3EPA
United States
Environmental Protaction
Agency
Office of
Solid Waste and
Emergency Response
DIRECTIVE NUMBER: 928C
TITLE: Policy On Flood Plains And T<*atlands Assessments
APPROVAL DATE: 08
EFFECTIVE DATE: 08
ORIGINATING OFFICE:
SPINAL
D DRAFT
STATUS:
REFERENCE (other documents):
OSWER OSWER OSWER
ME DIRECTIVE DIRECTIVE D
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0 3/1 9/8 7 United States Environmental Protection Agency
Washington, D.C. 20460
EPA OSWER Directive Initiation Request
2. Originator Information
Name of Contact Person Mil Cods .Office
SMITH - OERR/PAS
1. Directive Number
9280.0-02
Telephone Number
382-3300
3. Title
POLICY ON FLOOD PLAINS A1JD WETLANDS ASSESSMENTS
4. Summary of Directive (include brief statement of purpose)
Discusses situations that require preperation of a
flood plains or wetlands assessment, and the
factors which should be considered in preparing an
assessment for response actions undertaken
pursuant to section 104 or 106 of CERCLA.
(8/85, 12 pp)
Supplements
9280.0-1. ,"
5. Keywords
SUPERFUND, CERCLA, REMEDIAL PROGRAM, FLOOD PLAINS
MANAGEMENT
6a. Does this Directive Supereede Previous Dlrectlve(s)?| | yes | *\ No What directive (number, title)
b. Does it Supplement Previous Directives^)? 1 X! yes No Whatdlri
9280.0-01
7. Draft Laval
A-SignedbyAA/OAA B • Signed by Offlcs Director C - For Review i Cc
This Request Meets OSWER Directives System Format
8. Signature of Lead Office Directives Coordinator C
9. Name and Title of Approving Official 1
HEDEMAN/LUCERO
cttve (number, title)
imment In Development
)ate
)ate
08/06/85
OSWER OSWER OSWER
DIRECTIVE DIRECTIVE
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D.C. 20460
MEMORANDUM
SUBJECT:
FROM:
OFFICE OF
SOLID WASTE AND EMERGENCY RESPONS
OSWER Directive 9280.0-0
Policy on Floodplains and Wetland Assessments
for CERCLA Actions
TO:
William N. Hedeman, Jr., Directo!
Offrfek of/Eme-rgjency and Remedial RVs
'/ST"* _-/ / fl a I
/<,«*- & £&*. -fr*r\ I
Gene Lucero, Dijfector '
Office of Waste Programs Enforcement
Toxic and Waste Management Division Directors
Regions I-X
Response to releases of hazardous substances is often
affected by floodplain and wetland issues. Under this policy
Superfund actions must meet the substantive requirements of
the Floodplain Management Executive Order (E.O. 11988), and
the Protection of Wetlands Executive Order (E.O. 11990) (see
attached),- and Appendix A of 40 CFR Part 6, entitled Statement
of Procedures on Floodplain Management and Wetland Protection.
The purpose of Appendix A of 40 CFR Part 6 is to set forth EPA's
policy and guidance for carrying out the provisions of Executive
Orders 11988 and 11990. This memo discusses situations that
require preparation of a floodplains or wetlands assessment,
and the factors which should be considered in preparing an
assessment, for response actions undertaken pursuant to section
104 or 106 of CERCLA.
For removal actions, the on-scene coordinator (OSC)-must /
consider, to the extent practicable, taking into account the
exigencies of the situation, the effect the response action
will have on floodplains and wetlands. For remedial actions, a
floodplain/wetlands assessment must be incorporated into the
analysis conducted during the planning of the remedial action.
I. BACKGROUND
A. Floodplains
Floodplains are relatively flat areas or lowlands adjoining
the channel of a river, stream or water course which have been or
may be covered by floodwater. A flood is a general and temporary
condition of partial or complete inundation of normally dry land
areas from the overflow of inland and/or tidal waters and/or
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OSWER Directive 9280.0-02
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the unusual and rapid accumulation or runoff of surface waters
from any source. A reference to a floodplain should be
accompanied by a modifier indicating the level of flooding,
e.g., 100-year floodplain (one percent chance of flooding in
any year).
Executive Order 11988 - Floodplain Management
Executive Order 11988 reguires Federal agencies carrying
out their responsibilities 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. To do this,
Federal agencies must evaluate the potential effects of any
actions they may take in a floodplain to ensure that their
planning programs and budget requests reflect consideration
of flood hazards and floodplain management, including the
restoration and preservation of such land areas as natural
undeveloped floodplains. This order emphasizes the importance
of evaluating alternatives to avoid effects and incompatible
development in the floodplains, of minimizing the potential
harm to floodplains if the only practicable alternative
reguires siting an action in a floodplain and providing early
and adequate opportunities for public review of plans and
proposals involving actions in floodplains.
B. Wetlands
Wetlands are land areas which, because of their frequent
inundation by surface or ground water, can support vegetative
or aquatic life that requires saturated soil conditions.
Wetlands generally include but are not limited to swamps,
marshes, bogs and similar areas such as sloughs, pot holes,
wet meadows, river overflows, mud flats and natural ponds.
Executive Order 11990 - Protection of Wetlands
Executive Order 11990 requires Federal agencies in
carrying out their responsibilities to take action to minimize
the destruction, loss or degradation of wetlands, and to
preserve and enhance the natural and beneficial values of
wetlands. The order emphasizes the importance of avoiding
undertaking new construction located in wetlands unless there
is no practicable alternative to that construction, minimizing
the harm to wetlands if the only practicable alternative
requires construction in the wetland, and providing early and
adequate opportunities for public review of plans and proposals
involving new construction in wetlands.
C. Statement of Procedures on Floodplain Management and
Wetlands Protection - Appendix A to 40 CFR Part 6
EPA has promulgated regulations implementing procedures
on the National Environmental Policy Act (NEPA) at 40 CFR
Part 6. Appendix A of Part 6 (Appendix A) deals with procedures
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OSWER Directive 9280.0-02
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on Floodplain Management and Wetland Protection. The purpose
of Appendix A is to set forth Agency policy and guidance for
carrying out the provisions of Executive Orders 11988 and
11990. "~
Appendix A provides that it is the intent of these
Executive orders that, wherever possible, Federal agencies
implement the floodplains/wetlands requirements through
existing procedures, such as those internal procedures
established to implement NEPA. In those instances where the
environmental impacts of a proposed action are not significant
enough to require an environmental impact statement (EIS)
pursuant to section 102(2)(C) of NEPA, or where programs are
not subject to the requirements of NEPA, alternative but
equivalent floodplain/wetlands evaluation and public comment
and notice procedures must be established. Furthermore,
Appendix A prescribes the requirements for floodplain/wetlands
review of proposed EPA actions.
II. POLICY
A. Removal Actions
Removal actions are exempt from compliance with section
102(2)(C) of NEPA because there is a fundamental conflict in
statutory purpose between EIS requirements and EPA's removal
authority. This conflict arises from the fact that it would
be virtually impossible for EPA to follow the lengthy EIS
process and at the same time expeditiously undertake removal
actions.
1. Floodplain/Wetland Assessment
However, a floodplains/wetlands evaluation required by
Appendix A would not be as lengthy as the EIS process. There-
fore, the OSC or lead Agency should attempt to incorporate a
floodplains/wetlands assessment into the preliminary assess-
ment for the removal action. The floodplains/wetlands assess-
ment must consider the following: whether or not the action
will be located in or affect a floodplain or wetland; the
impact of the action on the floodplain or wetland; the altern-
atives available; and measures to minimize potential harm to
the floodplain or wetland if there is no practicable alternative
to locating in or affecting the floodplain or wetland [for a more
detailed explanation of these factors see Section III, Remedial
Actions, of this policy]. However, because removal actions
often involve situations requiring expeditious action to
protect public health, welfare or the environment, it may
not always be feasible to perform a floodplains/wetlands
assessment. In those circumstances where a floodplain/wetland
assessment cannot be performed, the OSC report or other
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OSWER Directive 9280.0-02
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documents should specify the reasons. At the OSC's discretion,
considering the exigencies of the situation, the OSC should
consult with the Regional 404 Staff where wetlands/floodplains
are involved or suspected to be involved.
For all lead agency removal actions where a floodplain/wetland
assessment is performed and is proposed to be in or affecting a
floodplain/wetland the OSC shall document the decision in the
OSC report. The decision shall be accompanied by a Statement
of Findings, not to exceed three pages that includes (i) the
reasons why the proposed action must be located in or affects
the flobdplain/wetlands; (ii) a description of significant
facts considered in making the decision to locate in or to
affect the floodplain or wetland including alternative sites
and actions; (iii) a statement indicating whether the proposed
action conforms to applicable State or local floodplain/wetland
protection standards; (iv) a description of the steps taken
to design or modify the proposed action to minimize potential
harm to or within the floodplain or wetland; and (v) a statement
indicating how the proposed action affects the natural or
beneficial values of the floodplain or wetland.
2. Opportunity for Citizen Comment
Appendix A has two public notice requirements. One is
public notice when it is apparent that a proposed or potential
agency action is likely to impact a floodplain or wetland and
the other is public notice of the selected decision.
Because of the expeditious nature of removal actions extend-
ing 45 days or less, no formal community relations plan must be
developed. Instead, a spokesperson will be designated by the
lead agency to inform the community of actions being taken,
to respond to inguiries and to provide information concerning
the release. If the exigencies of the situation permit the
performance of a floodplain/wetland assessment, the assessment
must be included in the spokesperson's presentation. This
will provide early public notice as required by Appendix A.
The OSC report, which contains the selected decision or the
reasons why a floodplain/wetland assessment cannot be performed,
must also be made available to the public. The OSC report will
provide public notice of the selected decision as required by
Appendix A.
If the required removal action extends over 45 days, a formal
community relations plan must be developed. If the exigencies
of the situation allow for a floodplain/wetland assessment,
this assessment must be made available for a three week public
comment period. This will provide early public notice and an
opportunity for participation in the decisionmaking process
as required by Appendix- A.
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OSWER Directive 9280.0-02
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If it is known that a floodplain/wetland assessment will be
conducted at the time of the preparation of the Community Relations
Plan than the public comment period must be noted in the plan.
The OSC report, which contains the selected decision or the
reasons why a floodplain/wetland assessment cannot be done, is
also required for the "longer" removals and must be made available
to the public. This will provide public notice of the selected
decision as required by Appendix A.
B. Remedial Actions
An EIS is unnecessary for remedial actions provided in that
EPA meets the standards for a functional equivalent exception to
the EIS requirements of section 102(2)(C) of NEPA. To comply
with the functional equivalent exception, the agency must have
expertise in environmental matters and meet the following criteria.
First, the agency's authorizing statute must provide substantive
and procedural standards that ensure full and adequate consideration
of environmental issues. Second, the agency must afford an
opportunity for public participation in the evaluation of environ-
mental factors prior to arriving at a final decision.
1. Consideration of Environmental Issues
Remedial actions satisfy the first criterion for a functional
equivalent exception because of the mandate for environmental
assessment contained in section 104 of CERCLA and the procedural
safeguards developed by EPA for the remedial planning process.
The language in section 104, that directs that remedial actions
be necessary to protect public health, welfare, and the environment,
establishes a standard mandating consideration of environmental
effects. Moreover, the procedures set forth in the National
Contingency Plan (NCP) establish a process for conducting an
analysis during the planning of remedial actions that is similar
in content to the evaluation underlying an EIS. This analysis
is contained in the remedial investigation/feasibility study
(RI/FS). Therefore, for a remedial action to comply with the
alternative but equivalent floodplain/wetland evaluation
contained in Appendix A of 40 CFR Part 6, a floodplain/wetlands
assessment must be incorporated into the analysis conducted
during the planning of remedial actions which is established
by the NCP.
During the scoping of remedial response actions, the Remedial
Project Manager (RPM) or the lead Agency in conjunction with
Regional 404 staff, should identify any floodplain or wetlands
located within the site area or that could be affected by the
response action. If the area is predominantly privately owned,
the RPM or the lead agency shall consult with the Federal Insurance
Administration of the Federal Emergency Management Agency which
has two maps that will be useful in identifying floodplains.
The Flood Insurance Rate Map shows the boundaries and elevations
of the 100 and 500 years floodplains. The other map, Flood
Hazard Boundary Map, shows the appropriate area of the 100 years
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OSWER Directive 9280,0-02
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zone. A copy.of these maps can be obtained by calling
1-800-638-6620. For areas predominately State or Federally
owned, consult with the controlling Federal or State agency.
Maps are available for some wetland areas from the Fish and
Wildlife Service (National Wetlands Inventory Maps) or from
local and State planning agencies. Also, the Regional 404
staff has access to the most up to date wetlands area
information.
If there are no floodplains/wetlands located within the
site area or that could be affected by a response action, the
feasibility study should so state, and the response action may
proceed without further consideration of the procedures set
forth below. However, if the site is located within a flood-
plain/wetland or if the proposed remedial action would affect
a floodplain/wetland, the RPM or the lead agency must conduct
a floodplain/wetland assessment which will be integrated into
the feasibility study. In the RPM's discretion, the RPM should
consult with the Regional 404 staff in cases that require a
floodplains/wetlands assessment. Floodplain/Wetland assessments
shall consist of a description of the proposed action, a discussion
of its effect on the floodplain/wetlands, a description of
the alternatives considered and their effects on the floodplains
and wetlands, and measures to minimize potential harm to the
floodplaih/ wetland if there is no practicable alternative
to locating in or affecting floodplain/wetlands.
a. Floodplain Assessment Of Alternatives
In assessing the alternatives and their effects on the
floodplain and floodplain protection, the RPM or lead agency
should consider such factors as environmental effects, community
welfare, cost and technology. All possible alternatives must
be considered, including the no action alternative. If one
or more of the alternatives will be located in a floodplain,
those alternatives may not be selected unless a determination
is made that no practicable alternatives exists outside the
floodplain.
If no practicable alternatives exist outside the floodplain,
and the RPM or lead agency has determined or proposes to allow a
remedial action to be located in a floodplain, then the RPM or
lead agency shall act to minimize potential harm or avoid adverse
effects to the floodplain. This includes acting to restore and
preserve the natural and beneficial values of floodplains. The
benefits of preserving floodplains in their natural or relatively
undisturbed state include not only reduction of flood hazards,
but maintenance of water guality standards, replenishment of
ground water, soil conservation, the fostering of fish, wildlife
and plant resources and the provision of recreational areas.
The following are possible methods for minimizing potentia^j
harm to floodplains. This list, however, does not preclude the
RPM or lead agency from using other measures that minimize
potential harm or avoid adverse effects to floodplains.
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OSWER Directive 9280.0-02
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1. Use minimum grading requirements.
2. Return the site to natural contours.
3. Maintain floodplain vegetation to reduce sedimentation.
4. Regulate methods used for grading, filling, soil removal
and replacement to reduce sedimentation.
5. Require topsoil protection program.
6. Raise the site above the floodplain.
7. Construct new structures or facilities in floodplains in
accordance with accepted floodproofing and other flood
protection measures and elevate structures above the base
flood level rather than filling inland, wherever practicable,
b. Wetland Assessment Of Alternatives
In assessing the alternatives and their effects on wetlands,
the RPM or lead agency in conjunction with the Regional 404 staff,
should consider such factors as environmental effects, community
welfare, cost and technology. All possible alternatives must be
considered, including the no action alternative \If one or more of
the alternatives will be located in a wetland,,those alternatives
may not be selected unless a determination is made that no
practicable alternative exists outside the wetlands.
If no practicable alternative exists outside the wetlands,
and the RPM or lead agency has determined or proposes to allow a
remedial action to be located in a wetlands, then the RPM or
lead agency shall act to minimize potential harm or to avoid
adverse effects to the wetlands. This includes action to allow
restoration and preservation of the natural and beneficial
values of the wetlands. The benefits of preserving wetjLajids
in their natural or relatively undisturbed state include tfie
control of flood and storm hazards, maintenance of water
quality standards and water supply, maintenance of natural
systems, natural pollution abatement, conservation and long
term productivity of existing flora and fauna, species and
habitat diversity and stability, hydrologic utility, fish,
wildlife, timber and food resources, and other uses of wetlands
in the public interest including recreational, scientific
and cultural uses. All impacts caused by an action occurring
in a wetland must be evaluated and mitigated according to the
EPA mitigation policy (under authority of the Clean Water Act
section 404) in effect at the time of the proposed action,
including the effects on the wetlands natural or beneficial
value.
C. Documentation of Decision
For all lead agency response actions proposed to be in or
affecting a floodplain/wetland the RPM or lead agency shall
document their decision in the Record of Decision (ROD). The
decision shall be accompanied by a Statement of Findings which
may be included in the ROD support document or attached as a
separate appendix. This statement will not exceed three pages
and will include: (i) The reasons why the proposed action must be
located in or affect the floodplain or wetlands; (ii) a description
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OSWER Directive 9280.0-02
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of significant facts considered in making the decision to
locate in or affect the floodplain or wetlands including
alternative sites and actions; (iii) a statement indicating
whether the proposed action conforms to applicable State or
local floodplain/wetland protection standards; (iv) a description
of the steps taken to design or modify the proposed act to
minimize potential harm to or within the floodplain or wetlands;
and (v) a statement indicating how the proposed action affects
the natural or beneficial values of the floodplain or wetlands.
2. Opportunity for Response to Citizen Concerns
Remedial actions satisfy the second criterion for a functional
equivalent exception because current Agency procedures for public
comment on remedial actions and the proposed amendments to the
NCP afford the public an ample opportunity for participation in
the evaluation of environmental factors prior to arriving at a
final decision. The proposed amendments to the NCP and the
current Superfund Community Relations Policy provide for a minimum
21-day comment period on the feasibility study which outlines
alternative remedial measures prior to selection of the final '
remedial response. This public involvement in the remedial
planning process would enable remedial actions to meet the
public participation requirement for the functional equivalent
exception to NEPA.
Appendix A, however, appears to require two further public
notice requirements. One is any early public notice when it is
apparent that a proposed or potential agency action is likely to
impact a floodplain or wetlands and the other is public notice of
the selected decision.
Current Agency policy suggests that a fact sheet summarizing
the feasibility study response alternatives and other issues, be
provided to the public 2 weeks prior to the minimum 3 week public
comment period for the feasibility study. The fact sheet will
include a statement explaining whether a proposed or potential
remedial action is likely to impact a floodplain or wetlands.
This will provide early public notice as required by Appendix A.
Concerning the public notice of a selected decision, the
Agency suggests that a public notice and updated fact sheet
summarizing the ROD be provided to the public. In addition, when
the ROD is signed, it becomes a public document. The public
notice, fact sheet and the availability of the signed ROD
in the information repositories will provide public notice of
the selected decision as required by Appendix A. The updated
fact sheet will contain the alternative selected, any effects
the response will have on floodplain/wetlands, and the State-
ment of Findings described in the Documentation of Decision
Section above.
In addition, the Agency suggests that public meetings and
other community relations activities be held as specified in the
community relations plan.
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OSWER Directive 9280.0-02
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D. Summary
1. Removal Actions
For removal actions, EPA's policy is to pursue actions
that will meet applicable or relevant standards, and criteria of
the other Federal environmental laws that deal with floodplains/
wetlands to the maximum extent practicable, considering the
exigencies of the situation.
2. Remedial Actions
For remedial actions, EPA's policy is to pursue remedies
that attain or exceed applicable and relevant standards of other
Federal environmental laws that deal with floodplains/wetlands,
unless specific circumstances exist as referenced in section
300.68(1)(5) of the NCP. CERCLA procedural and administrative
requirements will be modified to provide safeguards similar
to those provided under other laws. Applications for and
receipt of permits is not reauired for on-site response
actions taken under the Fund-financed or enforcement authorities
of CERCLA (i.e., Clean Water Act 404 permits are not required)."
III. COMPLIANCE WITH OTHER FLOODPLAIN/WETLAND LAWS
The Agency has concluded that cleanups pursuant to sections
104 and 106 of CERCLA should comply with other Federal environ-
mental standards, as a matter of policy, but not as a matter of
law, except in a limited set of circumstances. For example,
Section 10 of the Rivers and Harbors Act of 1899 and section
404 of the Clean Water Act apply to dredge and fill activities
and must be complied with except in very limited circumstances
such as fund balancing. (See "CERCLA Compliance with other
Environmental Statutes" 50 FR 5928). However, permits are
not required for these actions. This policy has also been
proposed in amendments to the NCP (50 FR 5862). In addition,
Federal public health and environmental criteria and advisories
and State standards shall be considered, with appropriate
adjustment, in determining the appropriate response action.
Therefore, the Agency should also consider State and local
floodplain/wetland protection standards and other Federal
guidance. If the Agency does not use applicable State and
local standards, the reason why should be documented in the
Record of Decision or the Statement of Findings prepared by
the OSC.
IV. IMPLEMENTATION
This policy will apply to all removals and remedial
investigations and feasibility studies that are initiated
after August 1, 1985.
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