Chapter 4: Special Considerations
What Are Special Considerations?
The Federal Emergency Management Agency (FEMA) uses the term "Special Considerations" to describe issues other than basic program eligibility that affect the scope of work and funding for a project. These issues include:
- hazard mitigation; and.
- environmental/historic preservation compliance with Federal laws, regulations, and EOs, such as those that address the environment, floodplains, wetlands, historic preservation, endangered species, and environmental justice.
Each of these issues is described in greater detail in this chapter.
Timely identification and resolution of Special Considerations issues prior to initiation of disaster-related work is critical to the effective delivery of the PA Program. If FEMA, the State, and the applicant fail to identify and address these issues expeditiously, the following consequences can result:
Loss of Funding. FEMA may be prevented from approving funds for a project, or may be required to deobligate funds after the initiation of a project.
Delays. Approval and obligation of funding may be delayed while Special Considerations issues are resolved. For example, a funding decision may be delayed while FEMA waits for an applicant to submit insurance information.
Legal Action. Citizens, advocacy groups, and others can file lawsuits to stop projects funded by FEMA.
Loss of Opportunity. Hazard mitigation measures typically are most effective when incorporated in the initial repair or replacement of the damaged facility.
Negative Publicity. All of the above create negative publicity for FEMA, the State, and the applicants.
The Special Considerations Process
Special Considerations are a factor in all phases of the recovery process, from the PDA through the completion of projects. Processing involves:
- collection of data;
- review of the data and coordination with the appropriate agencies; and.
- documentation of the process and its results.
FEMA's objective is to resolve Special Considerations issues early and expeditiously. The PDA is the first step in identifying Special Considerations. PDA teams collect Special Considerations information through observation and interviews with the local officials. Once recovery operations are underway, the scoping process begins. This process includes:
- identification of potential issues;
- coordination with other agencies and organizations;
- establishment of procedures for addressing issues; and.
- coordination among the PA Program staff to ensure that field personnel are aware of the issues and the procedures for resolving them.
Depending on the issues prevalent for a specific disaster, FEMA may consult with any or all of the following agencies or organizations as part of this scoping process:
- State insurance commissioner's office;
FEMA Hazard Mitigation Grant Program office (see the discussion of 404 Mitigation on pages 124-125);
- Federal Insurance Administration (FIA);
- The Regional Environmental Officer (REO) at the region and the Environmental Liaison Officer (ELO) or environmental/historic preservation specialists in the JFO;
- State Historic Preservation Officer (SHPO) or Tribal Historic Preservation Officer (THPO);
- State environmental protection, hazard mitigation, and other agencies; and.
- USACE, U.S. Fish and Wildlife Service (USFWS), the National Marine Fisheries Service (NMFS), and other Federal agencies.
The scoping process should result in some means for resolving issues, such as a clearance letter or memorandum of understanding with the appropriate agencies.
The interface between the PAC Crew Leader (Public Assistance Coordinator) and the applicant is the most critical element of the Special Considerations process. The PAC Crew Leader has the opportunity to interact with the applicant on several occasions, beginning with the Kickoff Meeting. The PAC Crew Leader:
- brings potential issues to the applicant's attention;
- works with the applicant and specialists to identify issues and obtain information that can lead to resolution;
- alerts Project Specialists (Project Officers) to potential issues;
- identifies projects for which a review is required and assigns the appropriate Technical Specialist (Specialist); and.
- ensures that the appropriate review is completed by a Technical Specialist and documented in the applicant's Case Management File.
It is the applicant's responsibility to identify the existence of Special Considerations issues for each project. Project Specialists, Technical Specialists, and PAC Crew Leaders working with these projects must ensure that such issues are appropriately documented on the PW. A standard set of questions has been developed to assist in identifying Special Considerations issues. The questions reflect each of the areas of concern and are intended to highlight elements of the applicant's projects that could trigger a Special Considerations review. The PAC Crew Leader should review these questions, which appear on the Special Considerations Questions form, during the Kickoff Meeting and again when PWs are submitted. An explanation must be provided in the comment field if the applicant or PAC Crew Leader answers "yes" or "unsure" to any of these questions. The Special Considerations Questionnaire is available in the PA Forms Library.
In accordance with Section 312 of the Stafford Act, the PA Program cannot duplicate benefits from other sources, such as proceeds from an insurance policy. Therefore, FEMA is required to reduce the amount of assistance for eligible work by the amount of any actual or anticipated insurance proceeds available for that work. FEMA also must limit flood disaster assistance for insurable facilities in Special Flood Hazard Areas (described below). Section 406(d) of the Stafford Act requires a reduction in assistance for such facilities if they don't have flood insurance or if their flood insurance coverage is inadequate (see pages 120-122). Section 311 of the Stafford Act requires an applicant to purchase and maintain insurance for permanent work projects, where that insurance is reasonably available, as a condition for receiving disaster assistance. These criteria are discussed in more detail in the paragraphs that follow.
Items and facilities that typically are insured include:
- equipment; and.
An applicant may have insurance coverage for other items, facilities, or types of work, such as debris removal, snow removal, temporary facilities, or operating costs. If the applicant's policies contain provisions for cleanup, debris removal, and demolition, FEMA must deduct insurance proceeds for these activities from eligible costs of PA Program grants. While insurance policies typically do not pay for voluntary hazard mitigation items, they often cover upgrades necessary to comply with current codes and standards.
When an insurance policy covers both insured eligible and insured ineligible damages, such as both property and business income losses, without specifying limits for each type of loss, FEMA will apportion the anticipated recovery to be deducted from eligible costs between the two based on the ratio of insured eligible to insured ineligible damages. Similarly, if deductible amounts are unspecified between the types of losses, the amount of deductible that will be eligible will be based on the same ratio.
In order to prevent delays or loss of FEMA funding, it is critical that the applicant:
- discuss all insurance coverage with the PAC Crew Leader;
- report all facilities and equipment with prior disaster insurance requirements;
- provide all pertinent insurance information, policies, and statements of loss to FEMA as soon as possible; and
- pursue payment under their insurance policies to maximize potential benefits.
General Property Insurance
FEMA uses the term "general property insurance" to describe all perils except for flood. This could include perils such as fire, wind, rain, and earthquake. Coverage for these perils generally includes buildings, contents, personal property, and other items. Once the amount and availability of coverage have been determined, an appropriate reduction in eligible project costs can be made based on anticipated insurance proceeds. If an applicant has already received an insurance payment at the time of project approval, FEMA will review the settlement to determine if it is in accordance with the policy. FEMA may limit funding if the applicant's policy provides coverage which should be pursued from the insurer. Legal costs incurred in pursuing insurance settlements may be subtracted from such proceeds before reduction of eligible costs.
The National Flood Insurance Program and Flood Insurance
As stated above, the Stafford Act includes specific provisions for insurance of facilities located in floodplains. Most property insurance does not cover flood damage; instead, a separate flood insurance policy must be purchased to obtain this coverage. In 1968, Congress created the National Flood Insurance Program (NFIP) to address the nationwide lack of affordable flood insurance and to stimulate local programs to reduce the risk of damage caused by floods. Under the NFIP, federally backed flood insurance is available in communities that agree to adopt and enforce floodplain management ordinances to reduce future flood damage.
To support the NFIP, FEMA publishes Flood Insurance Rate Maps (FIRMs). These maps depict Special Flood Hazard Areas, defined as those areas subject to inundation during a 100-year flood (a flood having a 1 percent chance of occurrence in a given year). The maps also show 500-year floodplains (areas subject to inundation by a flood having a 0.2 percent chance of occurrence in a given year), coastal high hazard areas, floodways, Coastal Barrier Resources System units, and Otherwise Protected Areas.
The extent of coverage available varies depending on factors such as exposure to flooding, location, and loss history due to flooding. A list of properties that are insurable under the NFIP is provided in 44 CFR Part 61. Examples of insurable properties include buildings and contents, building additions, and detached garages. (Under the NFIP, flood insurance coverage is provided separately for buildings and contents.) Examples of properties that are not covered by the NFIP include vehicles, pumping stations that do not qualify as buildings, water treatment plants that are primarily below ground, boat docks, swimming pools, and items that are stored but not normally located in basements.
Section 406(d) of the Stafford Act mandates a special reduction in the amount of Public Assistance funding for a facility (facility meaning each separate building or structure insurable under NFIP Coverage A - Buildings) that is:
- insurable under the NFIP;
- located in a Special Flood Hazard Area, as shown on a FIRM; and.
- damaged by floodwaters.
For insurable facilities that do not have flood insurance or carry inadequate flood insurance, FEMA will reduce eligible project costs by the lesser of:
- the maximum amount of insurance proceeds that could have been obtained from a standard NFIP flood insurance policy; or.
- the value of the facility at the time of the disaster.
After the reduction, FEMA assistance is available for:
- reasonable deductible (limited to minimum available under NFIP), but only for the first disaster and not for subsequent disasters;
- items not covered by the NFIP; and.
- damage in excess of limits of a standard NFIP policy.
The regulations at 44 CFR §59.2 state that Federal financial assistance with respect to insurable buildings within an identified Special Flood Hazard Area shall not be provided in a sanctioned or non-participating community. There may be a limited exemption from the Section 406(d) reduction for eligible PNP facilities when a community is sanctioned or not participating in the NFIP. Reduction is not made, but assistance is not allowed unless the community joins the NFIP within 6 months and the PNP obtains insurance.
Eligible Costs for Insurable Facilities - All Disasters
Except in cases involving Stafford Act 406(d) flood insurance reductions or where an insurance purchase requirement has not been maintained (see page 123 of this guide), any eligible work or costs not covered by an insurance policy (that is, the difference between eligible costs and insurance proceeds) may be eligible for PA grant funding if it is the applicant's first claimed FEMA assistance for the specific facility. The eligibility of these items is determined only after a FEMA Specialist reviews the insurance policy, all endorsements, and the schedule of insured property to determine insurance recoveries, as well as actual settlement documents, if available. Generally, eligible uninsured losses may include the following items:
- reasonable deductible in the applicant's first claimed FEMA assistance if the cost accrued to the applicant;
- depreciation; (i.e., differences in FEMA eligible costs and final loss valuations used by insurers); and.
- costs in excess of an insurance policy limits, including sublimits for certain hazards (such as flood or earthquake).
Regardless of the extent to which an applicant's costs will be covered by insurance, the PAC Crew Leader must ensure that the entire scope of work for the project is described in the PW. This practice allows for the future adjustment of eligible costs based on such occurrences as a change in the applicant's insurance settlement.
In situations where insurance covers all eligible work, and the only eligible cost is that of the deductible, FEMA reimburses the applicant for this cost even if it is less than the $1,000 minimum that is otherwise required for the preparation of a PW.
In some cases, the applicant may be required to pursue the proceeds from an insurance policy held by a third party. For example, property insurance for buildings often covers the cost of demolition and debris removal. If the applicant removes debris from property belonging to a third party as an emergency measure, and the insurance policy for that property covers debris removal, the applicant must attempt to recover the proceeds from that insurance policy. FEMA would then deduct the value of the proceeds from the eligible cost of the work.
Insurance Purchase Requirements - All Disasters
As a condition for receiving Public Assistance for permanent work, an applicant must obtain and maintain insurance to cover that facility for the hazard that caused the damage. Such coverage must, at a minimum, be in the amount of the estimated eligible damages for that structure prior to any reduction. The costs of Section 406 hazard mitigation measures are included in the amount of insurance required. If the requirement to purchase all insurance is not met, FEMA will not provide assistance for damage sustained in the current or a future disaster of the same type. If the applicant does not maintain all required insurance, FEMA will not provide any assistance for that facility in future disasters of the same type. An applicant is exempt from this requirement for:
- projects where the eligible damage (before any reductions) is less than $5,000; or.
- facilities for which, in the determination of the State insurance commissioner, the type and/or extent of insurance being required by FEMA is not reasonable. (This exemption does not apply to facilities insurable under the NFIP because insurance is both available and reasonable.)
The commitment by the applicant to purchase and maintain insurance must be documented and submitted to FEMA before project approval. If a facility has been severely damaged or destroyed, the applicant may be unable to determine the amount of insurance necessary for the restored facility before design and construction commences. In such a situation, the applicant must provide FEMA with as detailed a commitment as possible, and FEMA places a requirement in the PW stating that the applicant must provide documentation regarding the insurance policy that is eventually obtained within a reasonable period of the completion of construction.
FEMA does not require applicants to obtain or maintain insurance on temporary facilities, and the cost of premiums (for temporary as well as for other facilities) is not eligible for reimbursement. However, prudent risk management practices generally encourage appropriate coverage for hazard exposure at a facility. If a temporary facility is damaged in a non-federally declared event, FEMA will not repair or replace it.
Hazard mitigation is defined as cost-effective action taken to prevent or reduce the threat of future damage to a facility. The applicant, FEMA, or the State may recommend that hazard mitigation measures be included in a PW. The costs of eligible hazard mitigation actions will be included in the overall funding of a project. [See FEMA Policy 9526.1, Hazard Mitigation Funding Under Section 406 (Stafford Act).]
In some cases, FEMA may require mitigation measures as part of an approved project. For example, FEMA may require that a flood-damaged building be elevated to comply with local ordinances established pursuant to the requirements of the NFIP.
Differences Between Section 404 and Section 406 Hazard Mitigation Measures
The Stafford Act provides for two types of funding for hazard mitigation measures: statewide mitigation programs (authorized under Section 404 of the law) and mitigation for disaster-damaged facilities (authorized under Section 406 of the law). The differences between these provisions are described in the following table:
|404 Hazard Mitigation||406 Hazard Mitigation|
|Separate program run by the State||Implemented through the PA Program|
|Applies to structural measures and to non-structural measures (such as planning, property acquisition, drainage projects)||Applies only to structural measures and does not apply to buyouts|
|Applies throughout the State in most disasters||Must apply to the damaged element of the facility|
|The formula for calculating the HMGP allocation for States with a standard State mitigation plan is based on 15% of the first $2 billion of estimated aggregate amounts of disaster assistance. For amounts greater than $2 billion, a sliding scale is used to make allocation determinations. States with enhanced mitigation plans are eligible for a 20% HMGP formula.||No program-wide limits on funds, but each project must be cost-effective and approved by FEMA|
Section 404 hazard mitigation does not fall under the purview of the PA Program. Nevertheless, it is important to understand the differences between the two programs. The following discussion pertains solely to Section 406 hazard mitigation. For more information on Section 404 hazard mitigation, local officials should contact the PAC Crew Leader, appropriate JFO Hazard Mitigation staff, or the State.
Section 406 Hazard Mitigation
For hazard mitigation measures to be approved, the measures must be reviewed by FEMA staff to ensure eligibility, technical feasibility, environmental and historic preservation compliance, and cost effectiveness. [See FEMA Policy 9526.1, Hazard Mitigation Funding Under Section 406 (Stafford Act).]
To be eligible, Section 406 hazard mitigation measures:
- Must be appropriate to the disaster damage and must prevent future damage similar to that caused by the declared event.
- Must be applied only to the damaged element(s) of a facility. This criterion is particularly important when conducting repairs to a portion of a system. For example, if floodwaters inundate a sanitary sewer, block manholes with sediment and damage some of the manholes, cost-effective mitigation to prevent blockage of the damaged manholes in future events may be eligible; however, work to improve any undamaged manholes that are part of the system is not eligible. New berms are not eligible as mitigation measures because they do not meet the requirement of being part of the damaged element.
- Cannot increase risks or cause adverse effects to the facility or to other property.
- Must consist of work that is above and beyond the eligible work required to return the damaged facility to its pre-disaster design. Upgrades required to meet current codes and standards, however, are not considered hazard mitigation measures for purposes of the PA Program and have different eligibility criteria.
- Cannot be applied to replacement buildings. Since new construction will be to current codes and standards, which are intended to ensure structural integrity for local conditions, mitigation funding applies only to building repairs, which generally are not covered by codes and standards.
The considerations listed below are used to determine cost effectiveness. In all cases, the total eligible cost of the project, before deducting insurance proceeds, is used for the cost comparison.
- Hazard mitigation measures may amount to up to 15 percent of the total eligible cost of the eligible repair work for the damaged facility.
- Certain mitigation measures may be determined to be cost-effective as long as the mitigation measure does not exceed the cost of the eligible repair work on the project. Examples are provided below.
- For measures that exceed the costs of eligible repair work, the applicant must demonstrate through an acceptable benefit/cost analysis that the measure is cost effective.
If mitigation measures agreed to by the applicant are approved (and thereby required), non-completion jeopardizes the funding of the entire project.
The following list includes examples of Section 406 mitigation measures that have been determined to be cost-effective if they do not exceed the cost of the eligible repair work. As stated above, the applicant, the State, or FEMA may propose such measures, and FEMA may require hazard mitigation measures before agreeing to provide funds for certain projects. See the policy on Hazard Mitigation Funding Under Section 406 (FEMA Policy 9526.1) for a more detailed listing of potential mitigation measures.
- Relocation of facilities from hazardous locations:
- Roads and bridges
- Slope stabilization to protect facilities:
- Placement of riprap
- Installation of cribbing or retaining walls
- Installation of soil retention blankets
- Protection from high winds:
- Installation of shutters to protect windows
- Installation of hurricane clips
- Strengthening anchoring and connections of roof-mounted equipment
- Floodproofing of buildings:
- Use of flood-resistant materials
- Elevation of mechanical equipment and utilities
- Elevation of buildings
- Dry-floodproofing, if technically feasible
- Flood protection of bridges and culverts:
- Installation of cut-off walls or headwalls on culverts
- Installation of gabions, riprap, sheet piling, or geotextile fabric
- Seismic protection:
- Bracing of overhead pipes and electrical lines
- Anchoring non-structural elements such as parapets and veneers
- Bracing interior walls and partitions
- Protection of utilities:
- Use of disaster-resistant materials for power poles
- Anchoring fuel tanks to prevent movement
- Elevation of equipment, control panels, and electrical service to prevent flood damage
Environmental/Historic Preservation Compliance
When providing funds under the PA Program, FEMA must consider a range of Federal laws, regulations, and EOs that apply to the use of federal funds. These laws, regulations, and EOs generally require the funding agency to ensure compliance prior to funding. The size and type of project, and project site and area conditions, generally determine the level of review that must be performed. Some of these laws, regulations, and EOs, and the means through which FEMA ensures that the PA Program complies with them, are discussed below.
Reviews for compliance with these laws must be completed before FEMA approves funding and before work is started since the review may identify steps to be taken or conditions to be met before the project can be implemented. These are noted in the paragraphs below where applicable. More information on FEMA's environmental and historic preservation compliance responsibilities can be found at www.fema.gov/plan/ehp. The REO, the ELO, and environmental and historic preservation specialists are resources that can help, and in some cases are required to help, process these compliance requirements.
National Environmental Policy Act
The National Environmental Policy Act (NEPA) requires every Federal agency to follow a specific planning process to ensure that agency decision-makers have considered, and the general public is fully informed about, the environmental consequences of a proposed Federal action, such as the approval of a grant. This review and consultation process is used to evaluate the impact a project, and any possible alternatives, may have on the environment. The process must be completed prior to obligating funds and beginning work. FEMA's regulations regarding NEPA can be found in 44 CFR Part 10.
NEPA does not require that FEMA limit the impact of projects on the environment; nor does it require FEMA to fund only the alternative that has the least environmental impact. However, it does require that the decision to fund a project be made in an informed manner.
The review process required by NEPA, where applicable, is usually the means through which FEMA addresses other environmental laws and regulations.
Statutory Exclusions (STATEX). Section 316 of the Stafford Act provides FEMA with a statutory exclusion from NEPA, which exempts from the NEPA review process certain program activities that restore a facility substantially to its condition prior to the disaster or emergency. The exempted Stafford Act programs are:
- Section 402 (General Federal Assistance);
- Section 403 (Essential Assistance) - protective measures, such as the construction of temporary bridges and other activities necessary to reduce immediate threats to life, property, and public health and safety;
- Section 406 (Repair, Restoration, and Replacement of Damaged Facilities) - repair or restoration projects that restore facilities substantially to their pre-disaster footprint, function, and size;
- Section 502 (Federal Emergency Assistance).
Some actions, although excluded from NEPA review by Section 316, may still have potential environmental impacts that require additional review for compliance with other environmental/historic preservation laws and EOs. The more commonly encountered of these other laws and EOs include: Endangered Species Act, the National Historic Preservation Act, Clean Water Act, Clean Air Act, and EOs on floodplains, wetlands, or environmental justice. Compliance with these laws and EOs is still required whether or not NEPA review is required. For example, although Section 403 debris removal activities are generally statutorily exempt from NEPA review, FEMA still must ensure that those activities comply with such laws as Clean Air Act, Resource Conservation and Recovery Act, and others.
If an action is not statutorily excluded, then it must be determined which of the following levels of review is required for NEPA compliance:
Categorical Exclusions (CATEX). Categorical exclusions are types of actions that, through experience, FEMA has found typically will have little or no environmental impact. FEMA's categorical exclusions are listed in 44 CFR §10.8(d). Examples include upgrades to codes and standards, removal of structures after addressing historic preservation needs, or minor improvements or minor hazard mitigation measures at existing facilities, such as placing riprap at a culvert outlet to control erosion. 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 Environmental Assessment is required.
Environmental Assessments (EA). An Environmental Assessment is a concise public document that provides the decision maker with sufficient evidence and analysis regarding the significance of the environmental impacts of the proposed action. An EA can include two or more alternatives to aid in decision making and concludes with one of two findings: either a Finding of No Significant Impact or a Notice of Intent to prepare an Environmental Impact Statement.
Environmental Impact Statements. An Environmental Impact Statement (EIS) is required when significant environmental impacts are anticipated. It is a detailed analysis and evaluation of all the impacts of the proposed action and all reasonable alternatives. This document usually provides more detailed and rigorous analyses than the EA and requires formal public involvement. The EIS concludes with a Record of Decision that provides an explanation of the reasons for selecting a particular action.
Endangered Species Act
This legislation prohibits Federal actions that cause takings of species listed as threatened or endangered, or the destruction or adverse modification of the habitat for these species. Endangered species include mammals, fish, birds, reptiles, and amphibians, as well as plants and insects.
If a project has the potential to affect a threatened or endangered species or its habitat, FEMA must consult with the USFWS or the National Marine Fisheries Service (NMFS), or both, before approving funding for that project. While compliance issues may arise with projects involving undisturbed sites (alternate or improved projects), or sites in or by waterways (bridge or dam repairs), they could also arise with relatively minor actions. For example:
- If a culvert replacement must be performed on a stream that serves as the habitat of an endangered fish species, the construction could adversely affect the life cycle of that species. The presence of the species would not necessarily prevent the replacement but may necessitate certain constraints, such as doing the work outside of the species' breeding season.
There are over 1,250 species currently listed as threatened or endangered. Therefore, it is important to consult with the USFWS or NMFS early in the disaster recovery to determine which species inhabit the declared disaster area. In some cases, FEMA may establish a programmatic agreement with the USFWS or NMFS at the beginning of the disaster recovery process to address projects in areas known to have threatened or endangered species. Working with an environmental officer or specialist can facilitate formal or informal consultations with these agencies and help identify streamlining agreements that are already in place.
National Historic Preservation Act
The National Historic Preservation Act (NHPA) requires a Federal agency to consider, before approval of funding, the effects of its activities, referred to as "undertakings," on any historic property listed in or eligible for listing in the National Register of Historic Places. The agency funding the undertaking is required to give the Advisory Council on Historic Preservation (ACHP) a reasonable opportunity to comment on that undertaking. Under the NHPA regulations, which can be found in 36 CFR Part 800, PA Program projects are considered undertakings because they are funded in whole or in part by a Federal agency.
Historic properties include districts, buildings, structures, objects, landscapes, archaeological sites, and traditional cultural properties that are listed in or eligible for listing in the National Register of Historic Places, a federally maintained list of recognized historic properties. These properties are not limited to old buildings or well-known historic sites, but include places important in local, State, Tribal, or national history. Facilities as diverse as bridges, roads, water treatment plants, and areas once inhabited by prehistoric populations may be considered historic properties.
The National Register of Historic Places is incomplete. States may have additional properties with historic significance that may be candidates for listing in the National Register of Historic Places.
Many Public Assistance projects have the potential to affect historic properties. These projects include:
- repair and restoration of historic structures;
- demolition or removal of historic structures;
- repair, restoration, and demolition projects in historic districts; and
- improved, alternate, or relocated projects affecting undisturbed areas that may contain archeological sites or have cultural, historic, or prehistoric significance.
FEMA must ensure the following steps are achieved for properties before approval of funding for a PA project:
- identification of historic properties;
- evaluation of the effects of PA projects on historic properties; and
- consultation with the State Historic Preservation Office (SHPO) or Tribal Historic Preservation Officer (THPO), the ACHP, and other interested parties, such as a local historic society, and the public.
In some cases, FEMA may establish a programmatic agreement with the ACHP, SHPO, and/or the THPO at the beginning of the disaster recovery process to address projects potentially falling within the scope of the NHPA.
Clean Water Act
Under Section 404 of the Clean Water Act (CWA), the USACE is responsible for issuing permits for the discharge of dredged materials or fill into the waters of the United States. The applicant must obtain a permit in any situation where dredging or filling is a component of the project. Where a USACE permit is required for a PA project, FEMA places a requirement in the PW stating that the applicant is responsible for obtaining the permit. Also as part of the CWA, the applicant may be required to seek a Section 101 water quality permit from the State agency that administers that program.
Wetlands are considered part of the waters of the United States and are subject to CWA provisions. Some wetlands, such as marshes and riverine wetlands, are easy to recognize. Other sites, such as forested wetlands and agricultural drainage ditches, are more difficult to identify, and some areas that are considered wetlands may not actually be wet for much of the year. Wetlands can be identified by the USACE, USFWS, or Natural Resource Conservation Service.
Some of the facilities and projects that may involve the CWA include:
- bridges, culverts, or outfall structures;
- levees, dikes, and berms;
- irrigation works;
- channel alignment and stream bank erosion control;
- debris removal in streams;
- shore protective measures;
- projects involving the placement of fill, such as relocation of roads and buildings; and
- construction of water and wastewater treatment plants.
Clean Air Act
The Clean Air Act is administered through state and local agencies. Except for activities in non-attainment areas (i.e., those exceeding national standards and, therefore, requiring more rigorous compliance measures), air quality compliance will often require that fairly standard measures be implemented such as dust abatement, vehicle emissions control, fuels storage and distribution procedures, etc. Those activities with particular air quality concerns include:
- debris disposal through methods such as burning;
- collection and disposal of appliances that contain chlorofluorocarbons;
- collection and disposal of switches and fluorescent tubes that contain mercury;
- demolition of damaged structures, which can release dust or harmful substances, such as asbestos, into the air; and
- large construction projects that require extensive grading and use of heavy equipment.
Coastal Barrier Resources Act
The Coastal Barrier Resources Act (CBRA) and the subsequent Coastal Barrier Improvement Act establish a system of protected coastal areas and Otherwise Protected Areas (OPAs) known as the Coastal Barrier Resources System (CBRS). The areas, called CBRS units, include defined areas along the Atlantic, Gulf of Mexico, and Great Lakes coasts, and Puerto Rico, Florida Keys, Virgin Islands, and secondary barriers within large embayments. These two Acts minimize impacts to their unique natural ecosystems by restricting Federal expenditures and financial assistance that encourage development in certain defined areas of the coastal barriers which are identified on FEMA's FIRMs or on USFWS maintained maps.
Debris removal and emergency protective measures in designated CBRS units may be eligible for Public Assistance provided the actions eliminate an immediate threat to lives, public health and safety, and improved property. While strongly encouraged, advance consultation with the USFWS is not required before approval of emergency measures. Notification is required at the soonest practicable time for approved emergency work.
Before approving funding for permanent work in CBRS areas, however, FEMA must consult with the USFWS to allow the USFWS the opportunity to provide written comments. The following types of publicly owned facilities may be eligible for permanent work funding:
- essential links in a larger system;
- restoration of existing channel improvements;
- repair of existing energy facilities that are functionally dependent on a coastal location;
- special-purpose facilities as defined in 44 CFR §206.347(c)(4); and
- other existing (but not expanded or improved) roads, structures, or facilities that are consistent with the purposes of CBRA.
Certain PNP facilities that meet the restrictions of CBRA and the PA Program may be eligible for assistance. Examples include electric, water, and sewer utilities. [See 44 CFR §206.347(c)(6).]
Improved projects that expand a facility and alternate projects are not eligible in CBRS units except in a few limited cases.
An existing facility is defined as a publicly owned or operated facility on which construction started on or before October 18, 1982. If a facility has been substantially improved or expanded since October 18, 1982, it is not an existing facility. If a unit was added to CBRS at a later date, that date may be substituted for the October 18, 1982, date. For a complete description of the PA Program's responsibility for CBRA, refer to 44 CFR §206.340 Subpart J.
Resource Conservation and Recovery Act
Although debris removal is statutorily exempted from NEPA, it is nonetheless subject to the Resource Conservation and Recovery Act, which requires safe disposal of waste materials, promotes the recycling of waste materials, and encourages cooperation with local agencies. The act, implemented at the State and local levels, applies to disposal of both disaster-generated debris and demolition debris and is of particular concern when hazardous materials may be present.
Coastal Zone Management Act
If a proposed project is located in an area covered by a state's coastal zone management plan, its consistency with the requirements of that plan must be determined before funding can occur.
Farmland Protection Policy Act
If a proposed project causes irreversible conversion of prime, unique, or other special farmland to non-agricultural use, the lost acreage must be evaluated using NRCS procedures.
Fish and Wildlife Coordination Act
If a proposed project will affect water resources, this act requires an evaluation of that action on fish and wildlife. Projects affecting the stream hydrology or the impoundment of water will most often trigger requirements under this law. Consultation with USFWS and other agencies may be required.
Wild and Scenic Rivers Act
If a proposed project is located on or above a reach of a river designated as wild and scenic, it must be reviewed for compliance with this law.
EO 11988 - Floodplain Management and EO 11990 - Protection of Wetlands
EOs 11988 and 11990 require Federal agencies to minimize or avoid activity that adversely affects floodplains and wetlands. Because many PA projects are located in these areas, FEMA must review proposed projects for compliance with the requirements of these orders. Through this review, FEMA seeks to:
- avoid, to the extent possible, the long- and short-term adverse impacts associated with the occupancy and modification of floodplains;
- avoid direct and indirect support of floodplain development wherever there is a practicable alternative; and
- minimize the destruction, loss, or degradation of wetlands.
FEMA's regulations for applying EOs 11988 and 11990 are outlined in 44 CFR Part 9. These regulations describe a specific, 8-step process for conducting floodplain management and wetland reviews before approval of funding. The process includes the following steps:
- Determine the location and potential of the proposed action to affect or be affected by a wetland or the 100-year floodplain.
- Notify the public of the proposed action within or affecting a wetland or floodplain.
- Identify and evaluate practicable alternatives, including alternative sites or actions outside the floodplain or wetland.
- Identify the potential direct and indirect impacts associated with the proposed action.
- Minimize potential adverse impacts of the proposed action.
- Re-evaluate the proposed action and other practical alternatives based on steps 3, 4, and 5.
- Inform the public of the final decision.
- Implement the action.
This review process is not required for most projects where eligible damage is less than $5,000. In addition, the review is not required for Category A and B projects (emergency work), except for projects involving disposal of debris in Special Flood Hazard Areas or wetlands.
For all other projects located within Special Flood Hazard Areas or wetlands, FEMA must perform the 8-step process to determine if it is practicable to avoid restoration in the floodplain or wetland. If avoiding the floodplain or wetland is not practicable, FEMA must identify all effects to the floodplain or wetland as well as to the facility, and seek to minimize the adverse effects through mitigation (such as relocation or redesign).
Consideration of alternative sites is not required for projects over $5,000 but less than $25,000 that are located in Special Flood Hazard Areas or wetlands. However, mitigation measures must be considered.
FEMA must perform floodplain management reviews for critical facilities located in any floodplain up to and including the 500-year floodplain. A facility is considered to be critical if flooding of that structure would present an immediate threat to life, public health, and safety. Critical facilities are those that serve as emergency shelters; contain occupants who are not sufficiently mobile to avoid death or injury, such as hospitals; house emergency operation or data storage that may become lost or inoperative; are generating plants and principal points of utility lines; or that produce, use, or store volatile, flammable, explosive, toxic, or water reactive materials. FEMA may require mitigation of the hazard or relocation of a critical facility before agreeing to provide funding for restoration of the facility.
EO 12898 - Environmental Justice
Field personnel should identify any neighborhoods or communities with minority or low-income populations. This order requires Federal agencies to evaluate actions for disproportionately high or adverse effects on minority or low-income populations and to find ways to avoid or minimize these impacts where possible. It does not typically apply to in-kind repair or replacement of facilities under the PA Program. However, it may affect funding for improved, alternate, and relocated projects and certain hazard mitigation measures.
This guide describes FEMA's Public Assistance Program's basic provisions and application procedures. Because this document is not exhaustive and the provisions are subject to modification, the information contained herein should be verified with FEMA PA Program officials before becoming the basis for decision making.