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

-------
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

-------
           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

-------
OSWER Directive 9280.0-02
                               -2-
   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

-------
                                     OSWER  Directive  9280.0-02
                             -3-

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

-------
OSWER Directive 9280.0-02
                                -4-
   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.

-------
                                      OSWER Directive 9280.0-02


                              - 5 -
     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

-------
OSWER Directive 9280,0-02
                               -6-
   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.

-------
                                     OSWER Directive 9280.0-02

                              -7-
     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

-------
OSWER Directive 9280.0-02
                                -8-

   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.

-------
                                      OSWER  Directive  9280.0-02

                          - 9 -
   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.

-------