I.	TITLE:  Environmental Planning and Historic Preservation (EHP) Compliance Costs

II.	DATE OF ISSUANCE:

   III.       PURPOSE:  To establish the Federal Emergency Management Agency's (FEMA) policy on who is responsible to pay for the costs of FEMA's environmental planning and historic preservation (EHP) review, EHP analysis preparation, and execution of EHP mitigation measures.

IV.	SCOPE AND AUDIENCE: This Policy applies to all FEMA offices and programs, including grant programs and their applicants, grantees and subgrantees. Its scope is limited to costs associated with FEMA's EHP review process.

V.	AUTHORITY:
       
       National Environmental Policy Act, 42 U.S.C. 4321 et seq.; 
       Council on Environmental Quality Regulations for Implementing NEPA, 40 C.F.R. 1500 et seq.; 
       FEMA Environmental Considerations Regulations, 44 C.F.R. 10 et seq.; 
 
VI.	REFERENCES:

       Environmental Planning Program, DHS Directive 023-01; 
       Historic Preservation in Asset Management, DHS Directive 017-01;
       Robert T. Stafford Disaster Relief and Emergency Assistance Act, 42 U.S.C. 5121 et seq., as amended; 
       Executive Order 12127  -  Federal Emergency Management Agency; 
       Executive Order 12148  -  Federal Emergency Management; 
       National Flood Insurance Act, 42 U.SC. 4001 et seq., as amended; 
       National Historic Preservation Act, 16 U.S.C. 470 et seq.; 
       Advisory Council on Historic Preservation Section 106 Regulations, 36 C.F.R. 800.8;
       Executive Order 11514  -  Protection and Enhancement of Environmental Quality, as amended by Executive Order 11991  -  Relating to Protection and Enhancement of Environmental Quality; 
       Executive Order 11988  -  Floodplain Management; 
       Executive Order 11990  -  Protection of Wetlands; 
       Floodplain Management and Wetlands Protection Regulations, 44 CFR 9 et seq.; 
       Executive Order 12114  -  Environmental Effects Abroad of Major Federal Actions; 
       Executive Order 12898  -  Federal Actions to Address Environmental Actions in Minority Populations and Low-Income Populations; 
       Executive Order 13089  -  Coral Reef Protection; 
       Executive Order 13112  -  Invasive Species; 
       Executive Order 13158  -  Marine Protected Areas; 
       Executive Order 13175  -  Consultation and Coordination with Indian TribalGovernments; 
       Farmland Protection Policy Act, 7 U.S.C. 4201 et seq.; 
       Farmland Protection Regulations, 7 C.F.R. 658 et seq.; 
       Coastal Barriers Resources Act, 15 U.S.C. 3501 et seq.; 
       FEMA's Coastal Barriers Resources Regulations, 44 C.F.R. 206.340 et seq.;
       Fish and Wildlife Coordination Act, 16 U.S.C. 661 et seq.; 
       Migratory Bird Treaty Act, 16 U.S.C. 703-712; 
       Executive Order 13186  -  Responsibilities of Federal Agencies to Protect Migratory Birds; 
       Endangered Species Act, 16 U.S.C. 1531 et seq.; 
       Interagency Cooperation under Endangered Species Act, 50 C.F.R. 402; 
       Wild and Scenic Rivers Act, 16 U.S.C. §§ 1271 et seq.; 
       Clean Air Act, 42 U.S.C. 176(c);
       Determining Conformity of Federal Actions to State or Federal Implementation Plans, 40 C.F.R. 93 et seq.; 
       Safe Drinking Water Act, 42 U.S.C. 300h-3(e); 
       Uniform Relocation Assistance and Real Property Acquisition Policies For Federal and Federally Assisted Programs, 42 U.S.C. 4601 et seq.; 
       Uniform Relocation Assistance and Real Property Acquisition Policies For Federal and Federally Assisted Programs, 49 C.F.R. 24.8; 
       Uniform Administrative Requirements for Grants and Cooperative Agreements to State and Local Governments, 44 C.F.R. 13 et seq.
       Comprehensive Environmental Response, Compensation, and Liability Act, 42 U.S.C. 103 et seq.;
       Resource Conservation and Recovery Act, 42 U.S.C. 82 et seq.;
       Oil Pollution Act, 33 U.S.C. 2701 et seq.;
       Federal Water Pollution Control Act, 33 U.S.C. 26 et seq.;
       All Appropriate Inquiries Regulations, 40 C.F.R. 312 et seq.;
       2 C.F.R. 225, Costs Principles for State, Local, and Indian Tribal Governments;
       Office of Management and Budget Circular A-87, Costs Principles for State, Local, and Indian Tribal Governments.

VII.	DEFINITIONS:

       Actions where FEMA has full control  -  Activities undertaken by FEMA where the agency has full control over the planning, selection of alternatives, decisionmaking, and implementation (i.e. non-grant). These include but are not limited to: issuance of regulations, issuance of policies, issuance of guidance, operations, tasks under mission assignments, construction of FEMA facilities, actions at FEMA facilities, FEMA planned and implemented exercises, provision of temporary housing, staging, etc.
      
       Best management practices (BMPs)  -  Well-accepted structural or non-structural guidelines, techniques or practices that avoid, limit, or assist in the management of the potential impacts of a construction or development project. BMPs are typically imposed in the permits process as a condition of obtaining a permit. 

       EHP documents  -  Work products that capture the analysis required under an applicable EHP law, regulation or executive order. These include, but are not limited to, environmental assessments and environmental impact statements under NEPA, identification and evaluation under Section 106 of NHPA, historic preservation surveys (archeological or standing structures), biological assessments and biological evaluations under Section 7 of ESA, documentation of 8-step process under 44 CFR 9, conformity analysis under CAA, environmental site assessment (Phase I or Phase II), wetlands delineations, etc.
      
       EHP mitigation  -  Measures to avoid, minimize, or compensate for an action's impacts that are negotiated during or result from FEMA's environmental planning and historic preservation review process. These include, but are not limited to:
   
         * Treatment measures established through the National Historic Preservation Act (NHPA) Section 106 consultation process; 
         * Reasonable and prudent alternatives (RPAs), reasonable and prudent measures (RPMs), terms and conditions, and conservation recommendations established through the Endangered Species Act (ESA) Section 7 consultation process;
         * Minimization and mitigation measures established through the eight-step process required under 44 CFR 9  -  Floodplain Management and Protection of Wetlands; 
         * Mitigation measures established through the National Environmental Policy Act (NEPA) process under 44 CFR 10.12(c).

       EHP monitoring  -  Conditions placed on the project for the monitoring of construction or operation activities or the monitoring of EHP resources to avoid adverse effects from the project.
   
       EHP permits  -  Federal, State, Tribal, and local permits associated with environmental planning or historic preservation requirements. EHP permits include, but are not limited to the following: Clean Water Act (CWA) Section 404 permit for dredging or filling waters of the United States; Rivers and Harbors Act (RHA) Section 10 permit; CWA Section 401 certification; CWA Section 402 permit (National Pollutant Discharge Elimination System (NPDES) and Storm Water Pollution Prevention Plan (SWPPP)); floodplain building permits; air quality permits; ESA Section 10 permits, etc.

       EHP permit costs  -  The costs related to obtaining, securing, and maintaining permits associated with Federal, Tribal, State, and local environmental planning or historic preservation requirements. These costs include those associated with complying with the permit requirements, including engaging in industry "best management practices."
      
       EHP requirement  -  The applicable EHP law, Executive Order, regulation, or mandate protecting a resource, triggers FEMA compliance, and which may necessitate the negotiation and adoption of EHP mitigation. 

       FEMA EHP review  -  A process that integrates the evaluation of the applicability of the various Federal environmental planning and historic preservation laws, regulations, and executive orders (i.e. NEPA, NHPA, ESA, Floodplains [44 CFR 9], etc.) to a FEMA action/ undertaking and the determination of any analysis or steps required to meet the applicable requirements. FEMA EHP reviews include scoping, identification of alternatives, impact analysis, resource and regulatory agency consultation, public involvement, final determination, and documentation associated with the resolution of impacts (e.g. Memoranda of Agreement, Programmatic Agreements, Biological Opinions, etc.).

       Programmatic EHP mitigation  -  EHP mitigation measure(s) established for a group of projects or actions, for the implementation of a program, or for a complex project or action. 

       Project-specific EHP mitigation  -  EHP mitigation measure(s) established for one project or action. 

VIII.	RESPONSIBILITIES:

   A.       The Office of Environmental Planning and Historic Preservation (OEHP) is composed of the OEHP Director, the Federal Preservation Officer, the Environmental Officer, the Regional Environmental Officers and EHP support staff, and shall assist the Heads of FEMA Offices, Directorates, and Administrations to integrate this Policy into their programs, operations, activities and functions.  

   B.       The Heads of FEMA Offices, Directorates, and Administrations shall:
      
         (1)          Ensure that the program, project, policy, plan, or grant has adequate funding and resources to meet this Policy;
         (2) Ensure their programs meet the requirements of this Policy; and
         (3) Consult with the OEHP on matters pertaining to this Policy.

IX.	POLICY

      A.	EHP Review Costs. It is FEMA policy that the costs of engaging in the EHP review will always be borne by the agency pursuant to its compliance and oversight responsibilities under the various Federal environmental and historic preservation requirements. FEMA grant assistance programs may, at their discretion, place the burden of publication of public notice and associated costs on the grant applicant under 44 CFR Part 10.7 (c)(2)(ii) and (iii).

      B.	It is the responsibility of each FEMA office or program to ensure that there is adequate funding allocated for the EHP review of the program-sponsored activities/projects/undertakings. Lack of funding may result in a program or project's non-compliance with EHP requirements.

      C.	EHP Documents Costs. It is the responsibility of each FEMA program or office to ensure that applicable EHP documents are developed before the initiation of the program-sponsored action/project/undertaking. Programs or offices should provide for the funding of the applicable EHP documents through direct funding or by providing policies or guidance establishing how such EHP documents will be funded. Methods for providing for the funding of EHP documents include, but are not limited to:
            1. Directly funding the preparation of EHP document when the action/ undertaking is under full FEMA control (e.g. new construction or renovation of a FEMA facility, temporary group housing site, evaluation of FEMA program or policy, etc.);
      
            2. Directly funding the preparation of EHP document for FEMA funded actions/ undertakings of non-Federal entities;

            3. Establishing the preparation of EHP document as an eligible cost on a project-by-project basis under the program guidance and rules;
      
            4. Providing through policy or grant guidance that non-Federal entities (i.e. grant applicants) applying for Federal assistance bear the costs for the preparation of EHP documents when they pursue an activity that is not the original intent of the application and has potential adverse impacts on the environment or historic properties; and
      
            5. Directly funding the preparation of programmatic EHP documents when the costs are reasonable and preferable due to cost savings to the Federal government. 

      D.	EHP Mitigation Costs. It is the responsibility of each FEMA program or office to ensure that applicable EHP mitigation is adequately funded. Programs or offices should provide for the funding of the applicable EHP mitigation through direct funding or by providing policies or guidance establishing how such EHP mitigation may be funded. Methods for addressing the costs of EHP mitigation include:

            1. Directly funding the applicable EHP mitigation when the action/ undertaking is under full FEMA control (e.g. new construction or renovation of a FEMA facility, temporary group housing site, evaluation of FEMA program or policy, etc.);
            
            2. Directly funding the EHP mitigation of FEMA funded actions/ undertakings of non-Federal entities;

            3. Establishing thresholds for forgoing actions/ undertakings from consideration based on their level of adverse impact to the environment or historic properties and level of required EHP mitigation (e.g. projects with significant wetland impacts, projects jeopardizing the continued existence of species);

            4. Making ineligible the costs of certain EHP mitigation (e.g. hazardous materials/waste remediation) on a program-wide basis;
      
            5. Establishing the EHP mitigation as an eligible project-specific cost subject to any limitations established by program guidance or any written agreement between FEMA and the Federal grant assistance grantee; and

            6. Directly funding programmatic EHP mitigation when the costs are reasonable and preferable due to cost savings to the Federal government. The factors for determining reasonable costs for programmatic mitigation can be found in the EHP Mitigation Policy Section IX.

	E.  EHP Permits Costs. It is FEMA policy that the program or office sponsoring the action/ undertaking is responsible for the EHP permit costs when it has full control of the action/ undertaking and has sole discretion over the selection of alternatives. EHP permit costs for a FEMA grant assistance project are eligible costs in accordance with the grant program's criteria and consistent with the program's administrative constraints.

      F.	EHP Monitoring Costs. It is FEMA policy that the program or office sponsoring the action/ undertaking is responsible for construction and post-construction EHP monitoring costs when it has full control of the action/ undertaking that triggers the need for EHP monitoring. FEMA grant programs may meet their responsibilities for engaging in construction-related EHP monitoring by making the costs of this activity eligible, by undertaking this activity with program resources, or by providing an alternative method through written agreement. FEMA grantees bear the responsibility and costs of post-construction EHP monitoring activities. 

      G.  Inter-Agency Agreements. FEMA programs or offices may, at their discretion and in close coordination with the Office of Environmental Planning and Historic Preservation and Office of Chief Counsel, enter into inter-agency agreements with Federal agencies responsible for the protection and management of natural and cultural resources to expedite the review of FEMA projects. The costs for such agreements will be borne by the FEMA program(s) or office(s) sponsoring the actions/undertakings. This section is meant to be interpreted consistently with any appropriations law or any other legal restriction or requirement.

X.	SUPERSESSION:  None. This is a new Policy.

   XI.       REVIEW DATE:  This Policy will not automatically expire, but will be substantively reviewed on or before five years of the date of issuance.

XII.	QUESTIONS: For questions regarding this Policy, contact: Office of Environmental Planning and Historic Preservation, (202) 646-2741.



                  ______________________
                  Sandra K. Knight, PhD, PE
                  Deputy Federal Insurance and Mitigation Administrator, Mitigation
                          
					
