands Map. A map of the affected wetlands indicating the location of the proposed action shall be included in the assessment.

    3. Wetlands Effects. The effects of the proposed action on the wetlands shall be discussed in the assessment. The discussion shall include an evaluation of the long- and short-term effects of the proposed action on the survival, quality, and natural and beneficial values of the wetlands, and any other relevant direct or indirect effects.

    4. Alternatives and Mitigation Measures. The wetlands assessment shall discuss alternatives to the proposed action that may avoid adverse effects and incompatible development in the wetlands, including the alternatives of no action or location at an alternate site. The assessment shall also discuss measures that mitigate the adverse effects of the proposed action. No further action shall take place until the OPDIV/STAFFDIV makes a decision that the proposed action includes all reasonable measures to minimize harm to the wetlands as a result of the proposed action.

    5. Conformity to Applicable State or Local Standards. The wetlands assessment shall include a statement indicating whether the proposed action conforms to applicable State or local wetlands protection standards.

  7. Public Review. Circulation of draft environmental impact statements shall include the public and other interested individuals, including concerned Federal, non-Federal and private organizations. Interested parties shall have a period of 60 days for review and comment on daft environmental impact statements.

  8. Secretarial Review. No further action shall take place until the Secretary of HHS determines that there is no practicable alternative to construction in wetlands and that the proposed action includes all practicable measures to minimize harm to the wetlands. The Secretary shall approve proposed actions requiring environmental impact statements for new construction in wetlands.

  9. Licenses and Permits. These requirements to not apply to the issuance to individuals of permits and licenses and the allocation of funds made to individuals.

30-40-80   WILD AND SCENIC RIVERS ACT

  1. Purpose. The purpose of the Act is to preserve selected free-flowing rivers, along with their immediate environments, for the benefit of immediate and future generations. These include river components and potential components of the National Wild and Scenic River System and study areas designated by the Secretaries of Agriculture and Interior. (Environmental officers keep a list of these rivers and related study areas). Designations used to describe these components, or parts thereof, include the following: (1) wild; (2) scenic; and (3) recreational.

  2. Requirement. Section 7 of the Wild and Scenic Rivers Act (16 U.S.C. ' 1278), provides for the protection of the free-flowing, scenic, and natural values of rivers designated as components or potential components of the National Wild and Scenic Rivers Systems from the effects of construction of any water resources project. The Wild and Scenic Rivers Act provides that no license, permit, or other authorization can be issued for a Federally assisted water resources project on any portion of a Wild and Scenic River or Study River (nor can appropriations be requested to begin construction of such projects) without prior notice to the Secretary of Agriculture and the Secretary of the Interior, and a determination in accordance with Section 7 of the Act. The Secretary of Agriculture and the Secretary of the Interior have issued Federal agency consultation procedures that are codified at 36 CFR Part 297.

  3. Definitions.

    1. Free-flowing. "Free-flowing" is defined by Section 16(b) of the Act as "existing or flowing in natural condition without impoundment, diversion, straightening, riprapping, or other modification of the waterway" (16 U.S.C. 1286(b)).

    2. Study Period. "Study period" means the time during which a river is being studied as a potential component of the Wild and Scenic Rivers System and such additional time as provided in Section 7(b)(ii) of the Act not to exceed 3 additional years during which a report recommending designation is before Congress, or such additional time as may be provided by statute.

    3. Study River. "Study river" means a river and the adjacent area within one quarter mile of the banks of the river which is designated for study as a potential addition to the National Wild and Scenic Rivers System pursuant to Section 5(a) of the Act

    4. Water Resources Project. "Water resources project" means any dam, water conduit, reservoir, powerhouse, transmission line, or other project works under the Federal Power Act (41 Stat. 1063) as amended, or other construction of developments which would affect the free-flowing characteristics of a Wild and Scenic River or Study River.

    5. Wild and Scenic River. "Wild and scenic river" means a river and the adjacent area within the boundaries of a component of the National Wild and Scenic Rivers System pursuant to Section 3(a) or 2(a)(ii) of the Act

  4. Responsibilities and Consultation Requirements. When a proposed action will have an effect upon an environment within or including a portion of a component, potential component, or study area, program personnel shall send a notice to the Secretary of the Interior for review.

  5. Contents of Notice. The notice shall include the following information:

    1. Name and location of affected river;

    2. Location of the project;

    3. Nature of the permit or other authorization proposed for issuance;

    4. A description of the proposed activity; and
    5. Any relevant information, such as plans, maps, and environmental studies, assessments, or environmental impact statements.

    6. The notice shall also provide any additional factual information that will assist the Secretary in determining whether:
      1. the water resources project will have a direct and adverse effect on the values for which a Wild and Scenic River or Study River was designated, when any portion of the project is within the boundaries of said river; or,

      2. The effects of the water resources project will invade or unreasonably diminish the scenic, recreational, and fish and wildlife values of a Wild and Scenic River, when any portion of the project is located above, below, or outside the Wild and Scenic River; or,

      3. whether the effects of the water resources project will invade or diminish the scenic, recreational, and fish and wildlife values of a Study River when the project is located above, below, or outside the Study River during the study period.

  6. Examples. The following are examples of circumstances which can affect a river component or study area:

    1. Destruction or alteration to all or part of the free-flowing nature of the river;

    2. Introduction of visual, audible, or other sensory intrusions which are out of character with the river or alter its setting;

    3. Deterioration of water quality; or

    4. Transfer or sale of property adjacent to an inventoried river without adequate conditions or restrictions for protecting the river and its surrounding environment.

  7. Response. If the Department of the Interior does not respond within 30 calendar days or states that the proposed action will not directly or adversely affect the area, the Department is in compliance with the review requirements of the Act. However, in those instances where the Department of the Interior does not respond, programs shall take care to always avoid or mitigate adverse effects on river components and study areas.

    If the Department of the Interior determines that the proposed action will directly and adversely affect the area, no further action shall take place whenever the proposed action involves the construction of a water resources project.

    The above requirements do not apply to types of actions excluded from the review process by appropriate Department of Interior or Agriculture regulations.

  8. Integration with NEPA. The determination of the effects of a proposed water resources project shall be made in compliance with the National Environmental Policy Act (NEPA). To the extent possible, OPDIVs/STAFFDIVs should ensure that any environmental studies, assessments, or environmental impact statements prepared for a water resources project adequately address the environmental effects on resources protected by the Wild and Scenic Rivers Act, and that the Department of Agriculture is apprised of ongoing analyses so as to facilitate coordination and identification of Wild and Scenic River related issues.

    To the extent practicable, impacts on Wild and Scenic River values will be considered in the context of other review procedures as provided by law. OPDIVs/STAFFDIVs are encouraged to consult with the Forest Service in order to identify measures which could eliminate any direct and adverse effects, thereby increasing the likelihood of securing consent.

Last Revised: October 17, 2003