Help Is Waiting . . . at the Gate: Formulating A Better Way to Navigate Federal Regulatory

Requirements for Long-Term Recovery Projects

Natural Hazards Center/EERI/Center for Global Partnership (CGP) Project3ICUDR – U.S. Field Study Workshop

Natural Hazards CenterBoulder, CO

John MarshallGeorgia State University College of Law

July 12, 2013

NEPA: A Necessary Gate, But Slow to Open

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The NEPA Gateway• What is the National Environmental Policy Act (NEPA):

– Requires federal agencies consider environmental impacts prior to committing federal funds (“stop, look & listen” )

• No money flows without environmental review

– NEPA process has two threshold questions: • (1) whether NEPA applies; is the activity “exempt”, e.g. preparation of

architectural drawings, and• (2) whether the activity is “categorically excluded” from review, e.g.,

an individual action on 5 or more homes more than 2,000 feet apart.

– If activity is not exempted or excluded, then agency:• Completes an environmental assessment (EA), or• If EA indicates the proposed action has significant impacts then

environmental impact statement (EIS) is required

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NEPA-Related Delays for Long-Term Recovery Projects: Katrina

• Dual problems with delay and redundancy– 1. NEPA review entailed high degree of granularity – EA

required for each disaster CDBG funded long-term recovery “project”

• 10,000+ site specific environmental assessments (EAs) completed on residential properties throughout southern Louisiana

• Fewer than 5 properties (.05%) statewide could not be redeveloped due to significant problems, such as a property located in a floodway

• 4400+ EAs in Orleans Parish alone – almost all within ‘feet’ of one another

– HUD-required Reviews commences January 2008 (28 months after Katrina)

– Initial review process takes 14 months; no residential properties available for sale/redevelopment until March 2009 (42 months after Katrina).

– 2. Multiple properties on which FEMA conducted environmental review also required to submit to HUD-mandated NEPA review

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1914 Tennessee Street

Lower 9th Ward

Make It Right

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St. Roch

2843 Law Street

Samaritan’s Purse – 3/6/09

EERI / CGP -- BoulderPhoto by Shawn Escoffery

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Sandy: Early Reports• HUD makes significant NEPA implementation improvements

for Sandy long-term recovery projects: – Congress corrects redundancy problem in P.L. 113-2

• Regulatory “gate” still too complex for large-scale disaster– Lot-by-lot, project-by-project, NEPA review required for each long-

term recovery project funded with disaster CDBG funds • New York City estimate 18,000+ rehabilitation projects that could

require site specific environmental assessments (60k units)• New York and New Jersey already well ahead of post-Katrina

timeline: – New York completes EA almost complete for 300 initial buy-out properties in

(9 months following storm)– New Jersey just closed RFP for firm to handle ER implementation.

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Map by John Nelson of IDV Solutions 10

EERI / CGP -- BoulderNYC Partial Action Plan A

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EERI / CGP -- BoulderPhoto by Mike Groll / AP

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Photo by US Coast Guard via AFP/Getty Images

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A Way Forward? FTA’s New NEPA-Implementing Regulations

• Federal Transit Administration’s new (February 2013) FTA NEPA-implementing regulations:– Recovery from major disaster is motivating factor for new rule: rule explicitly

acknowledges that promoting expeditious environmental review is especially appropriate given major damage to transportation infrastructure caused by Sandy.

– Creates possibility of categorical exclusion (CE) for rehabilitation, reconstruction, replacement, or maintenance of residential structures:

• acquisition, construction or rehab of recreational pathways and pedestrian bridges, particularly where “sizeable swaths of habitat” are not impacted.

• Roof replacement, storm water management activities, and bridge rehab, as long as the action is intended to “mitigate environmental harm”

• Repairs or retrofitting within or adjacent to the transit system’s R/O/W, where the actions are designed to promote safety and eliminate hazards.

• Acquisition or transfer of property as long as the property is (a) not “within or adjacent to recognized environmentally sensitive areas” and (b) does not result “in a substantial change in the functional use of the property . . . .”

• Minimally intrusive rehab or reconstruction of facilities.• Constructing transit facilities as long as the development is consistent with existing land use

and zoning requirements, is minimally intrusive and requires no special permits and uses “a minimal amount of [previously] undisturbed land.”

• Development of commercial or retail facilities “on above or adjacent to the right of way.”

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Why is this issue important and why is it important to watch Sandy implementation closely?

• Katrina showed need for more thoughtful operation of the regulatory gates that local and state governments must open to tap recovery monies.

• Katrina highlighted problem of protracted delay implementing the environmental review requirement when disaster strikes cities that have a poor demonstrated track record for local governmental operation.

• Secretary Donovan and Napolitano established Sandy recovery Task Force; committed to learning from inefficiencies and delays associated with major disasters.

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