New Orleans Metropolitan Area Infrastructure Projects

• Environmental Compliance Overview
• Principal EHP Laws and Executive Orders
• Special Agreements

Environmental Compliance Overview

Federal environmental and historic preservation (EHP) laws and Executive Orders provide the basis and direction for the implementation of Federal environmental and historic preservation review requirements for FEMA funded projects. These laws and Executive Orders are aimed at protecting our nation’s water, air, coastal, wildlife, land, agricultural, historical, and cultural resources, as well as minimizing potential adverse effects to children, low-income and minority populations. Failure to comply with these laws could result in project delays and denial of funding. FEMA, through the Environmental and Historic Preservation Program, engages in a review process to ensure FEMA funded activities comply with these laws.

Hurricane Katrina and Rita resulted in an unprecedented situation where the level of devastation, immediate need for action, and extent of reconstruction projects warranted that FEMA consider critical infrastructure projects for the NOMA cumulatively. Alternative Arrangements enables timely action on individual FEMA grant applications to restore safe and healthful living conditions in NOMA while observing the objectives of NEPA.

Principal EHP Laws and Executive Orders

Environmental and Historic Preservation (EHP) reviews take into consideration many federal laws and Executive Orders (EO). The following are the principal federal laws and EO’s that apply to FEMA EHP:

National Environmental Policy Act

In 1969, Congress enacted NEPA in response to public concern about the deteriorating quality of the "human" environment and the inadequate consideration of environmental impacts of major federal projects. The human environment encompasses the following areas: physical (geology, soils, air, water), biological (plants, animals), social (communities, economics), and cultural (archaeological and historic resources). The intent of NEPA is to ensure safe, healthful, productive, and aesthetically and culturally pleasing surroundings. NEPA helps federal agencies incorporate these values into their programs by requiring them to give equal consideration to environmental factors, in addition to financial and technical factors, in their planning and decision-making processes.

NEPA establishes a national policy for the protection and maintenance of the environment by providing a process which all federal agencies must follow. The Act called for the creation of the President's Council on Environmental Quality (CEQ). CEQ in turn created regulations for implementing NEPA. Because NEPA is a procedural law, CEQ requires each federal agency, including FEMA, to write their own NEPA compliance regulations to fit their particular programs.

FEMA's Regulations at 44 CFR Part 10, the Department of Homeland Security's Management Directive 5100.1, and the Council on Environmental Quality Regulations at 40 CFR Part 1500-1508 implement the NEPA requirements for FEMA.

National Historic Preservation Act

Section 106 of the National Historic Preservation Act requires federal agencies, including FEMA, to consider the effects of projects it funds on historic properties such as sites, buildings, structures, or objects that are listed or eligible to be listed in the National Register of Historic Places.  A historic property can be significant at the local, state, or national level; are generally over 50 years old; and retain integrity. 

FEMA is responsible for initiating Section 106 review and consulting with the State Historic Preservation Officer, federally recognized Indian Tribes, and other consulting parties to identify historic properties and to evaluate the effects of the FEMA funded project on historic properties.  If adverse effects are identified, FEMA explores alternatives to avoid, minimize or mitigate these effects to historic properties. This resolution is documented in a Memorandum of Agreement (MOA) for discrete projects, or a Programmatic Agreement for larger projects.  Section 106 encourages, but does not mandate, preservation.  FEMA, like all federal agencies, follows regulations issued by the Advisory Council on Historic Preservation (36 CFR Part 800) to fulfill Section 106 of the National Historic Preservation Act. 

Executive Order 11988 ‘Floodplain Management’

Executive Order 11988 requires federal agencies to avoid, to the extent possible, the long and short-term adverse impacts associated with the occupancy and modification of flood plains and to avoid direct and indirect support of floodplain development wherever there is a practicable alternative. In accomplishing this objective, "each agency shall provide leadership and shall take action to reduce the risk of flood loss, to minimize the impact of floods on human safety, health, and welfare, and to restore and preserve the natural and beneficial values served by flood plains in carrying out its responsibilities".

Endangered Species Act

The purpose of the Endangered Species Act (ESA) is to ensure that federal agencies and departments use their authorities to protect and conserve endangered and threatened species. Section 7 of the Act requires that federal agencies prevent or modify any projects authorized, funded, or carried out by the agencies that are "likely to jeopardize the continued existence of any endangered species or threatened species, or result in the destruction or adverse modification of critical habitat of such species." Federal agencies must review actions they undertake or support to determine whether they may affect endangered species or their habitats. If such review reveals the potential for effects, the federal agency must consult with the FWS or NMFS, as appropriate, to identify whether a federal action is likely to jeopardize the continued existence of the endangered or threatened species or adversely affect its critical habitat. If FWS or NMFS determines that a proposed action would likely have this negative impact, then the project must be stopped unless the consulting parties can agree on alternatives to eliminate jeopardy.

Executive Order 12898 ‘Environmental Justice’

On February 11, 1994, President Clinton signed E.O. 12898. This Executive Order directs federal agencies to make achieving environmental justice part of its mission by identifying and addressing, as appropriate, disproportionately high adverse human health or environmental effects of its activities on minority and low-income populations. Each Federal agency must make achieving environmental justice part of its mission by identifying and addressing, as appropriate, disproportionately high and adverse human health, environmental, economic and social effects of its programs, policies, and activities on minority and low-income populations, particularly when such analysis is required by NEPA. The EO emphasizes the importance of NEPA's public participation process, directing that each Federal agency shall provide opportunities for community input in the NEPA process. Agencies are further directed to identify potential effects and mitigation measures in consultation with affected communities.

Special Agreements

FEMA EHP will often enter special agreements with resource agencies that serve to expedite review processes or address adverse impacts, while observing the requirements of the applicable federal laws. Sorted by the affected law below are the special agreements of FEMA EHP which were developed throughout the recovery period of Hurricane Katrina and Rita.

National Historic Preservation Act

Section 106 of the National Historic Preservation Act (NHPA) requires Federal agencies to consider the effects of its undertaking on historic properties such as sites, buildings, structures, or objects that are listed or eligible to be listed in the National Register of Historic Places. As needed, FEMA resolves adverse effects by exploring alternatives to avoid, minimize or mitigate these effects to historic properties. This resolution is documented in a Memorandum of Agreement (MOA) for discrete projects, or a Programmatic Agreement for larger projects.

Section 7 of the Endangered Species Act

In the wake of Hurricane Katrina and Rita, the U.S. Fish and Wildlife Service provided guidance regarding FEMA-funded actions that do not need Section 7 consultation, thereby reducing the need for formal consultations. FEMA works closely with the U.S. Fish and Wildlife Service and NOAA to address projects that require further consultation. Below is the letter from USFWS exempting FEMA from USFWS consultation requirements for those activities that repair or replace public facilities substantially as they previously existed.

Letter from USFWS (PDF 4890KB, TXT 32KB