governors office of emergency services environmental/historical compliance in the disaster recovery...

Governor’s Office of Emergency Services

Environmental/Historical Compliance in the Disaster

Recovery Process

FEMA/OES Funded Projects


Handouts

• OES Environmental Directory• OES Environmental Flyers• Programmatic Environmental Assessment

for Typical Recurring Actions: Flood, Earthquake, Fire, Rain, and Wind Disasters in California

• Presentation• List of acronyms


Benefits of Sound Environmental Compliance

• Avoid loss of grant funds (de-obligation)

• Decrease delays

• Avoid legal action

• Avoid negative publicity

• Avoid penalties

• Maximize grant funding


Important Points

• Don’t start construction until environmental review is complete

• It’s the applicant’s responsibility to obtain permits

• A project excluded or exempted from NEPA or CEQA must still comply with all other environmental laws

• Changing the project will require additional environmental review


Roles and Responsibilities


Who is Involved?

• FEMA

• OES

• Subgrantee (applicant)

• Resource agencies


FEMA

• Legal responsibility– NEPA– ESA– NHPA– Executive orders and other federal

environmental laws

• Oversight/Management


FEMA (Continued)

• Prepare environmental documents• Site visits• Consultations

– Section 7, ESA – Section 106, NHPA

• FEMA often uses consultants to assist with their responsibilities


OES

• Project formulation• Oversight/Management• Training • Monitor projects • Make recommendations to FEMA

• Provide technical assistance to applicants


Applicant

• Project formulation

• Provide information to FEMA and OES

• CEQA

• Permits

• Project implementation


Resource Agencies

• Consultation– USFWS– NMFS– SHPO

• Permitting• Technical assistance

– Federal– State


National Environmental Policy Act (NEPA)

The Umbrella Covering the Environmental Review Process

NEPA


National Environmental Policy Act (NEPA)

• A process not an outcome• Implemented when there are federal

actions• Requires decisions makers to be informed• Requires public disclosure • Must be completed before projects are

started


NEPA: The Umbrella

• National Historic Preservation Act

• Endangered Species Act• Clean Water Act• Clean Air Act• Executive orders• All other environmental

laws

NEPA


Why Projects Are Subject To NEPA?

• Federal action or undertaking– Federal funding

– Federal permit

– Federal project

– Federal land

– Federal regulations


NEPA Implementation

• NEPA– Council on Environmental Quality (CEQ)

regulations are general– Federal lead agencies adopt regulations

that are more specific– FEMA’s NEPA regulations are found in

44CFR


Who Are The Participants?

• FEMA

• OES

• Applicant

• Cooperating agencies

• Concerned citizens


Outcome of NEPA Review

• Statutory Exclusion (STATEX)

• Categorical Exclusion (CATEX)

• Environmental Assessment (EA)

• Finding of No Significant Impact (FONSI)

• Environmental Impact Statement (EIS)


Statutory Exclusion or STATEX

• Emergency debris removal (life/safety)

• Emergency protective measures

• Repair or restoration projects


Categorical Exclusion or CATEX

• Specific list defined in 44 CFR 10.8(d) (19 CATEXs)

• From experience, no significant effect on the environment

• May not apply if there are “Extraordinary Circumstances”


Extraordinary Circumstances

• Public controversy

• Hazardous substances

• Cumulative impact

• Historical/cultural resources

• Endangered species or designated critical habitat


Contents of a CATEX

• A description of the action

• A statement citing the CATEX for which the project qualifies

• No extraordinary circumstances exist

• Other federal laws and executive orders that were addressed


Environmental Assessment or EA

• Required when a CATEX or STATEX cannot be prepared

• Analyzes and determines impacts

• Determines whether a FONSI or EIS is required


Types of EAs

• Programmatic Environmental Assessment (PEA)

• Supplemental Environmental Assessment (SEA)– Current disasters are tiered from:

“Programmatic Environmental Assessment for Typical Recurring Actions: Flood, Earthquake, Fire, Rain, and Wind Disasters in California”


Contents of an EA

• Purpose and need • Project description• Alternatives• Environmental impacts• Agencies consulted• Conclusion of analysis (FONSI or

EIS)


NEPA-Alternatives Driven

• FEMA requires equal evaluation of:

– Proposed project

– Alternative (with exceptions)

– No action alternative


What is a FONSI

• Finding of No Significant Impact• Brief project description• Identifies documents used to make

determination• A statement regarding the level of

impact• Signed by the Regional

Environmental Officer (REO)


What is an EIS?

• Environmental Impact Statement

• More rigorous review/documentation of impacts

• Formal public involvement

• Requires a Record of Decision (ROD)

• Rarely prepared for PA or HM projects


Public Review Periods

Exclusions None

EA/FONSI 15 Days

Draft EIS 45 Days

Final EIS 30 Days


Overview

Other Laws and Executive Orders


What Happens if Your Project May Affect Historic Properties

The National Historic Preservation Act (NHPA)


National Historic Preservation Act (NHPA)

• Primary law governing historic preservation programs nationally

• Identifies historic preservation responsibilities for federal agencies


Historic Properties as Defined by NHPA• Must be on or eligible for the

National Register of Historic Places– Are at least 50 years old (with

exceptions)– Are significant– Retain integrity


National Register of Historic Places• List of places important in U.S.

history and culture

• Registry contains over 73,000 listings

• Properties designated by the Keeper of the National Register


What Makes a Historic Property Significant?

• It must meet 1, or more, of 4 criteria– Association with

events– Association with

people– Distinctive design

or construction– Data (information

value)


What is Integrity?

• The property must be able to convey its significance

• Certain modifications may damage or destroy a property’s integrity

• This could make a property ineligible for the National Register


National Historic Landmarks

• About 2,300 properties nationwide

• Designated by the Secretary of Interior

• Federal agencies need to make every effort to minimize harm to NHLs


What Are Historic Properties?

• Buildings, sites, structures, objects, districts, traditional cultural properties, and historic landmarks


Historic Buildings

• Folsom Powerhouse

• Gamble House, Pasadena, CA


Historic Sites

Archeological


Historic LandscapesRae Selling Berry GardenPortland, Oregon

Chung Wah Chinese

Cemetery Folsom, CA


Historic Districts

• Old Sacramento • Spring St. Financial District, Los Angeles


Historic Structures

Queen Mary Fresno Water Tower


Traditional Cultural Properties

Medicine Lake Highlands


National Historic Landmarks

• Watts Towers • Rose Bowl


National Historic Preservation Act

Roles and Responsibilities


FEMA

• Ensure compliance with NHPA

• Examines properties to determine eligibility for the National Register

• Initiates Section 106 consultation with SHPO/THPO

• Prepare memorandum of agreements (MOA) when necessary


State Historic Preservation Office (SHPO)• Identifies historic properties and keeps an

inventory of historic properties in state• Nominates properties to the National

Register of Historic Places• Implements NHPA at the state level• Consulting party in Section 106 review• FEMA’s primary contact for historic review

consultations (Section 106)


Tribal Historic Preservation Office (THPO)

• Implements NHPA at the tribal level

• Keeps inventory of historic properties on tribal lands

• FEMA’s primary contact for historic review consultations regarding tribal properties or native American artifacts


OES

• Provide information to FEMA

• Collect information from applicant

• Prepare recommendation to FEMA

• Participant in Programmatic Agreements and MOAs

• Provide technical assistance/training


Applicant

• Provide information to OES and FEMA

• Prevent additional damage

• Comply with federal, state or local preservation laws


Advisory Council on Historic Preservation (ACHP)

• Issues regulations to implement Section 106 of the Historic Preservation Act

• Provides guidance and advice • Oversees Section 106 process • Consults with and comments to agency

officials on individual undertakings and programs

• Party to Programmatic Agreements


NHPA Review Process

Implementing Section 106


What is Section 106?

• Consultation process between FEMA and SHPO to evaluate affects on historic properties

• FEMA and SHPO implement Section 106 through a Programmatic Agreement (PA)


Main Points of the PA

• Identifies responsibilities of agencies• Establishes time periods for SHPO to

comment

• Establishes a dispute resolution process

• Identifies projects that are not subject to Section 106 (no review required)


Examples of Activities the PA Exempts from Section 106

• Repainting of surfaces (without destructive preparation)

• Seismic upgrades (not visible from exterior or within character defining historic interiors)

• Ground disturbing activities related to the repair, in-place replacement, or hardening of culvert systems (in kind, modest increase in size and capacity, does not disturb native soils)


Time Limits

• Immediate rescue and demolition operations to protect life and property are exempt from 106

• Expedited review - Allows SHPO 3 days or less to comment on proposed action

• Standard time limit – SHPO must comment on an action within 30 days


How Do SHPO’s Comments Become Incorporated?

• Included in the scope of work

• Included in the EA


What if it Can’t be Saved?

• FEMA/applicant document with:– Photos– Narrative– Historic research


Ghosting

• Using part of the building or site in the construction of the new building or site


Examples of GhostingPhotography by Dan Holland


The Endangered Species Act

What Happens if Your Project May Affect Endangered Species?


Endangered Species Act

• Protects federally listed threatened and endangered species and their designated critical habitats

• 290 listed species in California • Requires FEMA to consult with US Fish

and Wildlife Service (USFWS) and National Marine Fisheries Service (NMFS)

• Requires designation of critical habitat


What is a “Take”?

• Unless permitted, it is unlawful to “take” any listed species– Harass– Harm– Pursue– Hunt


What Types of “Takes” are Permitted

• Scientific take permit– Enhance the survival of listed species

• Incidental take permit– Not purposefully– When carrying out a lawful activity– May be issued after consultation


Consequences Of Illegal Take

• Fines

• Civil penalties

• Prison sentence

• De-obligation


Section 7 - Consultation

• Process to ensure that federal actions will not jeopardize listed species or critical habitat

• Requires federal agencies to consult with USFWS and NMFS

• Consultation may be “formal” or “Informal”


Informal Consultation Process

• Request listed species and designated critical habitat in project area from USFWS or NMFS

• Consultation completed if no species present

• If species present, then Federal agency determines if the action “may affect”


Informal Consultation Process

• May include informal interaction, site visits and suggestions to alleviate adverse affect

• No time frame


Formal Consultation Process

• If action may affect species, formal consultation required

• FEMA prepares a biological assessment (BA) to determine the affect on species or critical habitat

• FEMA submits a written request for consultation and submits BA



• USFWS and/or NMFS has 90 days to consult with federal agency and applicant

• USFWS or NMFS have 45 days to prepare biological opinion

• Biological opinion identifies project impact and “terms and conditions” to minimize impact



• FEMA incorporates findings of consultation and “terms and conditions” into environmental document

• Terms and conditions become “incidental take permit”

• FEMA and applicant must abide by terms and conditions


Endangered Species Act

Actual Projects


Soule Park Stream Bank Repairs

• Protection Measures– Construction during

dry season– Minimize grading at

base of slope– Avoid creek bed– Prevent erosion– Plant native plants on

banks

Species – Southern Coastal Steelhead


• Protection Measures– Prescribed burns

during wetter months of year

– Drift fencing around slash piles

– Training sessions for contractors regarding snake

East Bay Regional Park District Vegetation Management Projects

Species – Alameda Whipsnake



• Protective Measures– Burn only 1/5 of all

grassland area for any given colony in one year

– Delineate habitat– Conduct surveys

before removing vegetation

Species - Callippe Silverspot Butterfly



• Protection Measures– Conduct surveys on

project site and 500 foot buffer

– Fence off plants with visible construction fencing

Presidio clarkia


Surface Water Related Regulations• Projects in wetlands, streams, lakes,

and riparian habitat


Rivers and Harbors Act of 1899• Structures in navigable waters

• Impacts to navigation

• Administered by the Army Corps of Engineers


Clean Water Act Section 404

• Administered by the Army Corps of Engineers

• Work below the high water mark in the waters of the United States



• Requires approval prior to discharging dredged or fill material into wetlands or the waters of the United States– Wetlands defined as having hydric

soils, hydrophitic vegetation, and wetland hydrology


Waters of the United States

• Includes essentially all surface waters such as all navigable waters and their tributaries, all interstate waters and their tributaries, all wetlands adjacent to these waters, and all impoundments of these waters


Examples of Wetlands


Typical Activities Requiring Permits Under Section 404

• Types of actions include repair/maintenance of:– bridges– levees– dams– stream bank stabilization– repair/maintenance of flood control facilities– placement of road fills


Types of Army Corps Permits

• General – Nationwide– Regional

• Standard or individual


Nationwide Permits

• Activities that don’t generally have significant impacts

• Usually limited by size and scope

• Will have general conditions that need to be met

• 44 nationwide permits


Common Nationwide Permits for OES Projects

• NWP 12 – utility line repair

• NWP 13 – stream bank stabilization

• NWP 14 – linear transportation crossings

• NWP 31 – maintenance of existing flood control facilities


Regional Permits

• Issued by District for a class or classes of activities that have minimal impacts individually or cumulatively


Examples of Regional Permits• Maintain and repair levees in the Sonoma

County by Southern Sonoma County Reclamation and Conservation District

• Emergency Permits– Regional Permit No. 5 - San Francisco

(expired)– Regional Permit No 60 – Sacramento– Regional Permit No. 63 – Los Angeles


Standard or Individual Permits• Projects that exceed limits for

general permits or whose project type does not fall under the NWP program

• More time for review

• Public notice is required


Two Important Points About Army Corps Permits

• Most disaster repair projects fall under the nationwide permit program

• Permits are the responsibility of the applicant



• Water Quality Certification or Waiver

• Assures that projects permitted by the US Army Corps of Engineers meets state water quality standards


Regional Water Quality Control Boards

• Responsible for administering Section 401 of the Clean Water Act

• Must have Water Quality Certification before Army Corps can issue a permit

• Water quality standards vary by basin


Section 1601 of the CA Fish and Game Code• Must notify California Department of Fish

and Game (DFG) for any work planned in lakes and streams

• A Lake or Streambed Alteration Agreement may be required if DFG determines there are impacts

• DFG “culvert criteria for fish passage”


Executive Order 11990 Protection of Wetlands and Executive Order 11988 Floodplain Management

• Requires federal agencies to avoid an undertaking or provide financial assistance for construction– When located within wetlands or

floodplain unless a finding is made that there is no practicable alternative


Executive Order 11988 Floodplain Management

• 100 and 500 year floodplain• Shown on FIRM maps (flood insurance

rate map) • Eight Step Process


100 - Year Floodplain

• Lowland and relatively flat areas adjoining inland and coastal waters

• One percent or greater chance of flooding in any given year


500 – Year Floodplain

• Subject to inundation from a flood having a 0.2 percent chance of occurring in any given year


Thresholds for 8 Step Process (Floodplains only)• 100-year floodplain

• 500-year floodplain (critical action)– Critical actions

– Hospitals– Nursing homes– Fire stations– Emergency operation centers– Data centers


8 - Step Process ForFloodplain Management and Wetland Protection

1. Project Location in Floodplain/Wetland

2. Encourage Public Involvement

3. Evaluate Alternatives

4. Assess Impacts

5. Minimize Impacts

6. Determine Practicability

7. Provide Public Comment

8. Comply with Executive Orders


The Eight-Step Process

• Will the action be located in a wetland and/or the floodplain or will it have the potential to affect a wetland or floodplain

• Check Flood Insurance Rate Map (FIRM)

• If no, you are finished

Step 1



• A public notice must be published at the earliest possible time to provide information about the proposed project (1st Notice)

• Disaster-wide

• Project specific

If yes, ...Step 2



• Is there any reasonable alternative to locating the project in a floodplain or wetland?

• If yes, ...

• FEMA cannot locate the action in the floodplain or wetland

Step 3



• If the action must go in a wetland or floodplain then the full range of impacts associated with action must be identified

• All potential adverse impacts must be avoided, minimized, or compensated for

Steps 4 & 5



• FEMA re-evaluates the project to determine if it is still practicable in light of its impact on floodplains and wetlands

• If project will be funded, a 2nd public notice must be published to explain why the action is the only alternative

• FEMA must document process

Steps 6, 7 & 8


Clean Air Act (CAA)

• Requires protection and enhancement of the nation’s air resources

• Administered by Air Resources Board and various regional, county, and local air districts


Where the CAA Applies

• Demolition of properties

• Replacement of combustion systems

• Construction dust

• Power generators


Executive Order 12898Environmental Justice• Requires that minority and low

income groups receive fair treatment when considering federal actions

• Issue for property buyouts

• FEMA website on environmental justice– http://www.fema.gov/ehp/ejeo.shtm


California Environmental Quality Act: CEQA Goals

• Identify the significant environmental effects of their actions; and, either

• Avoid those significant environmental effects, where feasible

• Mitigate those significant environmental effects, where feasible


Implementing CEQA

• CEQA process must be complete before constructing projects

• Lead agency has full responsibility for compliance

• Non-compliance could result in the loss of funding


CEQA Compliance

• Statutory Exemption– Approved by legislature

• Categorical Exemption– Approved by Sec. of Resources

• Negative Declaration

• Environmental Impact Report (EIR)


CEQA STATEX Examples

• Emergency Exemption– Maintain, restore, replace, or demolish

property damaged in an area stricken by disaster that is proclaimed by the governor

– Emergency repairs to private or public service facilities necessary to maintain service essential to the public


CEQA STATEX Examples (Continued)• Emergency Exemption

– Seismic work on bridges – Actions to mitigate or prevent an

emergency– Repair, maintain or restore existing

highways damaged by fire, flood, storm, earthquake or land subsidence and landslide if initiated within one year of event


CEQA CATEX Examples

• Historical resource restoration and rehabilitation

• Replacement or reconstruction of facilities

• Minor alterations to land


Neg Decs and EIRs

• Negative declarations are prepared when an exemption cannot be applied but the project will not result in adverse impacts

• EIRs are prepared when projects may or will have adverse impacts

• Applicant is responsible


Exercise


Permitting

• Most projects will require some kind of permit

• A project may require both state and federal permits

• Local permits may also be required

• It is the applicant’s responsibility


10 Permit Approval Tips

• Consult early• Know the players• Learn the rules• Carefully design

project to reduce impacts

• Have detailed written descriptions and drawings

• Have a positive non-adversarial attitude

• Pay attention to details

• Be willing to negotiate• When in doubt, ASK!• Get everything in

writing


When Can You Construct Your Project?• NEPA compliance

– CATEX, FONSI, or ROD signed

• All other environmental laws and executive orders have been complied with

• All permits have been secured

• Authorization from OES


Who to Call

• Dennis Castrillo 916-845-8270

– OES Environmental Officer

• Mary Ann Hadden 916-845-8269

– Associate Environmental Planner

• Wendy Boemecke 916-845-8275

– Staff Services Analyst


The OES Environmental Directory• Demonstration

governors office of emergency services environmental/historical compliance in the disaster recovery...

Documents

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