4/8/2016
Wetlands,
Floodplains, Flood Insurance,
Waterfowl utilizing a wetland during migration
Sole Source Aquifers, CZMA and CBRA
History of the Clean Water Act
Authorized in 1972
Restore and maintain the chemical, physical and
biological integrity of the nations waters
Government to set water quality standards for surface
waters and required a permit for any discharge of
pollutants into a WOUS (Waters of the U.S.)
Not as furry as ROUSs!
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4/8/2016
Sources of Pollution
Non-point source pollution- many sources
• Agricultural sources: Fertilizer, herbicides,
insecticides, etc.
• Oil, grease, and toxic chemicals from urban runoff.
• Construction runoff
Point Source Pollution- Single identifiable source
• Industrial facility such as an oil refinery
• Municipal sewage treatment facility
Wetland
Functions
Wetlands
• Improve water quality- Filter water, remove nutrients,
pollutants, sediment. Also trap heavy metals (non
musical!)
• Filter fertilizer- remove excess nitrogen & phosphorous
to decrease algal blooms.
• Prevent flooding- store & slowly release water.
• Wetland plants stabilize the soil, reduce wave action.
• Provide wildlife habitat and feeding sites for migratory
birds and waterfowl. >1/3 of all birds in North America
rely on wetlands.
• Wetlands are important for endangered species
>1/3 of all endangered species in U.S. live in wetlands for
part of their life cycle.
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4/8/2016
Wetlands Provide Habitat for Animals
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4/8/2016
losses
Wetlands Losses
• 60,000 acres of wetlands are still lost every year.
• >91% of wetlands in CA have been lost. (Mitch and
Gosselink, 1993)
Threats
• Urban development (physical loss of wetlands).
• Poor water quality- fertilizers, urban runoff etc.
• Soil erosion and sedimentation
• Invasive species
Websites for HUD regulations
https://www.hudexchange.info/environmentalreview/floodplain-management/
Recent regulation
https://www.federalregister.gov/articles/2013/11/15
/2013-27427/floodplain-management-andprotection-of-wetlands
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4/8/2016
Executive Order 11990
Protection of Wetlands
Each federal agency shall avoid to the extent
possible providing assistance for new
construction in wetlands unless the agency finds:
1) No practicable alternatives (8 step process)
2) Include measures to minimize harm to wetlands.
3) Consider economic & environmental impacts.
4) Avoid long & short term impacts.
5) Don’t destroy /or modify.
“Wetlands” - EO 11990
Section 7 (c)
“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 = swamps, marshes, bogs, and similar areas
such as sloughs, potholes, wet meadows, river
overflows, mud flats, or natural ponds
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4/8/2016
Indicators
for USACE
delineation
“Wetlands”
Clean Water
Act
Hydrology- water saturated soils for 18 consecutive days.
Hydric soils- soils developed under saturated conditions.
Hydrophytic vegetation- plants that tend to grow in
wetlands.
Area that meets all 3 criteria is considered a wetland.
USSC- Solid Waste Agency vs. USACE = Interstate, isolated
ponds & wetlands not connected by navigable waters =
NOT covered by Section 404 of CWA.
Covered by E.O. 11990. Wetlands need to be navigable,
flow min. 3 months, adjacent waters, water with a
“significant nexus” to traditional navigable waters.
.
Section 404 of the Clean Water Act
•Program run by Army Corps of Engineers
(USACE)
•EPA &USACE use the 1987 Corps of Engineers
Wetlands Delineation Manual & Regional
Supplements to define wetlands for 404
permits.
•Discharging, dredging, filling of W.O.U.S.
including wetlands, requires a permit from
USACE.
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4/8/2016
Section
of CWA
404404
Permit
• Requires a landowner to get a permit from USACE
before beginning any non-exempt action involving
placement of dredge/fill material in WOUS.
• Generally need at least jurisdictional determination
404 Permits:
• Nationwide permit may apply
• Need individual permit for larger wetlands
• Also allows states to administer individual/general
permit in lieu of USACE permit program
Protection of Wetlands
Protection of
Wetland Limits
Limits
Wetlands subject to 404 CWA are wetlands for EO
11990.
But EO 11990 is NOT only USACE Section 404
permitting required by the Clean Water Act.
There are some wetlands not considered WOUS
under 404 but yes wetlands for EO 11990.
Both are needed before FONSI.
National Wetlands Inventory (NWI) Map (USFWS)or
consult NWI staff if think map =inaccurate. Or a
wetland professional.
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4/8/2016
Wetlands Map
http://www.nwi.fws.gov/mapper_tool.htm
NWI Interactive Mapper
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4/8/2016
Floodplains
24 CFR Part 55
Floodplains (FP) vs. Floodways
100 yr. FP = area that is subject to 1% or > chance
of flooding every year
Floodway = It is the channel of river and adjacent
FP that must be reserved in unobstructed
condition to discharge flood and carry flow
without increasing flood levels by > 1 ft. Part of the
FP which carries the flow, flood hazard is the
greatest and velocities are the highest.
No HUD $ approved for actions in Floodways
except functionally dependent use.
Functionally dependent= land use must be close to
water (e.g. dam, marina, port, bridge, etc.)
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4/8/2016
Flood Map
Flood
Insurance
Rate
Map
(FIRM
)
POST 1986
ZONE X
E
ZONE AE
E
ZONE X
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4/8/2016
FIRM Boundary Map
• Unshaded X Zone = outside the FP (former C zone)
• Light shaded X Zone 500 yr. flood (.2% chance
flooding) or where the 100 yr. FP reaches depths of
< than 1 ft. (former B zone)
• Dark shaded A Zone = 100 yr. FP (1% chance of
flooding) often in rivers= A, A0, AH, A1-A30, AE, AR,
etc.
• Floodways = cross-hatched areas in the A zones. If
an A zone isn’t cross-hatched, check if there is a
separate Floodway Hazard Boundary Map.
Floodways will be shown on that map as an
unshaded area within the shaded area.
V Zone = areas with High Velocity Waters
V Zone = Coastal high hazard areas
e.g. hurricanes/tsunamis.
Critical actions : forbidden in V zone
These actions are where even slight flooding = too much.
e.g. actions involving data center, hospital, fire station.
Reg update: No construction of new structures or
infrastructure in V zone.
Forbids HUD $/FHA mortgage insurance from construct
new development in V zone. FHA mortgage as long as
insurance doesn’t finance new construction. Not existing
structures! Note: Converting nonresidential residential
use= considered new construction for FP management.
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4/8/2016
New Regulatory Change: Advisory
Base Flood Elevations (ABFE)
• Requires use of preliminary flood maps and ABFEs.
Previously Part 55.2 (b) 1 indicated that FIRMs were
the only source of data to comply with 8 step
process. Post Sandy, FEMA decided that existing
FIRMs may not reflect actual risk and issued ABFEs
and preliminary FIRMS.
• This brought HUD regs into alignment with other
agencies that use best available flooding
information
FEMA data not available/detailed
enough…
Use best available information
• Community Flood Administrators
• U.S.G.S. Maps
• USACE
• USDA Natural Resources Conservation Service
• State departments of water resources
• County public works
• Local flood control or levee districts
• Contracted special studies
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4/8/2016
Floodplain Management E.O. 11988
Federal agency shall avoid to the extent possible
the long & short term adverse impacts from the
occupancy & modification of FPs.
• Avoid direct/indirect support of FP development
whenever there are practicable alternatives
• Minimize the impacts of floods on human safety,
health & welfare.
• Restore & preserve beneficial values of FPs.
Develop regulations…
Floodplain Management E.O. 11988
Applicable to:
• acquisition, management and disposition of
lands and facilities,
• construction and improvements,
• other activities affecting land use.
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4/8/2016
24 CFR
Part
55 11988
E.O. 11990
and
E.O.
Federal agencies are charged by these E.O.s to
incorporate wetland protection and FP
management into their respective agency’s
planning and regulations.
HUD’s reg= 24 CFR 55. HUD recently finalized a rule
that updated HUD’s FP & wetlands regulations.
FP management was dealt with through Part 55 regs.
Recent update codified the process for wetlands too.
Final Rule published FR 11/15/13.
24 CFR 55
• HUD rules for implementing EO 11988 in
FEMA special flood hazard areas (SFHA)
designated zones A or V
• Avoid physical actions in base 100 yr. (or 500
yr. for critical actions) floodplain, including:
• 1-4 family rehab if > 50% value, buildings,
roads, pipelines, basically anything except
minor clearing and grubbing.
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4/8/2016
24 CFR 55
Implements E.O. 11988 and E.O. 11990 and uses
principles of Unified National Program for Floodplain
Management. These regulations apply to all HUD
actions that are subject to potential harm by location
in FP or wetlands.
Actions: acquisition, construction, demolition,
improvement, disposition, financing and use of
properties located in FP or WL for which approval is
required from HUD.
Not prohibit approval of action (except for certain
actions in Coastal High Hazard Areas)
24 CFR 55
• Floodway &coastal hazard area prohibitions
don’t apply if only an incidental part is in 100
yr. FP.
• Flood buffer zone is extended to the 500 yr. FP
for proposed rehab , refinance or new
construction for facilities housing/serving
mobility impaired individuals.
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4/8/2016
Exceptions to 8 STEP: 55.12
• Policy level actions (24 CFR 50.16)
• 1-4 family dwelling <50% change in value
• Minor repairs to approved action (not rehab)
FP site with no construction in FP if…
a) drainage is OK
b) restrictive covenant on FP use
• Emergencies (imminent threat to health/safety)
• FP site with Letter of Map Amendment/Revision
LOMA/LOMR
• Certificates & Vouchers, down payment assistance
• Mortgage Insurance (Single Family)
New Revision Exceptions
Leasing existing structures insured within the NFIP
and not in a V zone.
Also requires: Structure is insured for its total value or
up to the NFIP max. as of when the lease started.
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4/8/2016
8 Step Process
Alternatives
• New site (at a higher elevation or safer area)
• Redesign project (e.g. by elevating property)
• Obtain LOMA or LOMR
8 Step Process
Requires:
• Consideration of alternatives
• Public notice/s (2 potentially)
• Mitigate damage
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4/8/2016
8 Step Process
1. Is project located in 100 yr. FP? (or 500yr. FP for
critical actions). FEMA FIRM map A or V Zones.
2. Early public review - publish notice of proposal to
consider action in the floodplain- 15 days
comment
3. Identify & evaluate practicable alternatives
4. Identify potential direct & indirect impacts
associated with occupancy & modification of the
floodplain.
8 Step Process
5. Design or modify the action to minimize adverse
impacts and preserve the beneficial values.
6. Re-evaluate whether the action is practicable.
7. Final Notice - publish notice of decision why there
were no practicable alternatives and the mitigation
measures adopted. 7 days
8. Implement action with mitigation measures.
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4/8/2016
24 CFR 55
Is project subject to
… Part 55? (55.12(c)) ?
.. .to the 8 step decision making process (55.12(b))?
…to decision making steps 2, 3 & 7 (55.12(a))
For purchase/refinancing actions described in 55.12
(a)2 or repair, rehab, modernize, or improve actions
described in 55.12(a)3, an abbreviated process
pursuant to 55.12(a) may be used.
Actions will be discouraged if lowest floor/life support
facilities or exit/entrance of building are > 12
inches below the 100 yr. FP line.
Not subject to decision making steps 2, 3 &
7 (55.12(a)) (public notices & alternatives)
HUD actions that involve
– property disposition of HUD owned property
New reg update: Repairs, rehabilitations and
improvements of structures (SF, MF, Hospitals) that does
not result in 20% increase in number of dwelling units or
meet the standard of “substantial improvement”
(50% of value before rehabilitation)
– E.g. weatherization
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4/8/2016
New Reg Update - Use of 404 Permits
Update allows HUD recipients to use 404 CWA permits
instead of doing first 5 steps of 8 step process.
Streamline approach will lower cost and time.
If applicant has individual 404 permit and submit with
HUD application then only do last 3 steps of process.
Avoid need for 2 notices.
Issuance of a 404 permit not substitute for processing
under 8 step + comply with EP 11988 when property is
also located in a FP.
General/Nationwide permits can’t be used under this
provision.
Step 1: Is the site in the 100 yr. FP or
Wetland?
If not…
• Copy of FIRM map and panel (or copy of NWI map)
• Mark the site on the map/panel.
• Use FIRM map as a source document in ERR.
• Create covenant or restriction & drainage plan (24
CFR Part 55.12 (c) (6).
• Proceed with project.
If yes go to step 2…
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4/8/2016
Step 2 - Early Public Review
15 days for comments
For publication or dissemination notice to include:
Project name, location & description of physical
activity.
– # acres of floodplain/wetland (amount of property)
– Location of ERR.
– Name of local official for comments
– file accessibility (location, hours)
http://portal.hud.gov/hudportal/HUD?src=/program_offic
es/comm_planning/environment/library/subjects/flood
wetlands/notices/floodwet
Step 3 - Identify & Evaluate
Alternatives
• location outside
floodplain/wetland
• alternative method to
achieve project goal
• Reject (no project
alternative)
consider
• Feasible technological
alternatives
• Natural conditions
• Hazard reduction methods
& related mitigation costs
• Social demands/needs
• Environmental impacts
• Legal limitation
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4/8/2016
Step 4 – Identify Impacts
Consider: Impacts to the FP/wetland, as well as
to people & property
Types of impacts:
Positive/negative.
Concentrated & dispersed.
Short-term & long-term.
Direct & indirect support that could result from
action.
Step 5- Minimize, restore & preserve
Limit fill of FP/wetlands
Minimize grading
Relocate non-conforming structures
Preserve natural drainage
Use pervious surfaces/green alleys
Maintain buffers, minimize destruction of
vegetation.
• Use detention ponds or rain gardens
• Use development restrictions such as easements
and covenants (NRCS)
•
•
•
•
•
•
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Step 6 – Reevaluate Project
Is the project still feasible considering?
1) Exposure to floods/wetlands
2) Potential to increase hazards
3) New information gathered in Step 4 &5.
4) Re-evaluate the site and alternatives considered at
step 3.
Step 7 - Final Notice
If there is no alternative….Publish final notice.
1) Justify reasons why project must be located in
floodplain/wetland
2) List of alternatives considered
3) List of mitigation measures
4) Wait…7 day comment period
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4/8/2016
STEP 7 - Final Notice
7 day comment period
Reasons
why
must
be
floodplain/wetland
• list of alternatives considered
• mitigation measures
• publication & dissemination
located
in
Step 8 – Implement Project
Program staff must…
1) Continue to monitor
2) Ensure mitigation measures are implemented
3) Process must be completed prior to FONSI
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4/8/2016
Part 55 More Information
Leases must contain acknowledgements signed by
residents that they have been advised the that
property is in a FP and flood insurance is available
for their personal property.
Part 55 Rule Updates
Requires compensatory mitigation for adverse impacts to
> 1 acre of wetlands.
Compensatory mitigation from government requirement
can be used to fulfill this.
1) Permittee-responsible mitigation
2) mitigation banking
3) in-lieu fee mitigation
4) use of preservation easement/covenant or any form
by state or federal government.
Sometimes comp mitigation is not practicable/applicable
due to $ or lack of funds for project.
E.g. Alaska native village that is mainly in a wetland
surround by government land.
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4/8/2016
Flood Disaster Protection Act (1973)
NFIP (National Flood Insurance Program)
• Local community must join for private sector to
offer flood insurance
• Community adopts local ordinance
– No development in floodway
– Can build in regulatory (100 yr) floodplain
• Elevate
- no basements
• Can look up status on www.fema.gov (Community
Status Book)
• Property owners must buy flood insurance for
buildings located within SFHA, when federal $ is
used to buy, repair, improve or build.
Flood Disaster Protection Act (1973)
Mandatory Purchase of Flood Insurance
• Prohibition against any (insurable) federal action in
floodplain without flood insurance
• FEMA emergency relief (including HUD participation
on flood hazard mitigation team)
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4/8/2016
NFIP (National Flood Insurance
Program)
• Must join for private sector to offer flood
insurance
• Local Ordinance
• Cannot build in floodway
• Can build in floodplain
–If structure is elevated (>1 ft above 100 yr)
– No basements
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4/8/2016
Flood Insurance Advised, not needed
for Routine Maintenance
• Routine maintenance falls below the threshold for
“repair or improvement” Sec.3(a)(4) of FDPA.
Maintenance activities keep a building in good
operating condition, do not add value. Includes:
painting exterior or interior, fixing gutters, floors,
mending leaks, plastering, replacing thermostats,
window panes or door locks.
Repairs/improvements include new plumbing,
electrical wiring or AC system, new roof, any
comprehensive remodeling.
Duration
–loans - term of loan.
–grants - economic/useful life of
project or building.
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4/8/2016
Standard Flood
Hazard
Determination
Form
Mandatory for
federally insured
lenders
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4/8/2016
Basic Floodplain Management
Requirements in NFIP
Elevation of lowest floor to or above
the base flood elevation.
Lowest floor means the lowest floor of
the lowest enclosed area, including
basement.
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4/8/2016
Sole Source Aquifers (SSA)
• Defined as an aquifer that supplies more than
50% of a community’s water.
• If contaminated, no viable water supply
alternatives would be available.
• Therefore, activities in these areas that could
affect aquifer must be reviewed by EPA.
CALIFORNIA
[Location]
Nine SSAs in HUD
Region IX
[Aquifer Name]
Fresno Aquifer
Fresno County
Santa Margarita Aquifer
Scotts Valley,
Campo-Cottonwood Aquifer
San Diego County
Ocotillo-Coyote Wells Aquifer
San Diego County
Santa Cruz Co,
ARIZONA
Santa Cruz-Avila Basin
Pima, Pinal, Santa Cruz Counties, Tohono
O’odham Res, Tucson, Nogales
Naco-Bisbee Aquifer
Cochise County
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4/8/2016
HAWAII
South Oahu Aquifer
Honolulu City & County
Molokai Aquifer
Maui County
NEVADA
None listed
GUAM
North Guam Aquifer
Guam Island
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4/8/2016
If the Action is in a Sole Source Aquifer
• Section 1424(e) of the Safe Drinking Water Act
requires EPA to review all federal proposals
with the potential to contaminate aquifers
(and thus create a public health hazard)
• Potential to harm aquifer determined by
project types listed in HUD-EPA MOU
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4/8/2016
Projects Requiring EPA Review
• Any facilities which dispose of waste water
without using a treatment plant (including
single-family septic)
• Water well development
• All projects requiring EIS
• Industrial projects
• Landfill development
• Agricultural activities
If Consultation Is Required…
• Complete EPA questionnaire (avail. on EPA R9
Groundwater Office website)
• Send form to appropriate EPA contact
• EPA has 30 days to reply
• For large projects, follow up with EPA after
30-day period to verify appropriate action
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4/8/2016
Contacts
• EPA Website:
http://www.epa.gov/region9/water/groundwater/
• EPA Contact for SSA in R9:
•
Ephraim Leon-Guerrero
•
[email protected]
•
415-972-3444
Source Documentation
• Site not in aquifer recharge zone:
– Name, date for accessing EPA SSA Map
• Site in aquifer recharge zone:
– Completed EPA questionnaire
– Letter/email from HUD to EPA requesting
review
– Letter/email from EPA to HUD with approval
and mitigation
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4/8/2016
Coastal Zone Management Act
(CZMA)
Purpose of CZMA
• Preserve, protect, develop, restore & enhance
the resources of the coastal zone for current
and future generations.
• Manage development in hazard areas, prioritize
coastal-dependent uses, provide public access,
coordinate state and federal actions.
• Preserve ecologic, historic, aesthetic values
while considering compatible economic
development.
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4/8/2016
Protect Rugged, Remote Shorelines
Protect Heavily Used Beaches
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4/8/2016
History of CZMA
Sections 307 (c )(d) 1972
• Authorized states to develop CZ plans &
designate permitted uses.
• California Coastal Act (1976)
2 segments
1) BCDC- SF Bay Conservation & Development
Commission
2) CCC- California Coastal Commission
71 fully certified plans in CA
California Coastal Act
• Placement, removal, or erection of materials on
the Coastal Zone (CZ) changing intensity of use.
• CZ normally extends 1000 yards inland, but may
extend to the 1st coastal ridgeline or as far as 5
miles inland in significant coastal, estuarine
habitats or recreation areas.
• SF Bay CZ extends 100 ft. inland from the Bay at
high tide.
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4/8/2016
California Coastal Act
•
•
•
•
•
•
Permits or Determination of Consistency
Assess the proposal’s effects on the CZ
Evaluate practicable alternatives
Apply mitigation measures
60 days to concur or object from date received.
BCDC must act on a consistency determination
within 45 days from date it has received the
federal agency determination. Consistency
certifications must be acted upon within six
months.
Steps To Comply
• Is the site in a CZ area? Check with local CZM
agency (commission/board)
• If yes  show project is consistent with CZM
Plan or get “letter of consistency” aka
Consistency Determination from the State
Coastal Zone Management Agency confirming
consistency with approved program.
• CZM areas are designated by state agencies and
apply to: New construction, change of land use,
major rehab, acquisition of undeveloped land.
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4/8/2016
Source Documentation
1) Map/statement showing that there are no
CZMA in the community or state
2) Map/statement from local planning department
or state coastal commission or district showing
project is not in CZMA
3) A “federal consistency determination” from the
state coastal commission or district.
Resources
State contacts:
http://coastalmanagement.noaa.gov/consistenc
y/media/statefccontacts.pdf
Hawaii
http://coastalmanagement.noaa.gov/mystate/h
w.html
http://www.state.hi.us/dbedt/czm/
California
http://coastalmanagement.noaa.gov/mystate/c
a.html
http://www.coastal.ca.gov/
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4/8/2016
Public Access to Beaches Can Be Tricky
Tools/Apps Can Advance Public Access
In Malibu, CA there are 17 public access ways, there
should be over 100.
*Some homeowners block public access with gates,
signs, guards and lawsuits.
*An activist developed a smartphone app Our Malibu
Beaches that shows beach-by-beach counterfeit signs
and public access points.
The dividing line between private property/public
beach is mutable as the high-tide mark and the
easements a homeowner is granted for development
rights.
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4/8/2016
Coastal Barrier Resources Act (CBRA)
I970’s development was occurring on coastal
barriers, result was loss of natural resources;
threats to human life, health, and property.
1982 Congress passed CBRA to remove Federal
incentive to this type of development.
Public Law 97-348 (96 Stat.1653; 16 U.S.C. 3501 et
seq.)
CBRA designates undeveloped coastal barriers along
Atlantic & Gulf coasts as part of Coastal Barrier
Resources System (CBRS) and made the areas
ineligible for new Federal financial assistance.
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4/8/2016
CBRS Units-None in R9
Is Your Proposed Action In A Coastal
Barrier Unit?
Check Coastal Barrier Resources System Maps:
www.fws.gov/habitatconservation/coastal_barrier.htm
U.S. FWS released a new interactive CBRS mapper in response
to Hurricane Sandy.
http://www.fws.gov/CBRA/Maps/Mapper.html
U.S. FWS Ecological Services local field office
U.S. FWS Coastal Barriers Coordinator
Katie Niemi (703) 358-2161
[email protected]
43