Section 2 Purpose

a. The purpose of this Statement of Procedures is to set forth Agency policy and guidance for carrying out the provisions of Executive Orders 11988 and 11990.

b. EPA program offices shall amend existing regulations and procedures to incorporate the policies and procedures set forth in this Statement of Procedures.

c. To the extent possible, EPA shall accommodate the requirements of Executive Orders 11988 and 11990 through the Agency NEPA procedures contained in 40 CFR Part 6.

Section 3 Policy

a. The Agency shall avoid wherever possible the long and short term impacts associated with the destruction of wetlands and the occupancy and modification of floodplains and wetlands, and avoid direct and indirect support of floodplain and wetlands development wherever there is a practicable alternative.

b. The Agency shall incorporate floodplain management goals and wetlands protection considerations into its planning, regulatory, and decisionmaking processes. It shall also promote the preservation and restoration of floodplains so that their natural and beneficial values can be realized. To the extent possible EPA shall:

(1) Reduce the hazard and risk of flood loss and wherever it is possible to avoid direct or indirect adverse impact on floodplains;

(2) Where there is no practical alternative to locating in a floodplain, minimize the impact of floods on human safety, health, and welfare, as well as the natural environment;

(3) Restore and preserve natural and beneficial values served by floodplains;

(4) Require the construction of EPA structures and facilities to be in accordance with the standards and criteria, of the regulations promulgated pursuant to the National Flood Insurance Program;

(5) Identify floodplains which require restoration and preservation and recommend management programs necessary to protect these floodplains and to include such considerations as part of on-going planning programs; and

(6) Provide the public with early and continuing information concerning floodplain management and with opportunities for participating in decision making including the (evaluation of) tradeoffs among competing alternatives.

c. The Agency shall incorporate wetlands protection considerations into its planning, regulatory, and decisionmaking processes. It shall minimize the destruction, loss, or deg. radation of wetlands and preserve and enhance the natural and beneficial values of

wetlands. Agency activities shall continue to be carried out consistent with the Administrator's Decision Statement No. 4 dated February 21, 1973 entitled "EPA Policy to Protect the Nation's Wetlands."

Section 4 Definitions

a. "Base Flood" means that flood which has a one percent chance of occurrence in any given year (also known as a 100-year flood). This term is used in the National Flood Insurance Program (NFIP) to indicate the minimum level of flooding to be used by a community in its floodplain management regulations.

b. "Base Floodplain" means the 100-year floodplain (one percent chance floodplain). Also see definition of floodplain.

c. "Flood or Flooding" means 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 the unusual and rapid accumulation or runoff of surface waters from any source, or flooding from any other

source.

d. "Floodplain" means the lowland and relatively flat areas adjoining inland and coastal waters and other floodprone areas such as offshore islands, including at a minimum, that area subject to a one percent or greater chance of flooding in any given year. The base floodplain shall be used to designate the 100-year floodplain (one percent chance floodplain). The critical action floodplain is defined as the 500-year floodplain (0.2 percent chance floodplain).

e. "Floodproofing" means modification of individual structures and facilities, their sites, and their contents to protect against structural failure, to keep water out or to reduce effects of water entry.

f. "Minimize" means to reduce to the smallest possible amount or degree.

g. "Practicable" means capable of being done within existing constraints. The test of what is practicable depends upon the situation and includes consideration of the pertinent factors such as environment, community welfare, cost, or technology.

h. "Preserve" means to prevent modification to the natural floodplain environment or to maintain it as closely as possible to its natural state.

i. "Restore" means to re-establish a setting or environment in which the natural functions of the floodplain can again operate.

j. "Wetlands" means those areas that are inundated by surface or ground water with a frequency sufficient to support and under normal circumstances does or would support a prevalence of vegetative or aquatic life that requires saturated or seasonally saturated soil conditions for growth and reproduction. Wetlands generally include

swamps, marshes, bogs, and similar areas such as sloughs, potholes, wet meadows, river overflows, mud flats, and natural ponds.

Section 5 Applicability

a. The Executive Orders apply to activities of Federal agencies pertaining to (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 affecting land use, including but not limited to water and related land resources planning, regulating, and licensing activities.

b. These procedures shall apply to EPA's programs as follows: (1) All Agency actions involving construction of facilities or management of lands or property. This will require amendment of the EPA Facilities Management Manual (October 1973 and revisions thereafter).

(2) All Agency actions where the NEPA process applies. This would include the programs under section 306/402 of the Clean Water Act pertaining to new source permitting and section 201 of the Clean Water Act pertaining to wastewater treatment construction grants.

(3) All agency actions where there is sufficient independent statutory authority to carry out the floodplain/wetlands procedures.

(4) In program areas where there is no EIS requirement nor clear statutory authority for EPA to require procedural implementation, EPA shall continue to provide leadership and offer guidance so that the value of floodplain management and wetlands protection can be understood and carried out to the maximum extent practicable in these programs.

c. These procedures shall not apply to any permitting or source review programs of EPA once such authority has been transferred or delegated to a State. However, EPA shall, to the extent possible, require States to provide equivalent effort to assure support for the objectives of these procedures as part of the state assumption proc

ess.

Section 6 Requirements

a. Floodplain/Wetlands review of proposed Agency actions.

(1) Floodplain/Wetlands DeterminationBefore undertaking an Agency action, each program office must determine whether or not the action will be located in or affect a floodplain or wetlands. The Agency shall utilize maps prepared by the Federal Insurance Administration (Flood insurance Rate Maps or Flood Hazard Boundary Maps), Fish and Wildlife Service (National Wetlands Inventory Maps), and other appropri

ate agencies to determine whether a proposed action is located in or will likely affect a floodplain or wetlands. If there is no adverse floodplain/wetlands impact identified, the action may proceed without further consideration of the remaining procedures set forth below.

(2) Early Public Notice-When it is apparent that a proposed or potential agency action is likely to impact a floodplain or wetlands, the public should be informed through appropriate public notice procedures.

(3) Floodplain/Wetlands Assessment-If the Agency determines a proposed action is located in or affects a floodplain or wetlands, a floodplain/wetlands assessment shall be undertaken. For those actions where an environmental assessment (EA) or environmental impact statement (EIS) is prepared pursuant to 40 CFR Part 6, the floodplain/wetlands assessment shall be prepared concurrently with these analyses and shall be included in the EA or EIS. In all other cases, a "floodplain/wetlands assessment" shall be prepared. Assessments shall consist of a description of the proposed action, a discussion of its effect on the floodplain/wetlands, and shall also describe the alternatives considered.

(4) Public Review of Assessments-For proposed actions impacting floodplain/wetlands where an EA or EIS is prepared, the opportunity for public review will be provided through the EIS provisions contained in 40 CFR Parts 6, 25, or 35, where appropriate. In other cases, an equivalent public notice of the floodplain/wetlands assessment shall be made consistent with the public involvement requirements of the applicable program.

(5) Minimize, Restore or Preserve-If there is no practicable alternative to locating in or affecting the floodplain or wetlands, the Agency shall act to minimize potential harm to the floodplain or wetlands. The Agency shall also act to restore and preserve the natural and beneficial values of floodplains and wetlands as part of the analysis of all alternatives under consideration.

(6) Agency Decision-After consideration of alternative actions, as they have been modified in the preceding analysis, the Agency shall select the desired alternative. For all Agency actions proposed to be in or affecting a floodplain/wetlands, the Agency shall provide further public notice announcing this decision. This decision shall be accompanied by a Statement of Findings, not to exceed three pages. This Statement shall include: (i) The reasons why the proposed action must be located in or affect the floodplain or wetlands; (ii) a description 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 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 wetlands; and (v) a statement indicating how the proposed action affects the natural or beneficial values of the floodplain or wetlands. If the provisions of 40 CFR Part 6 apply, the Statement of Findings may be incorporated in the final EIS or in the environmental assessment. In other cases, notice should be placed in the FEDERAL REGISTER or other local medium and copies sent to Federal, State, and local agencies and other entities which submitted comments or are otherwise concerned with the floodplain/wetlands assessment. For floodplain actions subject to Office of Management and Budget (OMB) Circular A-95, the Agency shall send the Statement of Findings to State and areawide A-95 clearinghouse in the geographic area affected. At least 15 working days shall be allowed for public and interagency review of the Statement of Findings.

(7) Authorizations/Appropriations-Any requests for new authorizations or appropriations transmitted to OMB shall include, a floodplain/wetlands assessment and, for floodplain impacting actions, a Statement of Findings, if a proposed action will be located in a floodplain or wetlands.

b. Lead agency concept. To the maximum extent possible, the Agency shall relay on the lead agency concept to carry out the provisions set forth in section 6.a of this appendix. Therefore, when EPA and another Federal agency have related actions, EPA shall work with the other agency to identify which agency shall take the lead in satisfying these procedural requirements and thereby avoid duplication of efforts.

c. Additional floodplain management provisions relating to Federal property and facilities.

(1) Construction Activities-EPA controlled structures and facilities must be constructed in accordance with existing criteria and standards set forth under the NFIP and must include mitigation of adverse impacts wherever feasible. Deviation from these requirements may occur only to the extent NFIP standards are demonstrated as inap. propriate for a given structure or facility.

(2) Flood Protection Measures-If newly constructed structures or facilities are to be located in a floodplain, accepted floodproofing and other flood protection measures shall be undertaken. To achieve flood protection, EPA shall, wherever practicable, elevate structures above the base flood level rather than filling land.

(3) Restoration and Preservation-As part of any EPA plan or action, the potential for

restoring and preserving floodplains and wetlands so that their natural and beneficial values can be realized must be considered and incorporated into the plan or action wherever feasible.

(4) Property Used by Public-If property used by the public has suffered damage or is located in an identified flood hazard area, EPA shall provide on structures, and other places where appropriate, conspicuous indicators of past and probable flood height to enhance public knowledge of flood hazards.

(5) Transfer of EPA Property-When property in flood plains is proposed for lease, easement, right-of-way, or disposal to nonFederal public or private parties, EPA shall reference in the conveyance those uses that are restricted under Federal, State and local floodplain regulations and attach other restrictions to uses of the property as may be deemed appropriate. Notwithstanding. EPA shall consider withholding such properties from conveyance.

Section 7 Implementation.

a. Pursuant to section 2, the EPA program offices shall amend existing regulations, procedures, and guidance, as appropriate, to incorporate the policies and procedures set forth in this Statement of Procedures. Such amendments shall be made within six months of the date of these Procedures.

b. The Office of Federal Activities (OFA) is responsible for the oversight of the implementation of this Statement of Procedures and shall be given advanced opportunity to review amendments to regulations, procedures, and guidance. OFA shall coordinate efforts with the program offices to develop necessary manuals and more specialized supplementary guidance to carry out this Statement of Procedures.

Sec.

7.13 Effect on other regulations, forms,

and instructions.

AUTHORITY: Sec. 602 of the Civil Rights Act of 1964, 42 U.S.C. 2000d-1.

SOURCE: 38 FR 17968, July 5, 1973, unless otherwise noted.

§ 7.1 Purpose.

The purpose of this part is to effectuate title VI of the Civil Rights Act of 1964 (hereinafter referred to as the Act) to the end that no person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving financial assistance from the Environmental Protection Agency (EPA).

§ 7.2 Definitions.

Unless the context requires otherwise, as used in this part the term:

(a) "Administrator" means the Administrator of the Environmental Protection Agency or, except in § 7.11(e), any other Agency official who by delegation may exercise the Administrator's authority.

(b) "Agency" means the Environmental Protection Agency and includes each and all of its organizational components.

(c) "Applicant" means one who submits an application, subagreement, request, plan, or any other document required to be approved by the Administrator, or by a primary recipient, as a condition to eligibility for Federal financial assistance, and "application" means such an application, subagreement, request, plan, or any other such document.

(d) "Facility" includes all or any part of structures, equipment, or other real or personal property or interests therein, and the term "provision of facilities" includes the construction, expansion, renovation, remodeling, alteration or acquisition of facilities.

(e) "Federal financial assistance" includes:

(1) Grants, loans, and advances of Federal funds;

(2) The grant or donation of Federal property and interests in property;

(3) The detail of Federal personnel;

(4) The sale or lease of, or the permission to use (on other than a casual or transient basis), Federal property or any interest in such property without consideration, or for less than adequate consideration for the purpose of assisting the recipient, or in recognition of the public interest to be served by such a sale or lease to the recipient; and

(5) Any Federal agreement, arrangement, or other contract which has as one of its purposes the provision of assistance.

(f) "Primary recipient" means any recipient which is authorized or required to extend Federal financial assistance to another recipient for the purpose of carrying out a program for which it receives Federal financial assistance.

(g) "Program" includes any program, project, or activity for the provision of services, financial assistance, or other benefits to individuals (including education or training, health, welfare, housing, rehabilitation, or other services, whether provided through employees of the recipient of Federal financial assistance or provided by others through contracts or other arrangements with the recipient, and including work opportunities or other assistance to individuals), or for the provisions of facilities for furnishing services, financial assistance, or other benefits to individuals. The services, financial assistance, or other benefits provided under a program receiving Federal financial assistance shall be deemed to include (1) any services, financial assistance, or other benefits provided with the aid of Federal financial assistance or with the aid of any nonfederal funds, property, or other resources required to be expended or made available for the program to meet matching requirements or other conditions which must be met in order to receive the Federal financial assistance, and (2) any services, financial assistance, or other benefits provided in or through a facility provided with the aid of Federal financial assistance or such non-Federal resources.

(h) "Recipient" means any State, or any political subdivision or instrumentality thereof, any public or private agency, institution, organization, or

other entity, or any individual, in any State to which or whom Federal financial assistance is extended, directly or through another recipient, for any program, or who otherwise participates in carrying out such program, including any successor, assignee, or transferee thereof, but such term does not include any ultimate beneficiary under any such program.

(i) "State" means any State of the United States, the District of Columbia, Puerto Rico, the Virgin Islands, American Samoa, Guam, Wake Island, the Canal Zone, or any territory or possession of the United States.

§ 7.3 Applicability.

(a) This part applies to any program for which Federal financial assistance is authorized under a statute administered by the Agency, including all EPA grant programs and activities and assistance under the Uniform Relocation Assistance and Land Acquisition PoliIcies Act of 1970, 42 U.S.C. 4621 et seq. and the Disaster Relief Act of 1970, 42 U.S.C. 4401 et seq. It applies to any such program or activity to which money was paid, property transferred, or other Federal financial assistance extended after the effective date of this part including assistance extended pursuant to an application approved prior to the effective date. This part does not apply to: (1) Any program funded only by Federal financial assistance by way of insurance or guaranty, (2) any such program to which money was paid, property transferred, or other assistance extended only before the effective date of this part except where such assistance was subject to the title VI regulations of an agency whose responsibilities are now exercised by this Agency, (3) any assistance to any individual who is the ultimate beneficiary under any such program, or (4) any employment practice under any such program of any employer, employment agency, or labor organization, except as provided in § 7.4(c).

[38 FR 17968, July 5, 1973, as amended at 41 FR 20655, May 20, 1976]

$7.4 Discrimination prohibited.

(a) General. No person in the United States shall, on the ground of race,

color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity to which this part applies.

(b) Specific discriminatory actions prohibited. (1) A recipient under any program or activity to which this part applies may not, directly or indirectly, on the ground of race, color, or national origin:

(i) Deny a person any service, financial assistance, or other benefit provided under the program;

(ii) Provide to a person any service, financial assistance, or other benefit which is different, or is provided in a different manner, from that provided to others under the program;

(iii) Subject a person to segregation or separate treatment in any matter related to his receipt of any service, financial assistance, or other benefit under the program;

(iv) Restrict a person in any way in the enjoyment of any advantage or privilege enjoyed by others receiving any service, financial assistance, or other benefit under the program;

(v) Treat a person differently from others in determining whether he satisfies any admission, enrollment, quota, eligibility, membership, or other requirement or condition which persons must meet in order to be provided any service, financial assistance, or other benefit provided under the program;

(vi) Deny a person an opportunity to participate in the program through the provision of services (or otherwise) or afford him an opportunity to participate in a manner different from that afforded others; or

(vii) Deny a person the opportunity to participate as a member of any planning or advisory body which is an integral part of the program.

(2) A recipient in determining the types of services, financial assistance, or other benefits or facilities which will be provided under any such program or the class of persons to whom, or the situations in which such services, financial assistance, other benefits, or facilities will be provided under any such program, or the class of persons to be afforded an opportunity to participate in any such program may