Environmental Compliance

for BFS Research Programs

December 14, 2015

Bill Thomas

Bill Thomas serves as the Bureau Environmental Officer

for the USAID Bureau of Food Security. He transferred

from USDA in March of 2015 after thirteen years as

Program Leader for the Sustainable Systems &

Communities Program at the National Agricultural Library.

Prior to USDA, Bill was an Environmental Protection

Specialist at EPA for nine years, focusing on helping

farmers find alternatives to methyl bromide, as well as

coordinating the phase out of methyl bromide due to

ozone depletion. Before EPA, he worked at

USAID/Washington in the Africa Bureau. He began his

career in international agricultural development with a

Peace Corps experience in Mauritania. He holds an MS

in Entomology and a BS in Agriculture & Chemistry from

the University of Arizona at Tucson.

Environmental Compliance at the

Bureau for Food Security

Everything you ever wanted to know (Almost!)

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• Environmental movement takes off with Rachel Carson’s 1962 book, “Silent Spring”

• Greater awareness across American society quite rapidly translates into alarm

History of Environmental Compliance Legislation in US

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Pertaining to: • Clean Air– 1962 • Clean Surface Water – 1965 • National Environmental Policy (NEPA)–

1970 • Pesticides – 1972 • Endangered Species– 1973 • Safe Drinking Water– 1974

President Nixon signs NEPA

US Congress Passes New Environmental Laws

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NEPA Requires All Federal Agencies To:

• Promulgate NEPA implementing regulations

• Conduct an environmental impact assessment (EIA) for federal agency programs, policies, plans, projects, activities, etc. significantly affecting the human environment

• Formalize a public process for ensuring environmental matters are considered in planning and decision-making

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USAID Does Not Immediately Promulgate

• Agency puts off NEPA implementation

• In 1975, improper pesticide use by USAID-funded project in Pakistan results in 5 deaths and hundreds sickened

• Consortium of US NGOs successfully sued USAID to force NEPA compliance

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USAID is Forced to Comply with NEPA

• USAID settled out of court

• In 1980, USAID published Title 22 Code of Federal Regulations, Part 216 (Reg. 216) Environmental Compliance Procedures 8

Other Relevant Environmental Legislation

• Executive Order 12114 requires all federal agencies that work internationally to implement NEPA-like environmental analysis abroad

• Foreign Assistance Act (FAA) sections 117, 118, 119 reinforced USAID’s environmental procedures

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Reg. 216 Requires USAID to:

• Consider environmental consequences of financed activities before deciding to proceed and adopt appropriate environmental safeguards

• Define environmental limiting factors that may constrain development and identify and carry out activities that assist in restoring the renewable resource base upon which sustainable development depends

• Assist host countries to strengthen capabilities to appreciate and evaluate potential environmental effects of proposed strategies and projects, and to select, implement and manage effective environmental programs

• Document environmental review decisions before funds are irreversibly committed and maintain review-decision records

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Reg. 216 Identify & Consider Environmental Consequences

Increasing

risk/impact

These types of written determination apply to most activities:

Categorical

Exclusion

IEE (Initial

Environmental

Examination)

Activities specified by the

regulation as having no

environmental impact

A first review of reasonably

foreseeable effects and basis

for a threshold decision

EA

(Environmental

Assessment )

A detailed study of

reasonably foreseeable

significant effects, usually

includes EMMPs2

Reg. 216 specifies that an IEE

must reach 1 of 2 decisions:

Positive determination,

(significant impacts likely, do

full EA)

Negative determination, (no

significant impacts, proceed

with activity)

Initial Environmental Examinations (IEE):

• Document a systematic, prevention-oriented process that applies best practices and contributes to environmentally sound design and management

• Are drafted by the COR/AOR, reviewed by activity team, signed by Office Director, submitted to BEO, who concurs with, or requests reconsideration, of recommended Threshold Decision.

• Contain legally binding requirements, e.g., Conditions, Environmental Mitigation and Monitoring Plans (EMMPs), Limitations, etc.

• Implementers need to have a copy of the IEE in order to develop an effective EMMP.

• The IEE is required prior to obligation of funds and activity initiation.

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Reg. 216 Determinations

If the IEE analysis finds. . . The IEE recommends a. . . Implications

(if IEE is approved)

No significant adverse

environmental impacts

CATEGORICAL

EXCLUSION

No conditions. Go ahead.

With specified mitigation and

monitoring, no significant

environmental impacts

NEGATIVE

DETERMINATION

WITH CONDITIONS

Specified mitigation and

monitoring must be implemented

Significant adverse

environmental impacts are

possible

POSITIVE

DETERMINATION

Do full EA or redesign activity.

Conditions imposed by the EA

must be implemented.

Not enough information

to evaluate impacts

DEFERRAL

You cannot implement the

activity(ies) subject to the

deferral until the IEE is amended

Emergency/disaster funded

with International Disaster

Assistance money thru OFDA

EXEMPTION Rare, declared by Administrator

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Applicability of a Categorical Exclusion

• Education, technical assistance, or

training programs (as long as no

activities directly affect the

environment)

• Documents or information transfers

• Analyses, studies, academic or

research workshops and meetings

• Nutrition, health, family planning

activities except where medical waste

is generated

Under Reg. 216, ONLY activities fitting

in a set of fifteen specific categories

qualify as categorical exclusions*,

including. . .

No categorical

exclusions are

possible when an

activity involves

pesticides

!

*See 22 CFR 216.2(c)(2) for full list

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Applicability of a Negative Determination (with Conditions)

• The proposed action has only minor (not significant) environmental impacts that can be feasibly mitigated and controlled

• Applies only to small scale projects

• Commonly applies to:

o Small-scale controlled agricultural research

o Limited renovation and refurbishment

o Health projects not impacting environment

o Livelihood development activities

o Small-scale water supply and sanitation

o Small-scale road improvements

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Applicability of a Positive Determination

• River basin development

• Irrigation or water management

• Agricultural land leveling

• Drainage projects

• Large scale agricultural mechanization

• New lands development

• Resettlement

• Penetration road building or improvement

• Power plants

• Industrial plants

• Potable water & sewage, except small-

scale

Actions normally having a significant

effect on the environment & requiring an

EA (see 216.2(d)(1)(i-xi))

AND. . .

• Activities involving procurement

or use of logging equipment

• Activities with the potential to

significantly degrade national

parks or similar protected areas

or introduce exotic plants or

animals into such areas

Sections 118 & 119 of the

Foreign Assistance Act require

an EA for. . .

Other proposed actions that may

have a significant impact on the

environment e.g. new construction,

restricted use pesticides, hazardous

waste remediation, any project

dealing with toxic substances

A Negative Determination with Conditions Require Implementers to:

• Incorporate IEE requirements into budgets and workplans

• Gather and analyze information to prepare adequate environmental safeguards -- EMMPs

• Certify that EMMPs are indeed suitable and adequate to the activity

• Upon activity completion, provide documentation that the project was conducted according to the applicable EMMPs

• Report environmental compliance findings in routine project reporting to USAID (quarterly reports, annual reports)

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Positive Determinations Require Implementers to:

• Incorporate EA requirements into budgets and workplans

• Prepare a planning document for review and comment by the BEO before the EA proceeds

• Prepare an EA, which shall be BEO cleared before the project activities proceed

• Implement the selected alternative IAW with the EMMPs (in the cleared EA)

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Special 22 CFR 216 Issue: Pesticides

• Pesticides are a commonly encountered element in both agriculture and health activities

• USAID has special procedures within 22 CFR 216 to address pesticide procurement and/or use

• You do not have to avoid using pesticides when they are needed, but you must ensure they are properly selected and safely used

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Why Care About Pesticides?

• Poor pesticide use practice is wide-spread

o Overuse accelerates pest resistance which induces increased use

o Significant resistance requires switching to less safe and more costly pesticides

• As potent killing agents, pesticides have intrinsic dangers attached to their use

o Misuse kills the “good bugs” that are essential to pollination or that naturally control the “bad bugs”

o Misuse can result in acute poisoning, chronic sickness, birth defects, cancers, and even death

o Misuse can seriously impair a country’s ability to export to the US, Europe, Japan and other major markets

• The lack of quality control in the production in some developing countries represents a hazard with non-US manufactured pesticides

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o Respond to clearly identified pests and their consequences

o Evaluate non-pesticide management options

o Use least toxic, safest pesticides and only as actually needed

USAID and Integrated Pest Management

Integrated Pest Management (IPM) is aimed at controlling pest populations by anticipating pest problems and, with minimal chemical use, preventing the damage they cause

USAID policy–rely on IPM framework for every activity (e.g., agricultural, health) that involves pesticide procurement/use

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Pesticide Procurement & Use

Procurement: 1. Direct purchase of

pesticides

2. Payment in kind,

donations, provision

of free samples and

other forms of

subsidies

3. Guarantee of credit to

banks or other credit

providers / provision

of credit to borrowers

specifically for

pesticides

Use: 1. Sale

2. Handling, transport,

storage,

3. Mixing, loading,

application

4. Disposal

5. Provision of fuel to

transport pesticides

6. Technical assistance in

pesticide management,

including training

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The “PERSUAP”

Pesticide Evaluation Report & Safer Use Action Plan

The “Pesticide Evaluation Report” directly

respond to the 22 CFR 216 Pesticide

Procedures requirements.

The “Safer Use Action Plan” identifies

actions for mitigation & monitoring,

including compliance with host country

procedures

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The “PER” 12 Factors

1. US EPA registration

status of recommended

pesticides;

2. Basis for selection of

the pesticide;

3. Extent to which the

proposed pesticide use is

part of an IPM plan;

4. Pesticide availability

and application method;

5. Any toxic hazards;

6. Effectiveness of the

requested pesticide for the

proposed use.

7. Compatibility of pesticides

with the local ecosystems;

8. Environmental conditions

where the pesticide is used;

9. Availability & effectiveness

of other pesticides or non-

toxic controls;

10. Host country’s ability to

regulate the requested

pesticides;

11. Provisions for training

users and applicators

12. Provision for monitoring

the use and effectiveness of

the pesticide.

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SAFER USE ACTION PLAN

• Monitoring plan and reporting;

• Training, development and distribution of appropriate

information, education and communication;

• Establish pesticide quality standards and control

procedures;

• Require good packaging and clear and adequate labeling;

• Define and assure safe use practices;

• Define appropriate methods of pesticide handling, storage,

transport, use and disposal;

• Assure accessibility of protective clothing and equipment

needed;

• Discussion of proper handling, use, and disposal of

pesticides;

• Identify Roles and Responsibilities.

An adequate SUAP should, at minimum, do the following:

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The PERSUAP requires the Implementing Partner

to address a number of mitigation and monitoring

measures proactively.

More on the PERSUAP

• Ensure accurate information on an annual basis (EPA

registration and use)

• Provision of pesticide training and protective equipment

• Monitoring of pesticide use & application techniques

• Methods for cleaning and disposal of pesticide

containers

• Methods of pest control within an IPM and weed

management program, organized by crop

“Regardless of whether or not posts receive direct GCCI funding, posts are

encouraged to integrate climate change across all programming.”

Special 22 CFR 216 Issue: Global Climate Change (GCC), a Presidential and Agency Priority

“All Missions are required to fully consider climate change during the country-

level strategic planning process. Therefore this applies to all Missions, regardless of

whether they are projected to receive funds or not.”

“Even if your mission will not receive dedicated … climate funds, I ask that you

consider how climate will impact your work in such areas as food security, water,

and health, and where co-benefits may exist.”

“Lead International Efforts to Combat Global Climate Change and Prepare for its

Impacts”

3rd Pillar of President’s Climate Action Plan, June 2013

Secretary Kerry’s Policy Guidance Cable, March 2014

Administrator Shah letter to Mission Directors, May 2010

ADS 201 (on CDCS development)

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GCC and Reg 216

Environmental Regulation 216 (22 CFR 216)

“Identify impacts resulting from USAID’s actions upon the environment”

“Define environmental limiting factors that constrain development and

identify and carry out activities that assist in restoring the renewable resource

base on which sustained development depends”

USAID Project

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USAID’S GCC Approach and Strategy

Environmental Regulation 216 (22 CFR 216)

• Reg. 216 is an opportunity to ensure your project…

• is not contributing to climate change through the emission

of greenhouse gases (GHGs)

• will not make people more vulnerable to climate change

• will be sustainable and continue to deliver results in the

face of climate impacts

In Summary, USAID Incorporates Environmental Considerations into Programs To:

• Facilitate state-of-the art development and achieve optimal programming results, i.e., optimize economic and social development, integrate sustainability, avoid unforeseen costs and setbacks

• Avoid harming people in host countries, including averting negative economic growth

• Promote civil society and democracy through transparency and public participation

• Prevent diplomatic problems and engender trust in USAID

• Comply with the law

(namely, Reg. 216)!

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Roles and Responsibilities

• Implementing Partners

• Mission Environmental Officer (MEO)

• Contracting Officer’s Representative (COR) or Assistance Officer’s Representative (AOR)

• Regional Environmental Advisor (REA)

• Bureau Environmental Officer (BEO)

• Agency Environmental Coordinator (AEC)

• General Counsel (GC) and Regional Legal Advisor (RLA)

What do they do?

Implementing Partner Responsibilities

• Address environmental compliance requirements in proposals and budgets

• Include environmental compliance requirements in workplans

• Prepare environmental scoping statements, EAs, and other environmental reports, records of compliance

• Collect environmental baseline information • Prepare environmental mitigation and monitoring plans • Monitor project compliance with mitigation measures • Report project progress per environmental baseline data • Report to USAID on progress in meeting requirements

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Failure to comply can delay implementation and result in stop work order if the Contracting Officer deems this necessary

Environmental Compliance Requirements Are a Contractual Issue

• Implementers should have a copy of the IEE

o If it has a Positive Determination, then an EA must be prepared

o If the IEE has environmental compliance requirements and no budget was provided in the project budget for this—the Contracting Officer should be contacted

• Only an approved IEE amendment, followed by a contract modification, can remove an environmental compliance requirement (AORs/CORs do not have authority to withdraw environmental compliance requirements)

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Mission Environmental Officers

• Advises Mission Director, Program Teams and CORs/AORs on environmental compliance document preparation and processes

• Serves on program teams • Clears on environmental compliance documents

originating at Mission • Generally reviews all documentation before

submission to the Mission Director • Reviews program portfolios for ongoing compliance • Primary point of Mission contact with the BEO and

the REA for Geographic Bureaus

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CORs, AORs and Activity Managers

• Incorporate environmental compliance requirements into procurement documents

• Ensure preparation of Reg. 216 environmental documentation (IEEs, RCEs, EAs, any amendments needed). CORs/AORs must budget time and money for needed document preparation. EAs are almost always prepared by 3rd-party contractors.

• Ensure environmental compliance documentation is current and covers all activities being implemented

• Ensure suitable and effective EMMPs are developed and reflected in workplan, budget, and Performance and/or Award Monitoring Plan

• Note–Contractors or Implementing Partners will in many cases develop EMMPs for COR/AOR

• Monitor to ensure partner/contractor compliance with IEE/EA conditions

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Regional Environmental Advisor

• Primarily used in Geographic Bureaus • Assists Missions (MEOs and program teams)

and BEO with implementing environmental compliance and sustainability

• Provides environmental compliance advice and clearance, conducts training, audits Mission portfolios for compliance

• Assists in arranging additional environmental expertise

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Bureau Environmental Officer

• Based in Washington, DC in each Geographic or Pillar Bureau

• Oversees environmental compliance in their respective Bureaus

• Concurs with recommendations from Program teams and Mission Directors for environmental threshold decisions for activities under the purview of their Bureau

• The BEO for BFS is Bill Thomas

• 202-712-1424

• withomas@usaid.gov

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Agency Environmental Coordinator

• USAID’s NEPA liaison to the CEQ • Coordinates Agency-wide Reg. 216

implementation and coordinates with GC regarding interpretation of Reg 216.

• Concurs in Assistant Administrator's appointments of BEO

• Presents appeals of AEC decisions to CEQ (rare)

• Coordinates EIS process for USAID (rare)

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General Counsel’s Office

• Regional Legal Advisors (RLAs) provide legal advice on environmental compliance to field staff

• In some regions, RLAs clear on Reg. 216 documents prior to the Mission Director sending to the BEO for concurrence

• Assistant General Counsels (AGCs) provide legal advice to BEOs and RLAs on environmental compliance in their regions

• BEOs and AEC take legal advice into account

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Clearances

To approve 22 CFR 216 documentation

all of the following must clear:*

• COR/AOR, Activity Manager or Team

Leader

• Mission Director or Washington equivalent – Office Director in BFS

• MEO if project originates at a Mission

• BEO concurs. Concurrence cannot be delegated.

Definition of environmental monitoring

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Environmental monitoring is always

BOTH…

2. Determining whether mitigation is

working

1. Determining whether mitigation is

being implemented as required Environmental

monitoring

should be a

normal part of

project

monitoring and

evaluation

!

Good Environmental Monitoring. . .

• Tells you clearly and cost-effectively if mitigation is sufficient and effective.

• Usually requires a combination of:

• Environmental indicators

• Mitigation implementation indicators

• Do no more than needed: Prioritize the most serious impacts & issues.

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Environmental Mitigation Monitoring Plans: Simple in Concept

An EMMP

• TRANSLATES IEE conditions into specific

mitigation measures to implement IEE/EA

conditions

• SETS OUT indicators/criteria for monitoring

implementation & effectiveness of mitigation

• ESTABLISHES

Timing & responsible parties

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Relative Frequency and Effort Required for Environmental Monitoring

BEO

BFS

Implementer Daily, Weekly, Monthly

Quarterly, Semiannually

Annually, Infrequently

(Auditing)

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Thank You!!

Questions?

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