Executive Order 11990, (EO 11990) issued in 1977, requires federal agencies to “take action to minimize the destruction, loss or degradation of wetlands, and to preserve and enhance the natural and beneficial values of wetlands.” The Order is implemented by Emergency Management and Assistance regulations 44 CFR 9 (Floodplain Management and Protection of Wetlands), which are administered by the Federal Emergency Management Authority (FEMA). EO 11990 is also incorporated into FHWA regulations under 23 CFR 777 (Mitigation of Impacts to Wetlands and Natural Habitat).
When It Is Required
The Executive Order applies to federal agencies that manage federal lands and facilities; that undertake, finance, or assist in construction and improvements; or that conduct federal activities and programs affecting land use. The EO does not apply to the issuance by federal agencies of permits to private parties for activities involving wetlands on non-federal property.
There is no permit process for compliance with EO 11990, and no submittal to FEMA. To demonstrate compliance with the law as part of a National Environmental Policy Act (NEPA) document, project proponents must determine whether a proposed action is located in a wetland, identify direct and indirect impacts associated with filling or modifying wetlands, demonstrate that the wetland is the only practicable location for the action, and document measures taken to minimize harm to wetlands. Mitigation may be required if, after avoiding and minimizing impacts, the proposed action would involve impacts to wetlands. 23 CFR 777 provides policy and procedures for wetland mitigation in federal-aid projects.
Wetlands impacts are regulated under both state and federal wetland permitting programs, and are also addressed under the National Environmental Policy Act (NEPA), and there is typically no extra effort required to demonstrate compliance with EO 11990. FHWA and VTrans have a Programmatic Agreement with a finding addressing EO 11990 that establishes the need for wetland impacts for federal-aid projects, and states that VTrans will coordinate with the Agency of Natural Resources, Army Corps of Engineers, and other agencies as appropriate to secure wetland permits and develop reasonable mitigation measures for unavoidable impacts. NEPA documents (Categorical Exclusions, Environmental Assessments, and Environmental Impact Statements) all make mention of EO 11990 and document compliance with the Programmatic Agreement.
Regulatory programs with overlapping jurisdiction with Executive Order 11990 include, but are not necessarily limited to, the following:
- State Wetlands Permit Program: This program addresses wetlands regulated by the State of Vermont.
- Section 404 of the Clean Water Act: Section 404 requires federal permits for dredge or fill in wetlands.
- National Environmental Policy Act: Wetlands impacts and compliance with this Executive Order are addressed in NEPA documents.
For More Information
It is the responsibility of the federal sponsor of the proposed action to comply with this Executive Order. This may be FHWA, FAA, or other federal transportation agency.
FHWA - Vermont Division
87 State Street
Montpelier, VT 05602
Phone: (802) 828-4423
Programmatic Agreement between the Federal Highway Administration Vermont Division and the Vermont Agency of Transportation Technical Services Division regarding the Processing of Projects eligible for Categorical Exclusion under the National Environmental Policy Act also addressing EO 11990.
Executive Order 11990 – Protection of Wetlands (text)