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

II.	DATE OF ISSUANCE:

III.	PURPOSE:  To establish the Federal Emergency Management Agency's (FEMA) policy on the negotiation and adoption of avoidance, minimization, mitigation, and compensation measures to address adverse effects to the natural and human environment, including cultural and historic resources.

IV.	SCOPE AND AUDIENCE:  This Policy is applicable to all FEMA offices and programs, including grant programs, and to recipients of FEMA grant assistance. Its scope is limited to mitigation that is related to FEMA's environmental planning and historic preservation (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, as amended, 42 U.S.C. 
       	5121 et seq.; 
       Executive Order 12127  -  Federal Emergency Management Agency; 
       Executive Order 12148  -  Federal Emergency Management; 
       National Flood Insurance Act, as amended, 42 U.SC. 4001 et seq.; 
       National Environmental Policy Act of 1969, 42 U.S.C. 4321 et seq.; 
       National Historic Preservation Act, 16 U.S.C. 470 et seq.; 
       Advisory Council on Historic Preservation Section 106 Regulations, 36 C.F.R. Part 800;
       Council on Environmental Quality Regulations for Implementing NEPA, 40 C.F.R. Part 1500; 
       FEMA Environmental Considerations Regulations, 44 C.F.R. Part 10; 
       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 Protection of Wetlands Regulations, 44 CFR Part 9; 
       Executive Order 12114  -  Environmental Effects Abroad of Major Federal Actions; 
       Executive Order 12898  -  Federal Actions to Address Environmental Justice 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 Tribal Governments; 
       Farmland Protection Policy Act, 7 U.S.C. 4201 et seq.; 
       Farmland Protection Policy Act Regulations, 7 C.F.R. Part 658; 
       Coastal Barriers Resources Act, 15 U.S.C. 3501 et seq.; 
       Coastal Barriers Resources Act Regulations, 44 C.F.R.Part 206 Subpart J;
       Fish and Wildlife Coordination Act, 16 U.S.C. 661 et seq.; 
       Migratory Bird Treaty Act, 16 U.S.C. 703 et seq.; 
       Executive Order 13186  -  Responsibilities of Federal Agencies to Protect Migratory Birds; 
       Endangered Species Act of 1973, 16 U.S.C. 1531 et seq.; 
       Interagency Cooperation under the Endangered Species Act of 1973, 50 C.F.R. Part 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. Part 93; 
       Safe Drinking Water Act, 42 U.S.C. 300f et seq.; 
       Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970, 42 U.S.C. 4601 et seq.; 
       Uniform Relocation Assistance and Real Property Acquisition For Federal and Federally Assisted Programs, 49 C.F.R. Part 24; 
       Uniform Administrative Requirements for Grants and Cooperative Agreements to State and Local Governments, 44 C.F.R. Part 13;
       Comprehensive Environmental Response, Compensation, and Liability Act of 1980, 42 U.S.C. 9601 et seq.;
       Resource Conservation and Recovery Act of 1976, 42 U.S.C. 6901 et seq.;
       Oil Pollution Act of 1990, 33 U.S.C. 2701 et seq.;
       Federal Water Pollution Control Act, 33 U.S.C. 1251 et seq.; and 
       Innocent Landowners, Standards for Conducting All Appropriate Inquiries Regulations, 40 C.F.R. Part 312.

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.
      
       Avoidance measures  -  Measures that, if taken, would avoid impacts to or adverse effects of a project on an environmental or historic resource. These measures include design changes, changes in the project's schedule, low-impact stipulations, and establishment of buffer zones. Avoidance measures may include voluntary measures to avoid triggering the consultation requirements of an EHP law or authority. 
       
       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. 

       Compensation measures  -  Measures that compensate for the loss of a particular resource. Compensation may be made to another agency that has primary responsibility or regulatory authority over the impacted resource. Compensation measures include alternate treatment measures developed to address adverse effects to historic properties under Section 106 of the National Historic Preservation Act. 

       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 Part 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 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. 

       EHP review process  -  A process that integrates the evaluation of the applicability of the various Federal environmental planning and historic preservation laws, regulations, and executive orders (e.g., National Environmental Policy Act, National Historic Preservation Act, Endangered Species Act, Executive Order 11988  -  Floodplains Management, Executive Order 11990  -  Protection of Wetlands [44 CFR 9]) to a FEMA action/undertaking, and the determination of any analysis or steps required to meet the applicable requirements. FEMA's 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.).
       
       EHP resource agency  -  Federal, State, Tribal, or local government agency charged with the protection or preservation of an environmental resource or historic property; charged with the oversight of the statutory or regulatory framework protecting an environmental resource or historic property; or charged with a consultation role under an EHP requirement. Examples of EHP resource agencies include: U.S. Army Corps of Engineers (regulatory division), State Historic Preservation Officer (SHPO), Tribal Historic Preservation Officer (THPO), U.S. Fish and Wildlife Service, etc.
   
       Feasible  -  capable of being done and carried out. 
   
       Minimization measures  -  measures that reduce the impact to or from the resource to the maximum extent practical. 

       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. 

       Practicable  -  Capable of being done and carried out within existing legal, financial, and administrative (including program) constraints. 

       Project-specific EHP mitigation  -  EHP mitigation measure(s) established for one project or action. 
   
       Reasonable  -  Of an appropriate degree or kind. Section IX D. of this policy provides the factors to consider when determining reasonableness.

VIII.	RESPONSIBILITIES:

       A. The FEMA Administrator shall:
      
             1.	Ensure FEMA programs and offices consider EHP mitigation when carrying out the agency's mission and implementing actions/projects; and
             2.	Plan, program, and budget for EHP mitigation.
            
       B.	The FEMA Regional Administrators shall:
      
             1.	Ensure FEMA regional programs consider EHP mitigation when carrying out the agency's mission and implementing actions/projects; and
             2.	Plan, program, and budget for EHP mitigation.

       C.	The FEMA program or office sponsoring the proposed action/project, in coordination with the Office of Environmental Planning and Historic Preservation when appropriate, shall:
      
   For actions/projects where FEMA has full control (non-grant projects):
   
             1.	Obtain any required permits;
             2.	Identify and incorporate EHP mitigation into the proposed action/project;
            3.   Comply with the conditions and EHP mitigation established through the EHP review process;
      4.   Comply with conditions and BMPs established by the permitting process; and
            5.   Develop monitoring plans and engage in monitoring activities. 
         
         For FEMA grant-funded actions/projects:
         
             1.	Assist applicants, grantees, subgrantees or eligible entities in identifying the EHP requirements triggered by their proposed projects and the potential EHP mitigation that may affect project design;
             2.	Assist applicants, grantees, subgrantees or eligible entities with the development of monitoring plans and ensure monitoring requirements are met;
             3.	Provide notice to grantees of possible consequences for FEMA grant projects that are not in compliance with agreed-upon EHP mitigation; and
             4.	Initiate enforcement actions in accordance with 44 CFR 13.43 for FEMA grant projects that have received a non-compliance notice and have not come into compliance. 

       D.	The Office of Environmental Planning and Historic Preservation, and in particular the appropriate Regional Environmental Officer (REO), the Deputy REO, or their support staff of EHP Specialists, shall:
      
             1.	Enter into consultation with EHP resource agencies pursuant to Federal EHP requirements;
             2.	Provide technical assistance and guidance to the FEMA program or office sponsoring an action/project, including for the development of EHP mitigation measures and monitoring plans, to help ensure they meet their EHP compliance responsibilities put forth in Section VIII. C.; and
             3.	Provide technical assistance and guidance, in coordination with the FEMA program or office sponsoring the action/project, to applicants, grantees, subgrantees or eligible entities, including for the development of EHP mitigation measures and monitoring plans, to help ensure they meet their EHP compliance responsibilities put forth in Section VIII. E.
            
      E.  If required by the grant program guidance, the Applicant or Grantee for FEMA Assistance shall:
      
            1.   Provide EHP information to the FEMA program or office sponsoring the action/project;
            2.   Identify and incorporate EHP mitigation into the proposed FEMA grant project when feasible;
         3.   Budget for EHP mitigation;
            4.   Provide subgrantees and/or eligible entities with technical assistance and guidance on the EHP requirements triggered by their proposed projects and the potential EHP mitigation that may affect project design;
         5.   Obtain any required Federal, State, Tribal, or local permits;
            6.   When a subgrantee or eligible entity, other than the grantee, is involved, ensure it obtains appropriate Federal, State, Tribal, or local permits;
            7.   Ensure compliance with the project conditions and EHP mitigation established through FEMA's EHP review process;
            8.	Ensure compliance with conditions and BMPs established by the permitting process;
            9.   Provide notice to subgrantees of possible consequences for FEMA grant projects that are not in compliance with agreed-upon EHP mitigation;
         10. Apprise FEMA of any non-compliance with agreed-upon EHP mitigation; 
            11. Develop monitoring plans and carry out monitoring activities for projects that have agreed-upon EHP monitoring requirements;
            12. Apprise FEMA of any non-compliance with agreed-upon EHP monitoring; and
            13. Ensure the project comes into compliance after the issuance of a non-compliance notice.

IX.	POLICY

      A. Avoidance measures are the preferred method of EHP mitigation. Only when avoidance cannot be achieved because it is not feasible, practicable, or reasonable, may FEMA consider minimizing, rectifying, or compensating for the impacts of the action, in that particular order. 

      B. Compensation may be considered first when FEMA or another Federal agency has established a compensation program for the loss of the impacted resource. 

      C. To the extent practicable, FEMA and/or the grantee will incorporate the EHP mitigation in the project's scope of work. The EHP review process should evaluate the impacts or adverse effects of the whole project, including the agreed upon EHP mitigation. 

      D. In negotiating EHP mitigation with EHP resource agencies, FEMA will consider the following factors to determine if the EHP mitigation is reasonable:

             1.              Future value that is added by the EHP mitigation measure to the resource, project, FEMA, or the grantee. This includes consideration of the geographic extent of the benefits received (local, State, Region); 
             2.              Legal sufficiency of the EHP mitigation measure;
             3.              Costs of the mitigation compared to the costs of the project;
             4.              Ease of implementation;
             5.              Timing for implementation;
             6. Availability of financial and administrative resources to implement the measure; 
             7. Level of adverse impacts to the protected resource without EHP mitigation; 
             8. Type of EHP requirement triggered;
             9. Potential for net benefit to the EHP resource affected; and
             10.Uniqueness of the EHP resource affected.

      E. FEMA will consider the following factors in determining whether programmatic EHP mitigation may be adopted:

           1.              The particular EHP requirement allows for programmatic mitigation.
           2.              There are clear efficiencies that will be achieved through programmatic EHP mitigation when compared to project-specific EHP mitigation. In evaluating the efficiencies, the reviewer must consider:
                   a. Fiscal (i.e. costs for the project);
                   b. Benefits to the affected resource; and
                   c. Time of negotiation or implementation. 
           3.              The program cost eligibility requirements and financial principles allow for programmatic EHP mitigation.
             
      F. As specified in the grant award, recipients of FEMA grant assistance are responsible for ensuring that their projects comply with the agreed upon EHP mitigation and any EHP monitoring requirements. Grantees, as specified in the grant award, are also responsible for ensuring that subgrantees, or eligible entities, comply with agreed upon EHP mitigation and any EHP monitoring requirements. 

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

