Transcript NEPA - Redwood Empire Chapter

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
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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?
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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
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Project formulation
Oversight/Management
Training
Monitor projects
Make recommendations to FEMA
• Provide technical assistance to applicants
Governor’s Office of Emergency Services
Applicant
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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
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
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?
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FEMA
OES
Applicant
Cooperating agencies
Concerned citizens
Governor’s Office of Emergency Services
Outcome of NEPA Review
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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
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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
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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
Other Laws and Executive
Orders
Overview
Governor’s Office of Emergency Services
The National Historic
Preservation Act (NHPA)
What Happens if Your Project May
Affect Historic Properties
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
Governor’s Office of Emergency Services
• Gamble House,
Pasadena, CA
Historic Sites
Archeological
Governor’s Office of Emergency Services
Historic Landscapes
Rae Selling Berry Garden Chung Wah Chinese
Portland, Oregon
Cemetery Folsom, CA
Governor’s Office of Emergency Services
Historic Districts
• Old Sacramento
Governor’s Office of Emergency Services
• Spring St. Financial
District, Los Angeles
Historic Structures
Queen Mary
Governor’s Office of Emergency Services
Fresno Water Tower
Traditional Cultural
Properties
Medicine Lake
Highlands
Governor’s Office of Emergency Services
National Historic Landmarks
• Watts Towers
Governor’s Office of Emergency Services
• Rose Bowl
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
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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 Ghosting
Photography 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
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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
Species – Southern Coastal Steelhead
• Protection Measures
Governor’s Office of Emergency Services
– Construction during
dry season
– Minimize grading at
base of slope
– Avoid creek bed
– Prevent erosion
– Plant native plants on
banks
East Bay Regional Park District
Vegetation Management Projects
Species – Alameda Whipsnake • Protection Measures
– Prescribed burns
during wetter months
of year
– Drift fencing around
slash piles
– Training sessions for
contractors regarding
snake
Governor’s Office of Emergency Services
East Bay Regional Park District
Vegetation Management Projects
Species - Callippe Silverspot
• Protective Measures
Butterfly
– Burn only 1/5 of all
grassland area for any
given colony in one
year
– Delineate habitat
– Conduct surveys
before removing
vegetation
Governor’s Office of Emergency Services
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
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:
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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 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
Governor’s Office of Emergency Services
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
Governor’s Office of Emergency Services
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
Governor’s Office of Emergency Services
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
Governor’s Office of Emergency Services
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
Governor’s Office of Emergency Services
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
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 12898
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.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
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Consult early
Know the players
Learn the rules
Carefully design
project to reduce
impacts
• Have detailed written
descriptions and
drawings
Governor’s Office of Emergency Services
• Have a positive nonadversarial 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
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
Governor’s Office of Emergency Services