EXECUTIVE OFFICE OF THE PRESIDENT
March 21, 1978MEMORANDUM FOR HEADS OF AGENCIES
SUBJECT: Implementation of Executive Order 11988 on Floodplain Management and Executive Order 11990 on Protection of Wetlands
President Carter issued two Executive orders last May requiring all executive agencies to take special care when undertaking actions that may affect wetlands or floodplains, directly or indirectly. The orders require agencies to avoid disrupting these areas wherever there is a practicable alternative, and to minimize any environmental harm that might be caused by federal actions. The President directed all agencies to provide national leadership by taking actions to encourage sound land use practices.
These orders were important components of the President's Message on the Environment last year. The President and the public are looking to each agency for timely and effective implementation. This memorandum addresses four matters relating to the implementation of the orders that have been brought to our attention by agency officials.
Relationship Between the Two Orders
Several agencies have inquired how to handle situations when both orders would apply, as, for example, in coastal areas, where most wetlands are located in floodplains. Although we do not believe this will be a practical problem, the basic rule is: both orders should be followed if an action overlaps floodplains and wetlands areas, but the floodplains order (which is more detailed) should control if there appears to be any conflict or question about how to carry out the orders. This policy will avoid potential confusion and duplication between the two Executive orders.
Agency ProceduresBoth orders require agencies to have procedures for complying with their requirements. The floodplains order sets a deadline for agencies to "issue or amend existing regulations and procedures within one year," which will be May 24, 1978. The orders also encourage agencies to use existing decision making processes where appropriate. Incorporating the orders' requirements into agency planning and decision-making procedures can ensure that wetland and floodplain values will be part of existing programs and will not cause unnecessary duplication or delay in government operations. Additional guidance concerning agency procedures is attached.
June Progress Report
Floodplains. Section 5 of the floodplains Executive order requires the head of each agency to submit a report to CEQ and WRC on June 30, 1978 on the status of agency procedures and the impact of the order on the agency's operations. The reports will be helpful in preparing our progress reports to President Carter on the implementation of his orders. They will also assist the WRC in its continuing review of agency practices and procedures, as directed by Section 5 of the order.
Wetlands. The Council requests at this time that you transmit a similar report on June 30 to us on your agency's experience with the wetlands order (we indicated last November that we would be requesting a first-year report on E.O. 11990).
The attachment to this memo provides further guidance on the content of the reports.
Application of the Orders
Several agencies have questioned whether the Executive orders apply to their activities. The orders explicitly state that they apply to specified actions of all executive agencies, including the military departments, as the term "executive agency" is used in Section 105 of Title 5 of the United States Code. The orders apply to those agency activities which directly or indirectly affect floodplains or wetlands.If you have some impediment to complying with a particular requirement of the orders, please identify the problems in your June 30 report. You should indicate how your agency will meet the President's overall policy direction if particular procedural requirements cannot be followed in every case. Each agency will be expected to have a set of procedures which explains how the agency will comply with the orders. Other quasi-governmental organizations, such as certain joint commissions, are urged to adopt the orders' policies and procedures for their own operations as well.
This attachment provides further guidance on agency procedures and the June 30 progress report. We have tried to answer several inquiries the Council has received on the implementation of the orders.
June 30 Progress Report
We will be looking for several items in your report. In addition to providing a list and a copy of all your agency's procedures and guidance for implementing the order, please indicate the schedule for preparing any further procedures or guidance, whether formal or informal.
The Council is especially concerned with the substantive influence of the order on agency decisions which affect floodplains and wetlands. Your reports should indicate, at a minimum:
These figures should be readily obtainable from the public notices prepared by your staff under Section 2(a) of the order and from environmental impact statements and assessments. We would also be pleased to receive information on actions which have enhanced floodplains and wetlands.