Order Code RL34650
Implementing the
National Environmental
Policy Act (NEPA)
for Disaster Response,
Recovery,
and Mitigation Projects
September 8, 2008
Linda Luther
Analyst in Environmental Policy
Resources, Science, and Industry Division
Implementing the National Environmental Policy Act
(NEPA)February 3, 2010
Congressional Research Service
7-5700
www.crs.gov
RL34650
CRS Report for Congress
Prepared for Members and Committees of Congress
Implementing the NEPA for Disaster Response, Recovery,
and Mitigation Projects
Summary
In the aftermath of a major disaster, communities may need to rebuild, replace,
or possibly even
relocate a multitude of structures. When recovery activities take
place on such a potentially large
scale, compliance with any of a number of local,
state, and federal laws or regulations may apply.
For example, when older buildings
must be repaired or demolished, provisions of the National
Historic Preservation Act
(NHPA) may need to be considered. If rebuilding will take place in a
floodplain,
provisions of Executive Order 11988 on Floodplain Management may apply.
When federal agencies make decisions, such as funding applicant-proposed
actions, the National
Environmental Policy Act of 1969 (NEPA, 42 U.S.C. § 4321
et seq.) applies. For example, when
federal funding is provided for disaster-related
activities, applicants for those funds may be
required to assess the environmental
impacts of their proposed action. As commonly
implemented, NEPA’s
environmental review requirements are used as a vehicle to identify any other
other environmental requirements that may apply to a project as well. This use of NEPA
as an
“umbrella” statute can lead to confusion. For example, before an applicant can
commit or expend
funds under the Department of Housing and Urban Development’s
(HUD’s) Community
Development Block Grant (CDBG) program, the applicant
must complete an environmental
review of the project. A required element of that
review is the applicant’s certification that
compliance criteria applicable to historic
preservation, floodplain management, endangered
species, air quality, and farmland
protection have been considered. This review is required not
only to meet NEPA
obligations, but also to ensure that the project being funded does not violate
applicable environmental law. From the applicant’s perspective, this may blur the
distinction distinction
between what is required under NEPA and what is required under separate
compliance compliance
requirements identified within the context of the NEPA process.
For many federal actions undertaken in response to emergencies or major
disasters, NEPA’s
environmental review requirements are exempted under provisions
of the Robert T. Stafford
Disaster Relief and Emergency Assistance Act (the Stafford
Act). (The Stafford Act does not,
however, exempt such projects from other
applicable environmental requirements.) In the past,
some Members of Congress
have been interested in the NEPA process as it applies to disaster-relateddisasterrelated projects.
This interest has been driven, in part, by federal grant applicants who have been
confused about both their role in the NEPA process and what the law requires.
To address issues associated with the NEPA process, this report discusses
NEPA as it applies to
projects for which federal funding to recover from or prepare
for a disaster has been requested by
local, tribal, or state grant applicants.
Specifically, the report provides an overview of the NEPA
process as it applies to
such projects, identifies the types of projects (categorized by federal
funding source)
likely to require environmental review, and delineates the types of projects for which
which no or minimal environmental review is required (i.e., those for which statutory or
regulatory exemptions apply) and those likely to require more in-depth review.
Contents
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Overview of the NEPA Process . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Environmental Review . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
NEPA as an Umbrella Statute . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
NEPA Issues Relevant to Disaster-Related Projects . . . . . . . . . . . . . . . . . . . . . . . 5
Disaster-Related Projects Potentially Subject to NEPA . . . . . . . . . . . . . . . . 5
Agency and Applicant Roles . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Categories of Action . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Statutory Exemptions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Categorical Exclusions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Projects Requiring an EA or EIS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Alternative Compliance Arrangements . . . . . . . . . . . . . . . . . . . . . . . . 12
Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
List of Tables
Table 1. Projects and Funding Sources . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Implementing the
National Environmental Policy Act (NEPA)
for Disaster Response, Recovery,
and Mitigation Projects
Introduction
The federal government administers various programs to assist individuals and
communities in responding to, recovering from, and preparing for disasters. For
example, after a disaster, some level of federal assistance may be available to rebuild
damaged bridges or roads, demolish and dispose of damaged buildings, rebuild
schools or hospitals, or rebuild damaged levees. Such projects often have at least
some impact on the environment, and hence may be required to comply with any of
a number of local, tribal, state, or federal environmental laws — including
requirements of the National Environmental Policy Act of 1969 (NEPA, 42 U.S.C.
§ 4321 et seq.).
Among other provisions, NEPA requires federal agencies to assess the potential
environmental impacts of a proposed action before proceeding. Exempted from
NEPA’s requirements are emergency response actions under provisions of the Robert
T. Stafford Disaster Relief and Emergency Assistance Act (the Stafford Act, 42
U.S.C. §§ 5121-5206). These exempted activities include providing essential relief
to victims and implementing protective measures necessary to reduce immediate
threats to life, property, and public health and safety. NEPA’s environmental review
requirements may, however, be applicable to long-term recovery projects, such as the
modification, mitigation, or expansion of existing structures or the relocation of
certain structures located in a floodplain.
Most agencies have implemented NEPA as an “umbrella” statute. As such, it
forms a framework for the coordination or demonstration of compliance with any
study, review, or consultation required by any other environmental law. The use of
NEPA in this capacity has led to some confusion. The need to comply with a separate
environmental law such as the Clean Water Act (CWA), Endangered Species Act
(ESA), or National Historic Preservation Act (NHPA) may be identified within the
framework of the NEPA process, but NEPA itself is not the source of the obligation.
If, theoretically, the requirement to comply with NEPA were removed, compliance
with each applicable law would still be required.
In the past, there has been congressional interest in the NEPA implementation
process for disaster-related projects. This interest has been driven, in part, by federal
grant applicants who have been confused about both their role in the NEPA process
and what the law requires.
CRS-2
To address these issues, this report discusses the NEPA process as it applies to
projects for which federal funding to recover from or prepare for a disaster may be
requested by local, tribal, or state grant applicants. Specifically, the report provides
an overview of the NEPA process as it applies to such projects, identifies the types
of projects (categorized by the federal funding source) likely to require environmental
review, and delineates both the types of projects for which no or minimal
environmental review is required (those for which statutory or categorical exclusions
apply) and those that likely require more in-depth review.
This report focuses on the NEPA process as it applies to projects that require
grant applicants (i.e., state or local agencies) to provide certain information for their
grant requests to be considered eligible for potential approval. It does not address the
NEPA process as it applies to disaster-related projects that would likely involve
collection of the necessary environmental review documentation by the federal
agency responsible for the project (e.g., water resources projects undertaken by the
Army Corps of Engineers). Two agencies that provide a significant proportion of
applicant-requested funding for disaster-related projects are the Department of
Homeland Security’s Federal Emergency Management Agency (FEMA) and the
Department of Housing and Urban Development (HUD) — particularly under its
Community Development Block Grant (CDBG) program.1 Therefore, this report
primarily discusses the NEPA process as it applies to recovery and rebuilding
projects funded under those agency programs.
Overview of the NEPA Process
NEPA is a procedural statute with twin aims that require agencies to consider
the environmental impacts of their proposed actions and inform the public that
environmental concerns have been accounted for in the decision-making process. The
NEPA process involves the steps an agency must take to demonstrate that it has met
these aims.
Environmental Review
NEPA requires all federal agencies to consider the environmental impacts of
proposed federal actions before proceeding. Regulations that specify how agencies
must implement NEPA’s requirements were promulgated by the Council on
Environmental Quality (CEQ).2 CEQ regulations direct federal agencies to adopt and
enforce their own regulations and procedures implementing NEPA’s environmental
review requirements in a manner specific to typical classes of actions undertaken by
each agency. Two agencies that provide a significant proportion of funding for
disaster-related projects are FEMA and HUD. Their NEPA regulations can be found
1
For more information about the various grant programs available to assist local
governments with disaster recovery projects, see FEMA’s “Grants and Assistance Programs
for Governments” Web page at [http://www.fema.gov/government/grant/government.shtm]
and the “CDBG Disaster Recovery Assistance” Web page at [http://www.hud.gov/offices/
cpd/communitydevelopment/programs/drsi/index.cfm].
2
40 C.F.R. §§ 1500-1508.
CRS-3
at 44 C.F.R. § 10 (FEMA) and 24 C.F.R. 58 (HUD).3 NEPA regulations specify
environmental review requirements that must be met to demonstrate that potential
environmental impacts have, in fact, been considered.
Generally, the term “environmental review” refers to a requirement to show
evidence of formal consideration, evaluation, or analysis of the impacts of a proposed
federal action. Most often, the use of the term is in reference to the process of
complying with NEPA requirements. However, depending upon the project under
consideration, an environmental review may refer to the process of identifying any
environmental compliance requirements or exemptions, as applicable to a certain
project.
As it has been interpreted, NEPA is a procedural statute that does not require
agencies to elevate environmental concerns above others. Instead, NEPA requires
only that an agency assess the potential environmental consequences of an action and
its alternatives before proceeding. If adverse environmental effects of a proposed
action are adequately identified and evaluated, the agency is not constrained by
NEPA from deciding whether other benefits outweigh the environmental costs and
moving forward with the action.
For more information about NEPA’s requirements, see CRS Report RL33152,
The National Environmental Policy Act: Background and Implementation, by Linda
Luther.
NEPA as an Umbrella Statute
Any given disaster-related project may require compliance with a wide variety
of legal requirements enforceable by one or more agencies. For example, the
environmental impacts of a given project may trigger compliance with elements of
the Clean Air Act, Endangered Species Act of 1973, National Historic Preservation
Act, or Clean Water Act.
Most individual agency NEPA procedures suggest that, for a given project,
compliance with all applicable environmental laws, executive orders, and other legal
requirements should be documented within the appropriate NEPA documentation.
This concept is referred to as the “NEPA umbrella.” As such, as previously noted,
NEPA forms a framework for the coordination and demonstration of compliance
with any study, review, or consultation required by other environmental laws. For
example, the need to comply with another environmental law, such as the Clean
Water Act, may be identified within the framework of the NEPA process, but NEPA
itself is not the source of the obligation. If, theoretically, the requirement to comply
with NEPA were removed, compliance with each applicable law would still be
required.
3
Additional environmental review requirements, potentially applicable to CDBG projects,
are specified under 24 C.F.R. § 51(Environmental Criteria and Standards and 24 C.F.R. §
55 Floodplain Management).
CRS-4
An example of the use of NEPA as an umbrella statute can be seen in FEMA’s
environmental review process. Because of the types of projects the agency is likely
to fund, and the high probability that historic properties may be affected in many
projects, FEMA’s NEPA process is referred to as an Environmental and Historic
Preservation (E&HP) Review. In its description of the E&HP process, FEMA states:
Federal environmental and historic preservation laws and Executive Orders
provide the basis and direction for the implementation of federal environmental
and historic preservation review requirements for FEMA-funded projects. These
laws and executive orders are aimed at protecting our nation’s water, air, coastal,
wildlife, land, agricultural, historical and cultural resources, as well as
minimizing potential adverse effects to children, low-income and minority
populations. Failure to comply with these laws could result in project delays and
denial of funding. FEMA through the Environmental and Historic Preservation
Program engages in a review process to ensure that FEMA funded activities
comply with these laws.4
Another example of the use of NEPA as an umbrella statute can be seen in the
HUD Office of Community Planning and Development environmental review
requirements applicable to CDBGs. Before a CDBG applicant can commit or expend
funds for a given project, an environmental review of the project must be conducted.
The environmental review record must, among other requirements, document
compliance with applicable statutes and authorities. To meet this requirement, HUD
regulations require the grantee to certify that it has considered compliance criteria
applicable to historic preservation, floodplain management and wetland protection,
coastal zone management, sole-source aquifers, endangered species, wild and scenic
rivers, air quality, farmland protection, HUD environmental standards, and
environmental justice.5 That does not mean that all of these compliance factors will
apply to a given project. The environmental review process is intended simply to
identify the compliance requirements that do apply and ensure that the applicant will
be compliant, as appropriate.
After Hurricane Katrina, some stakeholders cited NEPA as a significant
challenge to state efforts to disperse CDBG funds.6 The requirement to evaluate the
various compliance criteria listed above was cited specifically as the problem.
However, as stated previously, NEPA is not the source of these compliance
requirements. The NEPA process simply forms the framework within which
compliance with any applicable environmental law is identified. Still, this situation
illustrates the difficultly some stakeholders have in distinguishing between what is
required under NEPA and what may be required under other relevant environmental
laws. It illustrates the challenges that applicants face when trying to comply with the
range of requirements applicable to projects for which funding is sought.
4
Available on FEMA’s “Environmental & Historic Preservation Review” site at
[http://www.fema.gov/plan/ehp/ehpreview/index.shtm].
5
6
24 C.F.R. § 58.5.
Hearing before Senate Committee on Banking, Housing and Urban Affairs, “Two Years
After the Storm: Housing Needs in the Gulf Coast,” Statement of Edgar A.G. Bright, III,
CMB President, Standard Mortgage Corporation Member of the Residential Board of
Governors of the Mortgage Bankers Association, September 25, 2007. Available online at
[http://banking.senate.gov/public/index.cfm?FuseAction=Hearings.Home].
CRS-5
Also, the comprehensive reviews, documentation, and analysis sometimes
required by agencies such as the Army Corps of Engineers, the U.S. Fish and
Wildlife Service, the Coast Guard, and the Environmental Protection Agency (EPA),
as well as various state regulatory and review agencies (such as the office of a State
Historic Preservation Officer), may add to the perception that project delays are
related to the NEPA process. What may be perceived by the applicant as a NEPArelated delay may actually stem from an agency’s need to complete a permit process
or analyses required under separate statutory authority (e.g., the Clean Water Act or
Endangered Species Act), over which the agency preparing the NEPA documentation
has no authority.
NEPA Issues Relevant to Disaster-Related Projects
When a community is devastated by a disaster, it may be overwhelmed by the
number of projects that need to be undertaken. Generally, when a local, tribal, or state
agency participates in the NEPA process, it involves a project that has been planned
or, at least to some degree, anticipated. In the wake of a disaster, however, when
entire neighborhoods, towns, or regions may be substantially damaged and in need
of repair or reconstruction, agencies can quickly become overburdened by the task
of navigating applicable compliance requirements. Coupled with the potential
difficulty of determining the various federal funding sources available to recover
from or mitigate damages, local agencies responding to a disaster may become
confused about their environmental compliance obligations. If those obligations are
not met, funding will be slowed.
From the federal agency perspective, the commitment to assist in rebuilding
structures and facilities and restoring land must be done in a way that will result in
greater protection from future disasters. That is, federal agencies do not want to
spend money that may have to be spent again when another disaster strikes.
Elements of the NEPA process, such as the requirement to demonstrate flood-plain
management considerations, help federal agencies meet this goal.
To understand what is required of applicants, it is helpful to understand the
types of disaster-related projects associated with various funding sources and the
levels of environmental review that may be required for proposed projects.
Disaster-Related Projects Potentially Subject to NEPA
NEPA’s environmental review requirements apply to any project potentially
subject to federal control or responsibility. Such actions include projects and
programs entirely or partly funded, assisted, conducted, regulated, or approved by
federal agencies.7 With regard to disaster recovery, rebuilding, or mitigation projects,
NEPA applies if federal funds are used for a project or if federal-agency permitting
7
40 C.F.R. § 1508.18(a). Further, the term “federal agency” is defined as all agencies of the
federal government, but does not mean the Congress, the Judiciary, or the President (40
C.F.R. § 1508.12).
CRS-6
or other approvals are required.8 Table 1 summarizes several potential funding
sources for disaster-related projects, the types of projects potentially qualified for
those funds, and the agencies authorized to provide funding.
Table 1. Projects and Funding Sources
Funding
source
Types of
projectsa
Funding
agency
Hazard Mitigation
Grant Program
(HMGP)
Projects that will reduce or eliminate the losses from future
disasters, such as the acquisition of real property from willing
sellers and demolition or relocation of buildings to convert the
property to open space use; retrofitting of structures and facilities to
minimize damages from high winds, earthquake, flood, wildfire, or
other natural hazards; elevation of flood-prone structures;
development and initial implementation of vegetative management
programs; minor flood control projects; and localized flood control
projects designed specifically to protect critical facilities.
FEMA
Public Assistance
(PA) Grant
Program
Projects intended to help a community respond to and recover from
major disasters or emergencies declared by the President. Such
projects include: debris removal; emergency protective measures;
and the repair, replacement, or restoration of disaster-damaged,
publicly owned facilities (such as roads, bridges, water control
facilities, utilities, and critical buildings and equipment) and the
facilities of certain private nonprofit organizations. Such projects
are likely exempt from NEPA.
FEMA
Flood Mitigation
Assistance (FMA)
Program
Measures to reduce flood losses, such as elevation, acquisition, or
relocation of National Flood Insurance Program (NFIP)-insured
structures.
FEMA
Repetitive Flood
Claims (RFC)
grant program
Projects intended to reduce or eliminate claims under the National
Flood Insurance Program (NFIP), such as the acquisition of
properties, and either demolition or relocation of flood-prone
structures, where the property is deed restricted for open space uses
in perpetuity; building elevations; dry flood-proofing of
non-residential structures; and minor localized flood control
projects (funding limited to $1 million per project).
FEMA
Community
Development
Block Grant
(CDBG) program
Short-term disaster relief, such as debris removal or the emergency
restoration of essential services, such as water, sewer, electrical,
and telecommunications; mitigation activities intended to lessen
the impact of a future disaster, such as the construction of levees to
protect against flooding, buildings designed to withstand
earthquakes, or the buy-out of properties prone to a recurrence of
disaster events; and long-term recovery activities, such as
infrastructure improvements.
HUD
Source: Table prepared by CRS based on an evaluation of federal funding sources available for
disaster response, recovery, and mitigation activities.
a. This list is not intended to be exhaustive. In particular, it identifies categories of projects that would
be initiated by local, state, or tribal agency grant applicants (as opposed to federal projects that may
be initiated a federal agency, such as a flood-control project developed by the Army Corps of
Engineers).
8
If a project is undertaken purely by using city or state funds and it requires no federal
authorization or permit, NEPA’s environmental review requirements do not apply. However,
depending on the nature of the project, compliance with other environmental laws may be
required. Also, some cities and states have their own NEPA-like requirements.
CRS-7
For more information about these categories of projects, see CRS Report
RL33330, Community Development Block Grant Funds in Disaster Relief and
Recovery, by Eugene Boyd and Oscar R. Gonzales, and CRS Report RL34537,
FEMA’s Pre-Disaster Mitigation Program: Overview and Issues, by Francis X.
McCarthy.
Agency and Applicant Roles
Generally, there are three entities that play a significant role in the NEPA
process for disaster-related projects: the lead agency, which is responsible for
preparing the NEPA documentation;9 cooperating agencies, which may be any local,
tribal, state, or federal agencies that have jurisdiction by law or special expertise
regarding any environmental impact involved in a proposal;10 and the project
applicant (which may also be referred to as a responsible entity or grantee under
different agency requirements), such as local, tribal, or state entities requesting
federal funds.
For disaster-related projects, the lead agency coordinates environmental reviews
for projects funded under that agency’s programs. For example, FEMA would be the
lead agency for debris removal operations involving Public Assistance (PA) Grant
funds. In a disaster-stricken area, it is possible that multiple funding sources may be
available for a single project. If more than one federal agency proposes or is involved
in the same action, the agencies must determine which agency will serve as the lead
and which will serve as cooperating agencies. If there is disagreement among
agencies involved, factors including the magnitude of each agency’s involvement and
project approval/disapproval authority determine the designation of the lead agency.
A cooperating agency is one that has jurisdiction by law or special expertise
regarding any environmental impact involved in a proposal.11 It may be local, tribal,
state, or federal agencies from which the lead agency will need technical assistance.
For example, depending on the impacts associated with a given project, the following
agencies may serve as cooperating agencies to develop appropriate NEPA
documentation:
!
!
!
9
The Environmental Protection Agency — to address air quality,
water quality, and hazardous waste standards.
Advisory Council on Historic Preservation and/or state or tribal
historic preservation officer — to ensure that provisions of the
National Historic Preservation Act are addressed.
The Army Corps of Engineers — to ensure that any U.S. water or
wetland impacts are identified, avoided or minimized, and
mitigation resolved, among other potential requirements.
40 C.F.R. § 1508.16.
10
40 C.F.R. § 1508.5.
11
40 C.F.R. § 1508.5.
CRS-8
!
!
The U.S. Fish and Wildlife Service — to evaluate projects to ensure
that threatened and endangered species are identified, any impacts
avoided or minimized, and mitigation resolved.
The U.S. Department of Agriculture — to ensure that impacts to
farmlands are considered.
Although the lead agency (such as FEMA or HUD) may be ultimately
responsible for ensuring that NEPA documentation is complete, the project applicant
plays a significant role in the NEPA process associated with disaster-related projects.
The project applicant, such as a state or local agency, will likely be required to
develop substantive portions of the environmental document, while the lead agency
is responsible for its scope and overall content. For example, project applicants are
required to provide information to support FEMA’s Environmental and Historic
Preservation compliance process. Funds will not be awarded, and the applicant may
not initiate the project, until FEMA has completed its environmental review.
Therefore, it is in the applicant’s interest to gather and present all information
necessary to assist the funding agency with meeting its environmental review
requirements.
Categories of Action
Determining whether NEPA applies is generally not a complicated process.
Determining what level of review is required for a project (i.e., whether its
environmental impacts are significant) may not be as clear, and must be determined
on a case-by-case basis. When determining NEPA’s applicability, disaster-related
projects will fall into one of the following categories:
!
!
!
!
Statutory exemptions — applicable to certain FEMA-funded
projects authorized under the Stafford Act.
Categorical exclusions — applicable to actions that normally do not
individually or cumulatively have a significant effect on the human
environment and that the agency has determined from past
experience have no significant impact.
Environmental Impact Statements (EISs) — when the action will
potentially have a significant environmental impact.
Environmental Assessments (EAs) — when the significance of
environmental impacts is uncertain and must be determined.
The requirement to produce an EIS is probably the most familiar element of
NEPA compliance. However, actions requiring an EIS account for a small percentage
of all federal actions proposed in a given year — and generally none of those
associated with disaster response and recovery. For example, with regard to FEMAfunded projects, statutorily exempt and categorically excluded projects account for
CRS-9
approximately 99% of actions undertaken annually.12 Further, from 2000 through
2007, FEMA filed no EISs.13
When a project that involves potentially significant effects is implemented under
emergency conditions, alternative compliance arrangements may be considered when
determining how an environmental review may be carried out. These alternative
arrangements and the various categories of action potentially subject to NEPA are
discussed below.
Statutory Exemptions. In responding to emergencies and major disasters,
existing provisions of the Stafford Act statutorily exempt certain FEMA-funded
activities from NEPA. Statutory exclusions generally apply to actions that are
emergency in nature or are necessary for the preservation of life and property. They
apply to most Public Assistance actions funded by FEMA, but do not apply to hazard
mitigation, flood mitigation, unmet needs projects, or FEMA grant programs.
Specifically, response actions excluded from NEPA by the Stafford Act (at 42 U.S.C.
§ 5159) include the following:
!
!
!
!
!
General federal assistance — such as the utilization of personnel,
equipment, supplies, technical and advisory services in support of
disaster assistance. (See actions specified under 42 U.S.C. § 5170a.)
Essential federal assistance — including actions to meet immediate
threats to life and property resulting from a major disaster, such as:
the use of federal resources (e.g., equipment, supplies, and facilities),
medicine, food, and other consumables; and work and services to
save lives and protect property (e.g., debris removal, search and
rescue, clearance of roads, demolition of unsafe structures, warning
of further risks and hazards). (See actions specified under 42 U.S.C
§ 5170b.)
Repair, restoration, and replacement of damaged buildings —
generally, this means restoring the facility to the same function,
capacity, and footprint. (See actions specified under 42 U.S.C. §
5172.)
Debris removal — exempt debris removal activities include
clearance of debris and wreckage resulting from a major disaster
from publicly and privately owned lands and waters after a major
disaster (long-term debris removal activities, such as decisions on
landfill locations, may not be exempt from NEPA). (See actions
specified under 42 U.S.C. § 5173.)
Federal emergency assistance — such as the utilization of personnel,
equipment, supplies, technical and advisory services in support of
disaster assistance; and assistance in support of medicine, food, and
12
See FEMA’s Coordinating Environmental and Historic Preservation Compliance training
materials, “Module 2, Lesson 2: FEMA Exclusions Under NEPA,” p. 1, January 2004,
available online at [http://www.training.fema.gov/EMIWeb/IS/IS253lst.asp].
13
The total number of EISs filed annually, by agency, is posted by CEQ at [http://ceq.hss.
doe.gov/nepa/nepanet.htm].
CRS-10
other consumable supplies and emergency assistance. (See actions
specified under 42 U.S.C. § 5192.)
It is important to understand that, as with actions categorically excluded
(discussed below), an action statutorily excluded from NEPA is not exempt from the
requirements of other environmental statutes. FEMA would still be responsible for
complying with all other applicable local, state, tribal, and federal laws and
regulations relating to health, safety, and the environment.14 This could encompass
federal environmental statutes including, among others, the Clean Air Act, Clean
Water Act, Endangered Species Act, National Historic Preservation Act, Resource
Conservation and Recovery Act, Coastal Zone Management Act, and the Coastal
Barrier Resources Act.
Also, these exemptions are specific to designated FEMA-funded activities
authorized under the Stafford Act. Similar statutory exemptions do not exist for
HUD-funded programs such as CDBG disaster assistance. In fact, under the CDBG
funding program, states are allowed to seek waivers of certain program requirements,
except those related to environmental review (and fair housing, nondiscrimination,
and labor standards).
Categorical Exclusions. If a project is of a type that falls within an
established category of activities the agency has previously determined to have no
significant environmental impacts, it is categorically excluded from the requirement
to prepare an EA or EIS. Sometimes such actions are referred to as being
categorically excluded or exempt from NEPA. However, NEPA does apply to such
actions; they are excluded only from the requirement to prepare an EA or EIS.
Individual agencies are required to specifically list, in their respective NEPA
regulations, those projects likely to be considered categorical exclusions.15 For
example, FEMA has identified, among others, the following actions as generally
classifiable as categorical exclusions: upgrades to codes and standards, removal of
structures after addressing historic preservation needs, and minor improvements or
minor hazard mitigation measures at existing facilities, such as placing riprap at a
culvert outlet to control erosion.16 An example of a HUD-identified categorical
exclusion is the “acquisition, repair, improvement, reconstruction, or rehabilitation
of public facilities and improvements (other than buildings) when the facilities and
improvements are in place and will be retained in the same use without change in
size or capacity of more than 20 percent (e.g., replacement of water or sewer lines,
reconstruction of curbs and sidewalks, repaving of streets).”17 Note that this
categorical exclusion is similar to the Stafford Act’s statutory exemption for projects
that would repair, restore, or replace damaged buildings. Most agencies have
identified similar activities in their list of categorical exclusions.
14
Local, state, and federal environmental laws and regulations may still provide some
exemption or regulatory allowance in the event of an emergency.
15
40 C.F.R. § 1507.3.
16
44 C.F.R. § 10.8(d)(3).
17
24 C.F.R. § 58.38.
CRS-11
Whether or what types of documentation may be required to demonstrate that
a project is categorically excluded will depend on whether the project involves
extraordinary circumstances that may cause a normally excluded action to have a
significant environmental effect.18 Also, the fact that a project does not have a
significant impact as defined under NEPA does not mean that it will not trigger
statutory requirements of other environmental laws. For example, if historical sites,
endangered species habitat, wetlands, or property in minority neighborhoods, to name
a few, would be affected by a proposed federal action, compliance with related
environmental laws or requirements, in addition to NEPA, may be required.
Even though categorically excluded projects do not have significant
environmental impacts, an agency may require a certain level of documentation to
prove that the CE determination is appropriate. For example, FEMA’s NEPA
regulations identify three levels of categorical exclusions and the types of
documentation necessary for each.19
If there are unresolved extraordinary circumstances that may have a significant
adverse environmental impact, such as the potential to affect protected natural or
cultural resources, the proposed action cannot be categorically excluded, and an EA
is required.
Projects Requiring an EA or EIS. If a project is not statutorily exempt from
NEPA or does not fit the criteria applicable to a categorical exclusion, it must be
determined whether the environmental impacts of such a project will be significant,
and hence require the preparation of an EIS. An EIS may be required for projects
intended to facilitate long-term recovery of an affected region. Examples may include
disaster-related flood-control or hurricane protection projects (e.g., new wetlands
restoration projects or levee repair projects); construction of roads, bridges, storm
water management projects, tornado shelters, temporary housing, fuel modification
projects, and public facilities (e.g., schools, libraries, utilities); debris storage,
staging, and removal; and building acquisition, relocation, and demolition.
If past disasters can serve as a gauge, a disaster-related project likely will not
require an EIS. However, it may require an EA. An EA is carried out in order to
clarify issues and determine the extent of an action’s environmental effects. CEQ
regulations define an EA as a concise public document that serves to briefly provide
sufficient evidence and analysis for determining whether to prepare an EIS or a
finding of no significant impact (FONSI); aid agency compliance with NEPA when
no EIS is required; and facilitate preparation of an EIS when one is necessary.20
The CEQ regulations require no standard format for EAs, but do require
agencies to include a brief discussion of the need for the proposal, alternatives,
impacts of the proposal and alternatives, and a list of agencies or individuals
18
40 C.F.R. § 1508.4.
19
See “FEMA Categorical Exclusions (CATEX)” at [http://www.fema.gov/plan/ehp/
regionviii/catex.shtm].
20
40 C.F.R. § 1508.9(a).
CRS-12
consulted.21 Individual agency regulations and/or guidance may include more
specific requirements. Some agencies suggest that the process for developing an EA
should be similar to the process for developing an EIS. For example, the applicant
should consult interested agencies to scope the project to determine the potential for
social, economic, or environmental impacts; briefly discuss the project’s purpose and
need; identify project alternatives and measures to mitigate adverse impacts; and
identify any other environmental review requirements applicable to the project (e.g.,
permitting requirements under the Clean Water Act). Public participation in the EA
process is left largely to the discretion of the lead agency.
If at any time during preparation of the EA it is determined that a project’s
impacts are significant, EIS preparation should begin. If it is ultimately determined
that impacts are not significant, the lead agency must prepare a FONSI. The FONSI
serves as the agency’s administrative record in support of its decision regarding a
project’s impact. The FONSI also must be available to the affected public.22
Alternative Compliance Arrangements. In addition to categorical and
statutory exclusions to NEPA, both CEQ and individual agencies have specified
“Alternative Arrangements” for complying with NEPA’s requirements in the event
of an emergency.23 Alternative arrangements are available where emergency
circumstances make it necessary to take an action with significant environmental
impacts (i.e., a project that would otherwise require an EIS) without observing the
provisions of the applicable NEPA regulations. In such circumstances, the federal
agency taking the action should consult with CEQ about what those arrangements
may be and the time frame within which they must be completed. Exactly what those
arrangements involve and how they would be implemented would vary according to
the nature of the disaster. Generally, their intent is to expedite the NEPA process
when an EIS would otherwise be required.
These Alternative Arrangements do not waive the requirement to comply with
NEPA regulations, but establish an alternative means of compliance. Agencies and
CEQ are to limit such arrangements to actions necessary to control the immediate
impacts of the emergency.
On September 8, 2005, CEQ released a memorandum that provides guidance
on emergency alternative arrangements under NEPA. That guidance was specific to
Hurricane Katrina,24 but could be applicable to any disaster response activities
undertaken by federal agencies. For example, CEQ lists activities that could be
considered for analyses in accordance with alternative arrangement provisions, such
as the disposal of unsorted disaster debris (waste that includes both hazardous and
21
40 C.F.R. § 1508.9(b).
22
40 C.F.R. § 1501.4(e)(1).
23
40 CFR § 1506.11. The Corps has regulatory provisions similar to CEQ’s that address
emergency actions. FEMA’s regulations reference statutory exemptions provided under the
Stafford Act.
24
See “Memorandum for Federal NEPA Contacts: Emergency Actions and NEPA,”
including Attachments 1 and 2, at [http://www.nepa.gov/nepa/regs/guidance.html].
CRS-13
nonhazardous constituents) at a specific site or the permanent replacement of certain
major facilities when the agency expects that significant environmental affects will
occur.
On March 23, 2006, FEMA published a notice specifying those arrangements
for agency grants to repair or reconstruct critical infrastructure in the New Orleans
Metropolitan Area.25 “Critical infrastructure” included
!
!
!
!
!
!
hospitals and health care facilities,
utilities and wastewater treatment plants,
permanent police and fire stations,
government and court administration buildings,
detention centers (jails), and
permanent schools.
Although alternative arrangements are an option after a disaster, they are rarely
used. Since 1980, the only disaster-related projects to use alternative arrangements
involved certain rebuilding efforts in the New Orleans area after Hurricanes Katrina
and Rita. In particular, alternative arrangements were established for the Corps’
reconstruction of levies damaged after the storm and FEMA grant-assisted projects
to replace certain critical infrastructures (referenced above). Specifically, after the
hurricanes, FEMA anticipated that grant applications from Louisiana “will more
strongly reflect future demands than returning to pre-disaster conditions. Proposed
projects will not necessarily be the same size, nature or location; will use current
building codes, and construction methods; and take advantage of current community
and urban planning principles, and hazard mitigation opportunities.”26 Under such
conditions, NEPA would apply. To coordinate their recovery efforts more quickly,
among other factors, FEMA requested Alternative Arrangements to meet its NEPA
requirements.
Conclusion
When a community is devastated by a disaster, all at once it may be faced with
the need to rebuild roads, bridges, private homes, and public buildings. Such projects,
when undertaken under normal circumstances, may not qualify for federal funding,
but when they do, as in the case after a disaster, the federal government must be
assured that certain criteria are met before those funds are made available. Among
other factors, the federal government needs confirmation that those funds will not be
used in a way that increases the likelihood that their investment will be lost if and
when another disaster strikes the same area. Further, before a federal agency will
provide funds for disaster recovery or rebuilding, it must gain assurance that the
project complies with applicable regulations, laws, and executive orders. The NEPA
process is a vehicle by which that assurance can be obtained.
25
71 Federal Register 14712-14716; see also FEMA’s webpage “Greater New Orleans
Infrastructure Projects,” at [http://www.fema.gov/plan/ehp/noma/about1.shtm].
26
71 Federal Register 14715.
Congressional Research Service
Implementing the NEPA for Disaster Response, Recovery, and Mitigation Projects
Contents
Introduction ................................................................................................................................1
Overview of the NEPA Process ...................................................................................................2
Environmental Review..........................................................................................................2
NEPA as an Umbrella Statute ................................................................................................3
NEPA Issues Relevant to Disaster-Related Projects .....................................................................4
Disaster-Related Projects Potentially Subject to NEPA ..........................................................5
Agency and Applicant Roles .................................................................................................6
Categories of Action..............................................................................................................7
Statutory Exemptions ......................................................................................................8
Categorical Exclusions....................................................................................................9
Projects Requiring an EA or EIS ................................................................................... 10
Alternative Compliance Arrangements .......................................................................... 10
Conclusion................................................................................................................................ 12
Tables
Table 1. Projects and Funding Sources ........................................................................................5
Contacts
Author Contact Information ...................................................................................................... 12
Congressional Research Service
Implementing the NEPA for Disaster Response, Recovery, and Mitigation Projects
Introduction
The federal government administers various programs to assist individuals and communities in
responding to, recovering from, and preparing for disasters. For example, after a disaster, some
level of federal assistance may be available to rebuild damaged bridges or roads, demolish and
dispose of damaged buildings, rebuild schools or hospitals, or rebuild damaged levees. Such
projects often have at least some impact on the environment, and hence may be required to
comply with any of a number of local, tribal, state, or federal environmental laws—including
requirements of the National Environmental Policy Act of 1969 (NEPA, 42 U.S.C. § 4321 et
seq.).
Among other provisions, NEPA requires federal agencies to assess the potential environmental
impacts of a proposed action before proceeding. Exempted from NEPA’s requirements are
emergency response actions under provisions of the Robert T. Stafford Disaster Relief and
Emergency Assistance Act (the Stafford Act, 42 U.S.C. §§ 5121-5206). These exempted activities
include providing essential relief to victims and implementing protective measures necessary to
reduce immediate threats to life, property, and public health and safety. NEPA’s environmental
review requirements may, however, be applicable to long-term recovery projects, such as the
modification, mitigation, or expansion of existing structures or the relocation of certain structures
located in a floodplain.
Most agencies have implemented NEPA as an “umbrella” statute. As such, it forms a framework
for the coordination or demonstration of compliance with any study, review, or consultation
required by any other environmental law. The use of NEPA in this capacity has led to some
confusion. The need to comply with a separate environmental law such as the Clean Water Act
(CWA), Endangered Species Act (ESA), or National Historic Preservation Act (NHPA) may be
identified within the framework of the NEPA process, but NEPA itself is not the source of the
obligation. If, theoretically, the requirement to comply with NEPA were removed, compliance
with each applicable law would still be required.
In the past, there has been congressional interest in the NEPA implementation process for
disaster-related projects. This interest has been driven, in part, by federal grant applicants who
have been confused about both their role in the NEPA process and what the law requires.
To address these issues, this report discusses the NEPA process as it applies to projects for which
federal funding to recover from or prepare for a disaster may be requested by local, tribal, or state
grant applicants. Specifically, the report provides an overview of the NEPA process as it applies
to such projects, identifies the types of projects (categorized by the federal funding source) likely
to require environmental review, and delineates both the types of projects for which no or
minimal environmental review is required (those for which statutory or categorical exclusions
apply) and those that likely require more in-depth review.
This report focuses on the NEPA process as it applies to projects that require grant applicants (i.e.,
state or local agencies) to provide certain information for their grant requests to be considered
eligible for potential approval. It does not address the NEPA process as it applies to disasterrelated projects that would likely involve collection of the necessary environmental review
documentation by the federal agency responsible for the project (e.g., water resources projects
undertaken by the Army Corps of Engineers). Two agencies that provide a significant proportion
of applicant-requested funding for disaster-related projects are the Department of Homeland
Congressional Research Service
1
Implementing the NEPA for Disaster Response, Recovery, and Mitigation Projects
Security’s Federal Emergency Management Agency (FEMA) and the Department of Housing and
Urban Development (HUD)—particularly under its Community Development Block Grant
(CDBG) program.1 Therefore, this report primarily discusses the NEPA process as it applies to
recovery and rebuilding projects funded under those agency programs.
Overview of the NEPA Process
NEPA is a procedural statute with twin aims that require agencies to consider the environmental
impacts of their proposed actions and inform the public that environmental concerns have been
accounted for in the decision-making process. The NEPA process involves the steps an agency
must take to demonstrate that it has met these aims.
Environmental Review
NEPA requires all federal agencies to consider the environmental impacts of proposed federal
actions before proceeding. Regulations that specify how agencies must implement NEPA’s
requirements were promulgated by the Council on Environmental Quality (CEQ).2 CEQ
regulations direct federal agencies to adopt and enforce their own regulations and procedures
implementing NEPA’s environmental review requirements in a manner specific to typical classes
of actions undertaken by each agency. Two agencies that provide a significant proportion of
funding for disaster-related projects are FEMA and HUD. Their NEPA regulations can be found
at 44 C.F.R. § 10 (FEMA) and 24 C.F.R. 58 (HUD). 3 NEPA regulations specify environmental
review requirements that must be met to demonstrate that potential environmental impacts have,
in fact, been considered.
Generally, the term “environmental review” refers to a requirement to show evidence of formal
consideration, evaluation, or analysis of the impacts of a proposed federal action. Most often, the
use of the term is in reference to the process of complying with NEPA requirements. However,
depending upon the project under consideration, an environmental review may refer to the
process of identifying any environmental compliance requirements or exemptions, as applicable
to a certain project.
As it has been interpreted, NEPA is a procedural statute that does not require agencies to elevate
environmental concerns above others. Instead, NEPA requires only that an agency assess the
potential environmental consequences of an action and its alternatives before proceeding. If
adverse environmental effects of a proposed action are adequately identified and evaluated, the
agency is not constrained by NEPA from deciding whether other benefits outweigh the
environmental costs and moving forward with the action.
1
For more information about the various grant programs available to assist local governments with disaster recovery
projects, see FEMA’s “Grants and Assistance Programs for Governments” Web page at http://www.fema.gov/
government/grant/government.shtm and the “CDBG Disaster Recovery Assistance” Web page at http://www.hud.gov/
offices/cpd/communitydevelopment/programs/drsi/index.cfm.
2
40 C.F.R. §§ 1500-1508.
3
Additional environmental review requirements, potentially applicable to CDBG projects, are specified under 24
C.F.R. § 51(Environmental Criteria and Standards and 24 C.F.R. § 55 Floodplain Management).
Congressional Research Service
2
Implementing the NEPA for Disaster Response, Recovery, and Mitigation Projects
For more information about NEPA’s requirements, see CRS Report RL33152, The National
Environmental Policy Act (NEPA): Background and Implementation, by Linda Luther.
NEPA as an Umbrella Statute
Any given disaster-related project may require compliance with a wide variety of legal
requirements enforceable by one or more agencies. For example, the environmental impacts of a
given project may trigger compliance with elements of the Clean Air Act, Endangered Species
Act of 1973, National Historic Preservation Act, or Clean Water Act.
Most individual agency NEPA procedures suggest that, for a given project, compliance with all
applicable environmental laws, executive orders, and other legal requirements should be
documented within the appropriate NEPA documentation. This concept is referred to as the
“NEPA umbrella.” As such, as previously noted, NEPA forms a framework for the coordination
and demonstration of compliance with any study, review, or consultation required by other
environmental laws. For example, the need to comply with another environmental law, such as
the Clean Water Act, may be identified within the framework of the NEPA process, but NEPA
itself is not the source of the obligation. If, theoretically, the requirement to comply with NEPA
were removed, compliance with each applicable law would still be required.
An example of the use of NEPA as an umbrella statute can be seen in FEMA’s environmental
review process. Because of the types of projects the agency is likely to fund, and the high
probability that historic properties may be affected in many projects, FEMA’s NEPA process is
referred to as an Environmental and Historic Preservation (E&HP) Review. In its description of
the E&HP process, FEMA states:
Federal environmental and historic preservation laws and Executive Orders provide the basis
and direction for the implementation of federal environmental and historic preservation
review requirements for FEMA-funded projects. These laws and executive orders are aimed
at protecting our nation’s water, air, coastal, wildlife, land, agricultural, historical and
cultural resources, as well as minimizing potential adverse effects to children, low-income
and minority populations. Failure to comply with these laws could result in project delays
and denial of funding. FEMA through the Environmental and Historic Preservation Program
engages in a review process to ensure that FEMA funded activities comply with these laws.4
Another example of the use of NEPA as an umbrella statute can be seen in the HUD Office of
Community Planning and Development environmental review requirements applicable to
CDBGs. Before a CDBG applicant can commit or expend funds for a given project, an
environmental review of the project must be conducted. The environmental review record must,
among other requirements, document compliance with applicable statutes and authorities. To
meet this requirement, HUD regulations require the grantee to certify that it has considered
compliance criteria applicable to historic preservation, floodplain management and wetland
protection, coastal zone management, sole-source aquifers, endangered species, wild and scenic
rivers, air quality, farmland protection, HUD environmental standards, and environmental
justice. 5 That does not mean that all of these compliance factors will apply to a given project. The
4
Available on FEMA’s “Environmental & Historic Preservation Review” site at http://www.fema.gov/plan/ehp/
ehpreview/index.shtm.
5
24 C.F.R. § 58.5.
Congressional Research Service
3
Implementing the NEPA for Disaster Response, Recovery, and Mitigation Projects
environmental review process is intended simply to identify the compliance requirements that do
apply and ensure that the applicant will be compliant, as appropriate.
After Hurricane Katrina, some stakeholders cited NEPA as a significant challenge to state efforts
to disperse CDBG funds. 6 The requirement to evaluate the various compliance criteria listed
above was cited specifically as the problem. However, as stated previously, NEPA is not the
source of these compliance requirements. The NEPA process simply forms the framework within
which compliance with any applicable environmental law is identified. Still, this situation
illustrates the difficultly some stakeholders have in distinguishing between what is required under
NEPA and what may be required under other relevant environmental laws. It illustrates the
challenges that applicants face when trying to comply with the range of requirements applicable
to projects for which funding is sought.
Also, the comprehensive reviews, documentation, and analysis sometimes required by agencies
such as the Army Corps of Engineers, the U.S. Fish and Wildlife Service, the Coast Guard, and
the Environmental Protection Agency (EPA), as well as various state regulatory and review
agencies (such as the office of a State Historic Preservation Officer), may add to the perception
that project delays are related to the NEPA process. What may be perceived by the applicant as a
NEPA-related delay may actually stem from an agency’s need to complete a permit process or
analyses required under separate statutory authority (e.g., the Clean Water Act or Endangered
Species Act), over which the agency preparing the NEPA documentation has no authority.
NEPA Issues Relevant to Disaster-Related Projects
When a community is devastated by a disaster, it may be overwhelmed by the number of projects
that need to be undertaken. Generally, when a local, tribal, or state agency participates in the
NEPA process, it involves a project that has been planned or, at least to some degree, anticipated.
In the wake of a disaster, however, when entire neighborhoods, towns, or regions may be
substantially damaged and in need of repair or reconstruction, agencies can quickly become
overburdened by the task of navigating applicable compliance requirements. Coupled with the
potential difficulty of determining the various federal funding sources available to recover from
or mitigate damages, local agencies responding to a disaster may become confused about their
environmental compliance obligations. If those obligations are not met, funding will be slowed.
From the federal agency perspective, the commitment to assist in rebuilding structures and
facilities and restoring land must be done in a way that will result in greater protection from
future disasters. That is, federal agencies do not want to spend money that may have to be spent
again when another disaster strikes. Elements of the NEPA process, such as the requirement to
demonstrate flood-plain management considerations, help federal agencies meet this goal.
To understand what is required of applicants, it is helpful to understand the types of disasterrelated projects associated with various funding sources and the levels of environmental review
that may be required for proposed projects.
6
Hearing before Senate Committee on Banking, Housing and Urban Affairs, “Two Years After the Storm: Housing
Needs in the Gulf Coast,” Statement of Edgar A.G. Bright, III, CMB President, Standard Mortgage Corporation
Member of the Residential Board of Governors of the Mortgage Bankers Association, September 25, 2007. Available
online at http://banking.senate.gov/public/index.cfm?FuseAction=Hearings.Home.
Congressional Research Service
4
Implementing the NEPA for Disaster Response, Recovery, and Mitigation Projects
Disaster-Related Projects Potentially Subject to NEPA
NEPA’s environmental review requirements apply to any project potentially subject to federal
control or responsibility. Such actions include projects and programs entirely or partly funded,
assisted, conducted, regulated, or approved by federal agencies. 7 With regard to disaster recovery,
rebuilding, or mitigation projects, NEPA applies if federal funds are used for a project or if
federal-agency permitting or other approvals are required. 8 Table 1 summarizes several potential
funding sources for disaster-related projects, the types of projects potentially qualified for those
funds, and the agencies authorized to provide funding.
Table 1. Projects and Funding Sources
Funding
source
Types of
projectsa
Funding
agency
Hazard
Mitigation
Grant
Program
(HMGP)
Projects that will reduce or eliminate the losses from future disasters, such as the acquisition of real
property from willing sellers and demolition or relocation of buildings to convert the property to
open space use; retrofitting of structures and facilities to minimize damages from high winds,
earthquake, flood, wildfire, or other natural hazards; elevation of flood-prone structures;
development and initial implementation of vegetative management programs; minor flood control
projects; and localized flood control projects designed specifically to protect critical facilities.
FEMA
Public
Assistance
(PA) Grant
Program
Projects intended to help a community respond to and recover from major disasters or
emergencies declared by the President. Such projects include: debris removal; emergency protective
measures; and the repair, replacement, or restoration of disaster-damaged, publicly owned facilities
(such as roads, bridges, water control facilities, utilities, and critical buildings and equipment) and
the facilities of certain private nonprofit organizations. Such projects are likely exempt from NEPA.
FEMA
Flood
Mitigation
Assistance
(FMA)
Program
Measures to reduce flood losses, such as elevation, acquisition, or relocation of National Flood
Insurance Program (NFIP)-insured structures.
FEMA
Repetitive
Flood Claims
(RFC) grant
program
Projects intended to reduce or eliminate claims under the National Flood Insurance Program
(NFIP), such as the acquisition of properties, and either demolition or relocation of flood-prone
structures, where the property is deed restricted for open space uses in perpetuity; building
elevations; dry flood-proofing of non-residential structures; and minor localized flood control
projects (funding limited to $1 million per project).
FEMA
Community
Development
Block Grant
(CDBG)
program
Short-term disaster relief, such as debris removal or the emergency restoration of essential
services, such as water, sewer, electrical, and telecommunications; mitigation activities intended to
lessen the impact of a future disaster, such as the construction of levees to protect against flooding,
buildings designed to withstand earthquakes, or the buy-out of properties prone to a recurrence of
disaster events; and long-term recovery activities, such as infrastructure improvements.
HUD
Source: Table prepared by CRS based on an evaluation of federal funding sources available for disaster
response, recovery, and mitigation activities.
a.
This list is not intended to be exhaustive. In particular, it identifies categories of projects that would be
initiated by local, state, or tribal agency grant applicants (as opposed to federal projects that may be initiated
a federal agency, such as a flood-control project developed by the Army Corps of Engineers).
7
40 C.F.R. § 1508.18(a). Further, the term “federal agency” is defined as all agencies of the federal government, but
does not mean the Congress, the Judiciary, or the President (40 C.F.R. § 1508.12).
8
If a project is undertaken purely by using city or state funds and it requires no federal authorization or permit, NEPA’s
environmental review requirements do not apply. However, depending on the nature of the project, compliance with
other environmental laws may be required. Also, some cities and states have their own NEPA-like requirements.
Congressional Research Service
5
Implementing the NEPA for Disaster Response, Recovery, and Mitigation Projects
For more information about these categories of projects, see CRS Report RL33330, Community
Development Block Grant Funds in Disaster Relief and Recovery, by Eugene Boyd and Oscar R.
Gonzales, and CRS Report RL34537, FEMA’s Pre-Disaster Mitigation Program: Overview and
Issues, by Francis X. McCarthy and Natalie Keegan.
Agency and Applicant Roles
Generally, there are three entities that play a significant role in the NEPA process for disasterrelated projects: the lead agency, which is responsible for preparing the NEPA documentation;9
cooperating agencies, which may be any local, tribal, state, or federal agencies that have
jurisdiction by law or special expertise regarding any environmental impact involved in a
proposal;10 and the project applicant (which may also be referred to as a responsible entity or
grantee under different agency requirements), such as local, tribal, or state entities requesting
federal funds.
For disaster-related projects, the lead agency coordinates environmental reviews for projects
funded under that agency’s programs. For example, FEMA would be the lead agency for debris
removal operations involving Public Assistance (PA) Grant funds. In a disaster-stricken area, it is
possible that multiple funding sources may be available for a single project. If more than one
federal agency proposes or is involved in the same action, the agencies must determine which
agency will serve as the lead and which will serve as cooperating agencies. If there is
disagreement among agencies involved, factors including the magnitude of each agency’s
involvement and project approval/disapproval authority determine the designation of the lead
agency.
A cooperating agency is one that has jurisdiction by law or special expertise regarding any
environmental impact involved in a proposal.11 It may be local, tribal, state, or federal agencies
from which the lead agency will need technical assistance. For example, depending on the
impacts associated with a given project, the following agencies may serve as cooperating
agencies to develop appropriate NEPA documentation:
•
The Environmental Protection Agency—to address air quality, water quality, and
hazardous waste standards.
•
Advisory Council on Historic Preservation and/or state or tribal historic
preservation officer—to ensure that provisions of the National Historic
Preservation Act are addressed.
•
The Army Corps of Engineers—to ensure that any U.S. water or wetland impacts
are identified, avoided or minimized, and mitigation resolved, among other
potential requirements.
•
The U.S. Fish and Wildlife Service—to evaluate projects to ensure that
threatened and endangered species are identified, any impacts avoided or
minimized, and mitigation resolved.
9
40 C.F.R. § 1508.16.
40 C.F.R. § 1508.5.
11
40 C.F.R. § 1508.5.
10
Congressional Research Service
6
Implementing the NEPA for Disaster Response, Recovery, and Mitigation Projects
•
The U.S. Department of Agriculture—to ensure that impacts to farmlands are
considered.
Although the lead agency (such as FEMA or HUD) may be ultimately responsible for ensuring
that NEPA documentation is complete, the project applicant plays a significant role in the NEPA
process associated with disaster-related projects. The project applicant, such as a state or local
agency, will likely be required to develop substantive portions of the environmental document,
while the lead agency is responsible for its scope and overall content. For example, project
applicants are required to provide information to support FEMA’s Environmental and Historic
Preservation compliance process. Funds will not be awarded, and the applicant may not initiate
the project, until FEMA has completed its environmental review. Therefore, it is in the applicant’s
interest to gather and present all information necessary to assist the funding agency with meeting
its environmental review requirements.
Categories of Action
Determining whether NEPA applies is generally not a complicated process. Determining what
level of review is required for a project (i.e., whether its environmental impacts are significant)
may not be as clear, and must be determined on a case-by-case basis. When determining NEPA’s
applicability, disaster-related projects will fall into one of the following categories:
•
Statutory exemptions—applicable to certain FEMA-funded projects authorized
under the Stafford Act.
•
Categorical exclusions—applicable to actions that normally do not individually
or cumulatively have a significant effect on the human environment and that the
agency has determined from past experience have no significant impact.
•
Environmental Impact Statements (EISs)—when the action will potentially have
a significant environmental impact.
•
Environmental Assessments (EAs)—when the significance of environmental
impacts is uncertain and must be determined.
The requirement to produce an EIS is probably the most familiar element of NEPA compliance.
However, actions requiring an EIS account for a small percentage of all federal actions proposed
in a given year—and generally none of those associated with disaster response and recovery. For
example, with regard to FEMA-funded projects, statutorily exempt and categorically excluded
projects account for approximately 99% of actions undertaken annually. 12 Further, from 2000
through 2007, FEMA filed no EISs.13
When a project that involves potentially significant effects is implemented under emergency
conditions, alternative compliance arrangements may be considered when determining how an
environmental review may be carried out. These alternative arrangements and the various
categories of action potentially subject to NEPA are discussed below.
12
See FEMA’s Coordinating Environmental and Historic Preservation Compliance training materials, “Module 2,
Lesson 2: FEMA Exclusions Under NEPA,” p. 1, January 2004, available online at http://www.training.fema.gov/
EMIWeb/IS/IS253lst.asp.
13
The total number of EISs filed annually, by agency, is posted by CEQ at http://ceq.hss.doe.gov/nepa/nepanet.htm.
Congressional Research Service
7
Implementing the NEPA for Disaster Response, Recovery, and Mitigation Projects
Statutory Exemptions
In responding to emergencies and major disasters, existing provisions of the Stafford Act
statutorily exempt certain FEMA-funded activities from NEPA. Statutory exclusions generally
apply to actions that are emergency in nature or are necessary for the preservation of life and
property. They apply to most Public Assistance actions funded by FEMA, but do not apply to
hazard mitigation, flood mitigation, unmet needs projects, or FEMA grant programs. Specifically,
response actions excluded from NEPA by the Stafford Act (at 42 U.S.C. § 5159) include the
following:
•
General federal assistance—such as the utilization of personnel, equipment,
supplies, technical and advisory services in support of disaster assistance. (See
actions specified under 42 U.S.C. § 5170a.)
•
Essential federal assistance—including actions to meet immediate threats to life
and property resulting from a major disaster, such as: the use of federal resources
(e.g., equipment, supplies, and facilities), medicine, food, and other consumables;
and work and services to save lives and protect property (e.g., debris removal,
search and rescue, clearance of roads, demolition of unsafe structures, warning of
further risks and hazards). (See actions specified under 42 U.S.C § 5170b.)
•
Repair, restoration, and replacement of damaged buildings—generally, this
means restoring the facility to the same function, capacity, and footprint. (See
actions specified under 42 U.S.C. § 5172.)
•
Debris removal—exempt debris removal activities include clearance of debris
and wreckage resulting from a major disaster from publicly and privately owned
lands and waters after a major disaster (long-term debris removal activities, such
as decisions on landfill locations, may not be exempt from NEPA). (See actions
specified under 42 U.S.C. § 5173.)
•
Federal emergency assistance—such as the utilization of personnel, equipment,
supplies, technical and advisory services in support of disaster assistance; and
assistance in support of medicine, food, and other consumable supplies and
emergency assistance. (See actions specified under 42 U.S.C. § 5192.)
It is important to understand that, as with actions categorically excluded (discussed below), an
action statutorily excluded from NEPA is not exempt from the requirements of other
environmental statutes. FEMA would still be responsible for complying with all other applicable
local, state, tribal, and federal laws and regulations relating to health, safety, and the
environment.14 This could encompass federal environmental statutes including, among others, the
Clean Air Act, Clean Water Act, Endangered Species Act, National Historic Preservation Act,
Resource Conservation and Recovery Act, Coastal Zone Management Act, and the Coastal
Barrier Resources Act.
Also, these exemptions are specific to designated FEMA-funded activities authorized under the
Stafford Act. Similar statutory exemptions do not exist for HUD-funded programs such as CDBG
disaster assistance. In fact, under the CDBG funding program, states are allowed to seek waivers
14
Local, state, and federal environmental laws and regulations may still provide some exemption or regulatory
allowance in the event of an emergency.
Congressional Research Service
8
Implementing the NEPA for Disaster Response, Recovery, and Mitigation Projects
of certain program requirements, except those related to environmental review (and fair housing,
nondiscrimination, and labor standards).
Categorical Exclusions
If a project is of a type that falls within an established category of activities the agency has
previously determined to have no significant environmental impacts, it is categorically excluded
from the requirement to prepare an EA or EIS. Sometimes such actions are referred to as being
categorically excluded or exempt from NEPA. However, NEPA does apply to such actions; they
are excluded only from the requirement to prepare an EA or EIS.
Individual agencies are required to specifically list, in their respective NEPA regulations, those
projects likely to be considered categorical exclusions.15 For example, FEMA has identified,
among others, the following actions as generally classifiable as categorical exclusions: upgrades
to codes and standards, removal of structures after addressing historic preservation needs, and
minor improvements or minor hazard mitigation measures at existing facilities, such as placing
riprap at a culvert outlet to control erosion.16 An example of a HUD-identified categorical
exclusion is the “acquisition, repair, improvement, reconstruction, or rehabilitation of public
facilities and improvements (other than buildings) when the facilities and improvements are in
place and will be retained in the same use without change in size or capacity of more than 20
percent (e.g., replacement of water or sewer lines, reconstruction of curbs and sidewalks,
repaving of streets).”17 Note that this categorical exclusion is similar to the Stafford Act’s
statutory exemption for projects that would repair, restore, or replace damaged buildings. Most
agencies have identified similar activities in their list of categorical exclusions.
Whether or what types of documentation may be required to demonstrate that a project is
categorically excluded will depend on whether the project involves extraordinary circumstances
that may cause a normally excluded action to have a significant environmental effect.18 Also, the
fact that a project does not have a significant impact as defined under NEPA does not mean that it
will not trigger statutory requirements of other environmental laws. For example, if historical
sites, endangered species habitat, wetlands, or property in minority neighborhoods, to name a few,
would be affected by a proposed federal action, compliance with related environmental laws or
requirements, in addition to NEPA, may be required.
Even though categorically excluded projects do not have significant environmental impacts, an
agency may require a certain level of documentation to prove that the CE determination is
appropriate. For example, FEMA’s NEPA regulations identify three levels of categorical
exclusions and the types of documentation necessary for each.19
If there are unresolved extraordinary circumstances that may have a significant adverse
environmental impact, such as the potential to affect protected natural or cultural resources, the
proposed action cannot be categorically excluded, and an EA is required.
15
40 C.F.R. § 1507.3.
44 C.F.R. § 10.8(d)(3).
17
24 C.F.R. § 58.38.
18
40 C.F.R. § 1508.4.
19
See “FEMA Categorical Exclusions (CATEX)” at http://www.fema.gov/plan/ehp/regionviii/catex.shtm.
16
Congressional Research Service
9
Implementing the NEPA for Disaster Response, Recovery, and Mitigation Projects
Projects Requiring an EA or EIS
If a project is not statutorily exempt from NEPA or does not fit the criteria applicable to a
categorical exclusion, it must be determined whether the environmental impacts of such a project
will be significant, and hence require the preparation of an EIS. An EIS may be required for
projects intended to facilitate long-term recovery of an affected region. Examples may include
disaster-related flood-control or hurricane protection projects (e.g., new wetlands restoration
projects or levee repair projects); construction of roads, bridges, storm water management
projects, tornado shelters, temporary housing, fuel modification projects, and public facilities
(e.g., schools, libraries, utilities); debris storage, staging, and removal; and building acquisition,
relocation, and demolition.
If past disasters can serve as a gauge, a disaster-related project likely will not require an EIS.
However, it may require an EA. An EA is carried out in order to clarify issues and determine the
extent of an action’s environmental effects. CEQ regulations define an EA as a concise public
document that serves to briefly provide sufficient evidence and analysis for determining whether
to prepare an EIS or a finding of no significant impact (FONSI); aid agency compliance with
NEPA when no EIS is required; and facilitate preparation of an EIS when one is necessary.20
The CEQ regulations require no standard format for EAs, but do require agencies to include a
brief discussion of the need for the proposal, alternatives, impacts of the proposal and
alternatives, and a list of agencies or individuals consulted.21 Individual agency regulations and/or
guidance may include more specific requirements. Some agencies suggest that the process for
developing an EA should be similar to the process for developing an EIS. For example, the
applicant should consult interested agencies to scope the project to determine the potential for
social, economic, or environmental impacts; briefly discuss the project’s purpose and need;
identify project alternatives and measures to mitigate adverse impacts; and identify any other
environmental review requirements applicable to the project (e.g., permitting requirements under
the Clean Water Act). Public participation in the EA process is left largely to the discretion of the
lead agency.
If at any time during preparation of the EA it is determined that a project’s impacts are significant,
EIS preparation should begin. If it is ultimately determined that impacts are not significant, the
lead agency must prepare a FONSI. The FONSI serves as the agency’s administrative record in
support of its decision regarding a project’s impact. The FONSI also must be available to the
affected public.22
Alternative Compliance Arrangements
In addition to categorical and statutory exclusions to NEPA, both CEQ and individual agencies
have specified “Alternative Arrangements” for complying with NEPA’s requirements in the event
of an emergency.23 Alternative arrangements are available where emergency circumstances make
it necessary to take an action with significant environmental impacts (i.e., a project that would
20
40 C.F.R. § 1508.9(a).
40 C.F.R. § 1508.9(b).
22
40 C.F.R. § 1501.4(e)(1).
23
40 CFR § 1506.11. The Corps has regulatory provisions similar to CEQ’s that address emergency actions. FEMA’s
regulations reference statutory exemptions provided under the Stafford Act.
21
Congressional Research Service
10
Implementing the NEPA for Disaster Response, Recovery, and Mitigation Projects
otherwise require an EIS) without observing the provisions of the applicable NEPA regulations.
In such circumstances, the federal agency taking the action should consult with CEQ about what
those arrangements may be and the time frame within which they must be completed. Exactly
what those arrangements involve and how they would be implemented would vary according to
the nature of the disaster. Generally, their intent is to expedite the NEPA process when an EIS
would otherwise be required.
These Alternative Arrangements do not waive the requirement to comply with NEPA regulations,
but establish an alternative means of compliance. Agencies and CEQ are to limit such
arrangements to actions necessary to control the immediate impacts of the emergency.
On September 8, 2005, CEQ released a memorandum that provides guidance on emergency
alternative arrangements under NEPA. That guidance was specific to Hurricane Katrina,24 but
could be applicable to any disaster response activities undertaken by federal agencies. For
example, CEQ lists activities that could be considered for analyses in accordance with alternative
arrangement provisions, such as the disposal of unsorted disaster debris (waste that includes both
hazardous and nonhazardous constituents) at a specific site or the permanent replacement of
certain major facilities when the agency expects that significant environmental affects will occur.
On March 23, 2006, FEMA published a notice specifying those arrangements for agency grants to
repair or reconstruct critical infrastructure in the New Orleans Metropolitan Area.25 “Critical
infrastructure” included
•
hospitals and health care facilities,
•
utilities and wastewater treatment plants,
•
permanent police and fire stations,
•
government and court administration buildings,
•
detention centers (jails), and
•
permanent schools.
Although alternative arrangements are an option after a disaster, they are rarely used. Since 1980,
the only disaster-related projects to use alternative arrangements involved certain rebuilding
efforts in the New Orleans area after Hurricanes Katrina and Rita. In particular, alternative
arrangements were established for the Corps’ reconstruction of levies damaged after the storm
and FEMA grant-assisted projects to replace certain critical infrastructures (referenced above).
Specifically, after the hurricanes, FEMA anticipated that grant applications from Louisiana “will
more strongly reflect future demands than returning to pre-disaster conditions. Proposed projects
will not necessarily be the same size, nature or location; will use current building codes, and
construction methods; and take advantage of current community and urban planning principles,
and hazard mitigation opportunities.”26 Under such conditions, NEPA would apply. To coordinate
24
See “Memorandum for Federal NEPA Contacts: Emergency Actions and NEPA,” including Attachments 1 and 2, at
http://www.nepa.gov/nepa/regs/guidance.html.
25
71 Federal Register 14712-14716; see also FEMA’s webpage “Greater New Orleans Infrastructure Projects,” at
http://www.fema.gov/plan/ehp/noma/about1.shtm.
26
71 Federal Register 14715.
Congressional Research Service
11
Implementing the NEPA for Disaster Response, Recovery, and Mitigation Projects
their recovery efforts more quickly, among other factors, FEMA requested Alternative
Arrangements to meet its NEPA requirements.
Conclusion
When a community is devastated by a disaster, all at once it may be faced with the need to rebuild
roads, bridges, private homes, and public buildings. Such projects, when undertaken under
normal circumstances, may not qualify for federal funding, but when they do, as in the case after
a disaster, the federal government must be assured that certain criteria are met before those funds
are made available. Among other factors, the federal government needs confirmation that those
funds will not be used in a way that increases the likelihood that their investment will be lost if
and when another disaster strikes the same area. Further, before a federal agency will provide
funds for disaster recovery or rebuilding, it must gain assurance that the project complies with
applicable regulations, laws, and executive orders. The NEPA process is a vehicle by which that
assurance can be obtained.
Author Contact Information
Linda Luther
Analyst in Environmental Policy
lluther@crs.loc.gov, 7-6852
Congressional Research Service
12