governors office of emergency services environmental/historical compliance in the disaster recovery...
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Governor’s Office of Emergency Services
Environmental/Historical Compliance in the Disaster
Recovery Process
FEMA/OES Funded Projects
Governor’s Office of Emergency Services
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
Governor’s Office of Emergency Services
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
Governor’s Office of Emergency Services
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
Governor’s Office of Emergency Services
Roles and Responsibilities
Governor’s Office of Emergency Services
Who is Involved?
• FEMA
• OES
• Subgrantee (applicant)
• Resource agencies
Governor’s Office of Emergency Services
FEMA
• Legal responsibility– NEPA– ESA– NHPA– Executive orders and other federal
environmental laws
• Oversight/Management
Governor’s Office of Emergency Services
FEMA (Continued)
• Prepare environmental documents• Site visits• Consultations
– Section 7, ESA – Section 106, NHPA
• FEMA often uses consultants to assist with their responsibilities
Governor’s Office of Emergency Services
OES
• Project formulation• Oversight/Management• Training • Monitor projects • Make recommendations to FEMA
• Provide technical assistance to applicants
Governor’s Office of Emergency Services
Applicant
• Project formulation
• Provide information to FEMA and OES
• CEQA
• Permits
• Project implementation
Governor’s Office of Emergency Services
Resource Agencies
• Consultation– USFWS– NMFS– SHPO
• Permitting• Technical assistance
– Federal– State
Governor’s Office of Emergency Services
National Environmental Policy Act (NEPA)
The Umbrella Covering the Environmental Review Process
NEPA
Governor’s Office of Emergency Services
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
Governor’s Office of Emergency Services
NEPA: The Umbrella
• National Historic Preservation Act
• Endangered Species Act• Clean Water Act• Clean Air Act• Executive orders• All other environmental
laws
NEPA
Governor’s Office of Emergency Services
Why Projects Are Subject To NEPA?
• Federal action or undertaking– Federal funding
– Federal permit
– Federal project
– Federal land
– Federal regulations
Governor’s Office of Emergency Services
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
Governor’s Office of Emergency Services
Who Are The Participants?
• FEMA
• OES
• Applicant
• Cooperating agencies
• Concerned citizens
Governor’s Office of Emergency Services
Outcome of NEPA Review
• Statutory Exclusion (STATEX)
• Categorical Exclusion (CATEX)
• Environmental Assessment (EA)
• Finding of No Significant Impact (FONSI)
• Environmental Impact Statement (EIS)
Governor’s Office of Emergency Services
Statutory Exclusion or STATEX
• Emergency debris removal (life/safety)
• Emergency protective measures
• Repair or restoration projects
Governor’s Office of Emergency Services
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”
Governor’s Office of Emergency Services
Extraordinary Circumstances
• Public controversy
• Hazardous substances
• Cumulative impact
• Historical/cultural resources
• Endangered species or designated critical habitat
Governor’s Office of Emergency Services
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
Governor’s Office of Emergency Services
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
Governor’s Office of Emergency Services
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”
Governor’s Office of Emergency Services
Contents of an EA
• Purpose and need • Project description• Alternatives• Environmental impacts• Agencies consulted• Conclusion of analysis (FONSI or
EIS)
Governor’s Office of Emergency Services
NEPA-Alternatives Driven
• FEMA requires equal evaluation of:
– Proposed project
– Alternative (with exceptions)
– No action alternative
Governor’s Office of Emergency Services
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)
Governor’s Office of Emergency Services
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
Governor’s Office of Emergency Services
Public Review Periods
Exclusions None
EA/FONSI 15 Days
Draft EIS 45 Days
Final EIS 30 Days
Governor’s Office of Emergency Services
Overview
Other Laws and Executive Orders
Governor’s Office of Emergency Services
What Happens if Your Project May Affect Historic Properties
The National Historic Preservation Act (NHPA)
Governor’s Office of Emergency Services
National Historic Preservation Act (NHPA)
• Primary law governing historic preservation programs nationally
• Identifies historic preservation responsibilities for federal agencies
Governor’s Office of Emergency Services
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
Governor’s Office of Emergency Services
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
Governor’s Office of Emergency Services
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)
Governor’s Office of Emergency Services
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
Governor’s Office of Emergency Services
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
Governor’s Office of Emergency Services
What Are Historic Properties?
• Buildings, sites, structures, objects, districts, traditional cultural properties, and historic landmarks
Governor’s Office of Emergency Services
Historic Buildings
• Folsom Powerhouse
• Gamble House, Pasadena, CA
Governor’s Office of Emergency Services
Historic Sites
Archeological
Governor’s Office of Emergency Services
Historic LandscapesRae Selling Berry GardenPortland, Oregon
Chung Wah Chinese
Cemetery Folsom, CA
Governor’s Office of Emergency Services
Historic Districts
• Old Sacramento • Spring St. Financial District, Los Angeles
Governor’s Office of Emergency Services
Historic Structures
Queen Mary Fresno Water Tower
Governor’s Office of Emergency Services
Traditional Cultural Properties
Medicine Lake Highlands
Governor’s Office of Emergency Services
National Historic Landmarks
• Watts Towers • Rose Bowl
Governor’s Office of Emergency Services
National Historic Preservation Act
Roles and Responsibilities
Governor’s Office of Emergency Services
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
Governor’s Office of Emergency Services
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)
Governor’s Office of Emergency Services
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
Governor’s Office of Emergency Services
OES
• Provide information to FEMA
• Collect information from applicant
• Prepare recommendation to FEMA
• Participant in Programmatic Agreements and MOAs
• Provide technical assistance/training
Governor’s Office of Emergency Services
Applicant
• Provide information to OES and FEMA
• Prevent additional damage
• Comply with federal, state or local preservation laws
Governor’s Office of Emergency Services
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
Governor’s Office of Emergency Services
NHPA Review Process
Implementing Section 106
Governor’s Office of Emergency Services
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)
Governor’s Office of Emergency Services
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)
Governor’s Office of Emergency Services
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)
Governor’s Office of Emergency Services
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
Governor’s Office of Emergency Services
How Do SHPO’s Comments Become Incorporated?
• Included in the scope of work
• Included in the EA
Governor’s Office of Emergency Services
What if it Can’t be Saved?
• FEMA/applicant document with:– Photos– Narrative– Historic research
Governor’s Office of Emergency Services
Ghosting
• Using part of the building or site in the construction of the new building or site
Governor’s Office of Emergency Services
Examples of GhostingPhotography by Dan Holland
Governor’s Office of Emergency Services
The Endangered Species Act
What Happens if Your Project May Affect Endangered Species?
Governor’s Office of Emergency Services
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
Governor’s Office of Emergency Services
Governor’s Office of Emergency Services
Governor’s Office of Emergency Services
Governor’s Office of Emergency Services
What is a “Take”?
• Unless permitted, it is unlawful to “take” any listed species– Harass– Harm– Pursue– Hunt
Governor’s Office of Emergency Services
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
Governor’s Office of Emergency Services
Consequences Of Illegal Take
• Fines
• Civil penalties
• Prison sentence
• De-obligation
Governor’s Office of Emergency Services
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”
Governor’s Office of Emergency Services
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”
Governor’s Office of Emergency Services
Informal Consultation Process
• May include informal interaction, site visits and suggestions to alleviate adverse affect
• No time frame
Governor’s Office of Emergency Services
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
Governor’s Office of Emergency Services
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
Governor’s Office of Emergency Services
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
Governor’s Office of Emergency Services
Endangered Species Act
Actual Projects
Governor’s Office of Emergency Services
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
Governor’s Office of Emergency Services
• 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
Governor’s Office of Emergency Services
East Bay Regional Park District Vegetation Management Projects
• 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
Governor’s Office of Emergency Services
East Bay Regional Park District Vegetation Management Projects
• Protection Measures– Conduct surveys on
project site and 500 foot buffer
– Fence off plants with visible construction fencing
Presidio clarkia
Governor’s Office of Emergency Services
Surface Water Related Regulations• Projects in wetlands, streams, lakes,
and riparian habitat
Governor’s Office of Emergency Services
Rivers and Harbors Act of 1899• Structures in navigable waters
• Impacts to navigation
• Administered by the Army Corps of Engineers
Governor’s Office of Emergency Services
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
Governor’s Office of Emergency Services
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
Governor’s Office of Emergency Services
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
Governor’s Office of Emergency Services
Examples of Wetlands
Governor’s Office of Emergency Services
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
Governor’s Office of Emergency Services
Types of Army Corps Permits
• General – Nationwide– Regional
• Standard or individual
Governor’s Office of Emergency Services
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
Governor’s Office of Emergency Services
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
Governor’s Office of Emergency Services
Regional Permits
• Issued by District for a class or classes of activities that have minimal impacts individually or cumulatively
Governor’s Office of Emergency Services
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
Governor’s Office of Emergency Services
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
Governor’s Office of Emergency Services
Two Important Points About Army Corps Permits
• Most disaster repair projects fall under the nationwide permit program
• Permits are the responsibility of the applicant
Governor’s Office of Emergency Services
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
Governor’s Office of Emergency Services
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
Governor’s Office of Emergency Services
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”
Governor’s Office of Emergency Services
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
Governor’s Office of Emergency Services
Executive Order 11988 Floodplain Management
• 100 and 500 year floodplain• Shown on FIRM maps (flood insurance
rate map) • Eight Step Process
Governor’s Office of Emergency Services
100 - Year Floodplain
• Lowland and relatively flat areas adjoining inland and coastal waters
• One percent or greater chance of flooding in any given year
Governor’s Office of Emergency Services
500 – Year Floodplain
• Subject to inundation from a flood having a 0.2 percent chance of occurring in any given year
Governor’s Office of Emergency Services
Governor’s Office of Emergency Services
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
Governor’s Office of Emergency Services
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
Governor’s Office of Emergency Services
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
Governor’s Office of Emergency Services
The Eight-Step Process
• 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
Governor’s Office of Emergency Services
The Eight-Step Process
• 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
Governor’s Office of Emergency Services
The Eight-Step Process
• 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
Governor’s Office of Emergency Services
The Eight-Step Process
• 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
Governor’s Office of Emergency Services
Governor’s Office of Emergency Services
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
Governor’s Office of Emergency Services
Where the CAA Applies
• Demolition of properties
• Replacement of combustion systems
• Construction dust
• Power generators
Governor’s Office of Emergency Services
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
Governor’s Office of Emergency Services
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
Governor’s Office of Emergency Services
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
Governor’s Office of Emergency Services
CEQA Compliance
• Statutory Exemption– Approved by legislature
• Categorical Exemption– Approved by Sec. of Resources
• Negative Declaration
• Environmental Impact Report (EIR)
Governor’s Office of Emergency Services
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
Governor’s Office of Emergency Services
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
Governor’s Office of Emergency Services
CEQA CATEX Examples
• Historical resource restoration and rehabilitation
• Replacement or reconstruction of facilities
• Minor alterations to land
Governor’s Office of Emergency Services
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
Governor’s Office of Emergency Services
Exercise
Governor’s Office of Emergency Services
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
Governor’s Office of Emergency Services
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
Governor’s Office of Emergency Services
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
Governor’s Office of Emergency Services
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
Governor’s Office of Emergency Services
The OES Environmental Directory• Demonstration