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Environmental/Historical Compliance in the Disaster Recovery Process

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Title: Environmental/Historical Compliance in the Disaster Recovery Process


1
Environmental/Historical Compliance in the
Disaster Recovery Process
  • FEMA/OES Funded Projects

2
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

3
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

4
Important Points
  • Dont start construction until environmental
    review is complete
  • Its the applicants 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

5
Roles and Responsibilities
6
Who is Involved?
  • FEMA
  • OES
  • Subgrantee (applicant)
  • Resource agencies

7
FEMA
  • Legal responsibility
  • NEPA
  • ESA
  • NHPA
  • Executive orders and other federal environmental
    laws
  • Oversight/Management

8
FEMA (Continued)
  • Prepare environmental documents
  • Site visits
  • Consultations
  • Section 7, ESA
  • Section 106, NHPA
  • FEMA often uses consultants to assist with their
    responsibilities

9
OES
  • Project formulation
  • Oversight/Management
  • Training
  • Monitor projects
  • Make recommendations to FEMA
  • Provide technical assistance to applicants

10
Applicant
  • Project formulation
  • Provide information to FEMA and OES
  • CEQA
  • Permits
  • Project implementation

11
Resource Agencies
  • Consultation
  • USFWS
  • NMFS
  • SHPO
  • Permitting
  • Technical assistance
  • Federal
  • State

12
National Environmental Policy Act (NEPA)
NEPA
The Umbrella Covering the Environmental Review
Process
13
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

14
NEPA The Umbrella
  • National Historic Preservation Act
  • Endangered Species Act
  • Clean Water Act
  • Clean Air Act
  • Executive orders
  • All other environmental laws

NEPA
15
Why Projects Are Subject To NEPA?
  • Federal action or undertaking
  • Federal funding
  • Federal permit
  • Federal project
  • Federal land
  • Federal regulations

16
NEPA Implementation
  • NEPA
  • Council on Environmental Quality (CEQ)
    regulations are general
  • Federal lead agencies adopt regulations that are
    more specific
  • FEMAs NEPA regulations are found in 44CFR

17
Who Are The Participants?
  • FEMA
  • OES
  • Applicant
  • Cooperating agencies
  • Concerned citizens

18
Outcome of NEPA Review
  • Statutory Exclusion (STATEX)
  • Categorical Exclusion (CATEX)
  • Environmental Assessment (EA)
  • Finding of No Significant Impact (FONSI)
  • Environmental Impact Statement (EIS)

19
Statutory Exclusion or STATEX
  • Emergency debris removal (life/safety)
  • Emergency protective measures
  • Repair or restoration projects

20
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

21
Extraordinary Circumstances
  • Public controversy
  • Hazardous substances
  • Cumulative impact
  • Historical/cultural resources
  • Endangered species or designated critical habitat

22
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

23
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

24
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

25
Contents of an EA
  • Purpose and need
  • Project description
  • Alternatives
  • Environmental impacts
  • Agencies consulted
  • Conclusion of analysis (FONSI or EIS)

26
NEPA-Alternatives Driven
  • FEMA requires equal evaluation of
  • Proposed project
  • Alternative (with exceptions)
  • No action alternative

27
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)

28
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

29
Public Review Periods
30
Overview
Other Laws and Executive Orders
31
What Happens if Your Project May Affect Historic
Properties
The National Historic Preservation Act (NHPA)
32
National Historic Preservation Act (NHPA)
  • Primary law governing historic preservation
    programs nationally
  • Identifies historic preservation responsibilities
    for federal agencies

33
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

34
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

35
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)

36
What is Integrity?
  • The property must be able to convey its
    significance
  • Certain modifications may damage or destroy a
    propertys integrity
  • This could make a property ineligible for the
    National Register

37
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

38
What Are Historic Properties?
  • Buildings, sites, structures, objects, districts,
    traditional cultural properties, and historic
    landmarks

39
Historic Buildings
  • Folsom Powerhouse
  • Gamble House, Pasadena, CA

40
Historic Sites
Archeological
41
Historic Landscapes
  • Rae Selling Berry Garden
  • Portland, Oregon
  • Chung Wah Chinese
  • Cemetery Folsom, CA

42
Historic Districts
  • Old Sacramento
  • Spring St. Financial District, Los Angeles

43
Historic Structures
Queen Mary
Fresno Water Tower
44
Traditional Cultural Properties
Medicine Lake Highlands
45
National Historic Landmarks
  • Watts Towers
  • Rose Bowl

46
National Historic Preservation Act
  • Roles and Responsibilities

47
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

48
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
  • FEMAs primary contact for historic review
    consultations (Section 106)

49
Tribal Historic Preservation Office (THPO)
  • Implements NHPA at the tribal level
  • Keeps inventory of historic properties on tribal
    lands
  • FEMAs primary contact for historic review
    consultations regarding tribal properties or
    native American artifacts

50
OES
  • Provide information to FEMA
  • Collect information from applicant
  • Prepare recommendation to FEMA
  • Participant in Programmatic Agreements and MOAs
  • Provide technical assistance/training

51
Applicant
  • Provide information to OES and FEMA
  • Prevent additional damage
  • Comply with federal, state or local preservation
    laws

52
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

53
NHPA Review Process
Implementing Section 106
54
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)

55
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)

56
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)

57
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

58
How Do SHPOs Comments Become Incorporated?
  • Included in the scope of work
  • Included in the EA

59
What if it Cant be Saved?
  • FEMA/applicant document with
  • Photos
  • Narrative
  • Historic research

60
Ghosting
  • Using part of the building or site in the
    construction of the new building or site

61
Examples of Ghosting
Photography by Dan Holland
62
The Endangered Species Act
  • What Happens if Your Project May Affect
    Endangered Species?

63
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

64
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65
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66
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67
What is a Take?
  • Unless permitted, it is unlawful to take any
    listed species
  • Harass
  • Harm
  • Pursue
  • Hunt

68
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

69
Consequences Of Illegal Take
  • Fines
  • Civil penalties
  • Prison sentence
  • De-obligation

70
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

71
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

72
Informal Consultation Process
  • May include informal interaction, site visits and
    suggestions to alleviate adverse affect
  • No time frame

73
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

74
Formal Consultation Process
  • 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

75
Formal Consultation Process
  • 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

76
Endangered Species Act
  • Actual Projects

77
Soule Park Stream Bank Repairs
Species Southern Coastal Steelhead
  • Protection Measures
  • Construction during dry season
  • Minimize grading at base of slope
  • Avoid creek bed
  • Prevent erosion
  • Plant native plants on banks

78
East Bay Regional Park District Vegetation
Management Projects
  • Protection Measures
  • Prescribed burns during wetter months of year
  • Drift fencing around slash piles
  • Training sessions for contractors regarding snake

Species Alameda Whipsnake
79
East Bay Regional Park District Vegetation
Management Projects
Species - Callippe Silverspot Butterfly
  • Protective Measures
  • Burn only 1/5 of all grassland area for any given
    colony in one year
  • Delineate habitat
  • Conduct surveys before removing vegetation

80
East Bay Regional Park District Vegetation
Management Projects
Presidio clarkia
  • Protection Measures
  • Conduct surveys on project site and 500 foot
    buffer
  • Fence off plants with visible construction
    fencing

81
Surface Water Related Regulations
  • Projects in wetlands, streams, lakes, and
    riparian habitat

82
Rivers and Harbors Act of 1899
  • Structures in navigable waters
  • Impacts to navigation
  • Administered by the Army Corps of Engineers

83
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

84
Clean Water Act Section 404
  • 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

85
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

86
Examples of Wetlands
87
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

88
Types of Army Corps Permits
  • General
  • Nationwide
  • Regional
  • Standard or individual

89
Nationwide Permits
  • Activities that dont generally have significant
    impacts
  • Usually limited by size and scope
  • Will have general conditions that need to be met
  • 44 nationwide permits

90
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

91
Regional Permits
  • Issued by District for a class or classes of
    activities that have minimal impacts individually
    or cumulatively

92
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

93
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

94
Two Important Points About Army Corps Permits
  • Most disaster repair projects fall under the
    nationwide permit program
  • Permits are the responsibility of the applicant

95
Clean Water Act Section 401
  • Water Quality Certification or Waiver
  • Assures that projects permitted by the US Army
    Corps of Engineers meets state water quality
    standards

96
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

97
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

98
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

99
Executive Order 11988 Floodplain Management
  • 100 and 500 year floodplain
  • Shown on FIRM maps (flood insurance rate map)
  • Eight Step Process

100
100 - Year Floodplain
  • Lowland and relatively flat areas adjoining
    inland and coastal waters
  • One percent or greater chance of flooding in any
    given year

101
500 Year Floodplain
  • Subject to inundation from a flood having a 0.2
    percent chance of occurring in any given year

102
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103
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

104
8 - Step Process ForFloodplain Management and
Wetland Protection
105
The Eight-Step Process
Step 1
  • 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

106
The Eight-Step Process
Step 2
If yes, ...
  • A public notice must be published at the earliest
    possible time to provide information about the
    proposed project (1st Notice)
  • Disaster-wide
  • Project specific

107
The Eight-Step Process
Step 3
  • 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

108
The Eight-Step Process
Steps 4 5
  • 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

109
The Eight-Step Process
Steps 6, 7 8
  • 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

110
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111
Clean Air Act (CAA)
  • Requires protection and enhancement of the
    nations air resources
  • Administered by Air Resources Board and various
    regional, county, and local air districts

112
Where the CAA Applies
  • Demolition of properties
  • Replacement of combustion systems
  • Construction dust
  • Power generators

113
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

114
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

115
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

116
CEQA Compliance
  • Statutory Exemption
  • Approved by legislature
  • Categorical Exemption
  • Approved by Sec. of Resources
  • Negative Declaration
  • Environmental Impact Report (EIR)

117
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

118
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

119
CEQA CATEX Examples
  • Historical resource restoration and
    rehabilitation
  • Replacement or reconstruction of facilities
  • Minor alterations to land

120
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

121
Exercise
122
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 applicants responsibility

123
10 Permit Approval Tips
  • Have a positive non-adversarial attitude
  • Pay attention to details
  • Be willing to negotiate
  • When in doubt, ASK!
  • Get everything in writing
  • Consult early
  • Know the players
  • Learn the rules
  • Carefully design project to reduce impacts
  • Have detailed written descriptions and drawings

124
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

125
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

126
The OES Environmental Directory
  • Demonstration
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