These guidelines set forth procedures to be followed by the Department ofJustice to implement Executive Order 11988 (Floodplain Management) and ExecutiveOrder 11990 (Protection of Wetlands). (The Orders.)

(a) It is the Department of Justice's policy to avoid to the extent possiblethe long and short term adverse impacts associated with the destruction ormodification of wetlands and floodplains and to avoid direct or indirect supportof new construction in floodplains and wetlands whenever there is a practicablealternative. The Department will provide leadership and take affirmative actionto carry out the Orders.

(b) It is the Department of Justice's intention to integrate these procedureswith those required under statutes protecting the environment, such as theNational Environmental Policy Act (NEPA). Whenever possible, the proceduresdetailed herein should be coordinated with other required documents, such as theenvironmental impact statement (EIS) or environmental assessment required underNEPA, so that unnecessary paperwork can be eliminated.

(a) Unified National Program for Floodplain Management, Water ResourcesCouncil, which is incorporated in these guidelines.

(b) Water Resources Council Floodplain Management Guidelines, Water ResourcesCouncil, 1978 (43 FR 6030).

(c) National Flood Insurance Act of 1968, as amended (42 U.S.C. 4001 et seq.) and NFIP criteria (44 CFR part 59 et seq.).

(d) Flood Disaster Protection Act of 1973 (Pub. L. 93-234, 87 Stat.975).

(e) National Environmental Policy Act of 1969, as amended (43 U.S.C. 4321 et seq.) (NEPA).

Throughout this part, the following basic definitions shall apply:

(a) Action—any Federal activity including:

(1) Acquiring, managing and disposing of Federal lands and facilities;

(2) Providing federally undertaken, financed, or assisted construction andimprovements; and

(3) Conducting Federal activities and program affecting land use, includingbut not limited to water and related land resources planning, regulating, andlicensing activities.

(b) Agency—an executive department, a governmentcorporation, or an independent establishment and includes the militarydepartments.

(c) Base flood—that flood which has a one percent chanceof occurrence in any given year (also known as a 100-year flood).(This term is used in the National Flood Insurance Program (NFIP) to indicatethe minimum level of flooding to be used by a community in its floodplainmanagement regulations.)

(d) Base floodplain—the 100-year floodplain (one percentchance floodplain). Also see definition of floodplain.

(e) Channel—a natural or artificial watercourse ofperceptible extent, with a definite bed and banks to confine and conductcontinuously or periodically flowing water.

(f) Critical action—any activity for which even a slightchance of flooding would be too great.

(g) Facility—any man-made or man-placed item other than astructure.

(h) Flood or flooding—a general and temporary conditionof partial or complete inundation of normally dry land areas from the overflowof inland and/or tidal waters, and/or the usual and rapid accumulation or runoffof surface waters from any source.

(i) Flood fringe—that portion of the floodplain outsideof the regulatory floodway (often referred to as “floodway fringe”).

(j) Floodplain—the lowland and relatively flat areasadjoining inland and coastal waters including floodprone areas of offshoreislands, including at a minimum, that area subject to a one percent or greaterchance of flooding in any given year. The base floodplain shall be used todesignate the 100-year floodplain (one percent chance floodplain). The criticalaction floodplain is defined as the 500-year floodplain (0.2 percent chancefloodplain).

(k) Floodproofing—the modification of individualstructures and facilities, their sites, and their contents to protect againststructural failure, to keep water out or to reduce effects of water entry.

(l) Minimize—to reduce to the smallest possible amount ordegree.

(m) One percent chance flood—the flood having one chancein 100 of being exceeded in any one-year period (a large flood). The likelihoodof exceeding this magnitude increases in a time period longer than one year. Forexample, there are two chances in three of a larger flood exceeding the onepercent chance flood in a 100-year period.

(n) Practicable—capable of being done within existingconstraints. The test of what is practicable depends upon the situation andincludes consideration of the pertinent factors, such as environment, cost ortechnology.

(o) Preserve—to prevent modification to the naturalfloodplain environment or to maintain it as closely as possible to its naturalstate.

(p) Regulatory floodway—the area regulated by Federal,State or local requirements; the channel of a river or other watercourse and theadjacent land areas that must be reserved in an open manner, i.e., unconfined orunobstructed either horizontally or vertically, to provide for the discharge ofthe base flood so the cumulative increase in water surface elevation is no morethan a designated amount (not to exceed one foot as set by the NFIP).

(q) Restore—to re-establish a setting or environment inwhich the natural functions of the floodplain can again operate.

(r) Structures—walled or roofed buildings, includingmobile homes and gas or liquid storage tanks that are primarily above ground (asset by the NFIP).

(s) Wetlands—“those areas that are inundated bysurface or ground water with a frequency sufficient to support and under normalcircumstances does or would support a prevalence of vegetative or aquatic lifethat requires saturated or seasonally saturated soil conditions for growth andreproduction. Wetlands generally include swamps, marshes, bogs, and similarareas such as sloughs, potholes, wet meadows, river overflows, mud flats, andnatural ponds” (as defined in Executive Order 11990 (Protection ofWetlands)).

(a) The Assistant Attorney General, Land and Natural Resources Division,

(1) Has overall responsibility for ensuring that the Department'sresponsibilities for complying with the Orders are carried out,

(2) Will ensure that the Water Resources Council, the Council onEnvironmental Quality, and the Federal Insurance Agency (FIA) are kept informedof the Department's execution of the Orders, as necessary, and

(3) Will determine, and revise on a continuing basis, which components of theDepartment should take further steps, such as the promulgation of programspecific procedures, to comply with the Orders. Considerations for making thisselection are whether a component:

(i) Acquires, manages, and disposes of federal lands and facilities;

(ii) Provides federally undertaken, financed or assisted construction andimprovements;

(iii) Conducts federal activities and programs affecting land use, includingbut not limited to water and related land resources planning, regulating, andlicensing activities;

(iv) Reviews and approves component procedures for complying with the Orders;

(b) The heads of offices, boards, bureaus and divisions,

(1) Are responsible for preparing program specific guidelines or procedures,where necessary, to comply with the Orders and for updating these procedures, asrequired,

(2) Will maintain general supervision over any new construction planningwithin the office, board, bureau, or division to see that the policyconsiderations and procedural requirements contained herein are followed in theplanning process,

(3) Will furnish, with all requests for new authorizations or appropriationsfor proposals to be located in floodplains or wetlands, a statement that theproposal is in accord with the Orders,

(4) Will provide information to applicants for licenses, permits, loans orgrants in areas in which floodplain and wetland requirements may have to be met,

(5) Will provide conspicuous notice of past flood damage and potential floodhazard on structures under the component's control and used by the generalpublic, and

(6) If responsible for granting a lease, an easement, or right-of-way, or fordisposing of federal property in a floodplain or wetland to nonfederal public orprivate parties, will, unless otherwise directed by law.

(i) Reference uses in the conveyance that are restricted under identifiedFederal, State or local floodplain regulations; and

(ii) Attach other appropriate restrictions; or

(iii) Refuse to convey.

Prior to taking any action, as defined in § 63.4(a) of this part,an office, board, bureau or division shall:

(a) Determine whether the proposed action is located in a wetland and/or the100-year floodplain (or the 500-year floodplain for critical actions) anddetermine whether the proposed action has the potential to affect or be affectedby a floodplain or wetland. The determination concerning location in afloodplain or wetland shall be performed in accordance with § 63.7 ofthis part. For actions which are in both a floodplain and wetland, the wetlandshould be considered as one of the natural and beneficial values of thefloodplain.

(b) Notify the public at the earliest possible time of the intent to carryout the action affecting or affected by a floodplain or wetland, and involve thebroadest affected and interested public in the decisionmaking process. At aminimum, all notices shall be published in the newspaper serving the projectarea that has the widest circulation and shall be distributed through theA-95 review process if subject to that process. In addition, notices ofactions shall be published in the Federal Register, if so requiredby the Assistant Attorney General, Land and Natural Resources Division, or bylaw. For certain actions, notice may entail other audiences and means ofdistribution. All actions shall be reviewed according to the following criteriato determine the appropriate audience for and means of notification beyond thoserequired above: Scale of action, potential for controversy, degree of publicneed for the action, number of affected persons, and anticipated potentialimpacts. Each notice shall include the following: A statement of the purpose ofand a description of the proposed action, a map of the general area clearlydelineating the action's locale and its relationship to its environs, astatement that it has been determined to be located in or that it affects afloodplain or wetland, a statement of intent to avoid the floodplain or wetlandwhere practicable, and to mitigate impacts where avoidance cannot be achieved,and identification of the responsible official for receipt of comments and forfurther information.

(c) Identify and evaluate practicable alternatives to locating in afloodplain or wetland (including alternative sites outside the floodplain orwetland; alternative actions which serve essentially the same purpose as theproposed action, but which have less potential to adversely affect thefloodplain or wetland; and the “no action” option). The followingfactors shall be analyzed in determining the practicability of alternatives:Natural environment (topography, habitat, hazards, etc.); social concerns(aesthetics, historical and cultural values, land use patterns, etc.); economicaspects (costs of space, construction, services, and relocation); and legalconstraints (deeds, leases, etc.). The component shall not locate the proposedaction in the base floodplain (500-year floodplain for critical actions) or in awetland if a practicable alternative exists outside the base floodplain (500-year floodplain for critical actions) or wetland.

(d) Identify the full range of potential direct or indirect adverse impactsassociated with the occupancy and modification of floodplains and wetlands andthe direct and indirect support of floodplain and wetland development that couldresult from the proposed action. Flood hazard-related factors shall be analyzedfor all actions. These include, for example, the following: Depth, velocity andrate of rise of flood water; duration of flooding, high hazard areas (riverineand coastal); available warning and evacuation time and routes; effects ofspecial problems, e.g., levees and other protection works, erosion, subsidence,sink holes, ice jams, combinations of flood sources, etc. Natural values-relatedfactors, shall be analyzed for all actions. These include, for example, thefollowing: water resource values (natural moderation of floods, water qualitymaintenance, and ground water recharge); living resource values (fish andwildlife and biological productivity); cultural resource values (archeologicaland historic sites, and open space for recreation and green belts); andagricultural, aquacultural and forestry resource values. Factors relevant to aproposed action's effects on the survival and quality of wetlands, shall beanalyzed for all actions. These include, for example, the following: Publichealth, safety, and welfare, including water supply, quality, recharge anddischarge; pollution; flood and storm hazards, sediment and erosion; maintenanceof natural systems, including conservation and long term productivity ofexisting flora and fauna, species and habitat diversity and stability,hydrologic utility, fish, wildlife, timber, and food and fiber resources; andother uses of wetlands in the public interest, including recreational,scientific, and cultural uses.

(e) Where avoidance of floodplains or wetlands cannot be achieved, design ormodify its actions so as to minimize harm to or within the floodplain, minimizethe destruction, loss or degradation of wetlands, restore and preserve naturaland beneficial floodplain values, and preserve and enhance natural andbeneficial wetland values. The component shall minimize potential harm to livesand property from the 100-year flood (500-year flood for critical actions),minimize potential adverse impacts the action may have on others, and minimizepotential adverse impacts the action may have on floodplain and wetland values,Minimization of harm to property shall be performed in accord with the standardsand criteria set out at 44 CFR part 59 et seq., (formerly 24 CFRpart 1901 et seq.), substituting the 500-year standard forcritical actions and, where practicable, elevating structures on openworks—walls, columns, piers, piles, etc.—rather than on fill.Minimization of harm to lives shall include, but not be limited to, theprovision for warning and evacuation procedures for all projects and shallemphasize adequacy of warning time and access and egress routes.

(f) Re-evaluate the proposed action to determine, first, if it is stillpracticable in light of its exposure to flood hazards and its potential todisrupt floodplain and wetland values and, second, if alternatives rejected atparagraph (c) of this section are practicable, in light of the informationgained in paragraphs (d) and (e) of this section. Unless required by law, theproposed action shall not be located in a floodplain or wetland unless theimportance of the floodplain or wetland site clearly outweighs the requirementsof E.O. 11988 and E.O. 11990 to avoid direct or indirect support of floodplainand wetland development; reduce the risk of flood loss; minimize the impact offloods on human safety, health and welfare; restore and preserve floodplainvalues; and minimize the destruction, loss or degradation of wetlands. Inaddition, where there are no practicable alternative sites and actions, andwhere the potential adverse effects of using the floodplain or wetland sitecannot be minimized, no action shall be taken, unless required by law.

(g) Prepare, and circulate a finding and public explanation of any finaldecision that there is no practicable alternative to locating an action in, oraffecting a floodplain or wetland. The same audience and means of distributionused in paragraph (b) of this section, shall be used to circulate this finding.The finding shall include the following: the reasons why the action is proposedto be located in a floodplain or wetland, a statement indicating whether theaction conforms to applicable State or local floodplain management standards, alist of alternatives considered, and a map of the general area clearlydelineating the project locale and its relationship to its environs. A briefcomment period on the finding shall be provided wherever practicable prior totaking any action.

(h) Review the implementation and post implementation phase of the proposedaction to ensure that the provisions of paragraph (e) of this section, are fullyimplemented. This responsibility shall be fully integrated into existing review,audit, field oversight and other monitoring processes, and additional proceduresshall be prepared where existing procedures may be inadequate to ensure that theOrders' goals are met.

(a) In order to determine whether an action is located on or affects a floodplain, the component shall:

(1) Consult the FIA Flood Insurance Rate Map (FIRM) and the Flood InsuranceStudy (FIS); or

(2) If a detailed map (FIRM) is not available, consult an FIA Flood HazardBoundary Map (FHBM); or

(3) If data on flood elevations, floodways, or coastal high hazard areas areneeded, or if none of the maps delineates the flood hazard boundaries in thevicinity of the proposed site, seek detailed information and assistance asnecessary and appropriate from the Department of Agriculture's Soil ConservationService, the Army Corps of Engineers, the National Oceanic and AtmosphericAdministration, the Federal Emergency Management Agency's RegionalOffices/Division of Insurance and Hazard Mitigation, the Department of theInterior's Geological Survey, Bureau of Land Management, and Bureau ofReclamation, the Tennessee Valley Authority, the Delaware River BasinCommission, the Susquehanna River Basin Commission, individual states and/orland administering agencies; or

(4) If the sources listed above do not have or know of the informationnecessary to comply with the Orders' requirements, seek, as permitted by law,the services of a federal or other engineer experienced in this work to

(i) Locate the site and the limits of the coastal high hazard area, floodwayand of the applicable floodplain, and

(ii) Determine base flood elevations.

(b) In the absence of a finding to the contrary, the component shall assumethat action involving a facility or structure that has been flooded in a majordisaster or emergency is in the applicable floodplain for the site of theproposed action.

(c) In order to determine whether an action is located on or affects a wetland, the component shall:

(1) Consult with the United States Fish and Wildlife Service (FWS) forinformation concerning the location, scale and type of wetlands within the areawhich could be affected by the proposed action; or

(2) If the FWS does not have adequate information upon which to base thedetermination, consult wetland inventories maintained by the Army Corps ofEngineers, the Environmental Protection Agency, various states, communities andothers; or

(3) If state or other sources do not have adequate information upon which tobase the determination, insure that an on-site analysis is performed by arepresentative of the FWS or other qualified individual for wetlandscharacteristics based on the performance definition of what constitutes awetland.

Agencies and divisions within the Department of Justice shall amend existingregulations and procedures, as appropriate, to incorporate the policy andprocedures set forth in these guidelines. Such amendments will be made within 6months of final publication of these guidelines.

Nothing in these guidelines shall apply to assistance provided for emergencywork essential to save lives and protect property and public health and safetyperformed pursuant to sections 305 and 306 of the Disaster Relief Act of 1974(88 Stat. 148, 42 U.S.C. 5145 and 5146).