Environmental and historic preservation law and policy are designed to ensure that the Federal government consider the effects of their actions on natural and cultural resources.

Environmental conservation is the protection, preservation, management, or restoration of natural environments and the ecological communities that inhabit them.

Historic preservation is an endeavor that seeks to preserve, conserve and protect buildings, objects, landscapes or other artifacts of historic significance to transmit our understanding of the past to future generations.

The Applicant must demonstrate compliance with laws, Executive Orders, regulations, and policies when issuing grant awards in the Public Assistance Program.

Laws are enacted by Congress and signed by the President. They provide the legal basis and funding for programs and/or projects.

Executive Orders are issued by the President to Federal agencies. Executive Orders have the force and effect of law.

Regulations are rules based on the interpretation of law. Regulations must be within the agency's statutory authority. After public vetting, regulations have the force of law.

Policies are rules issued to clarify laws and regulations as they relate to specific agency actions.

Recipients and Applicants are responsible for complying with these environmental and historic preservation laws, regulations, Executive Orders, and policies. Laws and regulations are subject to change at any time. Applicants receiving Public Assistance grant funding must be up to date on the most current environmental and historic preservation laws that could affect their projects; hence they can even ask FEMA for technical assistance.

Remember that compliance requirements for a Public Assistance grant are stipulated within the FEMA environmental and historic preservation review and are specific to the work for that project. Compliance permits and coordination with regulatory agencies are required before an Applicant can commence physical work. Written documentation demonstrating compliance is required for completed work at the time of grant formulation and award.

For work to be complete, Permits and regulatory agency coordination is conducted prior to work commencing. Written documentation demonstrating compliance is needed by at least the close-out of grant.

The FEMA environmental and historic preservation grant review covers compliance with many laws and regulations. The laws, regulations, Executive Orders, and policies that regulate environmental conservation and historic preservation include, but are limited to, the following:

• National Environmental Policy Act
• Endangered Species Act
• National Historic Preservation Act
• Clean Water Act
• Clean Air Act
• Executive Order 11988, Floodplain Management
• Executive Order 11990, Protection of Wetlands
• Executive Order 12898, Environmental Justice
• Additional Federal and State laws and regulations

The National Environmental Policy Act provides the basis for the establishment of a national environmental strategy. The primary goals of National Environmental Policy Act are to:

• Obligate Federal agencies to consider the potential impacts of their actions to the human environment (physical, natural, cultural and social) before proceeding
• Require consideration of alternatives to the proposed action
• Ensure that the agency will provide an opportunity for public input into the decision-making process

Any amount of Federal funding spent on a project requires compliance with the National Environmental Policy Act, regardless of the total project cost. While all FEMA grants are considered Federal projects, certain FEMA funded projects are statutorily excluded from National Environmental Policy Act review.

To comply with the National Environmental Policy Act, Applicants and Recipients must follow a specific decision-making process and documentation protocol throughout the project lifecycle.

The Endangered Species Act was enacted in 1973 to protect endangered and threatened species and their critical habitats.

The Endangered Species Act applies to everyone, not just Federal agencies. There are severe penalties for non-compliance. Projects that do not comply with the Endangered Species Act may be delayed or stopped, and individuals can be prosecuted. Penalties can include fines and/or imprisonment.

Animals or plants in danger of extinction may be designated as an endangered species.

Animals or plants that are likely to become endangered may be designated as a threatened species.

Specific geographic areas (as defined by legislation) essential for the conservation and management of threatened and endangered species are classified as a critical habitat.

Section 7 of the Endangered Species Act requires FEMA to consider and determine if its actions have any potential to affect listed species or their critical habitats.

Most types of FEMA funded projects have the potential to trigger the Endangered Species Act. Projects with the highest likelihood of impact include:

• New construction
• Work in or near water
• Debris operations
• Work in pristine areas

These projects may require consultation with U.S. Fish and Wildlife Service or the National Marine Fisheries Service (also known as National Oceanic and Atmospheric Administration Fisheries). These consultations will be completed by subject matter experts in the environmental and historic preservation section and can take months. An accurate project description is key to expediting the process.

FEMA has negotiated various agreements that may simplify and expedite the Endangered Species Act review process. These agreements address routine activities with minimal potential to affect listed species and critical habitat.

The agreements allow FEMA to approve certain types of projects without extensive U.S. Fish and Wildlife Service/National Marine Fisheries Service consultation. A good scope of work is necessary to determine whether projects fit under these agreements.

FEMA environmental and historic preservation section reviews project scopes of work for several pollution control laws. Most of these laws are managed by the State’s regulatory agency’s authority delegated by a Federal agency, generally the Environmental Protection Agency to the State Department of Natural Resources.

The Clean Air Act sets limits on air pollutant emissions. The Clean Air Act applies to FEMA actions, such as:

• Burning debris
• Demolition of structures
• Emissions from new power generation equipment

Compliance with the Clean Air Act may require permits from State and local environmental agencies.

The Clean Water Act establishes the basic structure for regulating discharges of pollutants into the waters of the United States and regulating quality standards for surface waters.

FEMA activities regularly involve work in rivers, wetlands, estuaries, or other waters of the United States. Permits from the United States Army Corp of Engineers are often required for work in or near water. Typical project types include:

• Culvert replacement
• Bridge repair
• Drainage improvements
• Embankment restoration

Under the Clean Water Act, the U.S. Army Corps of Engineers and State water quality agencies issue permits, and the Applicant is responsible for obtaining the necessary permits. There are two types of U.S. Army Corps of Engineers permits:

• General Permits are issued on a nationwide, regional, or State basis for specific categories of activities
• Individual Permits are required for larger projects with potentially significant impacts

Applicants must coordinate with the U.S. Army Corps of Engineers and State agencies to obtain the appropriate permits before beginning work in or near water.

Executive Order 11988 requires Federal agencies to take action to reduce the risk of flood loss and to minimize the impacts of floods on human health, safety, and welfare.

Floodplain management is an important issue for FEMA because:

• Flooding is a major cause of disaster damage
• FEMA administers the National Flood Insurance Program and publishes Flood Insurance Rate Maps

The goals of Executive Order 11988 are to:

• Maintain natural and beneficial floodplain values
• Avoid development or new construction in floodplains
• Evaluate potential effects of Federal actions in floodplains

In some cases, special requirements must be met before an action located in the floodplain can be funded (elevation, flood proofing, etc.).

A floodplain is any land area susceptible to being inundated by floodwaters, such as areas adjacent to streams and rivers, coastal and tidal areas, urban runoff areas, and other low-lying areas.

Special Flood Hazard Areas are identified on Flood Insurance Rate Maps. They are areas where the National Flood Insurance Program's floodplain management regulations are enforced and where the mandatory purchase of flood insurance applies.

Special Flood Hazard Areas are designated on Flood Insurance Rate Maps as zones. The 1% annual flood chance (100-year flood) is an area which may be inundated by a flood event with a 1% chance of being equaled or exceeded in any given year. It is shown as Zone A on Flood Insurance Rate Maps.

Flood zones are defined by type, depth, and frequency of flooding. The 500-year floodplain is shown on Flood Insurance Rate Maps as Zone X shaded. Areas subject to ponding are shown as Zone C. Coastal hazard flood zone is mapped as Zone V. These areas flood like Zone A, but are subject to wave actions.

Executive Order 11990 requires minimization of the destruction, loss or degradation of wetlands and encourages preservation and enhancement of their natural and beneficial values.

Executive Order 11990, Protection of Wetlands, requires Federal agency actions to:

• Avoid, to the extent possible, adverse impact on wetlands
• Avoid supporting actions affecting wetlands when there are practicable alternatives for implementing function of proposed project

FEMA funded projects in or near wetlands may require coordination with multiple agencies, such as the U.S. Army Corps of Engineers, Environmental Protection Agency, and State water quality agencies.

Any action located in or near wetlands can result in compliance requirements. Applicants should be proactive in their communication and coordination with State regulatory agencies prior to completing work, in order to receive compliance guidance. FEMA Environmental and Historic Preservation Specialists are also available to provide support and guidance regarding the compliance process.

A wetland is an area of land in which the soil is saturated with moisture, either permanently or seasonally, and includes specific types of vegetation, soil, and hydrology. Specialists can identify wetlands based on these features. Many natural and manmade environments can be classified as wetlands. Wetlands may be salt water, fresh water, or brackish water.

Examples of wetlands include:

• Swamps
• Bogs
• Marshes
• Bayous
• Estuaries
• Tidal areas

Executive Order 12898 requires Federal agencies to consider whether their actions would adversely and disproportionately affect minority or low-income populations.

FEMA actions that may trigger this Executive Order:

• Siting of debris locations
• Siting of temporary housing
• Relocation of critical infrastructure (schools, fire stations)
• Large-scale acquisitions/demolitions

FEMA must also comply with several laws that govern historic preservation. The primary historic preservation law for the nation is the National Historic Preservation Act, which was passed in 1966.

The National Historic Preservation Act states that the Federal government will provide leadership in the preservation of prehistoric and historic resources of the United States.

The National Historic Preservation Act:

• Established the basic framework for the practice of historic preservation
• Assigned historic preservation responsibilities to Federal agencies

The National Historic Preservation Act established the following:

• National Register of Historic Places (National Register), which maintains an inventory of the Nation's historic properties
• Advisory Council on Historic Preservation, which advises the President and Congress on matters of historic preservation and provides guidance to Federal agencies
• State Historic Preservation Officers, who administer State historic preservation programs
• Tribal Historic Preservation Officers, who administer tribal historic preservation programs

Section 106 of the National Historic Preservation Act mandates that Federal agencies will consider the effect of project activities on any district, site, building, structure, or object that is included in, or eligible for listing in the National Register prior to approving funds.

To be listed in or eligible for listing in the National Register as a historic property, the property must be:

• One of the five defined resource types (building, structure, object, site, or district)
• Significant within its historic context
• One that retains its integrity such that it can convey its significance
• More than 50 years old, except where resources are of exceptional importance (e.g., Flight 93 National Memorial, Shanksville, PA)

The National Register defines five types of historic resources:

• Building: a resource created principally to shelter any form of human activity
• Structure: a resource made for purposes other than creating human shelter
• Object: a resource that is primarily artistic in nature or is relatively small in scale and simply constructed
• Site: the location of a significant event or prehistoric or historic activity; or an area with historic, cultural, or archaeological value
• District: a concentration or continuity of sites, buildings, structures, or objects united historically or aesthetically by plan or physical development

Some historic properties are marked by plaques or markers, but not all are clearly marked. Some clues to identifying historic properties that indicate the necessity for additional follow-up include:

• Single buildings or concentrations of buildings that are clearly "old"
• Unusual architectural styles or design features
• Groupings of properties with similar appearance or functions such as mills or farm buildings
• Areas that seem to be a focal point for the community
• Undisturbed land or known archaeological sites

Any of these clues should be included in the project documentation or scope of work for a Public Assistance funded project. Applicants can help by providing this information early in the process to assist the FEMA Historical Preservation specialist when they are conducting the Section 106 review.

Additional Federal laws and regulations for historic preservation compliance include:

• Archaeological Resource Protection Act (18 CFR 1312)
• Antiquities Act (43 CFR 3)
• Native American Graves Protection and Repatriation Act (43 CFR10)
• National Historic Landmarks Program (36 CFR 65)
• The Secretary of Interior's Standards for the Treatment of Historic Properties (36 CFR 68)
• National Register of Historic Places (36 CFR 60)
• Curation of Federally-owned & Administered Archaeological Collections (36 CFR 79)

Remember that Applicants are required to comply with the conditions set forth in the Record of Environmental Consideration from the start of a project.

Once an Applicant has an approved scope of work, if there is any change to that scope of work, an additional environmental and historic preservation review of that change is required before work may commence.

Failure to comply with processes and procedures as outlined in applicable environmental and historic preservation laws, regulations, and Executive Orders can result in:

• Delays to funding or work
• Loss of funding
• Adverse publicity
• Jeopardizing prior, current and/or future requests for Federal grant reimbursement
• Fines
• Criminal or civil penalties

Environmental and historic preservation reviews include:

• Early identification of areas of concern
• Identifying scopes of work that would require consultations with external agencies to ensure compliance
• Improved planning process
• Ensuring that the approved scope of work is compliant with all applicable laws, regulations, and Executive Orders
• Timely reviews with minimal issues during time of project closeout

The Environmental and Historic Preservation staff is available to help Applicants and Recipients with compliance.