2.10 ESA, Floodplain, Coastal & Historic Preservation Compliance

Endangered Species Act (ESA) Compliance

The Endangered Species Act of 1973 (ESA) protects federally listed endangered (in danger of extinction throughout all or a significant portion of its range) and threatened (likely to become endangered in the foreseeable future) plant and animal species, as well as designated critical habitat.

• Administering Agencies: The U.S. Fish and Wildlife Service (USFWS) oversees terrestrial and freshwater species; the National Marine Fisheries Service (NOAA Fisheries / NMFS) oversees marine species and anadromous fish (salmon, sturgeon).
• Section 9 "Take" Prohibition: Makes it illegal for any person or entity to "take" an endangered animal species. "Take" is broadly defined to include harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect. Critical for landscape architects: "harm" includes significant habitat modification or degradation that impairs essential behavioral patterns, including breeding, feeding, or sheltering.
• Section 7 Interagency Consultation (Federal Nexus): Mandatory whenever a project requires federal approval, funding, or permits (e.g., a USACE 404 permit or federal grant):
  • Informal Consultation: The applicant prepares a Biological Assessment (BA). If USFWS/NMFS concurs that the action is "Not Likely to Adversely Affect" listed species, consultation concludes.
  • Formal Consultation: Triggered if the action "Is Likely to Adversely Affect" species. USFWS/NMFS issues a Biological Opinion (BiOp) detailing whether the action will jeopardize the species' existence. If no jeopardy is found, the BiOp includes an Incidental Take Statement specifying binding Reasonable and Prudent Measures (RPMs) (such as seasonal tree-clearing restrictions to protect roosting Indiana or Northern Long-Eared Bats).
• Section 10 Incidental Take Permit (ITP): For non-federal private projects lacking a federal nexus. The private applicant must prepare a comprehensive Habitat Conservation Plan (HCP) that minimizes and mitigates the impacts of authorized incidental take.

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Floodplain Management & FEMA NFIP Regulations

The Federal Emergency Management Agency (FEMA) administers the National Flood Insurance Program (NFIP) under federal regulations (44 CFR Part 60). Participating municipalities adopt local floodplain management ordinances that carry strict legal requirements for development.

The Anatomy of a Regulatory Floodplain

• Base Flood: The flood having a 1% annual chance of being equaled or exceeded in any given year (commonly referred to as the 100-year flood).
• Base Flood Elevation (BFE): The computed water surface elevation of the base flood, referenced to NAVD88 on official FEMA Flood Insurance Rate Maps (FIRMs).

Regulatory Floodplain Cross-Section
|<------------------------- 100-Year Floodplain ------------------------->|
|                  |<------ Regulatory ------>|                          |
|  Flood Fringe    |         Floodway         |       Flood Fringe       |
|                  |                          |                          |
|   (Development   |    (NO-RISE REQUIRED:    |      (Development        |
|    permitted if  |   Must not increase BFE  |       permitted if       |
|   elevated/fill) |    by > 0.00 ft locally) |      elevated/fill)      |
|==================|~~~~~~~~~~~~~~~~~~~~~~~~~~|==========================|
|                  |   ~~~~~~~~ River ~~~~~~  |                          |
|                  |   ~~~~~~ Channel ~~~~~~  |                          |
+------------------+--------------------------+--------------------------+
|<--- SFHA Zone AE --->|<--- Regulatory --->|<------- SFHA Zone AE ------->|

The Regulatory Floodway vs. Flood Fringe

1. Regulatory Floodway: The channel of a river or stream and the adjacent land areas that must be reserved to discharge the base flood without cumulatively increasing the water surface elevation by more than a designated height (federally 1.0 foot, but 0.00 feet in most progressive local ordinances).
2. Flood Fringe: The portion of the 100-year floodplain outside the regulatory floodway. Development is permitted within the flood fringe provided all buildings have their lowest finished floor elevated at or above the BFE (plus local freeboard, typically +1 to +3 feet) and compensatory flood storage is excavated.

Exam Trap: The "No-Rise" Certification: Any proposed encroachment within the regulatory floodway—including fill, retaining walls, pavilions, boardwalk footings, or landscape re-grading—is strictly prohibited unless the landscape architect provides a No-Rise Certification. This engineering document requires detailed step-backwater hydraulic modeling (e.g., HEC-RAS) proving that the proposed construction will cause 0.00 feet of increase in existing Base Flood Elevations during a 100-year flood event!

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Coastal Zone Management & Historic Preservation

Coastal Zone Management Act (CZMA)

Enacted in 1972, the CZMA empowers coastal and Great Lakes states to develop state-specific Coastal Zone Management Programs overseen by NOAA. State acts (e.g., North Carolina's CAMA, California's Coastal Act):

• Establish strict oceanfront setback lines based on long-term annual coastal erosion rates (e.g., setbacks equal to 30 to 60 times the annual shoreline erosion rate).
• Enforce coastal estuarine shoreline buffers (e.g., 30- to 100-foot natural vegetative riparian zones where grading and clearing are restricted).
• Protect public beach access corridors and regulate coastal shoreline hardening (seawalls, bulkheads).

Section 106 of the National Historic Preservation Act (NHPA)

Section 106 of the NHPA (1966) mandates that federal agencies account for the effects of their undertakings on historic properties listed on, or eligible for listing on, the National Register of Historic Places (NRHP).

• The Section 106 Process:
  1. Initiate Consultation: Engage the State Historic Preservation Officer (SHPO), Tribal Historic Preservation Officers (THPO), and local preservation boards.
  2. Identify Historic Properties: Determine the Area of Potential Effects (APE)—encompassing direct physical disturbance and indirect visual, auditory, or atmospheric impacts—and survey historic buildings, archaeological sites, and cultural landscapes.
  3. Assess Adverse Effects: An adverse effect occurs when an undertaking alters, directly or indirectly, the characteristics that qualify the property for the NRHP (e.g., introducing visual out-of-scale elements, cutting historic trees, altering historic grading).
  4. Resolve Adverse Effects: The agency, SHPO/THPO, and applicant negotiate to avoid, minimize, or mitigate the adverse effect, executing a legally binding Memorandum of Agreement (MOA) that stipulates mitigation commitments (e.g., historic landscape salvage, interpretive signage, vegetative visual screening).

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Comprehensive Environmental Permitting Matrix