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Governors Office of Emergency Services Environmental/Historical Compliance in the Disaster Recovery Process FEMA/OES Funded Projects.

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Presentation on theme: "Governors Office of Emergency Services Environmental/Historical Compliance in the Disaster Recovery Process FEMA/OES Funded Projects."— Presentation transcript:

1 Governors Office of Emergency Services Environmental/Historical Compliance in the Disaster Recovery Process FEMA/OES Funded Projects

2 Governors 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

3 Governors 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

4 Governors Office of Emergency Services 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 Governors Office of Emergency Services Roles and Responsibilities

6 Governors Office of Emergency Services Who is Involved? FEMA OES Subgrantee (applicant) Resource agencies

7 Governors Office of Emergency Services FEMA Legal responsibility –NEPA –ESA –NHPA –Executive orders and other federal environmental laws Oversight/Management

8 Governors 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

9 Governors Office of Emergency Services OES Project formulation Oversight/Management Training Monitor projects Make recommendations to FEMA Provide technical assistance to applicants

10 Governors Office of Emergency Services Applicant Project formulation Provide information to FEMA and OES CEQA Permits Project implementation

11 Governors Office of Emergency Services Resource Agencies Consultation –USFWS –NMFS –SHPO Permitting Technical assistance –Federal –State

12 Governors Office of Emergency Services National Environmental Policy Act (NEPA) The Umbrella Covering the Environmental Review Process NEPA

13 Governors 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

14 Governors 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

15 Governors Office of Emergency Services Why Projects Are Subject To NEPA? Federal action or undertaking –Federal funding –Federal permit –Federal project –Federal land –Federal regulations

16 Governors Office of Emergency Services 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 Governors Office of Emergency Services Who Are The Participants? FEMA OES Applicant Cooperating agencies Concerned citizens

18 Governors 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)

19 Governors Office of Emergency Services Statutory Exclusion or STATEX Emergency debris removal (life/safety) Emergency protective measures Repair or restoration projects

20 Governors 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

21 Governors Office of Emergency Services Extraordinary Circumstances Public controversy Hazardous substances Cumulative impact Historical/cultural resources Endangered species or designated critical habitat

22 Governors 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

23 Governors 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

24 Governors 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

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

26 Governors Office of Emergency Services NEPA-Alternatives Driven FEMA requires equal evaluation of: –Proposed project –Alternative (with exceptions) –No action alternative

27 Governors 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)

28 Governors 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

29 Governors Office of Emergency Services Public Review Periods ExclusionsNone EA/FONSI15 Days Draft EIS45 Days Final EIS30 Days

30 Governors Office of Emergency Services Overview Other Laws and Executive Orders

31 Governors Office of Emergency Services What Happens if Your Project May Affect Historic Properties The National Historic Preservation Act (NHPA)

32 Governors Office of Emergency Services National Historic Preservation Act (NHPA) Primary law governing historic preservation programs nationally Identifies historic preservation responsibilities for federal agencies

33 Governors 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

34 Governors 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

35 Governors 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)

36 Governors Office of Emergency Services 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 Governors 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

38 Governors Office of Emergency Services What Are Historic Properties? Buildings, sites, structures, objects, districts, traditional cultural properties, and historic landmarks

39 Governors Office of Emergency Services Historic Buildings Folsom Powerhouse Gamble House, Pasadena, CA

40 Governors Office of Emergency Services Historic Sites Archeological

41 Governors Office of Emergency Services Historic Landscapes Rae Selling Berry Garden Portland, Oregon Chung Wah Chinese Cemetery Folsom, CA

42 Governors Office of Emergency Services Historic Districts Old Sacramento Spring St. Financial District, Los Angeles

43 Governors Office of Emergency Services Historic Structures Queen MaryFresno Water Tower

44 Governors Office of Emergency Services Traditional Cultural Properties Medicine Lake Highlands

45 Governors Office of Emergency Services National Historic Landmarks Watts Towers Rose Bowl

46 Governors Office of Emergency Services National Historic Preservation Act Roles and Responsibilities

47 Governors 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

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

49 Governors Office of Emergency Services 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 Governors 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

51 Governors Office of Emergency Services Applicant Provide information to OES and FEMA Prevent additional damage Comply with federal, state or local preservation laws

52 Governors 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

53 Governors Office of Emergency Services NHPA Review Process Implementing Section 106

54 Governors 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)

55 Governors 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)

56 Governors 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)

57 Governors 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

58 Governors Office of Emergency Services How Do SHPOs Comments Become Incorporated? Included in the scope of work Included in the EA

59 Governors Office of Emergency Services What if it Cant be Saved? FEMA/applicant document with: –Photos –Narrative –Historic research

60 Governors Office of Emergency Services Ghosting Using part of the building or site in the construction of the new building or site

61 Governors Office of Emergency Services Examples of Ghosting Photography by Dan Holland

62 Governors Office of Emergency Services The Endangered Species Act What Happens if Your Project May Affect Endangered Species?

63 Governors 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

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

68 Governors 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

69 Governors Office of Emergency Services Consequences Of Illegal Take Fines Civil penalties Prison sentence De-obligation

70 Governors 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

71 Governors 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

72 Governors Office of Emergency Services Informal Consultation Process May include informal interaction, site visits and suggestions to alleviate adverse affect No time frame

73 Governors 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

74 Governors 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

75 Governors 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

76 Governors Office of Emergency Services Endangered Species Act Actual Projects

77 Governors 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

78 Governors 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

79 Governors 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

80 Governors 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

81 Governors Office of Emergency Services Surface Water Related Regulations Projects in wetlands, streams, lakes, and riparian habitat

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

83 Governors 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

84 Governors 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

85 Governors 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

86 Governors Office of Emergency Services Examples of Wetlands

87 Governors 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

88 Governors Office of Emergency Services Types of Army Corps Permits General –Nationwide –Regional Standard or individual

89 Governors Office of Emergency Services 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 Governors 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

91 Governors Office of Emergency Services Regional Permits Issued by District for a class or classes of activities that have minimal impacts individually or cumulatively

92 Governors 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

93 Governors 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

94 Governors 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

95 Governors 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

96 Governors 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

97 Governors 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

98 Governors Office of Emergency Services Executive Order Protection of Wetlands and Executive Order 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 Governors Office of Emergency Services Executive Order Floodplain Management 100 and 500 year floodplain Shown on FIRM maps (flood insurance rate map) Eight Step Process

100 Governors Office of Emergency Services Year Floodplain Lowland and relatively flat areas adjoining inland and coastal waters One percent or greater chance of flooding in any given year

101 Governors 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

102 Governors Office of Emergency Services

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 Governors Office of Emergency Services 8 - Step Process For Floodplain 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

105 Governors 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

106 Governors 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

107 Governors 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

108 Governors 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

109 Governors 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

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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 Governors Office of Emergency Services Where the CAA Applies Demolition of properties Replacement of combustion systems Construction dust Power generators

113 Governors Office of Emergency Services Executive Order Environmental 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.shtmhttp://www.fema.gov/ehp/ejeo.shtm

114 Governors 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

115 Governors 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

116 Governors Office of Emergency Services CEQA Compliance Statutory Exemption –Approved by legislature Categorical Exemption –Approved by Sec. of Resources Negative Declaration Environmental Impact Report (EIR)

117 Governors 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

118 Governors 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

119 Governors Office of Emergency Services CEQA CATEX Examples Historical resource restoration and rehabilitation Replacement or reconstruction of facilities Minor alterations to land

120 Governors 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

121 Governors Office of Emergency Services Exercise

122 Governors 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 applicants responsibility

123 Governors 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

124 Governors 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

125 Governors Office of Emergency Services Who to Call Dennis Castrillo –OES Environmental Officer Mary Ann Hadden –Associate Environmental Planner Wendy Boemecke –Staff Services Analyst

126 Governors Office of Emergency Services The OES Environmental Directory Demonstration


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